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AB-1139 Real property: transfer fees: notices.(2017-2018)

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Date Published: 03/23/2017 09:00 PM
AB1139:v98#DOCUMENT

Amended  IN  Assembly  March 23, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1139


Introduced by Assembly Member Reyes

February 17, 2017


An act to amend Section 1098 1098.5 of the Civil Code, relating to real property.


LEGISLATIVE COUNSEL'S DIGEST


AB 1139, as amended, Reyes. Real property: transfer fees: notices.
Existing law defines a transfer fee with respect to real property and requires the receiver of the fee as a condition of the payment of the fee, on and after January 1, 2009, to record specified information in the chain of title. Existing law provides that certain fees in a document recorded against the property on or before December 31, 2007, are not transfer fees if a prospective transferee is given notice that describes specified characteristics of the fee. Existing law requires that this information be set forth in a single document and prohibits incorporation by reference from any other document. Existing law specifies that when a transfer fee is imposed upon real property on or after January 1, 2008, the person or entity imposing the transfer fee, as a condition of payment of the fee, must record a separate document meeting specified requirements. Among other things, that document must contain the title “Payment of Transfer Fee Required” in at least 14-point boldface type and include names of all current owners of the real property subject to the fee, and the legal description and assessor’s parcel number for the affected property, and the fee amount.

This bill would require the single document, described above, also to include a notice describing potential prohibitions on federal financing for property encumbered by a private transfer fee that does not provide a direct benefit to the property.

This bill also would require that document, for private transfer fees created on or after February 8, 2011, to contain a notice in at least 14-point boldface type disclosing certain information, including that federal housing agencies are prohibited from dealing in mortgages on properties encumbered by private transfer fee covenants that do not provide a direct benefit to real property encumbered, and that if a person purchases such a property, that person may have difficulty obtaining financing.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1098.5 of the Civil Code is amended to read:

1098.5.
 (a) For transfer fees, as defined in Section 1098, imposed prior to January 1, 2008, the receiver of the fee, as a condition of payment of the fee on or after January 1, 2009, shall record, on or before December 31, 2008, against the real property in the office of the county recorder for the county in which the real property is located a separate document that meets all of the following requirements:
(1) The title of the document shall be “Payment of Transfer Fee Required” in at least 14-point boldface type.
(2) The document shall include all of the following information:
(A) The names of all current owners of the real property subject to the transfer fee, and the legal description and assessor’s parcel number for the affected real property.
(B) The amount, if the fee is a flat amount, or the percentage of the sales price constituting the cost of the fee.
(C) If the real property is residential property, actual dollar-cost examples of the fee for a home priced at two hundred fifty thousand dollars ($250,000), five hundred thousand dollars ($500,000), and seven hundred fifty thousand dollars ($750,000).
(D) The date or circumstances under which the transfer fee payment requirement expires, if any.
(E) The purpose for which the funds from the fee will be used.
(F) The entity to which funds from the fee will be paid and specific contact information regarding where the funds are to be sent.
(G) The signature of the authorized representative of the entity to which funds from the fee will be paid.
(b) When a transfer fee, as defined in Section 1098, is imposed upon real property on or after January 1, 2008, the person or entity imposing the transfer fee, as a condition of payment of the fee, shall record in the office of the county recorder for the county in which the real property is located, concurrently with the instrument creating the transfer fee requirement, a separate document that meets all of the following requirements:
(1) The title of the document shall be “Payment of Transfer Fee Required” in at least 14-point boldface type.
(2) The document shall include all of the following information:
(A) The names of all current owners of the real property subject to the transfer fee, and the legal description and assessor’s parcel number for the affected real property.
(B) The amount, if the fee is a flat amount, the percentage of the sales price constituting the cost of the fee, or the method for calculating the amount.
(C) If the real property is residential property and the amount of the fee is based on the price of the real property, actual dollar-cost examples of the fee for a home priced at two hundred fifty thousand dollars ($250,000), five hundred thousand dollars ($500,000), and seven hundred fifty thousand dollars ($750,000).
(D) The date or circumstances under which the transfer fee payment requirement expires, if any.
(E) The purpose for which the funds from the fee will be used.
(F) The entity to which funds from the fee will be paid and specific contact information regarding where the funds are to be sent.
(G) The signature of the authorized representative of the entity to which funds from the fee will be paid.
(H) For private transfer fees created on or after February 8, 2011, the following notice in at least 14-point boldface type:
The Federal Housing Finance Agency and the Federal Housing Administration are prohibited from dealing in mortgages on properties encumbered by private transfer fee covenants that do not provide a “direct benefit” to the real property encumbered by the covenant. As a result, if you purchase such a property, you or individuals you want to sell the property to may have difficulty obtaining financing.
(c) The recorder shall only be responsible for examining that the document required by subdivision (a) or (b) contains the information required by subparagraphs (A), (F), and (G) of paragraph (2) of subdivision (a) or (b). The recorder shall index the document under the names of the persons and entities identified in subparagraphs (A) and (F) of paragraph (2) of subdivision (a) or (b). The recorder shall not examine any other information contained in the document required by subdivision (a) or (b).

SECTION 1.Section 1098 of the Civil Code is amended to read:
1098.

(a)A “transfer fee” is any fee payment requirement imposed within a covenant, restriction, or condition contained in any deed, contract, security instrument, or other document affecting the transfer or sale of, or any interest in, real property that requires a fee be paid as a result of transfer of the real property. A transfer fee does not include any of the following:

(1)Fees or taxes imposed by a governmental entity.

(2)Fees pursuant to mechanics’ liens.

(3)Fees pursuant to court-ordered transfers, payments, or judgments.

(4)Fees pursuant to property agreements in connection with a legal separation or dissolution of marriage.

(5)Fees, charges, or payments in connection with the administration of estates or trusts pursuant to Division 7 (commencing with Section 7000), Division 8 (commencing with Section 13000), or Division 9 (commencing with Section 15000) of the Probate Code.

(6)Fees, charges, or payments imposed by lenders or purchasers of loans, as these entities are described in subdivision (c) of Section 10232 of the Business and Professions Code.

(7)Assessments, charges, penalties, or fees authorized by the Davis-Stirling Common Interest Development Act (Part 5 (commencing with Section 4000) of Division 4) or by the Commercial and Industrial Common Interest Development Act (Part 5.3 (commencing with Section 6500) of Division 4).

(8)Fees, charges, or payments for failing to comply with, or for transferring the real property prior to satisfying, an obligation to construct residential improvements on the real property.

(9)(A)Any fee reflected in a document recorded against the property on or before December 31, 2007, that is separate from any covenants, conditions, and restrictions, and that substantially complies with subdivision (a) of Section 1098.5 by providing a prospective transferee notice of the following:

(i)Payment of a transfer fee is required.

(ii)The amount or method of calculation of the fee.

(iii)The date or circumstances under which the transfer fee payment requirement expires, if any.

(iv)The entity to which the fee will be paid.

(v)The general purposes for which the fee will be used.

(B)A fee reflected in a document recorded against the property on or before December 31, 2007, that is not separate from any covenants, conditions, and restrictions, or that incorporates by reference from another document, is a “transfer fee” for purposes of Section 1098.5. A transfer fee recorded against the property on or before December 31, 2007, that complies with subparagraph (A) and incorporates by reference from another document is unenforceable unless recorded against the property on or before December 31, 2016, in a single document that complies with subdivision (b) and with Section 1098.5.

(b)The information in paragraph (9) of subdivision (a) shall be set forth in a single document and shall not be incorporated by reference from any other document. The document setting forth this information shall include a notice describing potential prohibitions on federal financing for property encumbered by a private transfer fee that does not provide a direct benefit to the property.