Florida Real Estate Commission Finalizes Buyer’s Affidavits for Conveyances to Foreign Entities

The Florida Real Estate Commission’s form buyer’s affidavits for conveyances to foreign entities are finally available and go into effect on January 17, 2024. This should provide some relief for practitioners and title companies, as SB 264 (Chapter No. 2023-33, Laws of Florida) became law on July 1, 2023. The new form affidavits are located in rule 61J2-10.200, F.A.C., and are established to help implement Sections, 692.205(5)(c), 692.203(6)(c), and 692.204(6)(c), Florida Statutes.

At the time of closing, buyers of real property are now obligated to execute one of the two form affidavits under penalty of perjury, attesting to the requirements of Sections 692.202-205, Florida Statutes. One is for a buyer that is a natural person, and the other one is for a buyer that is an entity. Both require buyers to attest, among other things, that they are not a “Foreign Principal” as defined in Section 692.201, Florida Statutes, or that they are a Foreign Principal but the transaction is otherwise in compliance with the law. The affidavits also require buyers to acknowledge that the representations therein will be relied upon to establish such compliance—adding some level of protection for sellers and other third parties involved in the transactions (e.g., title companies).

For over six months now, real estate transactions in Florida have been taking place without official State guidance on the buyer’s affidavits. This led many practitioners and title companies to prepare their own forms—based on the language in Sections 692.202-205, Florida Statutes—in an attempt to comply with the new laws.

The buyer’s affidavits also come on the heels of newly adopted rules for Section 692.203, Florida Statutes, relating to the purchase of real property on or around military installations or critical infrastructure facilities (73C-60.001-007, F.A.C.). These rules, prepared by the Florida Department of Commerce, went into effect on January 4, 2024, and established the State’s registration system for applicable properties and Foreign Principals associated with Russia, Iran, North Korea, Cuba, Venezuela, and Syria (the rules notably exclude China, which is covered separately by Section 692.204, Florida Statutes). Those that need to register grandfathered properties or new acquisitions can find the State’s online system here.

Although the State’s affidavits do not technically go into effect until January 17, 2024, it would not be surprising to learn that practitioners and title companies are already using the new forms for their real estate transactions. That being said, enforcement of SB 264 continues to be an area of concern as additional rules are forthcoming, and the litigation in Shen v. Simpson, No. 4:23-cv-208-AW-MAF (N.D. Fla. 2023), appeal docketed, No. 23-12737 (11th Cir. Aug. 23, 2023), is still pending.

The new form buyer’s affidavits within rule 61J2-10.200, F.A.C., can be obtained here.