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Transfer Fee Bans - New York

§ 470. Short title. This article shall be known and may be cited as the "private transfer fee obligation act."

§ 471. Intent. The legislature finds and declares that the public policy of this state favors the marketability of real property and the transferability of interests in real property free of title defects or unreasonable restraints on alienation. The legislature further finds and declares that private transfer fee obligations violate this public policy by impairing the marketability and transferability of real property and by constituting an unreasonable restraint on alienation regardless of the duration of the obligation to pay a private transfer fee, the amount of a private transfer fee, or the method by which any private transfer fee is created or imposed. Thus, the legislature finds and declares that a private transfer fee obligation shall not run with the title to property or otherwise bind subsequent owners of property under any common law or equitable principle.

§ 472. Definitions. 1. "Transfer" means the sale, gift, conveyance, assignment, inheritance, or other transfer of an ownership interest in real property located in this state. 2. "Private transfer fee" means a fee, charge or any portion thereof, required by a private transfer fee obligation and payable, directly or indirectly, 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 the property, the purchase price, or other consideration given for the transfer. The following are not private transfer fees for purposes of this section: (a) Any consideration payable by the transferee to the transferor for the interest in real property being transferred, including any subsequent additional consideration for the property payable by the transferee based upon any subsequent appreciation, development, or sale of the property, provided such additional consideration is payable on a one-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 appurtenant 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 transferor or the transferee, including any subsequent additional commission for that transfer payable by the transferor or the transferee 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 lender 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, encumbrance, 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 imposed by a governmental authority. (g) Any fee, charge, assessment, fine, or other amount payable to a homeowners', condominium, cooperative, mobile home, or property owners' association pursuant to a declaration, covenant, duly adopted by-law, proprietary lease or law applicable to such association, including, but not limited to, fees or charges payable for estoppel letters or certificates issued by the association or its authorized agent. No amount shall be paid to a homeowners', condominium, cooperative, mobile home, or property owners' association for the payment to the declarant of the condominium or the creator of a homeowners', cooperative, mobile home or property owners' association, or their designee. (h) Any fee, charge, assessment, dues, contribution, or other amount imposed by a declaration or covenant encumbering a community, and payable to a not-for-profit or charitable organization for the purpose of supporting cultural, educational, charitable, recreational, environmental, conservation, or other similar activities benefiting the community that is subject to the declaration or covenant. (i) 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. (j) Any fee, charge or assessment payable by the transferee to a corporation or company formed pursuant to the private housing finance law. (k) Any fee, charge or assessment payable by the transferee to a corporation or company that has received a loan or subsidy pursuant to the private housing finance law or general municipal law. (l) Any amounts payable to a government entity. 3. "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.

§ 473. Prohibition. A private transfer fee obligation recorded or entered into in this state on or after the effective date of this section does not run with the land and is not binding on or enforceable at law or in equity against any 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 the effective date of this section is void and unenforceable. This section shall not apply to a private transfer fee obligation recorded or entered into prior to the effective date of this section. This section shall not be deemed to require that a private transfer fee obligation recorded, filed or entered into in this state before the effective date of this section is presumed valid and enforceable. It is the public policy of this state that no private transfer fee obligation shall be valid or enforceable whenever entered into, recorded or filed. Furthermore, this article shall not validate any private transfer fee agreement that is contrary to the law of this state.

 

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