CS/HB 391

1	A bill to be entitled
2	An act relating to real estate conveyances; creating s.
3	689.28, F.S.; providing legislative intent regarding
4	transfer fee covenants; providing definitions; providing
5	that certain transfer fee covenants are unenforceable
6	against subsequent owners, purchasers, and mortgagees;
7	providing that a presumption is not created in favor of
8	transfer fee covenants recorded before the effective date
9	of the act; amending s. 692.01, F.S.; expanding authority
10	of corporations to execute certain instruments relating to
11	interests in lands; amending s. 689.01, F.S.; authorizing
12	corporations to execute conveyances in accordance with
13	certain requirements; providing an effective date.
14
15	Be It Enacted by the Legislature of the State of Florida:
16
17	Section 1.  Section 689.28, Florida Statutes, is created to
18	read:
19	689.28  Prohibition against transfer fee covenants.--
20	(1)  INTENT.--The Legislature finds and declares that the
21	public policy of this state favors the marketability of real
22	property and the transferability of interests in real property
23	free of title defects, unreasonable restraints on alienation,
24	and covenants and servitudes that do not touch and concern the
25	property. The Legislature further finds and declares that
26	transfer fee covenants violate this public policy by impairing
27	the marketability and transferability of real property,
28	constituting an unreasonable restraint on alienation regardless
29	of the duration of such covenants or the amount of such transfer
30	fees, and do not touch and concern the real property for the
31	purposes of running with the title to the property or for
32	binding subsequent owners of the property under common law or
33	equitable principles.
34	(2)  DEFINITIONS.--As used in this section, the term:
35	(a)  "Environmental covenant" means a covenant or servitude
36	that imposes limitations on the use of real property pursuant to
37	an environmental remediation project pertaining to the property.
38	An environmental covenant is not a transfer fee covenant.
39	(b)  "Transfer" means the sale, gift, conveyance,
40	assignment, inheritance, or other transfer of an ownership
41	interest in real property located in this state.
42	(c)  "Transfer fee" means a fee or charge required under a
43	transfer fee covenant and payable upon the transfer of an
44	interest in real property, or payable for the right to make or
45	accept such transfer, regardless of whether the fee or charge is
46	a fixed amount or is determined as a percentage of the value of
47	the property, the purchase price, or other consideration given
48	for the transfer. The following are not transfer fees for
49	purposes of this section:
50	1.  Any consideration payable by the grantee to the grantor
51	for the interest in real property being transferred, including
52	any subsequent additional consideration for the property payable
53	by the grantee based upon any subsequent appreciation,
54	development, or sale of the property.
55	2.  Any commission payable to a licensed real estate broker
56	for the transfer of real property pursuant to an agreement
57	between the broker and the grantor or the grantee, including any
58	subsequent additional commission for that transfer payable by
59	the grantor or the grantee based upon any subsequent
60	appreciation, development, or sale of the property.
61	3.  Any interest, charges, fees, or other amounts payable
62	by a borrower to a lender pursuant to a loan secured by a
63	mortgage against real property, including, but not limited to,
64	any fee payable to the lender for consenting to an assumption of
65	the loan or a transfer of the real property subject to the
66	mortgage, any fees or charges payable to the lender for estoppel
67	letters or certificates, and any shared appreciation interest or
68	profit participation or other consideration described in s.
69	687.03(4) and payable to the lender in connection with the loan.
70	4.  Any rent, reimbursement, charge, fee, or other amount
71	payable by a lessee to a lessor under a lease, including, but
72	not limited to, any fee payable to the lessor for consenting to
73	an assignment, subletting, encumbrance, or transfer of the
74	lease.
75	5.  Any consideration payable to the holder of an option to
76	purchase an interest in real property or the holder of a right
77	of first refusal or first offer to purchase an interest in real
78	property for waiving, releasing, or not exercising the option or
79	right upon the transfer of the property to another person.
80	6.  Any tax, fee, charge, assessment, fine, or other amount
81	payable to or imposed by a governmental authority.
82	7.  Any fee, charge, assessment, fine, or other amount
83	payable to a homeowners', condominium, cooperative, mobile home,
84	or property owners' association pursuant to a declaration or
85	covenant or law applicable to such association, including, but
86	not limited to, fees or charges payable for estoppel letters or
87	certificates issued by the association or its authorized agent.
88	8.  Any fee, charge, assessment, dues, contribution, or
89	other amount imposed pursuant to a declaration or covenant
90	encumbering four or more parcels in a community, as defined in
91	s. 720.301, and payable to a nonprofit organization or
92	charitable organization for the purpose of supporting cultural,
93	educational, charitable, recreational, environmental,
94	conservation, or other similar activities benefiting the
95	community that is subject to the declaration or covenant.
96	9.  Any fee, charge, assessment, dues, contribution, or
97	other amount pertaining to the purchase or transfer of a club
98	membership related to real property owned by the member,
99	including, but not limited to, any such amount determined by
100	reference to the value, purchase price, or other consideration
101	given for the transfer of the related real property.
102	10.  Any payment required pursuant to an environmental
103	covenant.
104	(d)  "Transfer fee covenant" means a declaration or
105	covenant recorded against the title to real property which
106	requires or purports to require the payment of a transfer fee to
107	the declarant or other person specified in the declaration or
108	covenant or to their successors or assigns upon a subsequent
109	transfer of an interest in the real property.
110	(3)  PROHIBITION.--A transfer fee covenant recorded in this
111	state on or after July 1, 2008, does not run with the title to
112	real property and is not binding on or enforceable at law or in
113	equity against any subsequent owner, purchaser, or mortgagee of
114	any interest in real property as an equitable servitude or
115	otherwise. Any lien purporting to secure the payment of any
116	transfer fee under a transfer fee covenant recorded in this
117	state on or after July 1, 2008, is void and unenforceable. This
118	subsection does not mean that transfer fee covenants or transfer
119	fee liens recorded in this state before July 1, 2008, are
120	presumed valid and enforceable.
121	Section 2.  Section 692.01, Florida Statutes, is amended to
122	read:
123	692.01  Conveyances executed by corporations.--Any
124	corporation may execute instruments conveying, mortgaging, or
125	affecting any interest in its lands by instruments sealed with
126	the common or corporate seal and signed in its name by its
127	president or any vice president or chief executive officer.
128	Assignments, satisfactions, or partial releases of mortgages and
129	acquittances for debts may be similarly executed by any
130	corporate officer. No corporate resolution need be recorded to
131	evidence the authority of the person executing the deed,
132	mortgage, or other instrument for the corporation, and an
133	instrument so executed shall be valid whether or not the officer
134	signing for the corporation was authorized to do so by the board
135	of directors, in the absence of fraud in the transaction by the
136	person receiving it. In cases of fraud, subsequent transactions
137	with good faith purchasers for value and without notice of the
138	fraud shall be valid and binding on the corporation.
139	Section 3.  Section 689.01, Florida Statutes, is amended to
140	read:
141	689.01  How real estate conveyed.--No estate or interest of
142	freehold, or for a term of more than 1 year, or any uncertain
143	interest of, in or out of any messuages, lands, tenements or
144	hereditaments shall be created, made, granted, transferred or
145	released in any other manner than by instrument in writing,
146	signed in the presence of two subscribing witnesses by the party
147	creating, making, granting, conveying, transferring or releasing
148	such estate, interest, or term of more than 1 year, or by the
149	party's agent thereunto lawfully authorized, unless by will and
150	testament, or other testamentary appointment, duly made
151	according to law; and no estate or interest, either of freehold,
152	or of term of more than 1 year, or any uncertain interest of,
153	in, to or out of any messuages, lands, tenements or
154	hereditaments, shall be assigned or surrendered unless it be by
155	instrument signed in the presence of two subscribing witnesses
156	by the party so assigning or surrendering, or by the party's
157	agent thereunto lawfully authorized, or by the act and operation
158	of law. No seal shall be necessary to give validity to any
159	instrument executed in conformity with this section.
160	Corporations may execute any conveyance convey in accordance
161	with the provisions of this section or in accordance with the
162	provisions of ss. 692.01 and 692.02.
163	Section 4.  This act shall take effect July 1, 2008.

CODING: Words stricken are deletions; words underlined are additions.