Florida Client Alert: New and Future Changes to Florida Laws Affecting Real Property
Tort reform laws are not the only significant changes underway in Florida. There also are a series of changes to Florida law that either have taken effect, will take effect, or may potentially take effect (more on that later) regarding real property.
Florida Statutes, § 695.26 – Witness Addresses Required for Instruments Affecting Ownership of Real Property
Starting January 1, 2024, “instrument[s] by which the title to real property or any interest therein is conveyed, assigned, encumbered, or otherwise disposed of” that require witnesses must also include the witnesses’ addresses. In other words, witnesses must provide their signature, printed name, and address on any document that affects the ownership of real estate, most commonly a deed. Documents that fall under Fla. Stat. § 695.26’s witness address requirement include:
- Certain affidavits (i.e. Affidavit of Sufficient Funds, Scriveners Affidavit, Affidavit of Lost Assignment, Affidavit of Notice of Interest)
- Affidavit Taxable
- Agreement for Deed
- Agreement Taxable
- Claim of Lien
- Deeds, Deeds of Trust, Deed of Assumption, Deed Mortgage
- Other Deeds (i.e., Curative Notice)
- Modification of Mortgage
- Mortgage (including Documentary Stamp Exempt, Intangible Tax Exempt, Exempt from Both, and Fully Taxable)
- Notice of Commencement
- Note with Real Property
- Release/Partial Release of Lien/Mortgage
- Termination of Notice of Commencement
- Waiver of Release of Lien
- Mobile Home Retirement or Affixation
- Notice of Contest of Lien
- Notice of Interest in Land
- Notice of Bond
- Notice of Homestead
- Notice of Contest of Claim Against Payment Bond
- Request for Release of Transfer of Lien to Security
While deeds and easements require witness names, some other documents that involve real estate ownership interests might not require witnesses. Documents that do not provide for witness signatures need not now require witness signatures and addresses.
In addition, there are certain exceptions for § 695.26, all of which were effective prior to amendment. The witness address and signature requirements do not apply to any instruments executed prior to July 1, 1991, a “decree, order, judgment, or writ of any court,” any “instrument executed, acknowledged, or proved outside of this state,” a will, a plat, or an “instrument prepared or executed by any public officer other than a notary public.”
Florida Statutes, § 28.47 – Recording Notification Service
Following the lead of other states, Florida passed a new law that requires the clerks of each circuit court to “create, maintain, and operate a free recording notification service which is open to all persons wishing to register for the service.” Pursuant to Florida Statutes, § 28.47, each county is required to establish such a service through an electronic portal maintained on its clerk’s official public website by July 1, 2024. For counties that already adopted a similar system before July 1, 2023, § 28.47’s requirements also apply.
Under the service, a person may register to receive notifications of the entry in that county’s public records of any land records associated with up to five monitored identities. A “monitored identity” is a “personal or business name or a parcel identification number.” Whenever “a land record is recorded for a monitored identity, a recording notification must be sent within 24 hours after the recording to each registrant who is subscribed to receive recording notifications for that monitored identity.” A “recording notification” must include the following information:
- Information identifying the monitored identity
- The date of recording
- The official record book and page number or instrument number assigned by the clerk
- Instructions to search for and view the land record using the official record book and page number or instrument number
- The clerk’s office’s phone number at which to contact with questions regarding the recording notification
Under § 28.47, only land records require a recording notification be sent out to individuals registered to receive notifications for particular parcels. A “land record” is a “deed or other document purporting to convey real property.” Thus, the new statute does not appear to require notifications of land records that encumber real property, such as mortgages and other mortgage-related documents, easements, lien-related documents, and other documents that do not reflect a transfer of ownership of real property. Moreover, the clerk of court is not liable to suit with respect to its creation, maintenance, or operation of the recording notification service. Furthermore, the clerk of court is not required to send recording notifications regarding confidential information to registrants.
Florida Statutes, § 65.091 – Quiet Title Actions for Fraudulent Attempted Conveyance
Florida also created a brand new cause of action for fraudulent attempted conveyances. A fraudulent attempted conveyance claim alleges that a deed or instrument purporting to convey title to property by the plaintiff was fraudulent and that the plaintiff did not actually execute the deed or convey the property. Under Florida Statutes, § 65.091, “when the court determines that an attempt was made to fraudulently convey the land at issue away from a plaintiff who had legal title to the land before the conveyance, the court must quiet title in and award the plaintiff with the same title and rights to the land that the plaintiff enjoyed before the attempted conveyance.”
Moreover, an individual bringing a claim for fraudulent attempted conveyance is entitled to summary procedure under Florida Statutes, § 51.011, which allows for an expedited process to determine the right of possession of property, and “the court shall advance the cause on the calendar.” Under Section 51.011(3), if there is a jury pool available “at the close of pleading or the time of demand for jury trial, the action may be tried immediately.” In addition, the statute provides the clerk of each circuit court must provide a form complaint for fraudulent attempted conveyance. One such form was submitted by the Florida Bar for comments and potential adoption by the Florida Supreme Court. The form is available here.
Florida Statutes, § 689.025 – New Form of Quitclaim Deeds
Among the other changes noted above, the Florida legislature also created a new statute prescribing the form of quitclaim deeds executed in the State of Florida. Under Section 689.025, all quitclaim deeds must include substantially the following form language:
This Quitclaim Deed, executed this (date) day of (month, year), by first party, Grantor (name), whose post office address is (address), to second party, Grantee (name), whose post office address is (address).
Witnesseth, that the said first party, for the sum of $(amount), and other good and valuable consideration paid by the second party, the receipt whereof is hereby acknowledged, does hereby remise, release, and quitclaim unto the said second party forever, all the right, title, interest, claim, and demand which the said first party has in and to the following described parcel of land, and all improvements and appurtenances thereto, in (county), Florida:
The property’s legal description must be legibly typed, typewritten, or stamped. Moreover, there must be a blank space on the quitclaim deed for the parcel identification number, which number, if available before presenting for recording, must be included on the deed. But the parcel identification number is not required and will not invalidate a transfer of property via quitclaim deed. The parcel identification number also cannot be used as a substitute for the legal description.
Experimental Statute: Florida Statutes, § 28.2225 – Lee County Pilot Program for Preventing Fraud by Requiring Identity Verification
Finally, a new Florida statute creates a pilot program that applies only to Lee County for the time being. The pilot program is designed to prevent title fraud by requiring individuals to verify their identity whenever presenting any deed or written instrument transferring property to the clerk of the circuit court for recording.
When the clerk for Lee County participating in the pilot program meets anyone who wants to record a deed, for example, the clerk must request the individual to produce a government-issued ID card. The clerk must keep a record of the name and address, as well as the official records book and page number associated with the individual whose ID was produced. The record is not made available on the clerk’s public website but might be subject to disclosure under Florida’s public records laws.
If an individual wishes to record a deed online, the clerk may require that individual to upload a photocopy of an ID card before recording the deed. The individual may redact all information on the ID card except for that individual’s name, address, and photograph. The clerk then must keep a record of the photocopied ID card and the book and page number of the deed presented by that individual. If the clerk requests an individual to produce an ID card either in-person or online and he or she does not comply, the clerk may refuse to record the deed.
The identification verification requirement remains effective in Lee County until the clerk of court publishes a notice on the clerk’s public website that it is no longer participating in the pilot program.
The goal of the pilot program is to determine how effective the identification verification requirement is in reducing instances of title fraud before recommending whether such a program is an effective solution for all of Florida. The clerk for Lee County must submit a report to the Governor, President of the Senate, and Speaker of the House of Representatives by December 31, 2025. In the report, the clerk will detail how many people presented deeds for recording, the types of ID cards produced, feedback on the pilot program from the community, and whether the clerk recommends the identification verification program be required throughout the state. Only time will tell how effective this program will be and whether every Florida must produce an ID when recording deeds or similar instruments.
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