[HISTORY: Adopted by the Commissioners of
the Town of Henlopen Acres as indicated in article histories. Amendments
noted where applicable.]
[Adopted 7-13-1990]
As used in this article, the following definitions
shall be applicable unless the context clearly indicates a different
meaning:
Includes any instrument or writing pursuant to which title or possession of any real estate within the corporate limits of the Town shall be quitclaimed, granted, bargained, sold, conveyed or transferred to any purchaser, buyer, vendee, grantee, assignee or transferee, except as provided in § 108-2 of this article and shall include the following:
Except as provided in Subsections B and C hereof where beneficial ownership in real estate is transferred through a conveyance or series of conveyances of an intangible interest in a corporation, partnership or trust, such conveyance shall be taxable under this article as if such property were conveyed through a duly recorded document as defined herein and subject to the exemptions contained herein, except those exemptions contained in § 108-2J and N of this article.
No bona fide pledge of stock or partnership
interest as loan collateral nor any transfer of publicly traded stock
or publicly traded partnership interest shall be deemed subject to
taxation under this article.
Where the beneficial owners of real property
prior to the conveyance or series of conveyances referred to in this
section own 80% or more of the beneficial interest in the real estate
following said conveyance or conveyances, such transfer shall not
be subject to tax under this article. Where the beneficial owner of
real property prior to the conveyance or series of conveyances referred
to in this article owns less than 80% of the beneficial interest in
the real estate following said conveyance or conveyances, such transfer
shall not be subject to tax under this article unless determined by
the Town Manager to be properly characterized as a sale of real property.
Such characterization shall take into account the timing of the transaction,
beneficial ownership prior to and subsequent to the conveyance or
conveyances, the business purpose of the corporation, partnership
or trust and such other factors as may be relevant.
Any deed, lease, instrument or writing whereby any real estate
within the corporate limits of the Town, or any interest therein,
shall be quitclaimed, bargained, sold, leased or otherwise conveyed
to the grantee. There shall be included in this definition any contract
or other agreement or undertaking for the construction of all or a
part of any building, all or a portion of which contract, agreement
or undertaking (or any amendment to the foregoing) is entered into,
or labor or materials are supplied, either prior to the date of the
transfer of the land on which the building is to be constructed or
within one year from the date of the transfer to the grantee.
[Amended 7-10-1998]
No building permit shall be issued for any such
building unless and until the person or persons (including corporations
or other associations) requesting such permit shall demonstrate in
whatever form may be specified by the Mayor and Commissioners a form
of affidavit, that:
No transfer as described in this section has
occurred within the preceding year;
No portion of the contract for construction
for which the permit is requested was entered into and no materials
or labor with respect to the building have been provided within one
year of the date on which the property was transferred; or
There has been paid a realty transfer tax on
the document as defined in this article.
In addition no certificate of occupancy shall
be issued relative to any building on which a tax was provided by
this article unless and until the owner recertifies the actual cost
of the building and pays an additional tax due as a result of such
recertification.
A building for purposes of this subsection shall
mean any structure having a roof supported by columns or walls which
structure is intended for supporting or sheltering any use or occupancy
but shall not include any alteration of or addition to an existing
building where the cost of said alteration or addition is less than
50% of the value of the property transferred.
A transfer for purposes of this subsection shall include any transfer made by a deed as described in this article, other than this subsection, and shall not include any transaction excluded from the definition of "deed" under the provisions of § 108-1.
Includes any document in writing transferring or purporting
to transfer a title or possessory interest by a seller, vendor, lessor,
assignor or transferor to any purchaser, buyer, vendee, lessee, assignee
or transferee in or to any of the following:
A condominium unit or any property or properties
subject to the Unit Property Act (25 Del. C. § 2201 et seq.)
for a determinable term of five years or more.
An interest in land owned by another or improvements
owned by another located on land owned by another, or both, for a
determinable term of five years or more.
The exercise of any right or option to renew
or extend the title or possessory interest in an existing document
or instrument in writing where such renewal or extension is for a
period of five years or more.
Includes the making, executing, delivering, accepting or
presenting for recording of a deed or lease as defined herein.
Includes in the case of a deed the amount of actual consideration
thereof, including liens or other encumbrances thereon and ground
rents or a commissary part of the liens or other encumbrances thereon
and ground rents where such liens and encumbrances and ground rents
also encumber or are charged against other lands, tenements or hereditaments,
provided that where such documents set forth a small or nominal consideration,
value shall be determined from the price set forth in, or actual consideration
for, the contract of sale or lease, or, in the case of a gift or other
document without consideration, from the actual monetary worth of
the property granted, bargained, sold, leased or otherwise conveyed,
which, in either event, shall not be less than the amount of assessment
of such lands, tenements or hereditaments as shown on the books of
the Town.
As used in this article, document, deed and
lease shall not include any of the following:
A.
Any conveyance by will.
C.
Any conveyance between corporations operating housing
projects pursuant to Chapter 45, Title 31, of the Delaware Code, and
the shareholders thereof.
D.
Any conveyance between nonprofit industrial development
agencies and industrial corporations purchasing from them.
E.
Any conveyance to nonprofit industrial development
agencies.
F.
Any conveyance between husband and wife.
G.
Any conveyance between persons who were previously
husband and wife but who have since been divorced, provided that such
conveyance is made after the granting of a final decree in the divorce
and the real estate or interest therein subject to such conveyance
was acquired by the husband and wife, or husband or wife, prior to
the granting of the final decree of divorce.
[Amended 7-9-1999 by Ord.
No. 99-1]
H.
Any conveyance between parent and child or the spouse
of such a child.
I.
Any conveyance:
(1)
To a trustee, nominee or straw party for the grantor
as a beneficial owner;
(2)
For the beneficial ownership of a person other than
the grantor, where if such person were the grantee, no tax would be
imposed upon the conveyance pursuant to this article; or
(3)
From a trustee, nominee or straw party to the beneficial
owner.
J.
Any conveyance between a parent corporation or a wholly
owned subsidiary corporation, provided that such conveyance is without
actual consideration.
K.
Correctional deeds without actual consideration.
L.
Any conveyance to or from the United States or this
state, or to or from any other instrumentalities, agencies or political
subdivisions and the University of Delaware.
M.
Any conveyance to or from a corporation or a partnership
where the grantor or grantee owns stock of the corporation or an interest
in the corporation in the same proportion as his interest in, or ownership
of, the real estate being conveyed; provided, however, that this subsection
shall not be applicable to any distribution in liquidation or other
conveyance resulting from the partial or complete liquidation of a
corporation, unless the stock of the corporation being liquidated
has been held by the grantor or grantee for more than three years;
and provided, further, that this exemption shall not apply to any
conveyance from a partnership to its partners unless the partners'
interest in the partnership has been held for more than three years.
[Amended 7-9-1999 by Ord.
No. 99-1]
N.
Any conveyance by the owner of previously occupied
residential premises to a builder of new residential premises when
such previously occupied residential premises are taken in trade by
such builder as a part of the consideration from the purchaser of
new, previously unoccupied premises.
[Amended 7-9-1999 by Ord. No. 99-1]
O.
Any conveyance to the lender holding a bona fide mortgage
which is genuinely in default, either by a sheriff conducting a foreclosure
sale or by the mortgagor in lieu of foreclosure.
P.
Any conveyance to a religious organization or other body or person holding title to real estate for a religious organization if such real estate will not be used following such transfer by the grantee, or by any privy of the grantee, for any commercial purpose; provided, however, that only that portion of the tax which is attributable to and payable by the religious organization or other body or person holding title to real estate for a religious organization under § 108-3 of this article shall be exempt.
[Amended 7-9-1999 by Ord. No. 99-1]
Q.
Any conveyance made by or to any organization exempt
from ad valorem real estate taxes.
R.
Any mortgage.
S.
Any conveyance to or from a volunteer fire company, organized under the laws of this state; provided, however, that only that portion of the tax which is attributable to and payable by the volunteer fire company under § 108-2 shall be exempt.
[Added 7-10-1998]
T.
Any conveyance without consideration to an organization
exempt from tax under Section 501(c)(3) of the Federal Internal Revenue
Code [26 U.S.C. § 501(c)(3)].
[Added 7-10-1998]
U.
Any conveyance to a nonprofit conservation organization
when the property is purchased for open space preservation purposes.
[Added 7-10-1998]
V.
Any conveyance of a mobile home, defined as a manufactured
home, transportable in one or more sections, which, in the traveling
mode, is eight body feet or more in width and 40 body feet or more
in length, or when erected on site is 320 or more square feet. It
is built on a permanent chassis, designed to be used as a year-round
dwelling with or without a permanent foundation when connected to
the required utilities, and if manufactured since June 15, 1976, has
been built in accordance with the National Manufactured Home Construction
and Safety Standards; provided, however, that tax on said conveyance
has been paid pursuant to 30 Del. C. § 3002, Motor vehicle
document fee; claims for refunds. [The definition of "mobile home"
is found in 25 Del. C. § 7003(2).]
[Added 7-10-1998]
W.
Any conveyance between siblings, half-siblings or
stepsiblings.
[Added 4-28-2001]
A.
Every person who makes, executes, delivers, accepts or presents for recording any document, deed or lease, except as provided in § 108-2, or in whose behalf any document, deed or lease is made, executed, delivered, accepted or presented for recording shall be subject to pay for and in respect to the transaction or any part thereof a realty transfer tax at the rate of 1 1/2%, 1% pursuant to the Charter and 1/2% pursuant to Title 22 of the Delaware Code, Chapter 16, of the value of the property represented by such document, deed or lease. Such tax shall be payable at the time of making, execution, delivery, acceptance or presenting of such deed for recording.
[Amended 7-10-1998]
B.
The transfer tax shall be paid by the purchasers in
the transaction in the absence of an agreement to the contrary.
C.
No tax shall be imposed on any conveyance where the
actual value of the property being transferred is less than $100.
D.
Every person who makes, executes, delivers, accepts or presents for recording any document, deed or lease defined or described in this article or in whose behalf any such document, deed or lease is made, executed, delivered, accepted or presented for recording shall be subject to pay for and in respect to the transaction a realty transfer tax at the rate of 1 1/2%, 1% pursuant to the Charter and 1/2% pursuant to Title 22, Delaware Code, Chapter 16, of the value of the property represented by such document, deed or lease which tax shall be payable as follows:
[Amended 7-10-1998]
(1)
The tax on the consideration attributable to the first
year of the term shall be payable at the time of making, execution,
delivery, acceptance or presenting of such document for recording.
(2)
The tax on the consideration attributable to each
successive year of the term thereafter shall be paid annually to the
Town Manager.
E.
There shall be no tax imposed on any document, deed
or lease presented for recording pursuant to a contract executed prior
to August 1, 1990.
Where there is a transfer of residential property
by a licensed real estate broker, which property was transferred to
him within 12 months next preceding the transfer by him as part of
the consideration for the purchase of other residential property,
a credit for the amount of the tax paid at the time of the transfer
to the licensed real estate broker shall be given toward the amount
of the tax due upon the transfer. If the tax due upon the transfer
from the licensed real estate broker is greater than the credit given
for the prior transfer, the difference shall be paid. If the credit
allowed is greater than the amount of the tax due, no refund shall
be allowed.
The realty transfer tax imposed by this article shall be paid from the proceeds of any judicial sale of real estate as part of the costs of such sale before any such proceeds are applied toward any obligation, claim, lien, judgment or estate and of the writ upon which sale is made unless such transfer is exempt pursuant to the provisions of § 108-2, Subsection O.
The payment of the tax imposed by this article
shall be evidenced by the fixing of a documentary stamp to every document,
deed or lease by the person making, executing, delivering or presenting
such document, deed or lease for recording. Such stamp shall be affixed
in such manner that its removal will require the continued application
of steam or water; the person using or affixing such stamp shall write,
stamp or cause to be written or stamped thereon the initials of his
name and the date upon which such stamp is affixed or used so that
such stamp may not again be used, provided that any other method of
cancellation may be used if it is deemed expedient by the Town Manager.
The Town Manager may provide through the evidence of payment of the
tax to be shown on the document, deed or lease by means other than
the affixing of documentary stamps.
The Town Manager shall prescribe, prepare and
furnish stamps of such denominations and quantities as may be necessary
for the payment of the tax imposed and assessed by this article. The
Town Manager shall make provision for the sale of such stamps in such
places as may be deemed necessary.
A.
The Town Manager may appoint the Recorder of Deeds,
in and for Sussex County, the Sussex Trust Company or such other person
or persons within or without the County as agents for the sale of
stamps as used for payment of the tax imposed by this article.
B.
A commission shall be allowed by the Town Manager
to such agents of 2% of the face value of the stamps.
No document, deed or lease upon which a transfer
tax is imposed by this article shall be recorded in the Office of
the Recorder of Deeds, in and for Sussex County, unless proof of the
payment of the transfer tax appears on the document.
Every document, deed or lease when lodged with
or presented to the Recorder of Deeds, in and for Sussex County, for
recording shall set forth therein as part of such document, deed or
lease the true, full and complete value thereof or shall be accompanied
by an affidavit executed by a responsible person connected with the
transaction showing such connection and setting forth the true, full
and complete value thereof or the reason, if any, why such document,
deed or lease is not subject to tax under this article.
No person shall commit any of the following
acts:
A.
Make, execute, deliver, accept or present for recording
or cause to be made, executed, delivered, accepted or presented for
recording any document, deed or lease without the full amount of tax
thereon being duly paid.
B.
Make use of any documentary stamps to denote payment
of the realty transfer tax without canceling stamp as required by
this article.
C.
Fraudulently cut, tear or remove from a document,
deed or lease any documentary stamp or other evidence of payment of
the transfer tax.
D.
Fraudulently affix to any document, deed or lease
upon which tax is imposed by this article any documentary stamp or
other evidence of payment of the transfer tax which has been removed
from any other document, any documentary stamp or other evidence of
payment of the transfer tax of insufficient value, any forged or counterfeit
stamp or other evidence of payment of the realty transfer tax or any
impression, forged or counterfeited stamp, dye, plate or other articles.
E.
Willfully remove or alter the cancellation marks of
any documentary stamp or restore any such documentary stamp with intent
to use or cause the stamp to be used after it has already been used
or knowingly buy, sell, offer for sale, give away or use any such
altered or restored stamp to any person for use.
F.
Knowingly have in his possession any altered or restored
documentary stamp which has been removed from any document, deed or
lease upon which the realty transfer tax is imposed by this article,
provided that the possession of such stamp shall be prima facie evidence
of an intent to violate the provisions of this article.
G.
Knowingly or willfully prepare, keep, sell, offer
for sale or have in his possession any forged or counterfeit documentary
stamp.
H.
Accept for recording in the Office of the Recorder
Deeds, in and for Sussex County, any document, deed or lease upon
which the transfer tax is imposed without the proper documentary stamp
or other evidence of payment of the transfer tax required by this
article and as indicated in such document, deed or lease or accompanying
affidavit.
A.
If any person shall fail to pay any transfer tax imposed
by this article for which he is liable, the Town Manager may make
a determination of additional tax and interest due by such person,
based upon information within his knowledge or learned by him. All
such determinations shall be made so that notice thereof shall reach
the party or parties against whom it is made within three years after
the recording of the document, deed or lease.
B.
Promptly after the date of such determination, the
Town Manager shall send, by certified or registered mail with return
receipt requested with postage prepaid, a copy thereof to the person
against whom it is made.
C.
Within 90 days after the date upon which the copy
of determination of additional tax was mailed, such person may file
with the Town Manager a petition for redetermination of such tax.
Every petition for redetermination shall state specifically the reason
or reasons which petition believes entitles him to such redetermination
and shall be supported by affirmation that it is not for the purpose
of delay, and that the facts set forth therein are true and correct.
D.
It shall be the duty of the Town Manager within six
months after the date of any determination to dispose of any petition
for redetermination. Notice of the action taken upon petition for
redetermination shall be given to the petitioner promptly after the
date of redetermination by the Town Manager.
E.
Any person shall have the right to review by a court
of competent jurisdiction any determination made by the Town Manager
pursuant to this section.
F.
Interest shall be added to any determination of additional
tax and shall be computed at the statutory rate from the date any
transfer tax shall have been paid to the date paid.
Upon determination that any tax collected pursuant
to this article has been collected improperly, the Town Manager shall
refund to the taxpayer the sum so paid with interest from the date
of payment at the rate of 9% per annum.
[Amended 7-9-1999 by Ord.
No. 99-1]
Where any real property within the Town is transferred
without payment of the appropriate real estate transfer tax in violation
of this article:
A.
The amount due shall bear interest at the legal rate
established by Delaware law, commencing with the date that such document
is duly recorded in the Sussex County Recorder of Deeds Office, and
the transferee in such action shall be personally liable for the full
amount of such tax, plus all accrued interest to date of payment.
B.
The amount of such tax, together with the accrued
interest thereon, shall constitute a charge or assessment against
the property so transferred and shall be a lien against the property
so transferred in accordance with the procedures set forth in the
Charter of the Town and/or in accordance with the procedures set forth
in the general statutes of the state regarding municipal liens. If
suit should be brought by the Town to collect such delinquent tax,
then the Town shall be entitled, in addition to the principal amount
owed plus accrued interest, to be reimbursed for its reasonable attorneys'
fees and court costs.
C.
Where any document involved in a transaction subject
to the tax imposed by this article is recorded without payment thereof,
such recording shall constitute a violation, and the grantee shall,
upon conviction before any court of competent jurisdiction, pay a
fine of $1,000, plus any applicable court costs and assessments.
[Adopted 10-13-1995]
[Amended 7-13-2018]
There is hereby imposed a tax on gross rental
receipts as follows: In the Residential Zone for the rental of single-family
dwelling units, and nonconforming dwellings that were in existence
prior to the enactment of applicable zoning and building ordinances,
a tax established by resolution of the Mayor and Commissioners of
Henlopen Acres shall become due and payable to the Mayor and Commissioners
of Henlopen Acres ("Town"), as set forth in this article.
For the purpose of this article, the following
words and phrases have the following respective meanings unless the
context clearly indicates a different meaning:
The consideration received for occupancy valued in money,
whether received in money or otherwise, including all receipts, cash
and property or services of any kind or nature and also any amount
for which the occupant is liable for occupancy without any deduction
therefrom whatsoever.
An individual, copartnership, corporation, company, association,
firm or any group of individuals acting as a unit and includes any
trustee, receiver, assignee or personal representative thereof.
Every person receiving any payment for rentals set forth in § 108-15 above on which the tax is levied under this article shall be obligated to pay the Town the tax provided for in the article. Said person may collect such sum from the party paying the rental when the rental payment is made, and, if the person collects such tax from the party paying the rental, such collections shall be held in trust until remitted as hereinafter required.
[Amended 1-10-1997]
The tax on rental income received from January
1 to December 31 shall become due and payable on or before the following
January 31. The person collecting the tax shall make out a report
upon the prescribed form, sign the report and submit the report along
with the remittance of the tax to the Town.
A.
If any person fails or refuses to file the necessary report form and/or to remit to the Town the tax required to be collected and paid under this article, within the time and in the amount specified in this article, there shall be added to the tax interest at the rate of 1% per month or portion thereof on the unpaid tax beginning with the final due date until paid and if the tax remains delinquent and unpaid for a period of one month from the date it is due and payable there shall be added thereto by the Town a penalty of 5% of the tax due. No license as required by Chapter 95, Rental Property, Article I, Rental Unit Licensing, will be issued until such taxes are paid.
B.
The Town may proceed to collect delinquent and unpaid
taxes by suit or other legal means.
[Amended 4-11-2014]
The form required by § 108-18 shall be furnished by the Town Manager and may be amended from time to time as may be necessary.
