Private transfer fee obligations.

WORKING DRAFT
2011
STATE OF
WYOMING
11LSO-0490.E1

HOUSE BILL
NO.
HB0137

Private transfer fee obligations.

Sponsored by:
Representative(s) Shepperson and Brown and Senator(s) Perkins

A BILL

for

AN ACT relating to
real property
; prohibiting the creation of private transfer fee obligations
;
requiring
disclosure and recording of
existing private transfer fee obligations;
providing penalties;

and providing for an effective date.

Be It Enacted by the Legislature of the State of
Wyoming
:

Section 1.

W.S. 34
‑
27
‑
101 through 34
‑
27
‑
105 are created to read:

CHAPTER 27
PRIVATE TRANSFER FEES

34
‑
27
‑
101.

Definitions.

(a)

As used in this
chapter
:

(i)

"
Transfer
"
means the sale, gift, conveyance, assignment, inheritance or other transfer of an ownership interest in real property located in
this state
;

(ii)

"
Private transfer fee
"
means a fee or charge required by a private transfer fee obligation and payable upon the transfer of an interest in real property, or payable for the right to make or accept such transfer, regardless of whether the fee or charge is a fixed amount or is determined as a percentage of the value of t
he property, the purchase price
or other consideration given for the
transfer.
"
Private transfer fee
"
shall not include the following:

(A)

Any consideration payable by the grantee to the grantor for the interest in real property being transferred, including any subsequent additional consideration for the property payable by the grantee based upon any subsequent appreciation, development or sale of the property, provided such additional con
sideration is payable on a one
(1)
time basis only and the obligation to make such payment does not bind successors in title to the property.

For the purposes of this subparagraph, an interest in real property may include a separate mineral estate and its ap
purtenant surface access rights;

(
B)

Any commission payable to a licensed real estate broker for the transfer of real property pursuant to an agreement between the broker and the grantor or the grantee, including any subsequent additional commission for that transfe
r payable by the grantor or the
grantee based upon any subsequent appreciation, development or sale of
the property;

(C)

Any interest, charges, fees or other amounts payable by a borrower to a lender pursuant to a loan secured by a mortgage against real property, including, but not limited to, any fee payable to the lender for consenting to an assumption of the loan or a transfer of the real property subject to the mortgage, any fees or charges payable to the lender for estoppel letters or certificates and any shared appreciation interest or profit participation or other consideration and payable to the lend
er in connection with the loan;

(D)

Any rent, reimbursement, charge, fee or other amount payable by a lessee to a lessor under a lease, including, but not limited to, any fee payable to the lessor for consenting to an assignment, subletting, encumbr
ance or transfer of the lease;

(E)

Any consideration payable to the holder of an option to purchase an interest in real property or the holder of a right of first refusal or first offer to purchase an interest in real property for waiving, releasing or not exercising the option or right upon the transfer of the
property to another person;

(F)

Any tax, fee, charge, assessment, fine or other amount payable to or impos
ed by a governmental authority;

(
G)

Any fee, charge, assessment, fine or other amount payable to a homeowners
'
, condom
inium, cooperative, mobile home
or property owners
'
association pursuant to a declaration or covenant or law applicable to
the
association, including, but not limited to, fees or charges payable for estoppel letters or certificates issued by the assoc
iation or its authorized agent;

(
H
)

Any fee, charge, assessment, dues, contribution or other amount pertaining to the purchase or transfer of a club membership relating to real property owned by the member, including, but not limited to, any amount determined by reference to the value, purchase price or other consideration given for the transfer of the real property.

(i
ii
)

"
Private transfer fee obligation
"
means an obligation arising under a declaration or covenant recorded against the title to real property, or under any other contractual agreement or promise, whether or not recorded, that requires or purports to require the payment of a private transfer fee to the declarant or other person specified in the declaration, covenant or agreement, or to their successors or assigns, upon a subsequent transfer of an interest in the real property.

34
‑
27
‑
10
2
.

Prohibition.

A private transfer fee obligation recorded or entered into in this state on or after
April
1, 2011
does not run with the title to real property and is not binding on or enforceable at law or in equity against any subsequent owner, purchaser or mortgagee of any interest in real property as an equitable servitude or otherwise.

Any private transfer fee obligation that is recorded or entered into in this state on or after
April
1, 2011
is void and unenforceable.

This section
shall not be construed to
mean that a private transfer fee obligation recorded or entered into in this state before
April
1, 2011
is presumed valid and enforceable.

34
‑
27
‑
10
3
.

Liability for
v
iolation.

(a)

Any person who records or enters into an agreement imposing a private transfer fee obligation in their favor
in violation of this chapter
shall be liable for
:

(i)

A
ny and all damages resulting from the imposition of the transfer fee obligation on the transfer of an interest in the real property, including, without limitation, the amount of any transfer fee
paid by a party to the transfer;
and

(ii)

A
ll
attorneys
'
fees, expenses and costs incurred by a party to the transfer or mortgagee of the real property to recover any transfer fee paid or in connection with an action to quiet title
including attorneys
'
fees, costs and expenses to cure any
cloud
on the title
.

(b)

Where an agent acts on behalf of a principal to record or secure a private transfer fee obligation, liability shall be assessed to the principal, rather than the agent.

34
‑
27
‑
10
4
.

Required
d
isclosure of
p
rivate
t
ransfer
f
ee
o
bligations.

(a)

Any contract for the sale of real property subject to a private transfer fee obligation
that is of record
shall include a provision disclosing the existence of that obligation, a description of the obligation and a statement that private transfer fee obligations are subject to certain prohibitions under this chapter.

A contract for sale of real property which does not conform to the requirements of this section shall not be enforceable by the seller against the buyer nor shall the buyer be liable to the seller for damages under such a contract and the buyer under such a contract shall be entitled to the return of all deposits made in connection with
the sale of the real property.

(b)

Where a private transfer fee obligation is not disclosed under subsection (a)
of this section
and a buyer subsequently discovers the existence of
that
private transfer fee obligation after title to the property has passed to the buyer, the buyer shall have the right to recover
:

(
i
)

A
ny and all damages resulting from the failure to disclose the private transfer fee obligation, including, but not limited to, the amount of any private transfer fee paid by the buyer, or the difference between the market value of the real property if it were not subject to a private
transfer fee obligation and
the market value of the real property as subject to a
private transfer fee obligation;
and

(
ii
)

A
ll
attorneys
'
fees, expenses and costs incurred by the buyer in seeking the buyer
'
s
remedies under this subsection
including the process of curing any
cloud
on and quieting title
.

(c)

Any provision in a contract for sale of real property that purports to waive the rights of a buyer under this section shall be void.

34
‑
27
‑
10
5
.

Recording of
e
xisting
p
rivate
t
ransfer
f
ee
o
bligations
; jurisdictions; affidavit of payment
.

(a)

The payee of a private transfer fee obligation imposed prior to
April
1, 2011
shall record
the document evidencing the obligation in the office of the clerk for each county in which the real property is located
prior to
December
1
, 2011
.

(b)

No court in the state of
Wyoming
shall have jurisdiction to enforce a private transfer fee obligation which is not recorded as provided in subsection (a) of this section.

(c)

Filing of an affidavit by a grantor with the clerk for each county in which the real property is located stating that payment in full of any private transfer fee obligation was sent by certified mail to the payee at the address listed in the document recorded under subsection (a) of this section is prima facie evidence of satisfaction of the obligation.

Section 2.

This act is effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution.

(END)

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HB0137