On May 8, 2023, Governor Ron DeSantis signed into law Senate Bill 264 (“SB 264”) (codified Fla. Stat. Ann. §§ 692.201-205), which seeks to restrict certain foreign purchases and investments in specific types of real property located within the state. Currently, the legality of SB 264 is being challenged by a group of Chinese citizens living in Florida and a real estate brokerage firm in the case Shen v. Simpson, No. 4:23-cv-208 (N.D. Fla. 2023) (NALC articles discussing this case are available here, here, and here).
Since January 2023, the majority of states have proposed at least one piece of legislation to prohibit or restrict foreign investments and landholdings in land within the boundaries of their states to some degree. Florida is one of twelve states to enact a foreign ownership law in 2023, and is now one of twenty-four states that restricts certain foreign investments in land located within their state. As of July 1, 2023, Florida’s foreign ownership law is in effect.
Before enacting a foreign ownership law, Florida did not restrict foreign investments in land. In fact, the state’s constitution expressly permits “[a]ll natural persons,” no matter their race or national origin, “to acquire, possess and protect property.” Fla. Const. art. I, § 2. However, with the enactment of the foreign ownership law, certain foreign investors from specific countries can no longer acquire an interest in certain real property located in Florida. Specifically, there are three separate restrictions under Florida’s foreign ownership law.
This is the first of two articles discussing Florida’s newly enacted foreign ownership law. This article discusses the law’s restriction on foreign investments in Florida’s agricultural land. The second article will explain the law’s restriction on purchases of land near military installations and the restriction on certain Chinese investments in real property.
Agricultural Land Restriction
Section 692.202 of Florida’s State Code creates the restriction on certain foreign investments in agricultural land. Specifically, the state statute restricts a “foreign principal” from directly or indirectly owning, holding, or acquiring “by purchase, grant, devise, or descent agricultural land or any interest…in such land.” Fla. Stat. Ann. § 692.202(1). Under Florida law, “agricultural land” is land that is used primarily for “agricultural purposes,” which includes activities such as horticulture, forestry, aquaculture, the raising of livestock, poultry, dairy, and the production of “farm products” which includes “any plant,…animal or insect useful to humans….” Fla. Stat. Ann. §§ 193.461(3)(b), (5); 823.14(3)(e).
It is unclear whether this restriction applies to leases of agricultural land. The law specifies that holding an ownership interest, whether direct or indirect, in agricultural land violates the restriction, but the provision also includes language indicating that “any interest” in agricultural land would violate the law. While § 692.202(1) does not expressly restrict foreign principals from leasing land, including the “or any interest” language under the restriction provision may indicate that leases of agricultural land are also prohibited.
A “foreign principal” under Florida’s law includes governments, government officials, and political parties and its members of a “foreign country of concern” (“FCOC”). The countries considered as a FCOC under the law include China, Russia, Iran, North Korea, Cuba, Venezuela’s Nicolás Maduro regime, and Syria. A foreign principal can be business entities organized or have a principal place of business in a FCOC. Individuals who are “domiciled in” a FCOC and are not U.S. citizens or lawfully permitted to permanently reside in the U.S. are foreign principals under the law.
Last, any “entity or subsidiary formed for the purpose of owning real property” is a foreign principal when a controlling interest in the entity or subsidiary is held by any individual or entity foreign principal. Fla. Stat. Ann. § 692.201(5)(e). In other words, any entity established to acquire real estate—including U.S. entities—which a foreign principal or multiple foreign principals have a “controlling interest” are themselves a foreign principal and are subject to the restriction. However, the statute does not define what constitutes a “controlling interest” and it is unclear what it means for an entity to form “for the purpose of owning real property.” This provision could be construed as to only applying to entities that form solely to acquire an ownership interest in land, meaning entities formed to acquire land and other purposes may not fall within the definition of a foreign principal subject to the restriction.
Under the law, a buyer of Florida agricultural land or an interest in that land must sign an affidavit claiming they are not a foreign principal, and their purchase of the land complies with state law (i.e., does not violate the restriction under SB 264). Not obtaining such an affidavit does not affect title to the property and the closing agent will not be subject to civil or criminal liability, “unless the closing agent has actual knowledge that the transaction will result in a violation” of the restriction.
Agricultural land held in violation of § 692.202 is subject to forfeiture to the state, meaning the state can take possession of the land. The law authorizes the Florida Department of Agriculture and Consumer Services (“FDACS”) to initiate a civil action for the forfeiture of land held in violation of the restriction. If a court determines that agricultural land is held in violation of the law, “the court must enter a final judgment of forfeiture….” Section 692.202(6)(e) provides that FDACS “may sell” the land.
Aside from losing their interest in the agricultural land through forfeiture, foreign principals also face criminal liability for violating the restriction. Foreign principals that acquire an interest in agricultural land in violation of the restriction commit a second-degree misdemeanor, which is punishable up to 60 days imprisonment and/or a $500 fine. Property sellers that knowingly violate the restriction by selling agricultural land to a foreign principal also face up to 60 days in prison and/or a $500 fine.
Like most foreign ownership laws, Florida’s SB 264 contains exceptions to the restriction. Specifically, there are four primary exceptions to the restriction prescribed under § 692.202. First, foreign principals with a “de minimus indirect interest” are exempt from the prohibition. Foreign principals have a de minimus indirect interest when they (1) own less than 5% of registered equities (i.e., stocks that are registered to the name of the exact stockholder) in a publicly traded company owning agricultural land, or (2) hold an interest in an entity that is owned or controlled by a U.S. company that is registered as an investment adviser with the U.S. Securities and Exchange Commission.
Second, the statute exempts agricultural landholdings that were acquired by foreign principals before July 1, 2023. However, the law requires these foreign principals—and foreign principals that acquire agricultural land after that date—to disclose the amount of agricultural acreage they own and the location of the land with the Florida Department of Agriculture and Consumer Services (“FDACS”) by January 1, 2024. Foreign principals that fail to register their agricultural landholdings by that date can be penalized $1,000 each day their registration is late, and FDACS is authorized to place a lien against the land for any unpaid balance of a penalty.
Third, foreign principals are exempt from the restriction if they obtain an interest in agricultural land as a gift, through inheritance, or by enforcing a security interest against the land. However, foreign principals that acquired agricultural land under any of these methods must dispose of that interest within three years of acquiring that interest. If they fail to sale or transfer their interest within that time period, the foreign principal can face misdemeanor charges and have the land forfeited to the state, meaning the state can obtain legal title to the property if a court finds the land is being held in violation of the restriction.
Fourth, the law exempts individuals of a FCOC that have become lawful permanent residents of the U.S. Thus, individuals of a FCOC that are lawfully permitted to temporarily reside in the U.S.—most likely through a work or student visa—are possibly not excluded from the restriction. As previously discussed, the law classifies an individual that is “domiciled in” a FCOC as “foreign principal” and is thus prohibited from acquiring agricultural land within the state. However, the law does not expressly define what constitutes “domiciled in” a foreign country, so it is unclear whether an individual investor that is a citizen of a FCOC is “domiciled in” that country even if they are legally residing within the U.S. for an indefinite period. In other words, because temporary residents generally continue holding their citizenship in their home country, they may be considered as being “domiciled in” that country and are subject to the restriction prescribed under § 692.202.
Conclusion
On July 1, 2023, Florida’s SB 264 went into effect and foreign principals are now restricted from acquiring certain properties located within the state, including agricultural land. However, the plaintiffs in the Shen case have asked the court to issue a preliminary injunction to prevent the state from further enforcing the restrictions prescribed under the law. The court has not yet ruled on the plaintiffs motion, but an update to this article will be published as the lawsuit moves forward.
To read SB 264, click here.
To read NALC articles discussing the Shen case, click here, here, and here.
To learn more about foreign ownership of agricultural land, click here.
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