HOAs can breathe easy as federal agency revises proposed rule on transfer fees
Thousands of homeowner associations and condominiums across the country just sidestepped a potentially costly problem. Earlier this month, a federal agency backed off a controversial plan to make obtaining mortgages in their communities much more difficult and to dry up a key source of revenue that associations use to pay for improvements and property maintenance.
A proposal in August by the Federal Housing Finance Agency would have effectively banned the covenanted transfer fees that many homeowner associations collect when houses or condos resell. Typically, the fees range anywhere from one-quarter of 1 percent of the resale price of the house to three-quarters of 1 percent. The revenue is then spent toward a variety of ends, such as community improvements - roads, bike paths, recreation facilities - and building up required capital reserves.
The agency proposed banning the fees from all mortgages eligible for purchase by the major government-controlled enterprises it oversees: Fannie Mae, Freddie Mac and the Federal Home Loan Banks. The proposal also banned loans containing private transfer fees in which the money flows not to community improvements but to investors seeking long-term revenue streams.
"This was a really big deal" to persuade the Federal Housing Finance Agency to reverse its position, said Cort Chalfant, senior vice president of Rancho Sahuarita, a master-planned community with 12,000 residents near Tucson. Chalfant said the transfer fee of three-quarters of 1 percent collected on resales in Rancho Sahuarita is spent on upgrading amenities and facilities. Without the fees, the association would have to raise its annual homeowner assessments dramatically, putting financial pressure on homeowners "at a lousy time [economically] to do that," he added.
Chalfant estimates that if the agency's proposed rule had been adopted, it would have cost the association $10 million over the coming decade and would have decimated sales and property values because none of the houses would be eligible for conventional mortgages.
Peter Kristian, general manager of the Hilton Head Plantation Property Owners' Association, in Hilton Head, S.C., said the effect on his community of 4,100 houses would have been equally devastating. Kristian's association raises roughly $250,000 to $300,000 a year for public-benefit improvements through transfer fees of one-quarter of 1 percent on resales.
When the FHFA proposed its initial rule, it criticized covenanted homeowner association transfer fees as being "unrelated to the value rendered, and at times may apply even if the property's value has significantly declined since the time the covenant was imposed."
The proposal was also highly critical of investor-driven private transfer fee programs, such as one marketed by Freehold Capital Partners, a New York-based company that imposes 1 percent transfer fees on home resales for 99 years. The company says it has signed up "thousands" of development projects worth "hundreds of billions of dollars" across the country. The revenue streams created by Freehold's private covenants are intended to flow to private participants in the program - the developers, the bond investors who provide capital upfront, and others.
But the agency did not distinguish between homeowner associations' public-benefit transfer fee programs and Freehold-type investor-driven, private-benefit variants in its proposed ban. All would have been prohibited.
Reaction from individual homeowners associations and groups representing them, primarily the 30,000-member Community Association Institute, was swift and intense. The CAI polled its members and found that an estimated half of them, representing about 11 million houses, condos and cooperative units, rely on deed-based transfer fees. Owners of those homes would be cut off from most mortgage financing under the agency's proposal, worsening the housing crisis that sent Fannie Mae and Freddie Mac into severe financial distress.
The FHFA's revised proposal essentially says: Oops, sorry. We were a little too broad-brush the first time around. Now we get it, and we'll exempt homeowner associations that use the proceeds of transfer fees to benefit the property or community. Purely investor-oriented programs such as Freehold's, however, would remain barred.
Asked to comment, Bryan Cohen, Freehold's general counsel, said this is "the wrong time to deprive the hard-hit construction sector" of the financial benefits available through a private transfer-fee program.
Bottom line: If your house is one of the 11 million exempted from the latest proposal, you can probably breathe easy. The feds are not going to put you on a ban list. On the other hand, if you're thinking of buying into a community where the developer has been offering lots or houses with investor-driven transfer fees, you could have a long-term problem. Get full disclosures and legal advice before signing up.