Page 80 - Akerman | 2016 Guide to Doing Business in Florida

CHAPTER 9. REAL ESTATE

Real Estate Transactions
Jarrett D. Bingemann, Esq. | (407) 419-8551 | jarrett.bingemann@akerman.com
A. Carter Downs, Esq. | (407) 419-8580 | carter.downs@akerman.com

The Foreclosure Process
Megan C. DeVault, Esq. | (407) 419-8513 | megan.devault@akerman.com
Joseph E. Foster, Esq. | (407) 419-8511 | joseph.foster@akerman.com
Ginnette Childs, Esq. | (407) 419-8592 | ginny.childs@akerman.com

Easements and Land Use and Zoning
Cecelia Bonifay, Esq. | (407) 419-8540 | cecelia.bonifay@akerman.com
Valerie J. Hubbard | (850) 521-8003 | valerie.hubbard@akerman.com

Eminent Domain
George W. Powell, Esq. | (305) 982-5587 | george.powell@akerman.com

9.1 Ownership and Title

The grantee in a deed of land must generally be a person, natural or artificial, in existence at the time of
the conveyance, and legally capable of accepting the deed and holding title to real property. See
Tucker v. Cole, 3 So.2d 875 (1941). A deed from an owner of real property to a nonexistent entity is a
nullity. See Belcher Center LLC v. Belcher Center, Inc., 883 So.2d 338 (Fla. 2d DCA 2004) and
citations therein.
An individual generally must be at least 18 years of age (Florida Statutes § 743.07) and mentally
competent / not under a mental disability to hold title to real property in Florida. An individual is not
required to be a resident of the United States to hold title in Florida; however, the conveyance of real
property by non-citizens generally may create certain non-Florida specific issues, specifically with
respect to taxation. For example, the Foreign Investment in Real Property Tax Act, codified at 26 U.S.C.
§§ 1445, imposes income tax on foreign persons disposing of United States real property interests.
Further, Florida law provides significant protections for homestead properties related to certain liens of
creditors, devise and descent of the homestead property, and transfers or encumbrances by spouses
without the joinder of the other spouse. See FLA. CONST. art. VII, § 6(a); FLA CONST. art. X, §§ 4(a)(1) &
4(c).

A domestic business entity may generally acquire, hold title to, and convey real property in Florida if
authorized, current, and in accordance with its applicable governing documents, as more specifically set
forth within the applicable provisions of Chapters 607 (corporations), 608 (limited liability companies),
617 (corporations not for profit), and 620 (partnerships), Florida Statutes. Each of the respective entities
provides certain liability shields that would impact liabilities arising from the ownership of real property.

Similarly, a foreign business entity may generally acquire, hold title to, and convey real property in Florida
if authorized, current, and in accordance with its applicable governing documents. In addition, a foreign
business entity generally does not need to be registered in Florida to merely hold title or enforce rights in
real property. See Batavia, Ltd. v. U.S. By and Through Dept. of Treasury, Internal Revenue Service,
393 So.2d 1207, 1208 (Fla. 1st DCA 1980). However, foreign entities should review the requirements

78