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A.R.S. § 33-442

Transfer Fee Covenants: What Arizona Prohibits

Verified April 4, 202657th Legislature, 1st Regular Session

Arizona law makes transfer fee covenants unenforceable on real property. A deed or declaration that requires a fee paid to a third party when property changes hands has no legal effect. Standard HOA assessments, broker commissions, and loan assumption fees are not affected.

Title 33, CONVEYANCES AND DEEDS

azleg.gov

What a Transfer Fee Covenant Actually Is

A transfer fee covenant is a provision recorded against real property. It requires the buyer or seller to pay a fee to a third party each time the property is sold. These provisions sometimes appear in subdivision declarations, development agreements, or other documents used to manage real property. Arizona treats them as unenforceable.

A provision in a declaration, a covenant or any other document relating to real property in this state is not binding or enforceable against the real property or against any subsequent owner, purchaser, lienholder or other claimant on the property if it purports to bind successors in title to the specified real property and obligate the transferee or transferor of all or part of the property to pay a fee or other charge to a declarant or a third person on transfer of an interest in the property.

A.R.S. § 33-442(A)

The key distinction is straightforward. If a fee is triggered by the transfer of property and is payable to someone outside the transaction, Arizona will not enforce it. It does not matter whether the provision was recorded. Any lien that claims to secure such a fee is also invalid.

What This Law Does Not Block

This statute carves out several common real estate fees that remain valid. HOA assessments where the fee being charged touches and concerns the land are still enforceable. Broker commissions, loan assumption fees, lease assignment fees, and government-imposed charges are also exempt.

The prohibition targets a specific type of private toll on property transfers. It does not affect the ordinary costs of buying and selling real estate. Many families find it helpful to review any transfer fee provision in a recorded document to confirm whether one of these exceptions applies.

A. A provision in a declaration, a covenant or any other document relating to real property in this state is not binding or enforceable against the real property or against any subsequent owner, purchaser, lienholder or other claimant on the property if it purports to do both of the following: 1. Bind successors in title to the specified real property. 2. Obligate the transferee or transferor of all or part of the property to pay a fee or other charge to a declarant or a third person on transfer of an interest in the property or in consideration for permitting such a transfer. B. A transfer fee provision prescribed by subsection A of this section is unenforceable whether or not recorded and does not create a lien right and any lien purportedly arising out of an unenforceable provision prescribed by subsection A of this section is invalid and unenforceable. C. This section does not apply to any of the following: 1. Any provision of a purchase contract, option, mortgage, security agreement, real property listing agreement or other agreement that obligates one party to the agreement to pay the other party. 2. Any provision in a deed, memorandum or other document recorded for the purpose of providing record notice of an agreement prescribed in paragraph 1. 3. Any provision of a document that requires payment of a fee or charge to an association to be used exclusively for the purpose authorized in the document. 4. Any rent, reimbursement, charge, fee or other amount payable by a lessee to a lessor under a lease. 5. Any consideration payable to the holder of an option to purchase an interest in the real property. 6. Any fee, charge, assessment, dues, contribution or other amount relating to the purchase or transfer of a club membership. 7. Any fee or charge that is imposed by a document and that is payable to a nonprofit corporation for the sole purpose of supporting recreational activities within the association. 8. Any fee, tax, assessment or other charge imposed by a governmental authority. 9. Any consideration payable by the transferee to the transferor for the interest in real property being transferred.

This page provides general legal information about Arizona statutes and is not legal advice. For guidance on how this law applies to your situation, speak with a qualified attorney.

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