Conveyances to Foreign Entities: Constitutional or Not?
On May 8, 2023, Governor Ron DeSantis signed into law Senate Bill 264, better known as “Conveyances to Foreign Entities.” The law has three separate statutory provisions prohibiting certain conveyances of land or property, which are set forth in Sections 692.202 through 692.204, Florida Statutes. The law also sets forth the following definitions n Section 692.201:
“Foreign principals” are defined as (a) the government or any official thereof of a foreign country of concern; (b) a political party or member of the same of a political party in a foreign country of concern; (c) a partnership or other specified entity which has its principal place of business in a foreign country of concern; (d) a person who is domiciled in a foreign country of concern, and not a citizen or permanent resident of the United States; or (e) any person, or entity described above that has a controlling interest in a legal entity which has been formed for the purpose of owning real property in Florida.
“Foreign country of concern” is also defined by the statute, to mean the People’s Republic of China, the Russian Federation, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, the Republic of Cuba, the Venezuelan regime of Nicolas Maduro, or the Syrian Arab Republic.
Agricultural Land Prohibition
The first substantive provision, Section 692.202, Florida Statutes prohibits the purchase of “agricultural land” by “foreign principals”.
Under the newly enacted Fla. Stat. § 692.202, generally, no foreign principal is permitted to own, acquire, or have any interest in agricultural land in the state of Florida. If such a person or entity acquired agricultural land in the state prior to July 1, 2023, they may continue to hold the land, but must registered with the Department of Agriculture and Consumer Services (DOACS) by January 1, 2024. After July 1, 2023, a foreign principal may also acquire agricultural land by devise or descent, through enforcing a security interest or though collection of debts if it transfers the property within 3 years of acquiring the same. As to non-foreign principal purchasing agricultural lands, such individuals or entities must now attest under penalty of perjury that they are not a foreign principal, and are complying with Chapter 692, Florida Statutes. If an individual fails to comply with § 692.202, the property is subject to forfeiture by the DOACS. Furthermore, a foreign principal that purchases property in violation of this section commits a misdemeanor of the second degree, which is punishable by a term of imprisonment not exceeding 60 days and a fine up to $500.00.
Prohibition on Property Near Military Installations or Critical Infrastructure
In addition, Fla. Stat. § 692.203 provides that a foreign principal, generally, is not permitted to own or have a controlling interest in real property on or within 10 miles of any military installation or critical infrastructure facility in the state of Florida. Once again foreign principals who own such property before July 1, 2023, may continue to hold it, but must have registered it with the Department of Economic Opportunity (DEO) by December 31, 2023. Like Section 692.202, any purchaser who acquires real property within 10 miles of a military installation or critical infrastructure facility must provide an affidavit indicating that they are not a foreign principal and have otherwise complied with Chapter 692. Notably, a foreign principal who is an individual is permitted to purchase a single residential property up to two acres in size, if it is not within five miles of a military installation, and the individual meets certain other Visa and/or citizenship requirements. Ultimately, if a foreign principal fails to timely register, the foreign principal is subject to a civil penalty of $1,000 per day that the registration is late. Furthermore, the DEO can initiate a civil action for the forfeiture of the real property. A foreign principal who acquires real property in violation of the section commits a second-degree misdemeanor punishable by up to 60 days imprisonment and a fine up to $500.00. Notably, any person who sells property in violation of this section also commits the same offense.
Prohibition on Acquisition of Property by People’s Republic of China
The next provision of newly enacted Part III to Chapter 692, § 692.204, places a blanket prohibition on acquisition of any type or classification of real property by the People’s Republic of China (“PRC”), the Chinese Communist Party or an official or member of the same, an entity having its principal place of business in the PRC, a person who lives and intends to remain in the PRC, and is not a citizen or lawful permanent resident of the United States. § 692.204 also contains an exception for a natural person as to one residential property, up to two acres in size, subject to certain Visa and/or residency requirements. As with Sections 692.202 and 692.203, if a prohibited person or entity owns property as of July 1, 2023, it may continue to so, but must have registered with the DEO by December 31, 2023. Similarly, a $1,000 civil penalty can be imposed for failure to timely register. In addition, the DEO can initiate forfeiture proceedings to real property acquired in violation of the statute. A violation of § 692.204 is a third-degree felony, punishable by up to five years imprisonment, and a fine up to $5,000.00. A person who sells real property in violation of § 692.204 commits a first-degree misdemeanor, punishable by up to 364 days imprisonment, and a $1,000.00 fine.
Diplomatic Exception
The final provision, § 692.205, creates an exception and provides that the prohibitions set forth above are inapplicable to a foreign principal that acquires real property for a diplomatic purpose that is recognized, acknowledged, or allowed by the Federal Government.
Overview
The newly enacted Part III to Chapter 692 affects all citizens (whether foreign principals or not) in that they must now execute an affidavit: (a) in connection to the sale of agricultural property; (b) or property located within 10 miles of a military installation or critical infrastructure facility, within the state of Florida; and (c) in connection to the sale of any real property to satisfy § 692.204, Florida Statutes. Furthermore, any citizen who sells real property in violation of certain provisions of Part III, Chapter 692, commits a second, or in some cases first-degree misdemeanor. The subpart also affects foreign principals by subjecting them to a ban on purchase of agricultural property in this state, and property within 10 miles of military installations or critical infrastructure facilities, except under certain very limited circumstances, and requires current (or future) holders of such property to register with the DOACS or DEO. In addition, certain individuals or entities domiciled in the PRC are prohibited from purchasing any real property in Florida, except under certain specifically delineated, and very limited circumstances.
For the average reader, the most glaring effects of the enactment of Part III, Chapter 692 are the requirements that an affidavit be executed in connection with the purchase of real property, and the potential punishments for selling real property in violation of the statutes. If you own (a) agricultural land; (b) real property within ten miles of a military installation; and/or (c) real property within ten miles of a critical infrastructure facility, and (d) plan to sell real property of any classification, you should conduct due diligence to the status of the prospective purchaser.
From an academic perspective it is to be determined whether Part III of Chapter 692 could be subject to constitutional scrutiny. The United States Supreme Court has recognized that even absent a treaty, statute, or order, a state law can be deemed unconstitutional if it “disturbs foreign relations” or “establishes its own foreign policy.” These concerns also echo a question of preemption, which essentially prohibits a state from “intruding” into a “field of foreign affairs which the Constitution entrusts to the President and the Congress.”
The first test of constitutionality of the statute can be found in Shen v. Simpson, No. 4:23-CV-208-AW-MAF, 2023 WL 5517253 (N.D. Fla. Aug. 17, 2023). To date, the U.S. District Court for the Northern District of Florida has found the Plaintiff’s arguments of unconstitutional to be at least for now insufficient to warrant a preliminary injunction. The case is ongoing, and the statue remains valid and in effect until a court strikes it down.
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