Section 35-4-435


Published: 2015

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Section 35-4-435

Section 35-4-435Notice requirements for existing private transfer fee obligations.

(a) The payee of a private transfer fee obligation imposed prior to May 25, 2011, shall record, prior to December 31, 2011, against the real property subject to the private transfer fee obligation, a separate document in the office of the judge of probate for each county in which the real property is located which complies with all of the following requirements:



(1) The title of the document shall be "Notice of Private Transfer Fee Obligation" in at least 14-point boldface type.



(2) The amount, if the private transfer fee is a flat amount, or the percentage of the sales price constituting the cost of the private transfer fee, or such other basis by which the private transfer fee is to be calculated.



(3) If the real property is residential property, actual dollar-cost examples of the private transfer 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).



(4) The date or circumstances under which the private transfer fee obligation expires, if any.



(5) The purpose for which the funds from the private transfer fee obligation will be used.



(6) The name of the payee and specific contact information regarding where the funds are to be sent.



(7) The acknowledged signature of the payee, or a representative of the payee.



(8) The legal description of the real property purportedly burdened by the private transfer fee obligation.



(9) Where there is more than one person or entity who claims the right to receive or collect a private transfer fee under a private transfer fee obligation, those persons or entities shall designate a single person or entity as the payee for purposes of that private transfer fee obligation.



(b) The payee may file an amendment to the notice of private transfer fee containing new contact information, but such amendment must contain the recording information of the notice of private transfer fee which it amends and the legal description of the real property burdened by the private transfer fee obligation.



(c) If a payee fails to file the notice required under subsection (a) prior to December 31, 2011, the grantor or any real property burdened by the private transfer fee obligation may proceed with the conveyance of an interest in the real property to any grantee and in so doing shall be conclusively deemed to have acted in good faith and shall not be subject to any obligations under the private transfer fee obligation. In that event, the private transfer fee obligation is void and the real property thereafter shall be conveyed free and clear of the private transfer fee and private transfer fee obligation.



(d) If a payee fails to fully comply with subsection (a) in filing the notice required thereunder, then the grantor, on recording of an affidavit under subsection (e), may convey an interest in the real property to any grantee without payment of the private transfer fee and is not subject to any further obligations under the private transfer fee obligation. In that event, the private transfer fee obligation is void and the real property thereafter shall be conveyed free and clear of the private transfer fee and private transfer fee obligation.



(e) If the payee fails to provide a written statement of the private transfer fee payable within 30 days of the date of a written request for the same sent to the address shown in the notice of private transfer fee, then the grantor, on recording of an affidavit under subsection (f), may convey an interest in the real property to any grantee without payment of the private transfer fee and is not subject to any further obligations under the private transfer fee obligation. In that event, the private transfer fee obligation shall become null and void and the real property thereafter shall be conveyed free and clear of the private transfer fee and private transfer fee obligation.



(f) An affidavit stating the facts enumerated in subsection (g) shall be recorded in the office of the judge of probate for each county in which the real property is situated prior to or simultaneously with a conveyance pursuant to subsection (d) or (e) of real property unburdened by a private transfer fee obligation. An affidavit filed under this subsection shall state that the affiant has actual knowledge of, and is competent to testify to, the facts in the affidavit and shall include the legal description of the real property burdened by the private transfer fee obligation, the name of the person appearing by the record to be the owner of the real property at the time of the signing of the affidavit, a reference, by recording information, to the instrument of record containing the private transfer fee obligation, and an acknowledgment that the affiant is testifying under penalty of perjury.



(g) When recorded, an affidavit filed under subsection (f) is prima facie evidence that either of the following:



(1) The payee has failed to fully comply with subsection (a) in the respects stated in the affidavit.



(2) A request for the written statement of the private transfer fee was sent to the payee at the address shown on the notice of private transfer fee, and the payee failed to provide the written statement of the private transfer fee payable within 30 days of the date of the notice sent to the address shown in the notification.

(Act 2011-260, p. 474, §1.)