Clifford Chance

Scope Of Restrictions On Certain Foreign Land Ownership Under The Florida Senate Bill Remains Uncertain 5 Months After Law Is Enacted

September 15, 2023

On August 26, 2023, plaintiffs in the closely watched Shen v. Simpson case filed an emergency motion for an injunction pending appeal in the Eleventh Circuit Court after a Florida district judge refused to grant a preliminary injunction of a Florida law "Interests of Foreign Countries" (codified Fla. Stat. Ann. §§ 692.201-205) ("SB 264") that bans those from certain countries from purchasing property.

The legal challenge to SB 264, brought on behalf of four Chinese citizens living in Florida and a real estate firm, argues that the SB 264 law violates the Equal Protection Clause, the Due Process Clause, the Fair Housing Act and Supremacy Clause of the U.S. Constitution, citing that federal regulatory frameworks, such as the Committee on Foreign Investment in the United States, preempt state law in this area.

Signed by Governor Ron DeSantis in May, SB 264 took effect on July 1, 2023, imposing restrictions on individuals and entities—who are not U.S. citizens or permanent residents and whose “domicile” is in China, or other so-called “foreign countries of concern” and certain foreign principals—from owning or purchasing interest in certain Florida real estate. As enacted, foreign countries of concern include China, Cuba, Iran, North Korea, Russia, Syria, and Venezuela.

While five months have passed since SB 264 was enacted, there have been no significant developments in terms of regulatory guidance on SB 264 or its enforcement. Uncertainties remain concerning the statute's broad sweeping restrictions, such as applicability to indirect ownership by foreign principals (e.g., investment funds), certain groups under the statute language (e.g., leaseholds and Hong Kong individuals and entities), as well as ambiguity on who is subject to its reporting requirements.

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