58-3821. Transfer fee covenant; definitions; not enforceable.
58-3821
58-3821. Transfer fee covenant; definitions; notenforceable.(a) As used in this section:
(1) "Transfer" means the sale, gift, conveyance, assignment, inheritance orother transferof an ownership interest in real property located in this state;
(2) "transfer fee" means a fee or charge payable upon the transfer of aninterest in realproperty or payable for the right to make or accept such transfer, regardlessof whether the fee orcharge is a fixed amount or is determined as a percentage of the value of theproperty, thepurchase price or other consideration given for the transfer. The followingshall not beconsidered a "transfer fee" for the purposes of this section:
(A) Any consideration payable by the grantee to the grantor for the interestin realproperty being transferred, including any subsequent additional considerationfor the propertypayable by the grantee based upon any subsequent appreciation, development orsale of theproperty;
(B) any commission payable to an individual licensed by the state as a realestatesalesperson or broker for the transfer of real property pursuant to anagreement between thegrantor or grantee and the real estate salesperson or broker, including anysubsequent additionalcommission payable by the grantor or the grantee based upon any subsequentappreciation,development or sale of the property;
(C) any interest, charges, fees or other amounts payable by a borrower to alenderpursuant to a loan secured by a mortgage against real property, including, butnot limited to, anyfee payable to the lender for consenting to an assumption of the loan or atransfer of the realproperty subject to the mortgage, any fees or charges payable to the lender forestoppel letters orcertificates and any other consideration allowed by law and payable to thelender in connectionwith the loan;
(D) any rent, reimbursement, charge, fee or other amount payable by a lesseeto a lessorunder a lease, including, but not limited to, any fee payable to the lessor forconsenting to anassignment, subletting, encumbrance or transfer of the lease;
(E) any consideration payable to the holder of an option to purchase aninterest in realproperty or the holder of a right of first refusal or first offer to purchasean interest in realproperty for waiving, releasing or not exercising the option or right upon thetransfer of theproperty to another person;
(F) any tax, fee, charge, assessment, fine or other amount payable to orimposed by agovernmental authority;
(G) any tax, fee, charge, assessment, fine or other amount payable to ahomeowners',condominium, cooperative, mobile home or property owners' association pursuantto adeclaration or covenant or law applicable to such association; or
(H) any fee charged that is a typical real estate closing cost, includingescrow fees, settlement fees or title insurance premiums charged by a realestate title company licensed by the state;
(3) "transfer fee covenant" means a declaration or covenant purporting toaffect realproperty that requires or purports to require the payment of a transfer fee tothe declarant or otherperson specified in the declaration or covenant or to their successors orassigns, upon asubsequent transfer of an interest in the real property.
(b) Any transfer fee covenant recorded in this state on or after July 1,2009, shall not runwith the title to real property and is not binding or enforceable at law or inequity against anysubsequent owner, purchaser or mortgagee of any interest in real property as anequitableservitude or otherwise.
History: L. 2009, ch. 14, § 1; July 1.