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Thursday, May 18, 2023

Key Questions & Answers Regarding Florida's New Law Restricting Real Estate Ownership by Persons of Foreign Countries of Concern


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?


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.

Sunday, April 16, 2023

New Decision Is a Welcome Clarification of Florida Waiver of Homestead by Deed Issues [Florida]

Fla. Stats. Section 732.7025 provides that if a spouse transfers their interest in property that is or will be homestead property of their spouse by using specific language in the deed, then the transferring spouse waives all homestead rights in such property. Thus, for example, their spouse can convey the subject property at death without the limitations on devise that would otherwise apply when there is a surviving spouse.

That statutory provision is a safe harbor that avoids any question when a waiver will occur. Nonetheless, a waiver by deed can occur outside of that statute. Until now, there has been a fair amount of ambiguity about when a deed will constitute a waiver of homestead rights by a transferring spouse.

In Stone v. Stone, 157 So.3d 295 (4th DCA 2014), a husband and wife jointly owned homestead property. They then deeded the property to each other as tenants in common, preliminary to subsequently deeding it into separate qualified personal residence trusts. The trial court and the appellate court concluded this was a waiver by the wife of her rights in husband's share of the homestead, per language in the deed that the transferring spouse "grants, bargains, sells, aliens, remises, releases, conveys, and confirms" the property "together with all the tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining." Thus, it would appear that a deed conveying a spouse's entire interest in the subject property can, at least in certain circumstances, constitute a valid waiver.  

What are those circumstances? Note the use of the terms “hereditaments” and “releases” in the Stone deed. In Habeeb v. Linder, 2011 WL 613392, 36 FLW D300 (3rd DCA 2011), withdrawn by 64 So.3d 1275, a husband and wife owned homestead property as tenants by the entireties. During the marriage, title was transferred by husband and wife via a warranty deed to the husband. The deed did not have any language of waiver or homestead. The wife died first, and the issue arose whether the husband had homestead rights to the homestead. The trial court found the deed to constitute a valid waiver of homestead rights by the husband, and Florida's 3rd District Court of Appeal affirmed, noting the use of the term “hereditaments” in the deed involved in that case. The court noted that hereditaments means inheritance rights, and thus by signing a deed with that term in it, the wife waived all of her inheritance rights including her homestead rights. However, the 3rd DCA eventually withdrew its opinion. As such, the case has no precedential value. While Stone also had the hereditaments language, the appellate decision did not provide that it was the reason for its finding of waiver (although the language was included in an excerpt from the subject deed). Thus, uncertainty remained after Stone as to what particular circumstances allowed for a waiver by deed. In 2023, much of this uncertainty was resolved. 

In Thayer and Jefferson v. Hawthorn, No. 4D22-244, 2023 WL 2903993 (4th DCA) Apr. 12, 2023), the 4th DCA, which had decided Stone, has now taken another bite at the apple. In Thayer, the subject deed signed by the transferring spouse did not have language of transfer of hereditaments nor language of release. In the search for language of waiver, the appellate court compared the deed in Thayer and the deed in Stone, and found the lack of hereditament and release language significant enough that the waiver found in Stone should not extend to the deed in Thayer. The appellate court also noted that the acknowledgement in the deed that the transferee trustees had “full power and authority to protect, conserve, sell, lease, encumber or otherwise to manage and dispose of the real property described herein” was not equivalent to a transfer of “all rights” under Fla.Stats. §732.702(1) that would give rise to a homestead waiver. Further, the court noted the burden on a party asserting waiver to sustain their position since “language waiving a constitutional right must be able to be clearly understood as waiving the right.” That Stone and Thayer were both promulgated by the 4th DCA effectively requires them to be read together and that Thayer acts as a clarification and modification of Stone with precedential authority. There is language in the opinion that suggests that if called upon to rule again on Stone that the court might not have found a waiver there when it said “[w]hile one may question whether the language in Stone was sufficiently specific to waive homestead, it is still more specific than the deed's language in this case.” Having concluded that the deed in Thayer was not a waiver, the court also concluded that the deed could not be corrected to treat it as a waiver based on external evidence of the parties’ intent, such as testimony of the estate planning attorney who was involved in the transfer by deed. 

Reading the case law together, it is a fair conclusion that specific language of release, waiver, or at least reference to transfer of hereditaments is now required in a deed for the deed to constitute a waiver by deed (except as waivers under Fla.Stats. §732.7025). Thayer is a welcome clarification on this issue. 

Interestingly, neither Thayer nor Stone discussed the fair disclosure requirements of Fla.Stats. §732.702(2). Perhaps the court presumed that the only item requiring disclosure was the subject property which was already described on the deed, the issue was not brought to the court’s attention, or full disclosure occurred but was not mentioned in the court’s opinions.

In preparing a deed of property that will remain homestead property of the transferor’s spouse, if a waiver of homestead rights is not desired, care should be taken to avoid language of waiver, release, ‘all rights,’ and assignment of hereditaments (and similar language). 

Sunday, August 28, 2022

Landmark Florida Supreme Court Decision on Homestead Protections Has Been Written Out of the Law by Two Appellate Courts, and No One Appears to Have Noticed

 SUMMARY: In Havoco of America, Ltd. v. Hill, the Florida Supreme Court ruled that the Florida constitutional protections of homestead property against creditor claims trump Florida's fraudulent transfer laws. Thus, homestead protections include nonexempt assets that are added to or invested in a homestead, even if added with the intent to delay, hinder or defraud creditors. However, in a recent appellate opinion, this recognition was effectively ignored and, in practice, vitiates the holding of Havoco. And this is the second time an appellate court has done so in recent years.

FACTS: Article X, section 4(a) of the Florida Constitution exempts from forced sale the homestead of a natural person, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement, or repair thereof, or obligations contracted for house, field or other labor performed on the realty. Aside from these explicit three exceptions to homestead protection, over time, Florida case law has developed some additional exceptions, principally relating to equitable liens for bad acts of the owner. In Havoco, the Florida Supreme Court limited the scope of this equitable lien exception for protection, holding that a transfer of assets into a homestead with the intent to delay, hinder or defraud creditors is not enough, by itself, to give rise to an equitable lien that defeats the homestead protection. It further provided Florida's Uniform Fraudulent Transfer Act (FUFTA) has no effect on the constitutional protection. However, the court did allow that an equitable lien could arise when the funds invested were obtained through theft, fraud, or egregious conduct – something akin to a source of funds exception.

Havoco specifically provided: 

The federal courts which have addressed the applicability of section 726.105 [Florida's Uniform Fraudulent Transfer Act] to homestead claims have concluded that it has no effect on the constitutionally created homestead exemption … We agree.

So unless the funds invested in the homestead were obtained through theft, fraud, or egregious conduct, the homestead remains protected per Havoco. One conceptual way to summarize this is that a fraudulent transfer is not the fraud, theft, or egregious conduct that vitiates constitutional protection. Such fraud must be something beyond the incidents of a fraudulent transfer, such as common law fraud (generally requiring a misrepresentation or intentionally false statement or concealment) or similar egregious action.

In Renda v. Price, a recent Florida appellate decision, a $10 million judgment was obtained against a corporation relating to an automobile accident. Arrangements were made for corporate assets to reach the wife of the corporation's owner, after which the wife sold the assets and invested them in homestead property. The judgment holder sought to reach the homestead assets. The trial court allowed the equitable lien, predicated on the defendant's conduct constituting "badges of fraud" as enumerated by FUFTA, but would not allow the judgment creditor to foreclose on it. Florida's Fourth District Court of Appeals upheld the lien and also allowed foreclosure to proceed. The appellate court noted that under Havoco, an equitable lien on homestead property could attach and be foreclosed when the property was acquired with funds generated by fraudulent or egregious activity. It effectively found that the homestead was purchased with funds obtained by fraud and thus could be reached by the creditor. The appellate court did not indicate what the fraud was, other than indirectly, by reference to the trial court's finding of fraud via the existence of badges of fraud under FUFTA. So, while Havoco specifically provided that a fraudulent transfer is not the fraud that vitiates constitutional protection, the trial and appellate courts found the "fraud" that Havoco allowed to allow an equitable lien was the indicia (badges of fraud) that are used to establish a fraudulent transfer. 

COMMENT: Havoco says the application of FUFTA, even with the intent to defraud, does not override the constitutional protection – the subject assets must have been obtained by fraud or other egregious behavior. That is, the subject assets must be obtained by fraud or egregious behavior beyond the behavior that gives rise to a fraudulent transfer under FUFTA. If the only bad behavior is the behavior described in FUFTA (which appears to be the case in Renda), then the holding in Havoco is written out of the law when the only "fraudulent behavior" are badges of fraud indicia under FUFTA. That is, the Renda courts are saying that the "fraud" exception to Havoco is met by a mere finding of a fraudulent transfer under FUFTA by reason of badges of fraud thereunder that are used to prove requisite intent. With that logic, the Florida Supreme Court's holding that a mere fraudulent transfer under FUFTA is not enough to void the constitutional protection is vitiated since only elements of FUFTA are being used to demonstrate fraud outside of FUFTA. While Havoco also allows an equitable lien when the subject proceeds are obtained by egregious behavior, the defendant's conduct, whether called egregious or not, is not bad behavior beyond the badges of fraud provided in the fraudulent transfer statute, so the egregious label should not weaken the continued constitutional protection. There is no suggestion in the opinion that the subject assets were obtained via "theft."

This is not the only appellate court to make a similar argument. In 2014, in the bankruptcy case of In re Bifani, a debtor in bankruptcy fraudulently transferred property to his cohabitating girlfriend. The girlfriend sold the property and invested $669,233 of the proceeds to purchase a home in Sarasota, Florida. The debtor and the girlfriend then resided together at the home, which qualified as homestead property of the debtor's girlfriend. The bankruptcy trustee went after the girlfriend and persuaded the Bankruptcy Court to impose an equitable lien on the homestead. The Bankruptcy Court imposed the lien and did this based on general equitable principles, noting "the court may impose an equitable lien if the general considerations of right and justice dictate that one party has a special right to a particular property and there is an absence of an available lien or no adequate remedy at law." Interestingly, there is no reference to or consideration of the above-quoted language of Havoco declaring that the specific intent to defraud creditors does not void the homestead protection from creditors.

The Bankruptcy Court opinion was appealed to the U.S. District Court for the Middle District of Florida. Here, that court picks up on the limitations that Havoco imposed and reverses the Bankruptcy Court. The analysis is instructive: 

Florida's appellate courts have interpreted Havoco to limit equitable liens on homesteads to cases "in which the homesteads were purchased with the fruits of fraudulent activity." Willis v. Red Reef, Inc., 921 So. 2d 681, 684 (Fla. 4th DCA 2006). Those cases do not include situations where the homestead owner converted otherwise reachable funds into an exempt homestead, even if this is done through a fraudulent transfer made with the intent to hinder, delay, or defraud creditors. Id.; See Dowling, 2007 WL 1839555, at *4 ("[T]he homestead exemption does not contain an express exception for real property that is acquired in Florida for the sole purpose of defeating the claims of out-of-state creditors."); Conseco Servs., LLC v. Cuneo, 904 So. 2d 438, 440 (Fla. 3d DCA 2005) ("It is not enough that the Cuneos transferred their nonexempt funds to an exempt asset to keep those funds from creditors. If a debtor acquires homestead property with the 'specific intent to hinder, delay, or defraud creditor,' the property still enjoys Florida's constitutional homestead protection.”). Havoco and its progeny instruct that the fraudulent transfer of assets into a homestead does not provide a basis for the imposition of an equitable lien. The Bankruptcy Court, therefore, abused its discretion by imposing an equitable lien on LaMarca's homestead, as the lien infringes on the homestead exemption granted in article X, section 4 of the Florida Constitution.

All is well that ends well? Not quite. On appeal, the 11th Circuit Court of Appeals reversed the U.S. District Court and allowed the equitable lien to attach to the girlfriend's homestead property. The court noted that while Havoco allows homestead creditor protection to continue for funds put into a homestead, that is not the case where funds obtained through fraud or egregious conduct were used to invest in, purchase, or improve the homestead. The court went on to find "fraud" that allowed the equitable lien due to various badges of fraud under the fraudulent conveyance statute – exactly what also occurred in Renda in the first case discussed above – and with the same effective overwrite of the holding of Havoco.

It is the author's opinion that these appellate courts have confused the typical legal definition of "fraud" with "fraudulent transfer" and concluded that a fraudulent transfer constitutes fraud. They would not be the first courts to conclude that a "fraudulent transfer" constitutes fraud under law. Indeed, more modern fraudulent transfer statutes such as the Uniform Voidable Transfer Act intentionally eschew the terms "fraud" and "fraudulent" to avoid unintended characterizations. An article on the subject provides:

The driving force behind the change is the concept of "constructive fraud," which permits the avoidance of transfers made or of obligations incurred by an insolvent debtor in exchange for less than reasonably equivalent value. Although denominated as "fraud," a constructively fraudulent transfer involves neither fraud nor improper intent, creating confusion among some courts that have issued rulings improperly limiting the scope of the avoidance remedy. To address these concerns, the word "fraud" has been supplanted by the term "voidable" in nearly every portion of the UVTA and the Commission's official comments. Moreover, the UVTA adopts the more aggressive view that even "actually fraudulent" transfers do not require fraud. In lieu of the traditional standard applied to transfers made with the intent to "hinder, delay or defraud" creditors, the comments to the UVTA shift the inquiry to "hinder or delay" and substitute the idea of "unacceptably contraven[ing] norms of creditors' rights" as the measure for when efforts to hinder or delay render a transaction voidable. Uniform Voidable Transactions Act Approved by Uniform Law Commission to Replace UFTA, Jones Day Publications, September/October 2014.

Presently, a motion for rehearing, for rehearing en banc, and/or certification of the issue to the Florida Supreme Court is pending in Renda. One can only hope that the issue is revisited, and the improper overwriting of the holding in Havoco is recognized and reversed. Or barring that, that an appeal is taken to and accepted by the Florida Supreme Court to protect its holding in Havoco.

CITES: Fla. Const. Article X, section 4(a); Florida Statutes Chapter 726; Havoco of America, Ltd. v. Hill, 790 So.2d 1018 (Fla. 2001), Renda v. Price, No. 4D21-534, 2022 WL 2962564 (Fla. Dist. Ct. App. July 27, 2022); In re Bifani, 493 B.R. 866 (Bankr. M.D. Fla. 2013); Uniform Voidable Transactions Act Approved by Uniform Law Commission to Replace UFTA, Jones Day Publications, September/October 2014.