Page 86 - Akerman | 2016 Guide to Doing Business in Florida

agreement between the borrower and the lender. In addition to a mortgage,
most lenders in Florida also require a separate collateral assignment of leases
and rents, which is recorded in the public records of the county in which the
subject property is located. With proper language, the mortgage can also
serve as an assignment of leases and rents. Florida has a statute governing
certain aspects of collateral assignments of leases and rents. If the borrower
is not creditworthy, then a lender may require a guaranty instrument from a
creditworthy entity.

The typical document to evidence a borrower’s repayment obligation in Florida
is a promissory note. There is no statutorily promulgated form of promissory
note in Florida. The general requirements for a promissory note under Florida
law are that the instrument must contain a promise to repay a fixed amount of
money, must be payable on demand or at a time certain, and must be signed
by the borrower or maker. Promissory notes may be negotiable or non-
negotiable instruments. Subject to a statutory cap of $2,450.00, the Florida
documentary stamp tax is generally due on all promissory notes,
nonnegotiable notes, and written obligations at the rate of $.35 cents on each
$100 or fraction thereof of the indebtedness or obligation evidenced thereby.
Promissory notes secured by a mortgage are generally subject to the Florida
non-recurring intangible tax at the rate of $0.002 for every $1.00 paid at the
time the lien upon the subject real property was created.

With some specific modifications, Florida has adopted Article 9 of the Uniform
Commercial Code. Financing statements are filed with the Florida Secured
Transaction Registry.

(e) Closing Statement. Closing statements are customarily used in all real estate
and real estate financing transactions in Florida. They are typically prepared by
the transaction’s closing agent. If the transaction involves the financed
acquisition of property, then typically there will be one closing statement for
the loan transaction and another closing statement for the real estate
transaction. Aside from the purchase price or loan amount, other items
typically included on a closing statement are, as applicable, prorations and
payment of taxes and other expenses, payment of title insurance premiums
and endorsements, payment of documentary stamp taxes and nonrecurring
intangible taxes, and payment of attorney fees, on a case-by-case basis.

9.5 Leasing
Leases for more than one (1) year must satisfy the requirements of the Florida conveyancing (i.e.,
statute of frauds) statute (Florida Statutes § 689.01), meaning they must be executed before two
witnesses. Further, purchasers of real property who have constructive notice of a lease on the subject
real property generally risk taking title subject to the respective lease. See, e.g., Ruotal Corp., N. W. v.
Ottati, 391 So. 2d 308, 309 (Fla. 4th DCA 1980). In addition, the recording of a lease generally
constitutes constructive notice of a lease encumbering real property (see Florida Statutes § 695.01).

9.5.1 Residential

Residential tenancies in Florida are generally governed by the Florida Residential Landlord
Tenant Act, Chapter 83, Part II (§§ 83.40-83.682), Florida Statutes, and common law. The

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