Both the Florida House of Representatives and the Florida Senate have unanimously voted in favor of Senate Bill 464, which would, with certain limited exceptions, void "transfer fee" covenants purporting to encumber Florida real estate. Lawyers in Florida are writing Governor Crist, asking him not to veto the legislation.
According to an email I recieved from the Executive Council of the Florida Bar's Real Property, Probate and Trust Law Section, the transfer fee scheme originated in Texas. Pursuant to this scheme, a property owner reserves the right to receive a percentage of the sales price for future sales of their property for many years after they sell property, including sales to remote purchasers many years in the future. The scheme is promoted on the internet by a company named "Freehold Licensing," which is seeking to patent the arrangement and charge prospective property sellers a licensing fee for use of its form documents.
The Executive Council unanimously voted in favor of the proposed legislation, and the Section leadership firmly believes that this scheme has no place in Florida for a number of reasons, including the following:
(1) Long-standing public policy favors the marketability of property, free of title defects and unreasonable restraints on alienation.
(2) The proponent of the "transfer fee" covenants scheme, Freehold Licensing, has a strong profit motivation for seeking the veto of the bill since it hopes to secure significant licensing fees from the scheme.
(3) The imposition of covenants which would require the payment of fees each time property is sold will adversely impact the marketability of property.
(4) Property subject to transfer fee covenants will be worth less, but prospective purchasers may be unaware of the negative impact of such covenants on the value of the property until they attempt to sell the property.
(5) The imposition of transfer fees upon the sale of property will further erode property values in an existing depressed real estate market.
(6) Other, more appropriate, approaches are available to fund infrastructure improvements, including homeowners' associations and community development districts, which are accountable for the manner in which the funds are spent.
(7) The purported imposition of "transfer fee" covenants is likely voidable as an unreasonable restraint on the alienation of property or because they fail to "touch and concern" the affected property, but, since the amount of the fee in any individual case, may not be sufficient to justify litigation to overturn the covenant, it is appropriate to address this issue via a legislative enactment.
(8) This scheme has been criticized by legal commentators.
You might want to keep an eye out for this scheme appearing in your locale, especially if you are getting ready to buy real estate. I do not know whether it is presently legal in Texas.