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 second article discussing Florida’s newly enacted foreign ownership law. The first article explained the law’s restriction on foreign investments in Florida’s agricultural land. This article discusses the law’s restriction on purchases of land near critical infrastructure and the restriction on certain Chinese investments in real property located within the state.

Section 692.203 Restriction

One of the restrictions established under SB 264 prohibits a “foreign principal” from directly or indirectly owning, or have a controlling interest in, or acquire or purchase real property that is “on or within 10 miles of any military installation or critical infrastructure facility.” Under the law, a “military installation” is real property being used by the U.S. military that is 10 or more contiguous acres. A “critical infrastructure facility” includes facilities such as chemical manufacturing facilities, gas processing plants, certain seaports, water treatment facilities, and airports. While this restriction is primarily focused on prohibiting certain investments near certain facilities, it can impact agricultural and forestland purchases that are within the 10-mile radius.

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.

If a violation of the restriction under § 692.203 has occurred, the Florida Department of Economic Opportunity (“FDEO”) is authorized to bring an action for the forfeiture of the property, meaning the state files a lawsuit against the foreign principal to obtain title to the property held in violation. If a court determines that property is held in violation of the law, the court must order a judgment of forfeiture and FDEO “may sell” the property.

Additionally, the law requires all foreign principals to register their landholdings 10 miles within a military installation or critical infrastructure facility with FDEO. Failing to file may result in a $1,000 penalty each day the disclosure is late. A buyer of Florida real property that is within 10 miles of a military installation or critical infrastructure facility 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).

Section 692.204 Restriction

SB 264 also created a restriction on certain Chinese property investments located within the state. Under § 692.204, business entities established in China and the Chinese government (including government officials and members of its political party) are prohibited from acquiring real property within the state, which includes agricultural land and forestland. Individuals that are “domiciled in” China who is not a citizen or a lawful permanent resident of the U.S. are also prohibited from acquiring Florida real estate. However, an individual domiciled in China may acquire up to 2 acres of residential property if the property is not within 5 miles of a military installation, they hold a valid visa, and the purchase of the property is in their name.

Chinese investors that hold a “de minimus indirect interest” in real property are exempt from the restriction. Chinese investors hold 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.

Further, the law permits Chinese investors that are subject to the restriction to acquire real property within the state by inheritance, security interest, or through the enforcement of an interest in the land. However, these investors must sale or transfer their interest in the property within 3 years of acquiring their interest in the property.

Chinese investors that acquired Florida real estate before July 1, 2023, are exempt from the restriction and can continue holding their property interests. However, the law requires these investors—and Chinese purchasers that acquire real property after that date—to disclose the amount of property they own and the location of the property with FDEO. If they fail to register their real property interests, they may be penalized $1,000 each day their registration is late.

Real property held in violation of § 692.204 is subject to forfeiture to the state. The law authorizes FDEO to initiate a civil action for the forfeiture of land held in violation of the restriction. If a court determines that real property is held in violation of the law, the land is forfeited to the state and FDEO may sell the property.

Aside from losing their interest in real property through forfeiture, Chinese investors subject to § 692.204 also face criminal liability for violating the restriction. Chinese purchases of real property in violation of SB 264 constitutes a third-degree felony that is punishable up to 5 years in prison and/or a $5,000 fine. Real property sellers that knowing violate the restriction by selling property to a restricted Chinese investor commit a first-degree misdemeanor that is punishable up to 1 year in prison and/or a $1,000 fine.

Conclusion

On July 1, 2023, Florida’s SB 264 went into effect and foreign principals are now restricted from acquiring certain real property located within the state, including agricultural land. However, the plaintiffs in the Shen case are challenging the constitutionality of the law and previously asked the court to halt the enforcement of the restrictions prescribed under SB 264. On August 17, 2023, Judge Allen Winsor, a federal judge serving the United States District Court for the Northern District of Florida, issued an order denying the plaintiffs’ request. As a result, the state of Florida may continue enforcing its newly enacted foreign ownership law.

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.

Subscribe to NALC’s bi-weekly newsletter The Feed for recent legal developments affecting agriculture, including foreign ownership of agricultural land here.

For previous issues of The Feed, click here.