RESPA: HOME EQUITY PROTECTION ACT OF 2010 SEEKS TO BAN PRIVATE REAL ESTATE TRANSFER FEES (ALSO KNOWN AS “CAPITAL RECOVERY FEES”)

US House Representative Maxine Waters and Rep. Albio Sires introduced a bill called the “Home Equity Protection Act of 2010” on Wednesday. The bill seeks to amend the Real Estate Settlement Procedures Act “RESPA” by prohibiting the collection of private transfer fees, also known as capital recovery fees or resale fees.

Often a housing or condominium developer establishes a legal covenant which requires the purchaser of a home in a large subdivision or condominium to pay a private transfer fee back to the developer or are allocated to the homeowners or condominium associations maintenance funds when they sell their home. The fees sometimes are often around one (1) percent of the sales price and the private transfer fee can often last as long as 99 years.

The private transfer fees have been controversial because some home buyers have claimed they were unaware of the restriction and in some cases the covenant doesn’t require the homeowners signature at all. The proponents of making the private transfer fees illegal believe the fee strips the homeowners of their equity when they sell their property. Those in favor of keeping the private transfer fees intact believe it helps keep condominium and homeowners associations afloat by giving them needed capital to operate.

The Federal Housing Finance Agency proposed a similar rule which could prohibit Fannie Mae and Freddie Mac from insuring or purchasing mortgages that include private transfer fees. Several trade associations, including the National Association of Realtors and American Land Title Association, have applauded the legislation and are in favor of banning the private transfer fees.