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2019 Florida Statutes
Chapter 689
CONVEYANCES OF LAND AND DECLARATIONS OF TRUST
CONVEYANCES OF LAND AND DECLARATIONS OF TRUST
TITLE XL
REAL AND PERSONAL PROPERTYCHAPTER 689
CONVEYANCES OF LAND AND DECLARATIONS OF TRUST
689.01 How real estate conveyed.
689.02 Form of warranty deed prescribed.
689.03 Effect of such deed.
689.04 How executed.
689.045 Conveyances to or by partnership.
689.05 How declarations of trust proved.
689.06 How trust estate conveyed.
689.07 “Trustee” or “as trustee” added to name of grantee, transferee, assignee, or mortgagee transfers interest or creates lien as if additional word or words not used.
689.071 Florida Land Trust Act.
689.072 Real estate interests transferred to or by a custodian or trustee of an individual retirement account or qualified plan.
689.073 Powers conferred on trustee in recorded instrument.
689.075 Inter vivos trusts; powers retained by settlor.
689.08 Fines and common recoveries.
689.09 Deeds under statute of uses.
689.10 Words of limitation and the words “fee simple” dispensed with.
689.11 Conveyances between husband and wife direct; homestead.
689.111 Conveyances of homestead; power of attorney.
689.115 Estate by the entirety in mortgage made or assigned to husband and wife.
689.12 How state lands conveyed for educational purposes.
689.13 Rule against perpetuities not applicable to dispositions of property for private cemeteries, etc.
689.14 Entailed estates.
689.15 Estates by survivorship.
689.17 Rule in Shelley’s Case abolished.
689.175 Worthier title doctrine abolished.
689.18 Reverter or forfeiture provisions, limitations; exceptions.
689.19 Variances of names in recorded instruments.
689.20 Limitation on use of word “minerals.”
689.225 Statutory rule against perpetuities.
689.25 Failure to disclose homicide, suicide, deaths, or diagnosis of HIV or AIDS infection in an occupant of real property.
689.261 Sale of residential property; disclosure of ad valorem taxes to prospective purchaser.
689.27 Termination by servicemember of agreement to purchase real property.
689.28 Prohibition against transfer fee covenants.
689.29 Disclosure of subsurface rights to prospective purchaser.
689.01 How real estate conveyed.—
(1) No estate or interest of freehold, or for a term of more than 1 year, or any uncertain interest of, in or out of any messuages, lands, tenements or hereditaments shall be created, made, granted, transferred or released in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses by the party creating, making, granting, conveying, transferring or releasing such estate, interest, or term of more than 1 year, or by the party’s lawfully authorized agent, unless by will and testament, or other testamentary appointment, duly made according to law; and no estate or interest, either of freehold, or of term of more than 1 year, or any uncertain interest of, in, to, or out of any messuages, lands, tenements or hereditaments, shall be assigned or surrendered unless it be by instrument signed in the presence of two subscribing witnesses by the party so assigning or surrendering, or by the party’s lawfully authorized agent, or by the act and operation of law. No seal shall be necessary to give validity to any instrument executed in conformity with this section. Corporations may execute any and all conveyances in accordance with the provisions of this section or ss. 692.01 and 692.02.
(2) For purposes of this chapter:
(a) Any requirement that an instrument be signed in the presence of two subscribing witnesses may be satisfied by witnesses being present and electronically signing by means of audio-video communication technology, as defined in s. 117.201.
(b) The act of witnessing an electronic signature is satisfied if a witness is in the physical presence of the principal or present through audio-video communication technology at the time the principal affixes his or her electronic signature and the witness hears the principal make a statement acknowledging that the principal has signed the electronic record.
(c) The terms used in this subsection have the same meanings as the terms defined in s. 117.201.
(3) All acts of witnessing made or taken in the manner described in subsection (2) are validated and, upon recording, may not be denied to have provided constructive notice based on any alleged failure to have strictly complied with this section or the laws governing notarization of instruments, including online notarization. This subsection does not preclude a challenge to the validity or enforceability of an instrument or electronic record based upon fraud, forgery, impersonation, duress, incapacity, undue influence, minority, illegality, unconscionability, or any other basis not related to the act of witnessing.
History.—s. 1, Nov. 15, 1828; RS 1950; GS 2448; RGS 3787; CGL 5660; s. 4, ch. 20954, 1941; s. 751, ch. 97-102; s. 2, ch. 2008-35; s. 21, ch. 2019-71.
689.02 Form of warranty deed prescribed.—
(1) Warranty deeds of conveyance to land may be in the following form, viz.:
“This indenture, made this day of A.D. , between , of the County of in the State of , party of the first part, and , of the County of , in the State of , party of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of dollars, to her or him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained and sold to the said party of the second part, her or his heirs and assigns forever, the following described land, to wit:
And the said party of the first part does hereby fully warrant the title to said land, and will defend the same against the lawful claims of all persons whomsoever.”
(2) The form for warranty deeds of conveyance to land shall include a blank space for the property appraiser’s parcel identification number describing the property conveyed, which number, if available, shall be entered on the deed before it is presented for recording. The failure to include such blank space or the parcel identification number, or the inclusion of an incorrect parcel identification number, does not affect the validity of the conveyance or the recordability of the deed. Such parcel identification number is not a part of the legal description of the property otherwise set forth in the deed and may not be used as a substitute for the legal description of the property being conveyed.
History.—s. 1, ch. 4038, 1891; GS 2449; RGS 3788; CGL 5661; s. 1, ch. 87-66; s. 17, ch. 88-176; s. 60, ch. 89-356; s. 752, ch. 97-102; s. 1, ch. 2013-241.
689.03 Effect of such deed.—A conveyance executed substantially in the foregoing form shall be held to be a warranty deed with full common-law covenants, and shall just as effectually bind the grantor, and the grantor’s heirs, as if said covenants were specifically set out therein. And this form of conveyance when signed by a married woman shall be held to convey whatever interest in the property conveyed which she may possess.
History.—s. 2, ch. 4038, 1891; GS 2450; RGS 3789; CGL 5662; s. 5, ch. 20954, 1941; s. 753, ch. 97-102.
689.04 How executed.—Such deeds shall be executed and acknowledged as is now or may hereafter be provided by the law regulating conveyances of realty by deed.
History.—s. 3, ch. 4038, 1891; GS 2451; RGS 3790; CGL 5663.
689.045 Conveyances to or by partnership.—
(1) Any estate in real property may be acquired in the name of a limited partnership. Title so acquired must be conveyed or encumbered in the partnership name. Unless otherwise provided in the certificate of limited partnership, a conveyance or encumbrance of real property held in the partnership name, and any other instrument affecting title to real property in which the partnership has an interest, must be executed in the partnership name by one of the general partners.
(2) Every conveyance to a limited partnership in its name recorded before January 1, 1972, as required by law while the limited partnership was in existence is validated and is deemed to convey the title to the real property described in the conveyance to the partnership named as grantee.
(3) When title to real property is held in the name of a limited partnership or a general partnership, one of the general partners may execute and record, in the public records of the county in which such partnership’s real property is located, an affidavit stating the names of the general partners then existing and the authority of any general partner to execute a conveyance, encumbrance, or other instrument affecting such partnership’s real property. The affidavit shall be conclusive as to the facts therein stated as to purchasers without notice.
History.—s. 2, ch. 71-9; s. 71, ch. 86-263; s. 23, ch. 95-242.
Note.—Former s. 620.081.
689.05 How declarations of trust proved.—All declarations and creations of trust and confidence of or in any messuages, lands, tenements or hereditaments shall be manifested and proved by some writing, signed by the party authorized by law to declare or create such trust or confidence, or by the party’s last will and testament, or else they shall be utterly void and of none effect; provided, always, that where any conveyance shall be made of any lands, messuages or tenements by which a trust or confidence shall or may arise or result by the implication or construction of law, or be transferred or extinguished by the act and operation of law, then, and in every such case, such trust or confidence shall be of the like force and effect as the same would have been if this section had not been made, anything herein contained to the contrary in anywise notwithstanding.
History.—s. 2, Nov. 15, 1828; RS 1951; GS 2452; RGS 3791; CGL 5664; s. 754, ch. 97-102.
689.06 How trust estate conveyed.—All grants, conveyances, or assignments of trust or confidence of or in any lands, tenements, or hereditaments, or of any estate or interest therein, shall be by deed signed and delivered, in the presence of two subscribing witnesses, by the party granting, conveying, or assigning, or by the party’s attorney or agent thereunto lawfully authorized, or by last will and testament duly made and executed, or else the same shall be void and of no effect.
History.—s. 3, Nov. 15, 1828; RS 1952; GS 2453; RGS 3792; CGL 5665; s. 1, ch. 80-219; s. 755, ch. 97-102.
689.07 “Trustee” or “as trustee” added to name of grantee, transferee, assignee, or mortgagee transfers interest or creates lien as if additional word or words not used.—
(1) Every deed or conveyance of real estate heretofore or hereafter made or executed in which the words “trustee” or “as trustee” are added to the name of the grantee, and in which no beneficiaries are named, the nature and purposes of the trust, if any, are not set forth, and the trust is not identified by title or date, shall grant and is hereby declared to have granted a fee simple estate with full power and authority in and to the grantee in such deed to sell, convey, and grant and encumber both the legal and beneficial interest in the real estate conveyed, unless a contrary intention shall appear in the deed or conveyance; provided, that there shall not appear of record among the public records of the county in which the real property is situate at the time of recording of such deed or conveyance, a declaration of trust by the grantee so described declaring the purposes of such trust, if any, declaring that the real estate is held other than for the benefit of the grantee.
(2) Every instrument heretofore or hereafter made or executed transferring or assigning an interest in real property in which the words “trustee” or “as trustee” are added to the name of the transferee or assignee, and in which no beneficiaries are named, the nature and purposes of the trust, if any, are not set forth, and the trust is not identified by title or date, shall transfer and assign, and is hereby declared to have transferred and assigned, the interest of the transferor or assign or to the transferee or assignee with full power and authority to transfer, assign, and encumber such interest, unless a contrary intention shall appear in the instrument; provided that there shall not appear of record among the public records of the county in which the real property is situate at the time of the recording of such instrument, a declaration of trust by the assignee or transferee so described declaring the purposes of such trust, if any, or declaring that the interest in real property is held other than for the benefit of the transferee or assignee.
(3) Every mortgage of any interest in real estate or assignment thereof heretofore or hereafter made or executed in which the words “trustee” or “as trustee” are added to the name of the mortgagee or assignee, and in which no beneficiaries are named, the nature and purposes of the trust, if any, are not set forth, and the trust is not identified by title or date, shall vest and is hereby declared to have vested full rights of ownership to such mortgage or assignment and the lien created thereby with full power in such mortgagee or assignee to assign, hypothecate, release, satisfy, or foreclose such mortgage unless a contrary intention shall appear in the mortgage or assignment; provided that there shall not appear of record among the public records of the county in which the property constituting security is situate at the time of recording of such mortgage or assignment, a declaration of trust by such mortgagee or assignee declaring the purposes of such trust, if any, or declaring that such mortgage is held other than for the benefit of the mortgagee or assignee.
(4) Nothing herein contained shall prevent any person from causing any declaration of trust to be recorded before or after the recordation of the instrument evidencing title or ownership of property in a trustee; nor shall this section be construed as preventing any beneficiary under an unrecorded declaration of trust from enforcing the terms thereof against the trustee; provided, however, that any grantee, transferee, assignee, or mortgagee, or person obtaining a release or satisfaction of mortgage from such trustee for value prior to the placing of record of such declaration of trust among the public records of the county in which such real property is situate, shall take such interest or hold such previously mortgaged property free and clear of the claims of the beneficiaries of such declaration of trust and of anyone claiming by, through or under such beneficiaries, and such person need not see to the application of funds furnished to obtain such transfer of interest in property or assignment or release or satisfaction of mortgage thereon.
(5) In all cases in which tangible personal property is or has been sold, transferred, or mortgaged in a transaction in conjunction with and subordinate to the transfer or mortgage of real property, and the personal property so transferred or mortgaged is physically located on and used in conjunction with such real property, the prior provisions of this section are applicable to the transfer or mortgage of such personal property, and, where the prior provisions of this section in fact apply to a transfer or mortgage of personal property, then any transferee or mortgagee of such tangible personal property shall take such personal property free and clear of the claims of the beneficiaries under such declaration of trust (if any), and of the claims of anyone claiming by, through, or under such beneficiaries, and the release or satisfaction of a mortgage on such personal property by such trustee shall release or satisfy such personal property from the claims of the beneficiaries under such declaration of trust, if any, and from the claims of anyone claiming by, through, or under such beneficiaries.
History.—s. 1, ch. 6925, 1915; s. 10, ch. 7838, 1919; RGS 3793; CGL 5666; s. 1, ch. 59-251; s. 1, ch. 2004-19.
689.071 Florida Land Trust Act.—
(1) SHORT TITLE.—This section may be cited as the “Florida Land Trust Act.”
(2) DEFINITIONS.—As used in this section, the term:
(a) “Beneficial interest” means any interest, vested or contingent and regardless of how small or minimal such interest may be, in a land trust which is held by a beneficiary.
(b) “Beneficiary” means any person or entity having a beneficial interest in a land trust. A trustee may be a beneficiary of the land trust for which such trustee serves as trustee.
(c) “Land trust” means any express written agreement or arrangement by which a use, confidence, or trust is declared of any land, or of any charge upon land, under which the title to real property, including, but not limited to, a leasehold or mortgagee interest, is vested in a trustee by a recorded instrument that confers on the trustee the power and authority prescribed in s. 689.073(1) and under which the trustee has no duties other than the following:
1. The duty to convey, sell, lease, mortgage, or deal with the trust property, or to exercise such other powers concerning the trust property as may be provided in the recorded instrument, in each case as directed by the beneficiaries or by the holder of the power of direction;
2. The duty to sell or dispose of the trust property at the termination of the trust;
3. The duty to perform ministerial and administrative functions delegated to the trustee in the trust agreement or by the beneficiaries or the holder of the power of direction; or
4. The duties required of a trustee under chapter 721, if the trust is a timeshare estate trust complying with s. 721.08(2)(c)4. or a vacation club trust complying with s. 721.53(1)(e).
However, the duties of the trustee of a land trust created before June 28, 2013, may exceed the limited duties listed in this paragraph to the extent authorized in subsection (12).
(d) “Power of direction” means the authority of a person, as provided in the trust agreement, to direct the trustee of a land trust to convey property or interests, execute a lease or mortgage, distribute proceeds of a sale or financing, and execute documents incidental to the administration of a land trust.
(e) “Recorded instrument” has the same meaning as provided in s. 689.073(1).
(f) “Trust agreement” means the written agreement governing a land trust or other trust, including any amendments.
(g) “Trust property” means any interest in real property, including, but not limited to, a leasehold or mortgagee interest, conveyed by a recorded instrument to a trustee of a land trust or other trust.
(h) “Trustee” means the person designated in a recorded instrument or trust agreement to hold title to the trust property of a land trust or other trust.
(3) OWNERSHIP VESTS IN TRUSTEE.—Every recorded instrument transferring any interest in real property to the trustee of a land trust and conferring upon the trustee the power and authority prescribed in s. 689.073(1), whether or not reference is made in the recorded instrument to the beneficiaries of such land trust or to the trust agreement or any separate collateral unrecorded declarations or agreements, is effective to vest, and is hereby declared to have vested, in such trustee both legal and equitable title, and full rights of ownership, over the trust property or interest therein, with full power and authority as granted and provided in the recorded instrument to deal in and with the trust property or interest therein or any part thereof. The recorded instrument does not itself create an entity, regardless of whether the relationship among the beneficiaries and the trustee is deemed to be an entity under other applicable law.
(4) STATUTE OF USES INAPPLICABLE.—Section 689.09 and the statute of uses do not execute a land trust or vest the trust property in the beneficiary or beneficiaries of the land trust, notwithstanding any lack of duties on the part of the trustee or the otherwise passive nature of the land trust.
(5) DOCTRINE OF MERGER INAPPLICABLE.—The doctrine of merger does not extinguish a land trust or vest the trust property in the beneficiary or beneficiaries of the land trust, regardless of whether the trustee is the sole beneficiary of the land trust.
(6) PERSONAL PROPERTY.—In all cases in which the recorded instrument or the trust agreement, as hereinabove provided, contains a provision defining and declaring the interests of beneficiaries of a land trust to be personal property only, such provision is controlling for all purposes when such determination becomes an issue under the laws or in the courts of this state. If no such personal property designation appears in the recorded instrument or in the trust agreement, the interests of the land trust beneficiaries are real property.
(7) TRUSTEE LIABILITY.—In addition to any other limitation on personal liability existing pursuant to statute or otherwise, the provisions of ss. 736.08125 and 736.1013 apply to the trustee of a land trust created pursuant to this section.
(8) LAND TRUST BENEFICIARIES.—
(a) Except as provided in this section, the beneficiaries of a land trust are not liable, solely by being beneficiaries, under a judgment, decree, or order of court or in any other manner for a debt, obligation, or liability of the land trust. Any beneficiary acting under the trust agreement of a land trust is not liable to the land trust’s trustee or to any other beneficiary for the beneficiary’s good faith reliance on the provisions of the trust agreement. A beneficiary’s duties and liabilities under a land trust may be expanded or restricted in a trust agreement or beneficiary agreement.
(b)1. If provided in the recorded instrument, in the trust agreement, or in a beneficiary agreement:
a. A particular beneficiary may own the beneficial interest in a particular portion or parcel of the trust property of a land trust;
b. A particular person may be the holder of the power of direction with respect to the trustee’s actions concerning a particular portion or parcel of the trust property of a land trust; and
c. The beneficiaries may own specified proportions or percentages of the beneficial interest in the trust property or in particular portions or parcels of the trust property of a land trust.
2. Multiple beneficiaries may own a beneficial interest in a land trust as tenants in common, joint tenants with right of survivorship, or tenants by the entireties.
(c) If a beneficial interest in a land trust is determined to be personal property as provided in subsection (6), chapter 679 applies to the perfection of any security interest in that beneficial interest. If a beneficial interest in a land trust is determined to be real property as provided in subsection (6), then to perfect a lien or security interest against that beneficial interest, the mortgage, deed of trust, security agreement, or other similar security document must be recorded in the public records of the county that is specified for such security documents in the recorded instrument or in a declaration of trust or memorandum of such declaration of trust recorded in the public records of the same county as the recorded instrument. If no county is so specified for recording such security documents, the proper county for recording such a security document against a beneficiary’s interest in any trust property is the county where the trust property is located. The perfection of a lien or security interest in a beneficial interest in a land trust does not affect, attach to, or encumber the legal or equitable title of the trustee in the trust property and does not impair or diminish the authority of the trustee under the recorded instrument, and parties dealing with the trustee are not required to inquire into the terms of the unrecorded trust agreement or any lien or security interest against a beneficial interest in the land trust.
(d) The trustee’s legal and equitable title to the trust property of a land trust is separate and distinct from the beneficial interest of a beneficiary in the land trust and in the trust property. A lien, judgment, mortgage, security interest, or other encumbrance attaching to the trustee’s legal and equitable title to the trust property of a land trust does not attach to the beneficial interest of any beneficiary; and any lien, judgment, mortgage, security interest, or other encumbrance against a beneficiary or beneficial interest does not attach to the legal or equitable title of the trustee to the trust property held under a land trust, unless the lien, judgment, mortgage, security interest, or other encumbrance by its terms or by operation of other law attaches to both the interest of the trustee and the interest of such beneficiary.
(e) Any subsequent document appearing of record in which a beneficiary of a land trust transfers or encumbers any beneficial interest in the land trust does not transfer or encumber the legal or equitable title of the trustee to the trust property and does not diminish or impair the authority of the trustee under the terms of the recorded instrument. Parties dealing with the trustee of a land trust are not required to inquire into the terms of the unrecorded trust agreement.
(f) The trust agreement for a land trust may provide that one or more persons have the power to direct the trustee to convey property or interests, execute a mortgage, distribute proceeds of a sale or financing, and execute documents incidental to administration of the land trust. The power of direction, unless provided otherwise in the trust agreement of the land trust, is conferred upon the holders of the power for the use and benefit of all holders of any beneficial interest in the land trust. In the absence of a provision in the trust agreement of a land trust to the contrary, the power of direction shall be in accordance with the percentage of individual ownership. In exercising the power of direction, the holders of the power of direction are presumed to act in a fiduciary capacity for the benefit of all holders of any beneficial interest in the land trust, unless otherwise provided in the trust agreement. A beneficial interest in a land trust is indefeasible, and the power of direction may not be exercised so as to alter, amend, revoke, terminate, defeat, or otherwise affect or change the enjoyment of any beneficial interest in a land trust.
(g) A land trust does not fail, and any use relating to the trust property may not be defeated, because beneficiaries are not specified by name in the recorded instrument to the trustee or because duties are not imposed upon the trustee. The power conferred by any recorded instrument on a trustee of a land trust to sell, lease, encumber, or otherwise dispose of property described in the recorded instrument is effective, and a person dealing with the trustee of a land trust is not required to inquire any further into the right of the trustee to act or the disposition of any proceeds.
(h) The principal residence of a beneficiary shall be entitled to the homestead tax exemption even if the homestead is held by a trustee in a land trust, provided the beneficiary qualifies for the homestead exemption under chapter 196.
(i) In a foreclosure against trust property or other litigation affecting the title to trust property of a land trust, the appointment of a guardian ad litem is not necessary to represent the interest of any beneficiary.
(9) SUCCESSOR TRUSTEE.—
(a) If the recorded instrument and the unrecorded trust agreement are silent as to the appointment of a successor trustee of a land trust in the event of the death, incapacity, resignation, or termination due to dissolution of a trustee or if a trustee is unable to serve as trustee of a land trust, one or more persons having the power of direction may appoint a successor trustee or trustees of the land trust by filing a declaration of appointment of a successor trustee or trustees in the public records of the county in which the trust property is located. The declaration must be signed by a beneficiary or beneficiaries of the land trust and by the successor trustee or trustees, must be acknowledged in the manner provided for acknowledgment of deeds, and must contain:
1. The legal description of the trust property.
2. The name and address of the former trustee.
3. The name and address of the successor trustee or trustees.
4. A statement that one or more persons having the power of direction of the land trust appointed the successor trustee or trustees, together with an acceptance of appointment by the successor trustee or trustees.
(b) If the recorded instrument is silent as to the appointment of a successor trustee or trustees of a land trust but an unrecorded trust agreement provides for the appointment of a successor trustee or trustees in the event of the death, incapacity, resignation, or termination due to dissolution of the trustee of a land trust, then upon the appointment of any successor trustee pursuant to the terms of the unrecorded trust agreement, the successor trustee or trustees shall file a declaration of appointment of a successor trustee in the public records of the county in which the trust property is located. The declaration must be signed by both the former trustee and the successor trustee or trustees, must be acknowledged in the manner provided for acknowledgment of deeds, and must contain:
1. The legal description of the trust property.
2. The name and address of the former trustee.
3. The name and address of the successor trustee or trustees.
4. A statement of resignation by the former trustee and a statement of acceptance of appointment by the successor trustee or trustees.
5. A statement that the successor trustee or trustees were duly appointed under the terms of the unrecorded trust agreement.
If the appointment of any successor trustee of a land trust is due to the death or incapacity of the former trustee, the declaration need not be signed by the former trustee and a copy of the death certificate or a statement that the former trustee is incapacitated or unable to serve must be attached to or included in the declaration, as applicable.
(c) If the recorded instrument provides for the appointment of any successor trustee of a land trust and any successor trustee is appointed in accordance with the recorded instrument, no additional declarations of appointment of any successor trustee are required under this section.
(d) Each successor trustee appointed with respect to a land trust is fully vested with all the estate, properties, rights, powers, trusts, duties, and obligations of the predecessor trustee, except that any successor trustee of a land trust is not under any duty to inquire into the acts or omissions of a predecessor trustee and is not liable for any act or failure to act of a predecessor trustee. A person dealing with any successor trustee of a land trust pursuant to a declaration filed under this section is not obligated to inquire into or ascertain the authority of the successor trustee to act within or exercise the powers granted under the recorded instruments or any unrecorded trust agreement.
(e) A trust agreement may provide that the trustee of a land trust, when directed to do so by the holder of the power of direction or by the beneficiaries of the land trust or legal representatives of the beneficiaries, may convey the trust property directly to another trustee on behalf of the beneficiaries or to another representative named in such directive.
(10) TRUSTEE AS CREDITOR.—
(a) If a debt is secured by a security interest or mortgage against a beneficial interest in a land trust or by a mortgage on trust property of a land trust, the validity or enforceability of the debt, security interest, or mortgage and the rights, remedies, powers, and duties of the creditor with respect to the debt or the security are not affected by the fact that the creditor and the trustee are the same person, and the creditor may extend credit, obtain any necessary security interest or mortgage, and acquire and deal with the property comprising the security as though the creditor were not the trustee.
(b) A trustee of a land trust does not breach a fiduciary duty to the beneficiaries, and it is not evidence of a breach of any fiduciary duty owed by the trustee to the beneficiaries for a trustee to be or become a secured or unsecured creditor of the land trust, the beneficiary of the land trust, or a third party whose debt to such creditor is guaranteed by a beneficiary of the land trust.
(11) NOTICES TO TRUSTEE.—Any notice required to be given to a trustee of a land trust regarding trust property by a person who is not a party to the trust agreement must identify the trust property to which the notice pertains or include the name and date of the land trust to which the notice pertains, if such information is shown on the recorded instrument for such trust property.
(12) DETERMINATION OF APPLICABLE LAW.—Except as otherwise provided in this section, chapter 736 does not apply to a land trust governed by this section.
(a) A trust is not a land trust governed by this section if there is no recorded instrument that confers on the trustee the power and authority prescribed in s. 689.073(1).
(b) For a trust created before June 28, 2013:
1. The trust is a land trust governed by this section if a recorded instrument confers on the trustee the power and authority described in s. 689.073(1) and if:
a. The recorded instrument or the trust agreement expressly provides that the trust is a land trust; or
b. The intent of the parties that the trust be a land trust is discerned from the trust agreement or the recorded instrument,
without regard to whether the trustee’s duties under the trust agreement are greater than those limited duties described in paragraph (2)(c).
2. The trust is not a land trust governed by this section if:
a. The recorded instrument or the trust agreement expressly provides that the trust is to be governed by chapter 736, or by any predecessor trust code or other trust law other than this section; or
b. The intent of the parties that the trust be governed by chapter 736, or by any predecessor trust code or other trust law other than this section, is discerned from the trust agreement or the recorded instrument,
without regard to whether the trustee’s duties under the trust agreement are greater than those limited duties listed in paragraph (2)(c), and without consideration of any references in the trust agreement to provisions of chapter 736 made applicable to the trust by chapter 721, if the trust is a timeshare estate trust complying with s. 721.08(2)(c)4. or a vacation club trust complying with s. 721.53(1)(e).
3. Solely for the purpose of determining the law governing a trust under subparagraph 1. or subparagraph 2., the determination shall be made without consideration of any amendment to the trust agreement made on or after June 28, 2013, except as provided in paragraph (d).
4. If the determination of whether a trust is a land trust governed by this section cannot be made under either subparagraph 1. or subparagraph 2., the determination shall be made under paragraph (c) as if the trust was created on or after June 28, 2013.
(c) If a recorded instrument confers on the trustee the power and authority described in s. 689.073(1) and the trust was created on or after June 28, 2013, the trust shall be determined to be a land trust governed by this section only if the trustee’s duties under the trust agreement, including any amendment made on or after such date, are no greater than those limited duties described in paragraph (2)(c).
(d) If the trust agreement for a land trust created before June 28, 2013, is amended on or after such date to add to or increase the duties of the trustee beyond the duties provided in the trust agreement as of June 28, 2013, the trust shall remain a land trust governed by this section only if the additional or increased duties of the trustee implemented by the amendment are no greater than those limited duties described in paragraph (2)(c).
(13) UNIFORM COMMERCIAL CODE TRANSITION RULE.—This section does not render ineffective any effective Uniform Commercial Code financing statement filed before July 1, 2014, to perfect a security interest in a beneficial interest in a land trust that is determined to be real property as provided in subsection (6), but such a financing statement ceases to be effective at the earlier of July 1, 2019, or the time the financing statement would have ceased to be effective under the law of the jurisdiction in which it is filed, and the filing of a Uniform Commercial Code continuation statement after July 1, 2014, does not continue the effectiveness of such a financing statement. The recording of a mortgage, deed of trust, security agreement, or other similar security document against such a beneficial interest that is real property in the public records specified in paragraph (8)(c) continues the effectiveness and priority of a financing statement filed against such a beneficial interest before July 1, 2014, if:
(a) The recording of the security document in that county is effective to perfect a lien on such beneficial interest under paragraph (8)(c);
(b) The recorded security document identifies a financing statement filed before July 1, 2014, by indicating the office in which the financing statement was filed and providing the dates of filing and the file numbers, if any, of the financing statement and of the most recent continuation statement filed with respect to the financing statement; and
(c) The recorded security document indicates that such financing statement filed before July 1, 2014, remains effective.
If no original security document bearing the debtor’s signature is readily available for recording in the public records, a secured party may proceed under this subsection with such financing statement filed before July 1, 2014, by recording a copy of a security document verified by the secured party as being a true and correct copy of an original authenticated by the debtor. This subsection does not apply to the perfection of a security interest in any beneficial interest in a land trust that is determined to be personal property under subsection (6).
(14) REMEDIAL ACT.—This act is remedial in nature and shall be given a liberal interpretation to effectuate the intent and purposes hereinabove expressed.
(15) EXCLUSION.—This act does not apply to any deed, mortgage, or other instrument to which s. 689.07 applies.
History.—ss. 1, 2, 3, 4, 5, 6, ch. 63-468; s. 1, ch. 84-31; s. 2, ch. 2002-233; s. 21, ch. 2006-217; s. 1, ch. 2006-274; s. 7, ch. 2007-153; ss. 1, 2, 4, ch. 2013-240.
689.072 Real estate interests transferred to or by a custodian or trustee of an individual retirement account or qualified plan.—
(1)(a) A conveyance, deed, mortgage, lease assignment, or other recorded instrument that transfers an interest in real property in this state, including a leasehold or mortgagee interest, to a person who is qualified to act as a custodian or trustee for an individual retirement account under 26 U.S.C. s. 408(a)(2), as amended, in which instrument the transferee is designated “custodian,” “as custodian,” “trustee,” or “as trustee” and the account owner or beneficiary of the custodianship in the individual retirement account is named, creates custodial property and transfers title to the custodian or trustee when an interest in real property is recorded in the name of the custodian or trustee, followed by the words “as custodian or trustee for the benefit of (name of individual retirement account owner or beneficiary) individual retirement account.”
(b) This section also applies to a qualified stock bonus, pension, or profit-sharing plan created under 26 U.S.C. s. 401(a), as amended, in which instrument a person is designated “custodian,” “as custodian,” “trustee,” or “as trustee” and the plan, plan participant, or plan beneficiary of the custodianship in the plan also creates custodial property and transfers title to the custodian or trustee when an interest in real property is recorded in the name of the custodian or trustee, followed by the words “as custodian, or trustee of the (name of plan) for the benefit of (name of plan participant or beneficiary) .”
(2) A transfer to a custodian or trustee of an individual retirement account or qualified plan pursuant to this section incorporates the provisions of this section into the disposition and grants to the custodian or trustee the power to protect, conserve, sell, lease, encumber, or otherwise manage and dispose of the real property described in the recorded instrument without joinder of the named individual retirement account owner, plan participant, or beneficiary, except as provided in subsection (5).
(3) A person dealing with the custodian or trustee does not have a duty to inquire as to the qualifications of the custodian or trustee and may rely on the powers of the custodian or trustee for the custodial property created under this section regardless of whether such powers are specified in the recorded instrument. A grantee, mortgagee, lessee, transferee, assignee, or person obtaining a satisfaction or release or otherwise dealing with the custodian or trustee regarding such custodial property is not required to inquire into:
(a) The identification or status of any named individual retirement account owner, plan participant, or beneficiary of the individual retirement account or qualified plan or his or her heirs or assigns to whom a custodian or trustee may be accountable under the terms of the individual retirement account agreement or qualified plan document;
(b) The authority of the custodian or trustee to act within and exercise the powers granted under the individual retirement account agreement or qualified plan document;
(c) The adequacy or disposition or any consideration provided to the custodian or trustee in connection with any interest acquired from such custodian or trustee; or
(d) Any provision of an individual retirement account agreement or qualified plan document.
(4) A person dealing with the custodian or trustee under the recorded instrument takes any interest transferred by such custodian or trustee, within the authority provided under this section, free of claims of the named owner, plan participant, or beneficiary of the individual retirement account or qualified plan or of anyone claiming by, through, or under such owner, plan participant, or beneficiary.
(5) If notice of the revocation or termination of the individual retirement account agreement, qualified plan, or custodianship established under such individual retirement account agreement or qualified plan is recorded, any disposition or encumbrance of the custodial property must be by an instrument executed by the custodian or trustee or the successor and the respective owner, plan participant, or beneficiary of the individual retirement account or qualified plan.
(6) In dealing with custodial property created under this section, a custodian or trustee shall observe the standard of care of a prudent person dealing with property of another person. This section does not relieve the custodian or trustee from liability for breach of the individual retirement account agreement, custodial agreement, or qualified plan document.
(7) A provision of the recorded instrument that defines and declares the interest of the owner, plan participant, or beneficiary of the individual retirement account or qualified plan to be personal property controls only if a determination becomes an issue in any legal proceeding.
(8) As used in this section, the term “beneficiary” applies only when the individual retirement account owner or qualified plan participant is deceased.
(9)(a) This section does not apply to any deed, mortgage, or instrument to which s. 689.071 applies.
(b) Section 689.09 does not apply to transfers of real property interests to a custodian or trustee under this section.
(10) This section is remedial and shall be liberally construed to effectively carry out its purposes.
History.—s. 1, ch. 2006-147.
689.073 Powers conferred on trustee in recorded instrument.—
(1) OWNERSHIP VESTS IN TRUSTEE.—Every conveyance, deed, mortgage, lease assignment, or other instrument heretofore or hereafter made, hereinafter referred to as the “recorded instrument,” transferring any interest in real property, including, but not limited to, a leasehold or mortgagee interest, to any person or any corporation, bank, trust company, or other entity duly formed under the laws of its state of qualification, which recorded instrument designates the person, corporation, bank, trust company, or other entity “trustee” or “as trustee” and confers on the trustee the power and authority to protect, to conserve, to sell, to lease, to encumber, or otherwise to manage and dispose of the real property described in the recorded instrument, is effective to vest, and is declared to have vested, in such trustee full power and authority as granted and provided in the recorded instrument to deal in and with such property, or interest therein or any part thereof, held in trust under the recorded instrument.
(2) NO DUTY TO INQUIRE.—Any grantee, mortgagee, lessee, transferee, assignee, or person obtaining satisfactions or releases or otherwise in any way dealing with the trustee with respect to the real property or any interest in such property held in trust under the recorded instrument, as hereinabove provided for, is not obligated to inquire into the identification or status of any named or unnamed beneficiaries, or their heirs or assigns to whom a trustee may be accountable under the terms of the recorded instrument, or under any unrecorded separate declarations or agreements collateral to the recorded instrument, whether or not such declarations or agreements are referred to therein; or to inquire into or ascertain the authority of such trustee to act within and exercise the powers granted under the recorded instrument; or to inquire into the adequacy or disposition of any consideration, if any is paid or delivered to such trustee in connection with any interest so acquired from such trustee; or to inquire into any of the provisions of any such unrecorded declarations or agreements.
(3) BENEFICIARY CLAIMS.—All persons dealing with the trustee under the recorded instrument as hereinabove provided take any interest transferred by the trustee thereunder, within the power and authority as granted and provided therein, free and clear of the claims of all the named or unnamed beneficiaries of such trust, and of any unrecorded declarations or agreements collateral thereto whether referred to in the recorded instrument or not, and of anyone claiming by, through, or under such beneficiaries. However, this section does not prevent a beneficiary of any such unrecorded collateral declarations or agreements from enforcing the terms thereof against the trustee.
(4) EXCLUSION.—This section does not apply to any deed, mortgage, or other instrument to which s. 689.07 applies.
(5) APPLICABILITY.—The section applies without regard to whether any reference is made in the recorded instrument to the beneficiaries of such trust or to any separate collateral unrecorded declarations or agreements, without regard to the provisions of any unrecorded trust agreement or declaration of trust, and without regard to whether the trust is governed by s. 689.071 or chapter 736. This section applies both to recorded instruments that are recorded after June 28, 2013, and to recorded instruments that were previously recorded and governed by similar provisions contained in s. 689.071(3), Florida Statutes 2012, and any such recorded instrument purporting to confer power and authority on a trustee under such provisions of s. 689.071(3), Florida Statutes 2012, is valid and has the effect of vesting full power and authority in such trustee as provided in this section.
History.—ss. 2, 3, ch. 63-468; s. 21, ch. 2006-217; ss. 1, 4, ch. 2013-240.
689.075 Inter vivos trusts; powers retained by settlor.—
(1) A trust which is otherwise valid and which complies with s. 736.0403, including, but not limited to, a trust the principal of which is composed of real property, intangible personal property, tangible personal property, the possible expectancy of receiving as a named beneficiary death benefits as described in s. 733.808, or any combination thereof, and which has been created by a written instrument shall not be held invalid or an attempted testamentary disposition for any one or more of the following reasons:
(a) Because the settlor or another person or both possess the power to revoke, amend, alter, or modify the trust in whole or in part;
(b) Because the settlor or another person or both possess the power to appoint by deed or will the persons and organizations to whom the income shall be paid or the principal distributed;
(c) Because the settlor or another person or both possess the power to add to, or withdraw from, the trust all or any part of the principal or income at one time or at different times;
(d) Because the settlor or another person or both possess the power to remove the trustee or trustees and appoint a successor trustee or trustees;
(e) Because the settlor or another person or both possess the power to control the trustee or trustees in the administration of the trust;
(f) Because the settlor has retained the right to receive all or part of the income of the trust during her or his life or for any part thereof; or
(g) Because the settlor is, at the time of the execution of the instrument, or thereafter becomes, sole trustee.
(2) Nothing contained herein shall affect the validity of those accounts, including but not limited to bank accounts, share accounts, deposits, certificates of deposit, savings certificates, and other similar arrangements, heretofore or hereafter established at any bank, savings and loan association, or credit union by one or more persons, in trust for one or more other persons, which arrangements are, by their terms, revocable by the person making the same until her or his death or incompetency.
(3) The fact that any one or more of the powers specified in subsection (1) are in fact exercised once, or more than once, shall not affect the validity of the trust or its nontestamentary character.
(4) This section shall be applicable to trusts executed before or after July 1, 1969, by persons who are living on or after said date.
(5) The amendment of this section, by chapter 75-74, Laws of Florida, is intended to clarify the legislative intent of this section at the time of its original enactment that it apply to all otherwise valid trusts which are created by written instrument and which are not expressly excluded by the terms of this section and that no such trust shall be declared invalid for any of the reasons stated in subsections (1) and (3) regardless of whether the trust involves or relates to an interest in real property.
History.—ss. 1, 2, ch. 69-192; s. 1, ch. 69-1747; ss. 1, 2, ch. 71-126; s. 169, ch. 73-333; s. 1, ch. 74-78; ss. 1, 2, ch. 75-74; s. 5, ch. 95-401; s. 756, ch. 97-102; s. 22, ch. 2006-217.
689.08 Fines and common recoveries.—Conveyance by fine or by common recovery shall never be used in this state.
History.—s. 2, Feb. 4, 1835; RS 1953; GS 2454; RGS 3794; CGL 5667.
689.09 Deeds under statute of uses.—By deed of bargain and sale, or by deed of lease and release, or of covenant to stand seized to the use of any other person, or by deed operating by way of covenant to stand seized to the use of another person, of or in any lands or tenements in this state, the possession of the bargainor, releasor or covenantor shall be deemed and adjudged to be transferred to the bargainee, releasee or person entitled to the use as perfectly as if such bargainee, releasee or person entitled to the use had been enfeoffed by livery of seizin of the land conveyed by such deed of bargain and sale, release or covenant to stand seized; provided, that livery of seizin can be lawfully made of the lands or tenements at the time of the execution of the said deeds or any of them.
History.—s. 12, Nov. 15, 1828; RS 1954; GS 2455; RGS 3795; CGL 5668.
689.10 Words of limitation and the words “fee simple” dispensed with.—Where any real estate has heretofore been conveyed or granted or shall hereafter be conveyed or granted without there being used in the said deed or conveyance or grant any words of limitation, such as heirs or successors, or similar words, such conveyance or grant, whether heretofore made or hereafter made, shall be construed to vest the fee simple title or other whole estate or interest which the grantor had power to dispose of at that time in the real estate conveyed or granted, unless a contrary intention shall appear in the deed, conveyance or grant.
History.—s. 1, ch. 5145, 1903; GS 2456; RGS 3796; s. 1, ch. 10170, 1925; CGL 5669.
689.11 Conveyances between husband and wife direct; homestead.—
(1) A conveyance of real estate, including homestead, made by one spouse to the other shall convey the legal title to the grantee spouse in all cases in which it would be effectual if the parties were not married, and the grantee need not execute the conveyance. An estate by the entirety may be created by the action of the spouse holding title:
(a) Conveying to the other by a deed in which the purpose to create the estate is stated; or
(b) Conveying to both spouses.
(2) All deeds heretofore made by a husband direct to his wife or by a wife direct to her husband are hereby validated and made as effectual to convey the title as they would have been were the parties not married;
(3) Provided, that nothing herein shall be construed as validating any deed made for the purpose, or that operates to defraud any creditor or to avoid payment of any legal debt or claim; and
(4) Provided further that this section shall not apply to any conveyance heretofore made, the validity of which shall be contested by suit commenced within 1 year of the effective date of this law.
History.—s. 1, ch. 5147, 1903; GS 2457; RGS 3797; CGL 5670; s. 6, ch. 20954, 1941; s. 1, ch. 23964, 1947; s. 1, ch. 71-54.
689.111 Conveyances of homestead; power of attorney.—
(1) A deed or mortgage of homestead realty owned by an unmarried person may be executed by virtue of a power of attorney executed in the same manner as a deed.
(2) A deed or mortgage of homestead realty owned by a married person, or owned as an estate by the entirety, may be executed by virtue of a power of attorney executed solely by one spouse to the other, or solely by one spouse or both spouses to a third party, provided the power of attorney is executed in the same manner as a deed. Nothing in this section shall be construed as dispensing with the requirement that husband and wife join in the conveyance or mortgage of homestead realty, but the joinder may be accomplished through the exercise of a power of attorney.
History.—s. 1, ch. 71-27.
689.115 Estate by the entirety in mortgage made or assigned to husband and wife.—Any mortgage encumbering real property, or any assignment of a mortgage encumbering real property, made to two persons who are husband and wife, heretofore or hereafter made, creates an estate by the entirety in such mortgage and the obligation secured thereby unless a contrary intention appears in such mortgage or assignment.
History.—s. 1, ch. 86-29; s. 21, ch. 91-110.
689.12 How state lands conveyed for educational purposes.—
(1) The title to all lands granted to or held by the state for educational purposes shall be conveyed by deed executed by the members of the State Board of Education, with an impression of the seal of the Board of Trustees of the Internal Improvement Trust Fund of the state thereon and when so impressed by this seal deeds shall be entitled to be recorded in the public records and to be received in evidence in all courts and judicial proceedings.
(2) Lands held for any tuberculosis hospital and declared to be surplus to the needs of such hospital may be conveyed to the district school board in which said lands are located for educational purposes.
History.—s. 1, ch. 4999, 1901; GS 2458; RGS 3798; CGL 5671; ss. 1, 2, ch. 67-191; ss. 27, 35, ch. 69-106; s. 1, ch. 69-300.
689.13 Rule against perpetuities not applicable to dispositions of property for private cemeteries, etc.—No disposition of property, or the income thereof, hereafter made for the maintenance or care of any public or private burying ground, churchyard, or other place for the burial of the dead, or any portion thereof, or grave therein, or monument or other erection in or about the same, shall fail by reason of such disposition having been made in perpetuity; but such disposition shall be held to be made for a charitable purpose or purposes.
History.—s. 1, ch. 14655, 1931; CGL 1936 Supp. 5671(1).
689.14 Entailed estates.—No property, real or personal, shall be entailed in this state. Any instrument purporting to create an estate tail, express or implied, shall be deemed to create an estate for life in the first taker with remainder per stirpes to the lineal descendants of the first taker in being at the time of her or his death. If the remainder fails for want of such remainderman, then it shall vest in any other remaindermen designated in such instrument, or, if there is no such designation, then it shall revert to the original donor or to her or his heirs.
History.—s. 20, Nov. 17, 1829; RS 1818; GS 2293; RGS 3616; CGL 5481; s. 2, ch. 20954, 1941; s. 1, ch. 23126, 1945; s. 757, ch. 97-102.
689.15 Estates by survivorship.—The doctrine of the right of survivorship in cases of real estate and personal property held by joint tenants shall not prevail in this state; that is to say, except in cases of estates by entirety, a devise, transfer or conveyance heretofore or hereafter made to two or more shall create a tenancy in common, unless the instrument creating the estate shall expressly provide for the right of survivorship; and in cases of estates by entirety, the tenants, upon dissolution of marriage, shall become tenants in common.
History.—s. 20, Nov. 17, 1829; RS 1819; GS 2294; RGS 3617; CGL 5482; s. 3, ch. 20954, 1941; s. 1, ch. 73-300.
689.17 Rule in Shelley’s Case abolished.—The rule in Shelley’s Case is hereby abolished. Any instrument purporting to create an estate for life in a person with remainder to her or his heirs, lawful heirs, heirs of her or his body or to her or his heirs described by words of similar import, shall be deemed to create an estate for life with remainder per stirpes to the life tenant’s lineal descendants in being at the time said life estate commences, but said remainder shall be subject to open and to take in per stirpes other lineal descendants of the life tenant who come into being during the continuance of said life estate.
History.—s. 2, ch. 23126, 1945; s. 758, ch. 97-102.
689.175 Worthier title doctrine abolished.—The doctrine of worthier title is abolished as a rule of law and as a rule of construction. Language in a governing instrument describing the beneficiaries of a disposition as the transferor’s “heirs,” “heirs at law,” “next of kin,” “distributees,” “relatives,” or “family,” or language of similar import, does not create or presumptively create a reversionary interest in the transferor.
History.—s. 23, ch. 2006-217.
689.18 Reverter or forfeiture provisions, limitations; exceptions.—
(1) It is hereby declared by the Legislature of the state that reverter or forfeiture provisions of unlimited duration in the conveyance of real estate or any interest therein in the state constitute an unreasonable restraint on alienation and are contrary to the public policy of the state.
(2) All reverter or forfeiture provisions of unlimited duration embodied in any plat or deed executed more than 21 years prior to the passage of this law conveying real estate or any interest therein in the state, be and the same are hereby canceled and annulled and declared to be of no further force and effect.
(3) All reverter provisions in any conveyance of real estate or any interest therein in the state, now in force, shall cease and terminate and become null, void, and unenforceable 21 years from the date of the conveyance embodying such reverter or forfeiture provision.
(4) No reverter or forfeiture provision contained in any deed conveying real estate or any interest therein in the state, executed on and after July 1, 1951, shall be valid and binding more than 21 years from the date of such deed, and upon the expiration of such period of 21 years, the reverter or forfeiture provision shall become null, void, and unenforceable.
(5) Any and all conveyances of real property in this state heretofore or hereafter made to any governmental, educational, literary, scientific, religious, public utility, public transportation, charitable or nonprofit corporation or association are hereby excepted from the provisions of this section.
(6) Any holder of a possibility of reverter who claims title to any real property in the state, or any interest therein by reason of a reversion or forfeiture under the terms or provisions of any deed heretofore executed and delivered containing such reverter or forfeiture provision shall have 1 year from July 1, 1951, to institute suit in a court of competent jurisdiction in this state to establish or enforce such right, and failure to institute such action within said time shall be conclusive evidence of the abandonment of any such right, title, or interest, and all right of forfeiture or reversion shall thereupon cease and determine, and become null, void, and unenforceable.
(7) This section shall not vary, alter, or terminate the restrictions placed upon said real estate, contained either in restrictive covenants or reverter or forfeiture clauses, and all said restrictions may be enforced and violations thereof restrained by a court of competent jurisdiction whenever any one of said restrictions or conditions shall be violated, or threat to violate the same be made by owners or parties in possession or control of said real estate, by an injunction which may be issued upon petition of any person adversely affected, mandatorily requiring the abatement of such violations or threatened violation and restraining any future violation of said restrictions and conditions.
History.—ss. 1, 2, 3, 4, 5, 6, 7, ch. 26927, 1951; s. 218, ch. 77-104.
689.19 Variances of names in recorded instruments.—
(1) The word “instrument” as used in this section shall be construed to mean and include not only instruments voluntarily executed but also papers filed or issued in or in connection with actions and other proceedings in court and orders, judgments and decrees entered therein and transcripts of such judgments and proceedings in foreclosure of mortgage or other liens.
(2) Variances between any two instruments affecting the title to the same real property both of which shall have been spread on the record for the period of more than 10 years among the public records of the county in which such real property is situated, with respect to the names of persons named in the respective instruments or in acknowledgments thereto arising from the full Christian name appearing in one and only the initial letter of that Christian name appearing in the other or from a full middle name appearing in one and only the initial letter of that middle name appearing in the other or from the initial letter of a middle name appearing in one and not appearing in the other, irrespective of which one of the two instruments in which any such variance occurred was prior in point of time to the other and irrespective of whether the instruments were executed or originated before or after August 5, 1953, shall not destroy or impair the presumption that the person so named in one of said instruments was the same person as the one so named in the other of said instruments which would exist if the names in the two instruments were identical; and, in spite of any such variance, the person so named in one of said instruments shall be presumed to be the same person as the one so named in the other until such time as the contrary appears and, until such time, either or both of such instruments or the record thereof or certified copy or copies of the record thereof shall be admissible in evidence in the same manner as though the names in the two instruments were identical.
History.—s. 1, ch. 28208, 1953.
689.20 Limitation on use of word “minerals.”—Whenever the word “minerals” is hereafter used in any deed, lease, or other contract in writing, said word or term shall not include any of the following: topsoil, muck, peat, humus, sand, and common clay, unless expressly provided in said deed, lease, or other contract in writing.
History.—s. 1, ch. 59-375.
689.225 Statutory rule against perpetuities.—
(1) SHORT TITLE.—This section may be cited as the “Florida Uniform Statutory Rule Against Perpetuities.”
(2) STATEMENT OF THE RULE.—
(a) A nonvested property interest in real or personal property is invalid unless:
1. When the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive; or
2. The interest either vests or terminates within 90 years after its creation.
(b) A general power of appointment not presently exercisable because of a condition precedent is invalid unless:
1. When the power is created, the condition precedent is certain to be satisfied or become impossible to satisfy no later than 21 years after the death of an individual then alive; or
2. The condition precedent either is satisfied or becomes impossible to satisfy within 90 years after its creation.
(c) A nongeneral power of appointment or a general testamentary power of appointment is invalid unless:
1. When the power is created, it is certain to be irrevocably exercised or otherwise to terminate no later than 21 years after the death of an individual then alive; or
2. The power is irrevocably exercised or otherwise terminates within 90 years after its creation.
(d) In determining whether a nonvested property interest or a power of appointment is valid under subparagraph (a)1., subparagraph (b)1., or subparagraph (c)1., the possibility that a child will be born to an individual after the individual’s death is disregarded.
(e) If, in measuring a period from the creation of a trust or other property arrangement, language in a governing instrument (i) seeks to disallow the vesting or termination of any interest or trust beyond, (ii) seeks to postpone the vesting or termination of any interest or trust until, or (iii) seeks to operate in effect in any similar fashion upon, the later of:
1. The expiration of a period of time not exceeding 21 years after the death of a specified life or the survivor of specified lives, or upon the death of a specified life or the death of the survivor of specified lives in being at the creation of the trust or other property arrangement, or
2. The expiration of a period of time that exceeds or might exceed 21 years after the death of the survivor of lives in being at the creation of the trust or other property arrangement,
that language is inoperative to the extent it produces a period of time that exceeds 21 years after the death of the survivor of the specified lives.
(f) As to any trust created after December 31, 2000, this section shall apply to a nonvested property interest or power of appointment contained in a trust by substituting 360 years in place of “90 years” in each place such term appears in this section unless the terms of the trust require that all beneficial interests in the trust vest or terminate within a lesser period.
(3) WHEN NONVESTED PROPERTY INTEREST OR POWER OF APPOINTMENT CREATED.—
(a) Except as provided in paragraphs (b), (d), and (e) of this subsection and in paragraph (a) of subsection (6), the time of creation of a nonvested property interest or a power of appointment is determined under general principles of property law.
(b) For purposes of this section, if there is a person who alone can exercise a power created by a governing instrument to become the unqualified beneficial owner of a nonvested property interest or a property interest subject to a power of appointment described in paragraph (b) or paragraph (c) of subsection (2), the nonvested property interest or power of appointment is created when the power to become the unqualified beneficial owner terminates.
(c) For purposes of this section, a joint power with respect to community property or to marital property under the Uniform Marital Property Act held by individuals married to each other is a power exercisable by one person alone.
(d) For purposes of this section, a nonvested property interest or a power of appointment arising from a transfer of property to a previously funded trust or other existing property arrangement is created when the nonvested property interest or power of appointment in the original contribution was created.
(e) For purposes of this section, if a nongeneral or testamentary power of appointment is exercised to create another nongeneral or testamentary power of appointment, every nonvested property interest or power of appointment created through the exercise of such other nongeneral or testamentary power is considered to have been created at the time of the creation of the first nongeneral or testamentary power of appointment.
(4) REFORMATION.—Upon the petition of an interested person, a court shall reform a disposition in the manner that most closely approximates the transferor’s manifested plan of distribution and is within the 90 years allowed by subparagraph (2)(a)2., subparagraph (2)(b)2., or subparagraph (2)(c)2. if:
(a) A nonvested property interest or a power of appointment becomes invalid under subsection (2);
(b) A class gift is not but might become invalid under subsection (2) and the time has arrived when the share of any class member is to take effect in possession or enjoyment; or
(c) A nonvested property interest that is not validated by subparagraph (2)(a)1. can vest but not within 90 years after its creation.
(5) EXCLUSIONS FROM STATUTORY RULE AGAINST PERPETUITIES.—Subsection (2) does not apply to:
(a) A nonvested property interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of:
1. A premarital or postmarital agreement;
2. A separation or divorce settlement;
3. A spouse’s election;
4. A similar arrangement arising out of a prospective, existing, or previous marital relationship between the parties;
5. A contract to make or not to revoke a will or trust;
6. A contract to exercise or not to exercise a power of appointment;
7. A transfer in satisfaction of a duty of support; or
8. A reciprocal transfer;
(b) A fiduciary’s power relating to the administration or management of assets, including the power of a fiduciary to sell, lease, or mortgage property, and the power of a fiduciary to determine principal and income;
(c) A power to appoint a fiduciary;
(d) A discretionary power of a trustee to distribute principal before termination of a trust to a beneficiary having an indefeasibly vested interest in the income and principal;
(e) A nonvested property interest held by a charity, government, or governmental agency or subdivision, if the nonvested property interest is preceded by an interest held by another charity, government, or governmental agency or subdivision;
(f) A nonvested property interest in, or a power of appointment with respect to, a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral, or other current or deferred benefit plan for one or more employees, independent contractors, or their beneficiaries or spouses, to which contributions are made for the purpose of distributing to or for the benefit of the participants, or their beneficiaries or spouses, the property, income, or principal in the trust or other property arrangement, except a nonvested property interest or a power of appointment that is created by an election of a participant or a beneficiary or spouse; or
(g) A property interest, power of appointment, or arrangement that was not subject to the common-law rule against perpetuities or is excluded by another statute of this state.
(6) APPLICATION.—
(a) Except as extended by paragraph (c), this section applies to a nonvested property interest or a power of appointment that is created on or after October 1, 1988. For purposes of this subsection, a nonvested property interest or a power of appointment created by the exercise of a power of appointment is created when the power is irrevocably exercised or when a revocable exercise becomes irrevocable.
(b) This section also applies to a power of appointment that was created before October 1, 1988, but only to the extent that it remains unexercised on October 1, 1988.
(c) If a nonvested property interest or a power of appointment was created before October 1, 1988, and is determined in a judicial proceeding commenced on or after October 1, 1988, to violate this state’s rule against perpetuities as that rule existed before October 1, 1988, a court, upon the petition of an interested person, may reform the disposition in the manner that most closely approximates the transferor’s manifested plan of distribution and is within the limits of the rule against perpetuities applicable when the nonvested property interest or power of appointment was created.
(7) RULE OF CONSTRUCTION.—With respect to any matter relating to the validity of an interest within the rule against perpetuities, unless a contrary intent appears, it shall be presumed that the transferor of the interest intended that the interest be valid. This section is the sole expression of any rule against perpetuities or remoteness in vesting in this state. No common-law rule against perpetuities or remoteness in vesting shall exist with respect to any interest or power regardless of whether such interest or power is governed by this section.
(8) UNIFORMITY OF APPLICATION AND CONSTRUCTION.—This section shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this act among states enacting it.
History.—s. 1, ch. 88-40; s. 1, ch. 97-240; s. 1, ch. 2000-245.
689.25 Failure to disclose homicide, suicide, deaths, or diagnosis of HIV or AIDS infection in an occupant of real property.—
(1)(a) The fact that an occupant of real property is infected or has been infected with human immunodeficiency virus or diagnosed with acquired immune deficiency syndrome is not a material fact that must be disclosed in a real estate transaction.
(b) The fact that a property was, or was at any time suspected to have been, the site of a homicide, suicide, or death is not a material fact that must be disclosed in a real estate transaction.
(2) A cause of action shall not arise against an owner of real property, his or her agent, an agent of a transferee of real property, or a person licensed under chapter 475 for the failure to disclose to the transferee that the property was or was suspected to have been the site of a homicide, suicide, or death or that an occupant of that property was infected with human immunodeficiency virus or diagnosed with acquired immune deficiency syndrome.
History.—s. 46, ch. 88-380; s. 51, ch. 2003-164.
689.261 Sale of residential property; disclosure of ad valorem taxes to prospective purchaser.—
(1) A prospective purchaser of residential property must be presented a disclosure summary at or before execution of the contract for sale. Unless a substantially similar disclosure summary is included in the contract for sale, a separate disclosure summary must be attached to the contract for sale. The disclosure summary, whether separate or included in the contract, must be in a form substantially similar to the following:
PROPERTY TAX
DISCLOSURE SUMMARY
BUYER SHOULD NOT RELY ON THE SELLER’S CURRENT PROPERTY TAXES AS THE AMOUNT OF PROPERTY TAXES THAT THE BUYER MAY BE OBLIGATED TO PAY IN THE YEAR SUBSEQUENT TO PURCHASE. A CHANGE OF OWNERSHIP OR PROPERTY IMPROVEMENTS TRIGGERS REASSESSMENTS OF THE PROPERTY THAT COULD RESULT IN HIGHER PROPERTY TAXES. IF YOU HAVE ANY QUESTIONS CONCERNING VALUATION, CONTACT THE COUNTY PROPERTY APPRAISER’S OFFICE FOR INFORMATION.
(2) Unless included in the contract, the disclosure summary must be provided by the seller. If the disclosure summary is not included in the contract for sale, the contract for sale must refer to and incorporate by reference the disclosure summary and include, in prominent language, a statement that the potential purchaser should not execute the contract until he or she has read the disclosure summary required by this section.
History.—s. 5, ch. 2004-349.
689.27 Termination by servicemember of agreement to purchase real property.—
(1) Notwithstanding any other provisions of law and for the purposes of this section:
(a) “Closing” means the finalizing of the sale of property, upon which title to the property is transferred from the seller to the buyer.
(b) “Contract” means an instrument purporting to contain an agreement to purchase real property.
(c) “Property” means a house, condominium, or mobile home that a servicemember intends to purchase to serve as his or her primary residence.
(d) “Servicemember” shall have the same meaning as provided in s. 250.01.
(2) Any servicemember may terminate a contract to purchase property, prior to closing on such property, by providing the seller or mortgagor of the property with a written notice of termination to be effective immediately, if any of the following criteria are met:
(a) The servicemember is required, pursuant to permanent change of station orders received after entering into a contract for the property and prior to closing, to move 35 miles or more from the location of the property;
(b) The servicemember is released from active duty or state active duty after having agreed to purchase the property and prior to closing while serving on active duty or state active duty status, and the property is 35 miles or more from the servicemember’s home of record prior to entering active duty or state active duty;
(c) Prior to closing, the servicemember receives military orders requiring him or her to move into government quarters or the servicemember becomes eligible to live in and opts to move into government quarters; or
(d) Prior to closing, the servicemember receives temporary duty orders, temporary change of station orders, or active duty or state active duty orders to an area 35 miles or more from the location of the property, provided such orders are for a period exceeding 90 days.
(3) The notice to the seller or mortgagor canceling the contract must be accompanied by either a copy of the official military orders or a written verification signed by the servicemember’s commanding officer.
(4) Upon termination of a contract under this section, the seller or mortgagor or his or her agent shall refund any funds provided by the servicemember under the contract within 7 days. The servicemember is not liable for any other fees due to the termination of the contract as provided for in this section.
(5) The provisions of this section may not be waived or modified by the agreement of the parties under any circumstances.
History.—s. 19, ch. 2003-72.
689.28 Prohibition against transfer fee covenants.—
(1) INTENT.—The Legislature finds and declares that the public policy of this state favors the marketability of real property and the transferability of interests in real property free of title defects or unreasonable restraints on alienation. The Legislature further finds and declares that transfer fee covenants violate this public policy by impairing the marketability and transferability of real property and by constituting an unreasonable restraint on alienation regardless of the duration of such covenants or the amount of such transfer fees, and do not run with the title to the property or bind subsequent owners of the property under common law or equitable principles.
(2) DEFINITIONS.—As used in this section, the term:
(a) “Environmental covenant” means a covenant or servitude that imposes limitations on the use of real property pursuant to an environmental remediation project pertaining to the property. An environmental covenant is not a transfer fee covenant.
(b) “Transfer” means the sale, gift, conveyance, assignment, inheritance, or other transfer of an ownership interest in real property located in this state.
(c) “Transfer fee” means a fee or charge required by a transfer fee covenant and payable upon the transfer of an interest in real property, or payable for the right to make or accept such transfer, regardless of whether the fee or charge is a fixed amount or is determined as a percentage of the value of the property, the purchase price, or other consideration given for the transfer. The following are not transfer fees for purposes of this section:
1. Any consideration payable by the grantee to the grantor for the interest in real property being transferred, including any subsequent additional consideration for the property payable by the grantee based upon any subsequent appreciation, development, or sale of the property. For the purposes of this subparagraph, an interest in real property may include a separate mineral estate and its appurtenant surface access rights.
2. Any commission payable to a licensed real estate broker for the transfer of real property pursuant to an agreement between the broker and the grantor or the grantee, including any subsequent additional commission for that transfer payable by the grantor or the grantee based upon any subsequent appreciation, development, or sale of the property.
3. Any interest, charges, fees, or other amounts payable by a borrower to a lender pursuant to a loan secured by a mortgage against real property, including, but not limited to, any fee payable to the lender for consenting to an assumption of the loan or a transfer of the real property subject to the mortgage, any fees or charges payable to the lender for estoppel letters or certificates, and any shared appreciation interest or profit participation or other consideration described in s. 687.03(4) and payable to the lender in connection with the loan.
4. Any rent, reimbursement, charge, fee, or other amount payable by a lessee to a lessor under a lease, including, but not limited to, any fee payable to the lessor for consenting to an assignment, subletting, encumbrance, or transfer of the lease.
5. Any consideration payable to the holder of an option to purchase an interest in real property or the holder of a right of first refusal or first offer to purchase an interest in real property for waiving, releasing, or not exercising the option or right upon the transfer of the property to another person.
6. Any tax, fee, charge, assessment, fine, or other amount payable to or imposed by a governmental authority.
7. Any fee, charge, assessment, fine, or other amount payable to a homeowners’, condominium, cooperative, mobile home, or property owners’ association pursuant to a declaration or covenant or law applicable to such association, including, but not limited to, fees or charges payable for estoppel letters or certificates issued by the association or its authorized agent.
8. Any fee, charge, assessment, dues, contribution, or other amount imposed by a declaration or covenant encumbering four or more parcels in a community, as defined in s. 720.301, and payable to a nonprofit or charitable organization for the purpose of supporting cultural, educational, charitable, recreational, environmental, conservation, or other similar activities benefiting the community that is subject to the declaration or covenant.
9. Any fee, charge, assessment, dues, contribution, or other amount pertaining to the purchase or transfer of a club membership relating to real property owned by the member, including, but not limited to, any amount determined by reference to the value, purchase price, or other consideration given for the transfer of the real property.
10. Any payment required pursuant to an environmental covenant.
(d) “Transfer fee covenant” means a declaration or covenant recorded against the title to real property which requires or purports to require the payment of a transfer fee to the declarant or other person specified in the declaration or covenant or to their successors or assigns upon a subsequent transfer of an interest in the real property.
(3) PROHIBITION.—A transfer fee covenant recorded in this state on or after July 1, 2008, does not run with the title to real property and is not binding on or enforceable at law or in equity against any subsequent owner, purchaser, or mortgagee of any interest in real property as an equitable servitude or otherwise. Any liens purporting to secure the payment of a transfer fee under a transfer fee covenant that is recorded in this state on or after July 1, 2008, are void and unenforceable. This subsection does not mean that transfer fee covenants or liens recorded in this state before July 1, 2008, are presumed valid and enforceable.
History.—s. 1, ch. 2008-35.
689.29 Disclosure of subsurface rights to prospective purchaser.—
(1) A seller must provide a prospective purchaser of residential property with a disclosure summary at or before the execution of a contract if the seller or an affiliated or related entity has previously severed or retained or will sever or retain any of the subsurface rights or right of entry. The disclosure summary must be conspicuous, in boldface type, and in a form substantially similar to the following:
SUBSURFACE RIGHTS
DISCLOSURE SUMMARY
SUBSURFACE RIGHTS HAVE BEEN OR WILL BE SEVERED FROM THE TITLE TO REAL PROPERTY BY CONVEYANCE (DEED) OF THE SUBSURFACE RIGHTS FROM THE SELLER OR AN AFFILIATED OR RELATED ENTITY OR BY RESERVATION OF THE SUBSURFACE RIGHTS BY THE SELLER OR AN AFFILIATED OR RELATED ENTITY. WHEN SUBSURFACE RIGHTS ARE SEVERED FROM THE PROPERTY, THE OWNER OF THOSE RIGHTS MAY HAVE THE PERPETUAL RIGHT TO DRILL, MINE, EXPLORE, OR REMOVE ANY OF THE SUBSURFACE RESOURCES ON OR FROM THE PROPERTY EITHER DIRECTLY FROM THE SURFACE OF THE PROPERTY OR FROM A NEARBY LOCATION. SUBSURFACE RIGHTS MAY HAVE A MONETARY VALUE.
(Purchaser’s Initials)
(2) If the disclosure summary is not included in the contract for sale, the contract for sale must refer to and incorporate by reference the disclosure summary and must include, in prominent language, a statement that the potential purchaser should not execute the contract until he or she has read the disclosure summary required under this section.
(3) As used in this section, the term:
(a) “Seller” means a seller of real property which, at the time of sale, is zoned for residential use and is property upon which a new dwelling is being constructed or will be constructed pursuant to the contract for sale with the seller or has been constructed since the last transfer of the property.
(b) “Subsurface rights” means the rights to all minerals, mineral fuels, and other resources, including, but not limited to, oil, gas, coal, oil shale, uranium, metals, and phosphate, whether or not they are mixed with any other substance found or located beneath the surface of the earth.
History.—s. 1, ch. 2014-34.