Florida Real Estate Practices

Attorney Involvement

Please describe any requirements under applicable state law for attorney, abstractor or other special professional involvement, for example, in the search, examination, opinion of title, signing, closing, disbursement, recording, preparation of documents, and/or policy-issuance.

An attorney licensed to practice law in Florida must prepare deeds, powers of attorney, and other instruments that are to be recorded.   General closing documents that will not be recorded can be prepared by a non-attorney provided they are not contractual in nature. 

However, a title agent may prepare documents that are incidental to the issuance of a title insurance policy.

A title agent may perform searches and examinations, sign documents, close transactions and disburse escrow funds. 

A non-attorney may not render an opinion of title. 

Cancellation/Commitment Fee

Does your state permit or require a cancellation fee or commitment fee upon cancellation?

Rule 690 -186.003 (7) requires for commercial transactions that the premium for the title commitment be charged upon issuance of the title commitment.  However, the practice is to collect the premium at the time of the closing.

Certificate of Release (of Mortgage)

If anyone other than the lender (such as a title agent, settlement agent, underwriter or attorney) has the authority to release the security instrument, please describe.

Florida Statute 701.041 authorizes an officer or an appointed agent of a title insurer to execute a certificate of release for a mortgage in the event the mortgagee fails to record a satisfaction of mortgage and release after receiving a payment in full of the loan secured by the mortgage in accordance with a payoff statement furnished by the mortgage servicer.

In practice, this is only done to resolve title claims.

Deeds

Please describe the kinds of deeds that are customary for commercial and residential transactions.  Please describe the kinds of deeds that are generally not insurable.

Customarily, a general warranty deed or special warranty deed is used in both residential and commercial transactions and are insurable.

Quit Claim Deeds are generally not insurable for use in an arms- length sales transaction.  Quit Claim Deeds are generally used for clearing clouds on title, conveying a marital interest from one spouse to another or transferring title into the grantor’s family trust.

Joinder of Spouses

If a non-title holding spouse is required to join in the execution of a deed or a security instrument, please describe.  Any analogous rights, such as those in a civil union or equivalent, should also be addressed. 

Article X, Section 4, of the Florida Constitution requires a non-title holding spouse to join in on a deed of conveyance or mortgage of homestead property.  If a married person is either conveying or mortgaging without joinder of the spouse, language must be included on the document stating that the property is not the homestead property of the grantor, mortgagor or his/her immediate family.

Florida does not recognize Civil Unions.

Mortgage Tax

Is there a mortgage tax in your state?  If yes, is it uniform across the state or does it vary?  If it is uniform, please describe.  

There are two types of mortgage tax: 

  1. Documentary tax on mortgages is calculated at $.35 per $100.00 or a fraction thereof of the mortgage amount, i.e., if the amount is $101, the fee would be .70 cents. 
  2. Intangible tax on mortgages is calculated at $2.00 per 1000.00 mills per dollar amount of the mortgage.  

Please consult local underwriting counsel for questions on the calculation of mortgage tax.

Payment Customs

Who customarily pays for:

(a) Owner’s Policy?
(b) Transfer Tax & Recording Fee?
(c) Survey Charges?
(d) Closing/Settlement Fees? 

(a) Owner’s policy: Varies throughout the state depending on the county where the property is located. 
(b) 1. Transfer tax:
       (i) Deed: Seller pays the documentary stamps;
       (ii) Mortgage Tax: Buyer pays the mortgage tax.
      2. Recording fee: Buyer. 
(c) Survey charges: Buyer.
(d) Closing/settlement charges: Both parties. 

Policy Countersignatures

Please describe any statutory or regulatory requirements for countersignatures in order to issue the policy (for example, residency requirements).

A licensed and appointed issuing agent of a title insurer may countersign title commitments and policies. 

In addition, a corporate officer of a title insurer may issue and countersign binders, title commitments, title policies and guarantees of title.  (Florida Statute 626.841 and 626.8417)

An issuing agent does not need to be a Florida resident.  However, an issuing agent does need to either be licensed by the Florida Department of Insurance or a member of the Florida Bar.

Real Estate Taxes

Please describe the general tax year, due dates, and delinquency dates, including lien dates and payment cycle.

Taxes are paid a year in arrears.  Taxes are due by April 1 of the following calendar tax year.  If taxes are paid prior to the April 1 due date of the following calendar year, a discount will be applied to the payment as follows:  if paid by November 30 of the calendar tax year, a 4 percent discount will be applied; if paid by December 31 of the calendar tax year, a 3 percent discount will be applied; if paid by January 1, a 2 percent discount will be applied, and if paid by February 28, a 1 percent discount will be applied.

Taxes become delinquent on April 1 following the calendar tax year, and if paid on or after April 1 of the following calendar tax year, a 4 percent penalty will be applied.

Florida Statute Section 197.122 and 197.162.

Please consult with a local underwriter for information relating to real estate taxes on the subject property.

Search and Examination Fees

Is it permissible and/or customary to charge a separate search and/or examination fee, and under what circumstances?  If your jurisdiction is all-inclusive, please state that.

A search fee may be charged, but a separate fee for examination cannot be charged. 

Search Requirements

Is there a minimum period of time for a title search required: (a) by state law, (b) pursuant to marketable record title acts, or (c) by any other applicable title examination standards (e.g., state bar association)?  Please respond to each category.  If a minimum search period exists for any category, please state it.

(A)  State Law: No.
(B)  Marketable Record Title Acts: requires a search of at least 30 years from root of title.
(C)  Other Standards: When issuing an ALTA owner’s or loan policy with specific Schedule B Exceptions on one-to-four improved residential property, a search from an examined subdivision base file is permitted but in no event less than a 20 year search period.  If there is a prior owner’s or loan policy with specific Schedule B Exceptions, the search may come from the Effective Date of the prior policy.  Streamlined search procedures have been approved by Florida for use on equity and refinance transactions involving residential one-to-four unit properties. 

Streamlined procedures, use of starter files and other search requirements are more specifically set forth in Stewart Florida Bulletin FL000094 (January 2, 2002) http://www.vuwriter.com/vubulletins.jsp?displaykey=BLFL000094

Security Instruments (Deed of Trust vs. Mortgage)

Please describe the customary and permissible form(s) of security instruments used in your state. 

Who can be listed as the trustee on the Deed of Trust (e.g., residency and/or natural person requirements, etc.)? Can an underwriter or title agent be designated as the trustee, and, if so, is it customary?

Florida is a lien state and mortgages are the security instrument used to encumber real property.

Standard Exceptions and Requirements

Please identify the standard exceptions and requirements that are customarily used in your state.

Standard exceptions used in Florida:

Rights or claims of parties in possession not shown by the public records.

Easements or claims of easements not shown by the public records.

Encroachments, overlaps, boundary line disputes or other matters which would be disclosed by an accurate survey and inspection of the premises.

Any lien, or right to a lien for services, labor or material heretofore or hereafter furnished, imposed by law and not shown in the public records.

Any adverse ownership claim by the State of Florida by right of sovereignty to any portion of the lands insured there under including submerged, filed and artificially exposed lands and lands accreted to such lands.

Note: If the insured property either does not have a natural body of water on it or is not located next to a natural body of water, this exception can be deleted.)

Note: Please keep in mind that when a standard exception is deleted on the mortgagee policy, it should also be deleted on the owner’s policy.  Both policies should contain the same standard exceptions.

State-specific Policy Variations

If there are state-specific changes to the provisions in the ALTA policies (e.g., Arbitration, Minerals), please describe. 

1.         Arbitration is only permitted if both the insurer and insured agree.
2.         Affirmative coverage is prohibited.

Title Insurance Form and Filing Regulations

Please describe the form and/or rate filing requirements, if any, related to policies and endorsements.  Please describe any applicable rating bureau. 

The form and rate filing requirements are set forth in Chapters 690-816.002-690-186.015 in the Florida Administrative Code, available at www.FlOIR.gov  

Florida does not have a rating bureau.  Rates and forms are promulgated. 

Transfer Taxes

Is there a transfer tax in your state? If yes, is it uniform across the state or does it vary?  If it is uniform, please describe.

Transfer taxes are collected throughout the state.   The tax rate for documents that transfer a real property interest is $.70 per $100.00 or a fraction thereof for a single family residence.

The tax rate varies in Miami-Dade County, where the rate is $.60 per $100.00 or a fraction thereof for a single family residence.  If non-residential, the tax rate is $.60 per $100.00 plus a $.45 surtax per $100.00, or a fraction thereof. 

Please consult with local underwriting counsel.

Usury

Is usury coverage available?

No, usury coverage is not available.  Usury endorsements are prohibited.

Withholding Taxes

What are your state’s requirements, if any, with regard to withholding proceeds from a sale, similar to but not including FIRPTA?

There are no separate withholding requirements on the state level.

Witness Requirements

Are witnesses required on a deed or security instrument?  If so, please describe.

Deeds of Conveyance: Requires two witnesses and a notary acknowledgment. 

Mortgages: Do not require witnesses but must be acknowledged to be recorded.

Powers of Attorneys: Requires two witnesses and a notary acknowledgment.