To What Does the New Act Apply?
Generally, it applies to acquisitions of
defined Florida real property interests by certain described owners. There are
three general categories of prohibited transfer and ownership. To apply the new
provisions, one needs to focus on two separate issues regarding each of the
three categories of prohibition described in the law. The first is to determine
what Florida real property is subject to prohibition under the category and
then what owners are prohibited under the category. For there to be a violation
of a category, the type of real property that is prohibited must be involved,
as well as the defined class of prohibited owner for the category.
The three categories of prohibition are referred to herein
as the "agricultural category," the "protected facilities
category,” and the "PRC category."
Which Real Property Interests Are Covered Under
Each Category?
For the agricultural category, the applicable Florida real
property is agricultural land.
For the protected facilities category, the applicable
Florida real property is real property within 10 miles of a military
installation or critical infrastructure facility in Florida.
For the PRC category, all applicable Florida real property
is all Florida real property.
Real property means land, buildings, fixtures, and all
other improvements to land.
OBSERVATION: The prohibitions generally apply to direct and
indirect interests in real property. By use of the word "indirect"
and making exceptions for certain interests in publicly traded corporations
owning the subject Florida real property, the statute is strongly suggestive
that interests in entities (domestic or foreign) not excluded as “de minimus
indirect interests” (which are discussed below) are interests in real property
for this purpose, thus subjecting transfers and ownership of those interests to
the new law in addition to direct interests in real property. Admittedly, the
statute is not a paragon of clarity on this important issue, but if this
broader reading is determined to apply then the scope of the new law is
significantly expanded beyond what many may expect.
Which Owners Are Covered?
Persons prohibited from owning or acquiring prohibited real
property in the agricultural category and the protected facilities category are
the following persons, governmental units, organizations and other entities:
governments,
government officials, political parties, and political party members of a
foreign country of concern;
various
entities including partnerships, associations, corporations, organizations and
other combinations of persons organized in a foreign country of concern or
having its principal place of business therein and subsidiaries of such
entities;
any
person domiciled in a foreign country of concern who is not a U.S. citizen or
lawful permanent resident; and
the
preceding types of persons and entities so described that have a controlling
interest in an entity formed to own Florida real property.
The PRC category covers the same general prohibited owners
but only for such persons and entities of the People's Republic of China.
What are the "Foreign Countries of
Concern?"
The
foreign countries of concern are the People's Republic of China, the Russian
Federation, the Islamic Republic of Iran, the Democratic People's Republic of
Korea, the Republic of Cuba, the Venezuelan regime of Nicolás Maduro, and the
Syrian Arab Republic, including any agency of or any other entity of
significant control of such foreign country of concern.
Can You Give Me a Short-Form Summary of the Prohibited Ownership
Categories?
Agricultural:
prohibition on ownership of Florida agricultural land interest by persons,
governmental units, organizations, and entities of any foreign country of
concern.
2. Protected
facilities: prohibition on ownership of any Florida real property interest
located within 10 miles of a military installation or critical infrastructure
facility by persons, governmental units, organizations, and entities of any
foreign country of concern.
3. PRS:
prohibition on ownership of any real property interest by persons, governmental
units, organizations, and entities of the PRC.
There
may be circumstances simultaneously subject to more than one of these
categories. Whether all the provisions of the applicable categories apply in
that circumstance remains to be seen.
What Are the Principal Exceptions?
The categories have various exceptions. These exceptions
include the following:
For de minimis indirect interests in publicly traded entities that own the subject land if a 5% ownership threshold is not violated or it is a non-controlling interest in a domestic entity registered with the SEC as an investment advisor;
For the protected facilities category and the PRS category, for one residential real property of the owner up to 2 acres in size if various other requirements are met; and
Property acquired by devise, descent, enforcement of security interests, or collection of debts if the land is divested within three years of the violative acquisition.
Real property acquired for a
diplomatic purpose that is recognized, acknowledged, or allowed by the Federal
Government is excluded from the law.
Are Transfers by Gift, Devise, or Descent Subject
to the Law?
Yes!
COMMENT: This greatly expands the persons that have to
address the law to avoid penalty and/or forfeiture. Essentially, any lifetime
or testamentary transfer of prohibited property to a prohibited person violates
the law (subject to the allowed 3 year divestment period). In the case of a
testamentary transfer, presumably, the violation does not occur until the later
date of transfer. What should personal representatives and trustees do when
faced with a mandated prohibited transfer? Does the divestment period remove
them from having any responsibility in these matters when the facts allow for
it? As far as criminal penalties are concerned, as discussed below, these
penalties are likely imposed only on sellers (on the transferor side), so
absent a sale, there should be no exposure to the transferors in gratuitous
transfers, but forfeiture by the transferee remains absent timely divestiture.
If the property is encumbered by debt, does the transfer convert it to a
"sale" for these purposes and subject a knowledgeable transferor to
criminal liability?
How Does a Transferor Comply With the Law?
In a purchase and sale transaction, the purchaser must
provide to the seller an affidavit prepared under penalties of perjury that the
purchaser is not a prohibited person (or in the case of the protected
facilities category or the PRC category is otherwise permitted to own the
property under the law) and is in compliance with the provisions of this law.
It would appear (although the statute does not explicitly provide) that a
seller avoids violating the law when the seller receives such an affidavit.
This affidavit is akin to a FIRPTA affidavit that is ubiquitous in real
property transactions, and this affidavit will likely find its way into most
closing procedures.
COMMENT: It does not appear that the affidavit is required
in a gratuitous transfer situation (at least of unencumbered property), since
the statute imposes the obligation on a “buyer.”
Alternatively, as to the agricultural category and the protected
facilities category, it appears that the transferor can confirm for itself that
the subject property does not come within the prohibited category when that is
the case.
Transferors and closing agents in sales transactions, to
avoid potential penalties where there is no affidavit given, may need to do
their due diligence to confirm as to these two categories that the real
property does not fall into them if they want to proceed to closing. I would
expect title companies and/or other entrepreneurs to develop databases to
assist transferors in making these determinations. This method of compliance
does not apply to the PRC category since it applies to all Florida real
property. Trust settlors, donors, and testators will need to conduct a similar
analysis as to transfers of assets that may constitute Florida real property to
assure the recipient is not a prohibited person or the real property interest
is not of a prohibited type so as to avoid forfeiture risks in the hands of a
prohibited owner-recipient.
What Is Required as to Applicable Real Property
that a Covered Owner Owns Before July 1, 2023?
Real estate owned in a manner prohibited under the new law
that was held that way on July 1, 2023 does not violate the law and is
grandfathered in, but registration with specified Florida Departments
(depending on what category is involved) must be made by the beginning of 2024.
Failure to file results in a $1,000/day penalty.
COMMENT: So in addition to advising clients in regard to
Florida real property interest transfers, advisors should also assist their
clients who own prohibited real property in meeting the registration
requirements.
Persons Who May be Surprised that the Law
Affects Them.
As noted, non-sale transfers by donors, settlors of trusts,
and testators should not result in criminal liability exposure to the
transferor, but a violative transfer may defeat transferor expectations by
subjecting the property to forfeiture to the state if the property is not
timely divested by the new owner.
The statute includes as prohibited owners a subsidiary of
an entity organized in or principally operating out of a foreign country of
concern. However, the statute does not limit those subsidiaries to subsidiaries
organized in or principally operating out of the foreign country of concern.
Thus, the transfer of Florida real property to any entity may result in
prohibited ownership. Where the transferee is an entity not formed in or not
principally operating out of a foreign country of concern, interested persons
may be surprised that the new law may apply to their transaction.
OBSERVATION: As noted above, the statute is unclear as to
whether a transfer of an interest in an entity that owns a real property
interest subject to ownership prohibition to a prohibited owner is a transfer
subject to the statute – that is, the transfer of an entity interest, and not
just a direct interest in real property, may be prohibited transfer and subject
a knowledgeable transferor to criminal liability. If such indirect transfers
are ultimately determined to be subject to the statute, it dramatically
increases the scope of the law to transfers of interests of entities if such
entities own Florida real property themselves or through subsidiaries. It is
interesting to note that in the area of FIRPTA tax and withholding (Internal
Revenue Code Sections 897 and 1445) relating to dispositions of real property
interests by non-U.S. persons, there is much ink and complexity in the tax
statute and regulations regarding when and how to look through entities that by
analogy should have similar complexity here if this new law covers mere
transfers of interests in entities. Assuming this is what the legislature
intended, one may wonder if it realized the burden it imposes on daily business
and estate planning transactions involving entity interests in Florida that do
not involve the direct transfer of Florida real property.
Who Can Be Penalized?
Either or both of the recipient foreign owner and the
transferor is subject to criminal liability. There is also language in the
statute that closing agents may have liability if they have actual knowledge of
a violation of the law, but the statute is not clear on this. There is also
language in the statute that appears to limit criminal liability of transferors
to only those engaged in sale transactions and not gratuitous transfers.
What Are the Criminal Penalties for
Noncompliance?
A foreign owner is guilty of a second-degree misdemeanor
(or third-degree felony as to the PRC category).
A seller who knowingly violates the law commits a
second-degree misdemeanor (or first-degree misdemeanor as to the PRC
category).
OBSERVATION: As noted above, by use of the terminology
"seller" in the statute, other transferors, such as donors, trust
settlors, and testators, not engaged in a sale transaction should not be
committing a crime even if they knowingly violate this law.
What Are Some Other Consequences of
Noncompliance with the Law?
Subject to the rights of bona fide lienholders, the subject
property may be forfeited to the State of Florida via a civil action for
forfeiture.
Can Forfeiture Apply if the Real Property is
Homestead Property of the Owner?
Perhaps not under Florida’s constitutional protections of
homestead. It is unlikely that prohibited property will constitute homestead
property given the types of owners that are subject to the statute, but there
are some possible circumstances where it may be homestead property of the owner.
Where Should One Look for Further Guidance?
The law gives direction for the issuance of rules to assist
in the interpretation and application of the new law. In addition, a statutory
direction to create forms of affidavits is also given.
What is the Effective Date of the New Law?
July 1, 2023.
Does the Above Tell Me Everything I Need to
Know?
No, it is an introductory summary only. This summary is a
preliminary read of a somewhat complex statute, even though it may not appear
so on an initial read-through. The law has a fair amount of detail and should
be consulted to precisely determine when and how it applies. Some of the
descriptions above are based on interpretations by the writer based on
extrapolations from some of the statutory language, which may not be found to
be appropriate or correct by the State of Florida or courts dealing with these
issues. Rules will also be promulgated that are likely to provide more detail
and possibly additional related compliance requirements. Accordingly,
interested persons are encouraged to consult the statute to confirm any of the
preceding statements and for other details of its operation.
