Private transfer fee disclosures.

WORKING DRAFT
2012
STATE OF
WYOMING
12LSO-0334

HOUSE BILL
NO.
HB0114

Private transfer fee disclosures.

Sponsored by:
Representative(s) Greear, Lubnau and Stubson

A BILL

for

AN ACT relating to
real property;

requiring disclosure

and recording of private transfer fee obligations;
providing definitions;

providing for proof of payment of a private transfer fee obligation;
and providing for an effective date.

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

Section 1.

W.S. 34
‑
28
‑
101 through 34
‑
28
‑
10
4
are created to read:

CHAPTER 2
8
PRIVATE TRANSFER FEES

34
‑
2
8
‑
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 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 other consideration
allowed by law
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
;

(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
,
covenant
or agreement
purporting to affect
real property 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
his
successors or assigns, upon a subsequent transfer of an interest in the real property.

34
‑
28
‑
10
2
.

Recording of p
rivate transfer fee obligation
;
consequences of failure to record;
jurisdiction
.

(a)

The payee of a private
transfer fee obligation
shall record

a notice of private transfer fee obligation and
the document evidencing the obligation in the office of the clerk for each county in which the real property is located
. The notice shall
contain:

(i)

A clearly identified disclosure of the existence
and amount
of
the
private transfer fee obligation;

(ii)

A description o
f t
he
type and nature of the
private transfer fee obligation
;

(i
i
i
)

A description of the type and nature of an
y
penalty
which may be incurred as a result of failure
to
pay

the
private
transfer fee obligation;

(iv)

A legal description of the real property;
and

(v
)

The name and address of the
payee.
A notice filed under this subsection shall be amended upon change of the name or address of the payee.

(b)

Every private transfer fee obligation created before July 1, 2012 shall be void unless the notice and document evidencing the obligation are recorded pursuant to this section before July 1, 2012. Every private transfer fee obligation created on or after July 1, 2012 shall be
vo
id unless the notice and document evidencing the obligation are recorded in
compliance with th
is
section.

(
c
)

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
s
(a)
and (b)
of this section
.

34
‑
28
‑
10
3
.

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 recorded
shall include a provision disclosing the existence
of the
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
the
sale of real property which does not conform to the requirements of this section shall not be enforceable by the seller against the buyer
. No
r 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
)

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.

(c
)

This section shall apply to any contract for the sale of real property executed on or after July 1, 2012 that creates a private transfer fee obligation.

34
‑
28
‑
104
.

Proof of payment of private transfer fee obligation
.

(a)

An affidavit filed with the
cl
erk for each county in which
real property
subject to a private transfer fee obligation
is located

shall constitute prima facie evidence of payment of a private transfer fee obligation provided the affidavit
:

(i)

Is executed by
a grantor
of the
real property
subject to a private transfer fee obligation
;
and

(ii)

S
tat
es
that payment in full of
the
priv
ate transfer fee obligation was
sent

by certified mail
to the
payee at
th
e address
i
n the
notice of private transfer fee obligation
recorded under
W.S. 34
‑
28
‑
102(a).

Section 2.

This act is effective July 1, 2012.

(END)

1
HB0114