Wyoming has become the latest state to ban private transfer fees. The bill, HB 25, was introduced by Reps. Tim Stubson, R- Natrona; Kermit Brown, R-Albany; Mike Greear, R-Washakie; Matthias Greene, R-Albany; and Peter Illoway, R-Laramie.
Under the new law, a private transfer fee obligation recorded or entered into in Wyoming on or after April 1, 2012, and before July 1, 2014 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.
The bill defines private transfer fees as “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 the property, the purchase price or other consideration given for the transfer. The definition does not include the following:
- 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 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;
- 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 transfer payable by the grantor or the grantee based upon any subsequent appreciation, development or sale of the property;
- 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 lender in connection with the loan;
- 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;
- 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;
- Any tax, fee, charge, assessment, fine or other amount payable to or imposed by a governmental authority;
- Any fee, charge, assessment, fine or other amount payable to a homeowners’, condominium, cooperative, mobile home or property owners’ association pursuant to a declaration or covenant or law applicable to the association;
- 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; or
- Any fee, charge, assessment, contribution or other amount imposed by the holder of a recorded conservation easement that is designed to compensate the holder for the cost of ensuring compliance with the terms of the easement. The fee, charge, assessment, contribution or other amount may be determined by reference to the value, purchase price or other consideration given for the transfer of the real property.
The payee of a private transfer fee obligation imposed prior to April 1, or an obligation under Wyoming Statutes 34-28-101(a)(iii) must record a notice of private transfer fee obligation in the office of the clerk for each county in which the real property is located. The notice must contain a disclosure of the existence and amount of the private transfer fee obligation; a description of the type and nature of the private transfer fee obligation and a legal description of the real property, among other things.
No court in the state may have jurisdiction to enforce a private transfer fee obligation which is not recorded as required under the law.
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 is prima facie evidence of satisfaction of the obligation.