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Posted: Saturday, Aug. 21, 2010

Proposal to ban transfer fees may carry pitfalls

Published in: Kenneth Harney

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A federal agency is moving to prohibit controversial "private transfer fees" on all mortgages funded by Fannie Mae and Freddie Mac. But its proposed ban may extend to transfer fees collected by community associations across the country - potentially forcing some of them to raise assessments on homeowners.

The Federal Housing Finance Agency, which oversees the two mortgage giants in conservatorship, issued proposed "guidance" Aug. 12 that would prohibit Fannie and Freddie plus the federal home loan banks from investing in mortgages carrying private transfer fee covenants.

Private transfer fees are starkly different from those imposed by local government authorities to raise revenue for public services when properties change hands. In a private transfer fee arrangement, a developer or property owner records a long-term covenant requiring payments to trustees or other private parties every time a resale occurs.

The best-known and most controversial version of this plan is being promoted by Freehold Capital Partners of New York. The Freehold program, which the company says has attracted the participation of "thousands" of development projects worth "hundreds of billions of dollars" around the country, imposes a 1 percent fee that must be paid by the home seller out of the settlement proceeds every time the house is resold during the next 99 years. The money flows from the closing to a trustee, who distributes shares of it to private investors and others, including the developer in some cases.

Freehold's activities have raised widespread opposition - 18 state legislatures have either restricted or banned the use of private transfer fees in varying forms. The proposal from the FHFA seeks to cut off federally related funding or guarantees for the underlying conventional mortgages that support private transfer fee programs such as Freehold.

Though under conservatorship, Fannie Mae and Freddie Mac still account for a large share of new conventional mortgages. Along with the Federal Housing Administration, which had earlier indicated opposition to private transfer fee plans, the three entities are responsible for upward of 95 percent of mortgage market volume, according to industry estimates.

Edward DeMarco, acting director of the FHFA, said the proposed ban - pending a 60-day public comment period - is necessary because the fees "may impede the marketability and the valuation of properties," may raise homeownership costs.

The wording of the ban, however, appears to reach well beyond Freehold-type fees to include mortgages where covenants require payments to homeowners associations, affordable housing groups or other community or nonprofit organizations, upon each resale of the property.

Many new housing development projects come with not-for-profit homeowners associations that collect assessments from owners to fund community improvements and property management.

But the FHFA's proposal explicitly includes a broad spectrum of such programs in the ban.

Andrew Fortin, vice president of government affairs for the 30,000-member Community Associations Institute, which represents homeowners and association managers nationwide, said that banning investments in mortgages on properties with transfer fees payable to associations "is potentially a big problem." For one, it could force associations to increase assessments on homeowners.

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