This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0285.CJS
DATE: 11/29/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 285 Pub. Rec./Recording Notification Service
SPONSOR(S): Hunschofsky
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice Subcommittee Mawn Jones
2) Ethics, Elections & Open Government
Subcommittee
3) Judiciary Committee
SUMMARY ANALYSIS
“Real property” is a piece of land and any artificial or natural property permanently attached to it. Under Florida
law, a deed is generally required to transfer title to real property from one person (the “grantor”) to another (the
“grantee”). No deed is effective unless it is properly recorded in the official records of the clerk of the circuit
court where the property lies, and the clerks may not record a deed unless certain statutory requirements are
met, including that the grantor signed the deed in the presence of a notary public and two witnesses. Recently,
there has been an increase in fraudulent real property conveyances in which a fraudster executes and records
a deed purporting to convey title to or an interest in real property to himself or herself or a third party without
the property owner’s knowledge or consent (“title fraud”). Such fraudulent deeds may be legally void ab initio,
meaning they never have legal effect and thus never actually convey title or any property interest away from
the true owner. However, because the clerk serves a ministerial role, the clerk may not look beyond the four
corners of a deed presented to determine its validity; if it appears on the deed’s face that the statutory
requirements are met, the clerk must record the deed.
In 2023, the Legislature passed CS/CS/HB 1419 which, in pertinent part, required the clerks of the circuit court
(and authorized the property appraisers) to create a free recording notification service on or before July 1,
2024, to provide property owners registered for the service with early notice that a land record, such as a deed,
has been filed on their property.
HB 285 creates a public records exemption for all social security numbers, driver license numbers, Florida
identification numbers, electronic mail addresses, and telephone numbers submitted to the clerks or property
appraisers by recording notification service registrants as part of the registration process. Under the bill, such
information would be confidential and exempt from public inspection except upon court order, and the
exemption applies to information held by the clerks or property appraisers before, on, and after the bill’s
effective date.
In accordance with the Open Government Sunset Review Act, the bill specifies that the exemption shall stand
repealed on October 2, 2029, unless reviewed and saved from repeal through reenactment. The bill also
provides a statement of public necessity as required by the Florida Constitution.
The bill does not appear to have a fiscal impact on state or local governments.
The bill provides an effective date of upon becoming a law.
Article I, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly-created or expanded public records or public meeting exemption.
The bill creates a public records exemption for specified information submitted by recording
notification service registrants; thus, it requires a two-thirds vote for final passage.
STORAGE NAME: h0285.CJS PAGE: 2
DATE: 11/29/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Real Property Fraud
Real Property Conveyances
“Real property” is a piece of land and any artificial or natural property permanently attached to it,
whether above or beneath, such as a house, barn, or other structure, or sub-surface mineral.
1
Under
Florida law, a deed is generally required to transfer title to (that is, an ownership interest in) real
property from one person (the “grantor”) to another (the “grantee”).
2
Florida law recognizes several
types of deeds, which convey different warranties of title, including a:
General warranty deed, which provides full warranties to the grantee that the grantor:
o Holds title to the property and has the right to convey it;
o Has not contracted to sell the property to another;
o Promises that there are no encumbrances, such as a lien, on the property, other than
those encumbrances previously disclosed;
o Assures that the grantee and his or her heirs and assigns will enjoy the property without
interruption or deprivation of possession;
o Promises to defend the grantee against anyone who later claims title to the property
after its conveyance; and
o Assures that he or she will take any necessary affirmative steps to further cure any
defects and protect the buyer, even from title defects dating back to before the grantor’s
ownership of the property to be conveyed.
3
Quitclaim deed, which provides no warranties as to title and conveys only that interest which the
grantor has in the property, if any.
4
The grantor of any deed must sign the instrument in the presence of and have the instrument
acknowledged by a notary public or other statutorily-designated officer vested with the authority to
acknowledge legal instruments.
5
The grantor must also sign the deed in the presence of two
subscribing witnesses,
6
who in turn must sign the deed in the presence of and have their signatures
proved by a notary or other officer vested with the authority to prove signatures.
7
No acknowledgment
or proof may be taken by any notary or other officer unless such person knows, or has satisfactory
proof, that the person:
Making the acknowledgment is the individual described in, and who executed, the deed; or
Offering to make proof is one of the subscribing witnesses to the deed.
8
Recording Real Property Conveyances
1
Legal Information Institute, Real Estate, https://www.law.cornell.edu/wex/real_estate (last visited Nov. 28, 2023).
2
Real property may also be transferred in probate after the owner’s death.
3
Legal Information Institute, Deed, https://www.law.cornell.edu/wex/deed (last visited Nov. 28, 2023).
4
Id.
5
For a full list of persons who may legalize or authenticate an instrument conveying real property, see s. 695.03(1)-(3), F.S.
6
A subscribing witness is a person who witnesses the grantor sign a document and signs it thereafter to indicate that he or she
witnessed the grantor’s signature thereon. Legal Information Institute, Subscribing Witness,
https://www.law.cornell.edu/wex/subscribing_witness#:~:text=A%20subscribing%20witness%20is%20a,person%20has%20witnessed%
20those%20signatures (last visited Nov. 28, 2023).
7
Ss. 689.01(1) and 695.03(3), F.S.
8
S. 695.09, F.S. STORAGE NAME: h0285.CJS PAGE: 3
DATE: 11/29/2023
No conveyance of title to or an interest in real property is effective unless it is properly recorded in the
official records of the clerk of the circuit court
9
where the property lies.
10
The clerk may not generally
record any such instrument unless:
The name of each of the instrument’s executors is legibly printed, typewritten, or stamped upon
such instrument immediately beneath the executor’s signature and such person’s post office
address is legibly printed, typewritten, or stamped upon such instrument;
The name and post office address of the person who prepared the instrument are legibly
printed, typewritten, or stamped upon such instrument;
The name of each witness to the instrument is legibly printed, typewritten, or stamped upon
such instrument immediately beneath his or her signature;
11
The name of any notary public whose signature appears on the instrument is legibly printed,
typewritten, or stamped upon such instrument immediately beneath his or her signature;
A 3-inch by 3-inch space at the top right-hand corner on the first page and a 1-inch by 3-inch
space at the top right-hand corner on each subsequent page are reserved for the Clerk’s use;
and
In any instrument other than a mortgage conveying or purporting to convey an interest in real
property, the name and post office address of each grantee in such instrument are legibly
printed, typewritten, or stamped upon such instrument.
12
All deeds recorded in the clerk’s office are deemed to have been accepted by the clerk, and officially
recorded, at the time the clerk or his or her deputy affixed on the deed the official register numbers
13
required under Florida law.
14
Fraudulent Real Property Conveyances
In recent years, there has been an increase in fraudulent real property attempted conveyances in which
a fraudster executes and records a deed purporting to convey title to or an interest in real property to
himself or herself
15
or a third party
16
without the property owner’s knowledge or consent (“title fraud”).
17
Such fraudulent deeds may be legally void ab initio, meaning they never have legal effect and thus
never actually convey title or any property interest away from the true owner.
18
However, because the
clerk serves a ministerial
19
role, the clerk and his or her employees may not look beyond the four
corners of a deed presented for recording to determine its validity.
20
Thus, if it appears on the deed’s
face that the above-mentioned statutory requirements are met, the Clerk must record the deed. Upon
recording, the deed appears valid, and others may purchase the property from the fraudster or the third
party named as grantee in the deed in the belief that such person owns and has the right to sell the
property.
9
The State Constitution mandates that there be an elected clerk of the circuit court (“clerk”) in each of Florida’s 67 counties to perform
specified functions, including official records recorder. Art. V., s. 16 and art. VIII, s. 1, Fla. Const.
10
S. 695.01, F.S.
11
As of January 1, 2024, the post office address of each witness will also need to be legibly printed, typewritten, or stamped upon such
instrument. Ch. 2023-238, L.O.F.
12
These requirements do not apply to documents executed, acknowledged, or proved out of state. S. 695.26, F.S.
13
The “register numbers” are the filing numbers assigned to and affixed on each instrument filed for record, which numbers the clerk
must enter in a register available at each office where official records may be filed. S. 28.222.
14
Ss. 28.222 and 695.11, F.S.
15
See Mike DeForest, Florida Man Accused of Using Fake Deeds to Take Ownership of Two Homes, Click Orlando (Sept. 12, 2022),
https://www.clickorlando.com/news/investigators/2022/09/12/florida-man-used-fake-deeds-to-take-ownership-of-2-homes-court-records-
claim-heres-how/ (last visited Nov. 28, 2023).
16
See Mike DeForest, ‘Be Aware:’ Identity Thief Uses Fraudulent Deed to Take Orange County Man’s Property, Click Orlando (May 16,
2022), https://www.clickorlando.com/news/investigators/2022/05/16/be-aware-identity-thief-uses-fraudulent-deed-to-take-orange-
county-mans-property/ (last visited Nov. 28, 2023).
17
Joseph M. Bialek, Florida Focus: Protect Yourself from Identity Thieves Using Fraudulent Deeds, Law Alert (Nov. 9, 2022),
https://www.porterwright.com/media/florida-focus-protect-yourself-from-identity-thieves-using-fraudulent-deeds/ (last visited Nov. 28,
2023).
18
Legal Information Institute, Ab Initio, https://www.law.cornell.edu/wex/ab_initio (last visited Nov. 28, 2023).
19
“Ministerial” means taking actions in a prescribed manner in obedience to the mandate of legal authority, without the exercise of the
person’s own judgment or discretion as to the propriety of the actions taken. S. 112.312(17), F.S.
20
See s. 28.222, F.S. (providing that the Clerk of the Circuit Court “shall record the following kinds of instruments presented to him or
her for recording, upon payment of the service charges prescribed by law: (a) Deeds…”); art. V, s. 16, Fla. Const. STORAGE NAME: h0285.CJS PAGE: 4
DATE: 11/29/2023
To assist property owners in uncovering title fraud, many clerks throughout the state began offering a
free recording notification service that alerts a property owner who registers for the service whenever
an instrument purporting to convey title to the owner’s real property, such as a deed, is recorded in the
county’s official records.
21
This service does not prevent the recording of the deed, but rather puts the
true property owner on notice that he or she may need to contact an attorney or law enforcement to
report the fraud and take steps necessary to undo the fraudulent conveyance. However, before July 1,
2023, the service was not mandated by or standardized in Florida law.
2023 CS/CS/HB 1419
In 2023 the Legislature passed CS/CS/HB 1419 to address real property fraud in the State.
22
The bill, in
pertinent part, created s. 28.47, F.S. to require the clerks of the circuit court to, on or before July 1,
2024, create, maintain, and operate a free recording notification service, open to all persons wishing to
register for the service, to provide property owners with early notice that a land record has been filed on
their property. Under the provisions of the bill, a registrant provides a valid e-mail address to the clerk
along with the name and/or property address he or she wishes to monitor; the clerk then notifies the
registrant by e-mail when a land record is filed pertaining to the registrant’s monitored name or
property.
The bill specified that registration for the recording notification service must be made possible through
an electronic registration portal, which portal must:
Be accessible through a direct link on the home page of the clerk’s official public website;
Allow a registrant to subscribe to receive recording notifications for at least five monitored
identities per valid electronic mail address provided;
Include a method by which a registrant may unsubscribe from the service;
List a phone number at which the clerk’s office may be reached for questions related to the
service during normal business hours; and
Send an automated electronic mail message to a registrant confirming his or her successful
registration for or action to unsubscribe from the service, which message must identify each
monitored identity for which a subscription was received or canceled.
Further, the bill required that, when a land record is recorded for a monitored identity, a recording
notification must be sent within 24 hours of the recording to each registrant who is subscribed to
receive recording notifications for that monitored identity. Such notification must contain:
Information identifying the monitored identity for which the land record was filed;
The land record’s recording date;
The official records book and page number or instrument number assigned to the land record by
the clerk;
Instructions for electronically searching for and viewing the land record using the assigned
official record book and page number or instrument number; and
A phone number at which the clerk’s office may be contacted during normal business hours with
questions related to the recording notification.
21
See, example, Clerk of the Court & Comptroller, Lee County, Florida, Property Fraud Alert,
https://www.leeclerk.org/services/property-fraud-alert (last visited Nov. 28, 2023).
22
Ch. 2023-238, L.O.F. STORAGE NAME: h0285.CJS PAGE: 5
DATE: 11/29/2023
Finally, the bill provided that:
There is no right or cause of action against, and no civil liability on the part of, the clerk with
respect to the creation, maintenance, or operation of a recording notification service.
Nothing in s. 28.47, F.S., may be construed to require the clerk to provide or allow access to a
record or information which is confidential and exempt from s. 119.071 and s. 24(a), Art. I of the
State Constitution or to otherwise violate Florida’s public record laws.
S. 28.47, F.S. applies to county property appraisers that have adopted an electronic land record
notification service before the bill’s effective date, but where a land record is recorded for a
monitored identity, notice through the property appraiser’s service must be sent within 24 hours
of the instrument being reflected on the county tax roll by the property appraiser.
Public Records
Article I, section 24(a) of the Florida Constitution sets forth the state’s government records access
policy, guaranteeing every person a right to inspect or copy any public record of the legislative,
executive, and judicial branches of state government. However, the Legislature may provide a public
records exemption by general law if the exemption passes by a two-thirds vote of each chamber, states
with specificity the public necessity justifying the exemption (“public necessity statement”), and is no
broader than necessary to meet its public purpose.
23
Further, s. 119.07(1), F.S., guarantees every person a right to inspect and copy any state, county, or
municipal record, unless the record is exempt from such inspection and copying. Under the Open
Government Sunset Review Act,
24
a public records exemption may be created or maintained only if it
serves an identifiable public purpose and the Legislature finds that the purpose is sufficiently
compelling to override the strong public policy of open government and cannot be accomplished
without the exemption.
25
An identifiable public purpose is served if the exemption meets one of the
following purposes:
Allows the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption;
Protects sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be exempted
under this provision; or
Protects trade or business secrets.
26
Pursuant to s. 119.15, F.S., a new public records exemption or substantial amendment of an existing
public records exemption is repealed on October 2 of the fifth year following enactment, unless the
Legislature reenacts the exemption.
27
Furthermore, there is a difference between records the Legislature designates as exempt from public
records requirements and those the Legislature deems confidential and exempt. A record classified as
exempt from public disclosure may be disclosed under certain circumstances. However, if the
Legislature designates a record as confidential and exempt from public disclosure, such record may not
be released by the public records custodian to anyone other than the persons or entities specifically
designated in statute.
28
Effect of Proposed Changes
23
Art. I, s. 24(c), Fla. Const.
24
S. 119.15, F.S.
25
S. 119.15(6)(b), F.S.
26
Id.
27
S. 119.15(3), F.S.
28
See WFTV, Inc. v. The School Board of Seminole, 874 So. 2d 48, 53 (Fla. 5th DCA 2004), review denied 892 So. 2d 1015 (Fla.
2004); City of Riviera Beach v. Barfield, 642 So. 2d 1135 (Fla. 4th DCA 1994); Williams v. City of Minneola, 575 So. 2d 687 (Fla. 5th
DCA 1991); see Attorney General Opinion 85-62 (August 1, 1985). STORAGE NAME: h0285.CJS PAGE: 6
DATE: 11/29/2023
HB 285 creates a public records exemption for all social security numbers, driver license numbers,
Florida identification numbers, electronic mail addresses, and telephone numbers submitted to the
clerks or property appraisers by recording notification service registrants as part of the registration
process. Under the bill, such information would be confidential and exempt from public inspection
except upon court order, and the exemption applies to information held by the clerks or property
appraisers before, on, and after the bill’s effective date.
In accordance with the Open Government Sunset Review Act, the bill specifies that the exemption is
repealed on October 2, 2029, unless reviewed and saved from repeal through reenactment. The bill
also:
Provides a statement of public necessity as required by the Florida Constitution.
Directs the Division of Law Revision to replace the phrase “the effective date of this act”
wherever it occurs in the bill with the date the bill becomes law.
Clarifies that s. 28.47, F.S., may not be construed to require the property appraiser to provide
or allow access to a record or information which is confidential and exempt under s. 119.07(1),
F.S. and s. 24(a), Art. I of the Florida Constitution.
The bill provides an effective date of upon becoming a law.
B. SECTION DIRECTORY:
Section 1: Amends s. 28.47, F.S., relating to recording notification service.
Section 2: Directs the Division of Law Revision to take specified action.
Section 3: Provides a statement of public necessity.
Section 4: Provides an effective date of upon becoming a law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
STORAGE NAME: h0285.CJS PAGE: 7
DATE: 11/29/2023
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have a positive fiscal impact on the private sector to the extent that it prevents a third party
from obtaining specified information submitted by a recording notification service registrant and using it
for fraudulent purposes, which purposes or the legal remedies that follow may have a financial
component.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
Public Records
Article I, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly-created or expanded public records or public meeting exemption.
The bill creates a public records exemption for specified information submitted by recording
notification service registrants; thus, it requires a two-thirds vote for final passage.
Retroactivity
The bill specifies that the public records exemption created therein applies to information held by the
clerks or property appraisers before the bill’s effective date; thus, it would likely have retroactive
application. However, Florida courts recognize that persons do not obtain a vested right to inspect or
copy public records by virtue of the Public Records Act or the Florida Constitution; rather, the courts
have found that such right is a public right which the Legislature may terminate by retroactive
application of a statutory exemption.
29
B. RULE-MAKING AUTHORITY:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
29
Campus Communications, Inc. v. Earnhardt, 821 So. 2d 388 (Fla. 5th DCA 2002).