This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0285d.JDC
DATE: 1/19/2024
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 285 Pub. Rec./Recording Notification Service
SPONSOR(S): Ethics, Elections & Open Government Subcommittee, Civil Justice Subcommittee,
Hunschofsky, Daniels, and others
TIED BILLS: IDEN./SIM. BILLS: SB 1000
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice Subcommittee 18 Y, 0 N, As CS Mawn Jones
2) Ethics, Elections & Open Government
Subcommittee
16 Y, 0 N, As CS Rando Toliver
3) Judiciary Committee Mawn Kramer
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, by electronic mail, that a land record, such as a
deed, has been filed on their property. Some clerks and property appraisers also offer related services for which a
person may register to receive notice of a potentially fraudulent property transfer by an alternative form of
communication (“related service”).
CS/CS/HB 285 creates a public record exemption for all electronic mail addresses, telephone numbers, personal
and business names, and parcel identification numbers submitted to the clerks or property appraisers by persons
who register for a recording notification service or a related service. 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 government but may have an insignificant fiscal impact on
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 record exemption. The bill creates a public record
exemption; thus, it requires a two-thirds vote for final passage. STORAGE NAME: h0285d.JDC PAGE: 2
DATE: 1/19/2024
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 Jan. 18, 2024).
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 Jan. 18, 2024).
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 Jan. 18, 2024).
7
Ss. 689.01(1) and 695.03(3), F.S.
8
S. 695.09, F.S. STORAGE NAME: h0285d.JDC PAGE: 3
DATE: 1/19/2024
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 and the post office address of each
such person is legibly printed, typewritten, and stamped upon such instrument;
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.
11
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
12
required under Florida law.
13
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
14
or a third party
15
without the property owner’s knowledge or consent (“title fraud”).
16
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.
17
However, because the
clerk serves a ministerial
18
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.
19
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
These requirements do not apply to documents executed, acknowledged, or proved out of state. S. 695.26, F.S.
12
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, F.S.
13
Ss. 28.222 and 695.11, F.S.
14
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 Jan. 18, 2024).
15
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 Jan. 18, 2024).
16
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 Jan. 18,
2024).
17
Legal Information Institute, Ab Initio, https://www.law.cornell.edu/wex/ab_initio (last visited Jan. 18, 2024).
18
“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.
19
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: h0285d.JDC PAGE: 4
DATE: 1/19/2024
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.
20
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.
21
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 electronic 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 electronic 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.
20
See, example, Clerk of the Court & Comptroller, Lee County, Florida, Property Fraud Alert,
https://www.leeclerk.org/services/property-fraud (last visited Jan. 18, 2024).
21
Ch. 2023-238, L.O.F. STORAGE NAME: h0285d.JDC PAGE: 5
DATE: 1/19/2024
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
22
from s. 119.071, F.S., 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.
Some clerks and property appraisers have also begun offering related services for which a person may
register to receive notification of a potentially fraudulent property transfer by an alternative form of
communication (“related service”).
23
Public Records
The Florida Constitution sets forth the state’s public policy regarding access to government records,
guaranteeing every person a right to inspect or copy any public record of the legislative, executive, and
judicial branches of government.
24
The Legislature, however, may provide by general law an
exemption
25
from public record requirements, provided that the exemption passes by a two-thirds vote
of each chamber, states with specificity the public necessity justifying the exemption, and is no broader
than necessary to meet its public purpose.
26
Current law also addresses the public policy regarding access to government records, guaranteeing
every person a right to inspect and copy any state, county, or municipal record, unless the record is
exempt.
27
Furthermore, the Open Government Sunset Review Act
28
provides that a public record
exemption may be created, revised, 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.”
29
An identifiable public purpose
is served if the exemption:
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.
30
22
There is a difference between records the Legislature designates exempt from public record requirements and those the Legislature
designates confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certain
circumstances. See WFTV, Inc. v. Sch. Bd. of Seminole, 874 So. 2d 48, 53 (Fla. 5th DCA 2004), review denied, 892 So. 2d 1015 (Fla.
2004); State v. Wooten, 260 So. 3d 1060, 1070 (Fla. 4th DCA 2018); City of Riviera Beach v. Barfield, 642 So. 2d 1135 (Fla. 4th DCA
1994); Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991). If the Legislature designates a record as confidential and
exempt from public disclosure, such record may not be released by the custodian of public records to anyone other than the persons or
entities specifically designated in statute. See Op. Att’y Gen. Fla. 04-09 (2004).
23
For example, the Broward County Property Appraiser’s Owner Alert Program offers a text message alert for a person who registers
for the Program if a change of ownership occurs on a property monitored by such person. Broward County Property Appraiser, Terms
and Conditions, https://web.bcpa.net/owneralert/TermsConditions (last visited Jan. 18, 2024).
24
Art. I, s. 24(a), Fla. Const.
25
A public record exemption means a provision of general law which provides that a specified record, or portion thereof, is not subject
to the access requirements of s. 119.07(1), F.S., or s. 24, Art. I of the Florida Constitution. See s. 119.011(8), F.S.
26
Art. I, s. 24(c), Fla. Const.
27
See s. 119.01, F.S.
28
S. 119.15, F.S.
29
S. 119.15(6)(b), F.S.
30
Id. STORAGE NAME: h0285d.JDC PAGE: 6
DATE: 1/19/2024
Pursuant to the Open Government Sunset Review Act, a new public record exemption or substantial
amendment of an existing public record exemption is repealed on October 2
nd
of the fifth year following
enactment, unless the Legislature reenacts the exemption.
31
Effect of Proposed Changes
CS/CS/HB 285 creates a public record exemption for all electronic mail addresses, telephone numbers,
personal and business names, and parcel identification numbers submitted to the clerks or property
appraisers by persons who register for a recording notification service or a related service. 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:
The bill may have an insignificant negative fiscal impact on clerks of the circuit court and property
appraisers as staff responsible for complying with public record requests may require training
relating to the newly-created public record exemption. However, any additional costs will likely be
absorbed within existing resources.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
31
S. 119.15(3), F.S. STORAGE NAME: h0285d.JDC PAGE: 7
DATE: 1/19/2024
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 person who registers for a recording notification
service or a related service and using it for fraudulent purposes, which purposes, or the legal
remedies that follow, may have a financial component.
Targeting for a fraudulent property transfer the real property of persons whose property is not
being monitored through a recording notification service or a related service.
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:
Vote Requirement
Article I, section 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 record exemption. The bill
creates a public record exemption; thus, it requires a two-thirds vote for final passage.
Public Necessity Statement
Article I, section 24(c) of the Florida Constitution requires a public necessity statement for a newly
created or expanded public record exemption. The bill creates a public record exemption; thus, it
includes a public necessity statement. The public necessity statement states, in part, that the
Legislature finds that it is a public necessity to protect persons who register for a recording
notification service to receive notifications of real property transfers, and persons whose personal or
business names or parcel identification numbers are submitted for monitoring by such persons, from
becoming victims of fraud by virtue of their registration status.
Breadth of Exemption
Article I, section 24(c) of the Florida Constitution requires a newly created or expanded public record
exemption to be no broader than necessary to accomplish the stated purpose of the law. The bill
creates a public record exemption for specific information related to persons who register for a
recording notification service: electronic mail addresses, telephone numbers, personal or business
names, and parcel identification numbers. As such, the exemption does not appear broader than
necessary to accomplish its purpose.
STORAGE NAME: h0285d.JDC PAGE: 8
DATE: 1/19/2024
Retroactivity
The bill specifies that the public record 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.
32
B. RULE-MAKING AUTHORITY:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On December 6, 2023, the Civil Justice Subcommittee adopted an amendment and reported the bill
favorably as a committee substitute. The amendment modified the types of information made confidential
and exempt from the public records of this state and expanded the scope of the exemption to reach
information submitted to the clerks or property appraisers by a person who registers for a service related to
a recording notification service.
On January 18, 2024, the Ethics, Elections & Open Government Subcommittee adopted an amendment
and reported the bill favorably as a committee substitute. The amendment made a conforming change to
the public necessity statement to match the language of the exemption.
This analysis is drafted to the committee substitute as approved by the Ethics, Elections & Open
Government Subcommittee.
32
Campus Communications, Inc. v. Earnhardt, 821 So. 2d 388 (Fla. 5th DCA 2002).