Bill Text: FL S1172 | 2013 | Regular Session | Comm Sub
Bill Title: Land Trusts
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2013-04-25 - Laid on Table, companion bill(s) passed, see CS/CS/HB 229 (Ch. 2013-240) [S1172 Detail]
Download: Florida-2013-S1172-Comm_Sub.html
Florida Senate - 2013 CS for SB 1172
By the Committee on Judiciary; and Senator Simmons
590-02267-13 20131172c1
1 A bill to be entitled
2 An act relating to land trusts; creating s. 689.073,
3 F.S., and transferring, renumbering, and amending s.
4 689.071(4) and (5), F.S.; providing requirements
5 relating to vesting of ownership in a trustee;
6 providing exclusion and applicability; amending s.
7 689.071, F.S.; revising and providing definitions;
8 revising provisions relating to land trust transfers
9 of real property and vesting of ownership in a
10 trustee; prohibiting the operation of the statute of
11 uses to execute a land trust or to vest the trust
12 property under certain conditions; prohibiting the
13 operation of the doctrine of merger to execute a land
14 trust or to vest the trust property under certain
15 conditions; providing conditions under which a
16 beneficial interest is deemed real property; revising
17 and providing rights, liabilities, and duties of land
18 trust beneficiaries; authorizing certain beneficial
19 ownership methods; providing for the perfection of
20 security documents; providing that a trustee’s legal
21 and equitable title to the trust property is separate
22 and distinct from the beneficiary’s beneficial
23 interest in the land trust and the trust property;
24 prohibiting a lien, judgment, mortgage, security
25 interest, or other encumbrance against one interest
26 from automatically attaching to another interest;
27 providing that the appointment of a guardian ad litem
28 is not necessary in certain foreclosure litigation
29 affecting the title to trust property of a land trust;
30 conforming provisions to changes made by the act;
31 deleting provisions relating to the applicability of
32 certain successor trustee provisions; providing notice
33 requirements; providing for the determination of
34 applicable law for certain trusts; providing for
35 applicability relating to Uniform Commercial Code
36 financing statements; providing requirements for
37 recording effectiveness; amending s. 736.0102, F.S.;
38 revising and providing scope of the Florida Trust
39 Code; providing a directive to the Division of Law
40 Revision and Information; providing an effective date.
41
42 Be It Enacted by the Legislature of the State of Florida:
43
44 Section 1. Section 689.073, Florida Statutes, is created,
45 and present subsections (4) and (5) of section 689.071, Florida
46 Statutes, are transferred and renumbered as subsections (2) and
47 (3), respectively, of section 689.073, Florida Statutes, and
48 amended, to read:
49 689.073 Powers conferred on trustee in recorded
50 instrument.—
51 (1) OWNERSHIP VESTS IN TRUSTEE.—Every conveyance, deed,
52 mortgage, lease assignment, or other instrument heretofore or
53 hereafter made, hereinafter referred to as the “recorded
54 instrument,” transferring any interest in real property,
55 including, but not limited to, a leasehold or mortgagee
56 interest, to any person or any corporation, bank, trust company,
57 or other entity duly formed under the laws of its state of
58 qualification, which recorded instrument designates the person,
59 corporation, bank, trust company, or other entity “trustee” or
60 “as trustee” and confers on the trustee the power and authority
61 to protect, to conserve, to sell, to lease, to encumber, or
62 otherwise to manage and dispose of the real property described
63 in the recorded instrument, is effective to vest, and is
64 declared to have vested, in such trustee full power and
65 authority as granted and provided in the recorded instrument to
66 deal in and with such property, or interest therein or any part
67 thereof, held in trust under the recorded instrument.
68 (2)(4) NO DUTY TO INQUIRE.—Any grantee, mortgagee, lessee,
69 transferee, assignee, or person obtaining satisfactions or
70 releases or otherwise in any way dealing with the trustee with
71 respect to the real property or any interest in such property
72 held in trust under the recorded instrument, as hereinabove
73 provided for, is not obligated to inquire into the
74 identification or status of any named or unnamed beneficiaries,
75 or their heirs or assigns to whom a trustee may be accountable
76 under the terms of the recorded instrument, or under any
77 unrecorded separate declarations or agreements collateral to the
78 recorded instrument, whether or not such declarations or
79 agreements are referred to therein; or to inquire into or
80 ascertain the authority of such trustee to act within and
81 exercise the powers granted under the recorded instrument; or to
82 inquire into the adequacy or disposition of any consideration,
83 if any is paid or delivered to such trustee in connection with
84 any interest so acquired from such trustee; or to inquire into
85 any of the provisions of any such unrecorded declarations or
86 agreements.
87 (3)(5) BENEFICIARY CLAIMS.—All persons dealing with the
88 trustee under the recorded instrument as hereinabove provided
89 take any interest transferred by the trustee thereunder, within
90 the power and authority as granted and provided therein, free
91 and clear of the claims of all the named or unnamed
92 beneficiaries of such trust, and of any unrecorded declarations
93 or agreements collateral thereto whether referred to in the
94 recorded instrument or not, and of anyone claiming by, through,
95 or under such beneficiaries. However, this section does not
96 prevent a beneficiary of any such unrecorded collateral
97 declarations or agreements from enforcing the terms thereof
98 against the trustee.
99 (4) EXCLUSION.—This section does not apply to any deed,
100 mortgage, or other instrument to which s. 689.07 applies.
101 (5) APPLICABILITY.—The section applies without regard to
102 whether any reference is made in the recorded instrument to the
103 beneficiaries of such trust or to any separate collateral
104 unrecorded declarations or agreements, without regard to the
105 provisions of any unrecorded trust agreement or declaration of
106 trust, and without regard to whether the trust is governed by s.
107 689.071 or chapter 736. This section applies both to recorded
108 instruments that are recorded after the effective date of this
109 act and to recorded instruments that were previously recorded
110 and governed by similar provisions contained in s. 689.071(3),
111 Florida Statutes 2012, and any such recorded instrument
112 purporting to confer power and authority on a trustee under such
113 provisions of s. 689.071(3), Florida Statutes 2012, is valid and
114 has the effect of vesting full power and authority in such
115 trustee as provided in this section.
116 Section 2. Section 689.071, Florida Statutes, as amended by
117 this act, is amended to read:
118 689.071 Florida Land Trust Act.—
119 (1) SHORT TITLE.—This section may be cited as the “Florida
120 Land Trust Act.”
121 (2) DEFINITIONS.—As used in this section, the term:
122 (a) “Beneficial interest” means any interest, vested or
123 contingent and regardless of how small or minimal such interest
124 may be, in a land trust which is held by a beneficiary.
125 (b) “Beneficiary” means any person or entity having a
126 beneficial interest in a land trust. A trustee may be a
127 beneficiary of the land trust for which such trustee serves as
128 trustee.
129 (c) “Holder of the power of direction” means any person or
130 entity having the authority to direct the trustee to convey
131 property or interests, execute a mortgage, distribute proceeds
132 of a sale or financing, and execute documents incidental to the
133 administration of a land trust.
134 (c)(d) “Land trust” means any express written agreement or
135 arrangement by which a use, confidence, or trust is declared of
136 any land, or of any charge upon land, under which the title to
137 real property, including, but not limited to, a leasehold or
138 mortgagee interest, both legal and equitable, is vested in a
139 trustee by a recorded instrument that confers on the trustee the
140 power and authority prescribed in s. 689.073(1) and under which
141 the trustee has no duties other than the following:
142 1. The duty to convey, sell, lease, mortgage, or deal with
143 the trust property, or to exercise such other powers concerning
144 the trust property as may be provided in the recorded
145 instrument, in each case as directed by the beneficiaries or by
146 the holder of the power of direction;
147 2. The duty to sell or dispose of the trust property at the
148 termination of the trust;
149 3. The duty to perform ministerial and administrative
150 functions delegated to the trustee in the trust agreement or by
151 the beneficiaries or the holder of the power of direction; or
152 4. The duties required of a trustee under chapter 721, if
153 the trust is a timeshare estate trust complying with s.
154 721.08(2)(c)4. or a vacation club trust complying with s.
155 721.53(1)(e);
156
157 however, the duties of the trustee of a land trust created
158 before the effective date of this act may exceed the limited
159 duties listed in this paragraph to the extent authorized in
160 subsection (12) subsection (3). The recorded instrument does not
161 itself create an entity, regardless of whether the relationship
162 among the beneficiaries and the trustee is deemed to be an
163 entity under other applicable law.
164 (d) “Power of direction” means the authority of a person,
165 as provided in the trust agreement, to direct the trustee of a
166 land trust to convey property or interests, execute a lease or
167 mortgage, distribute proceeds of a sale or financing, and
168 execute documents incidental to the administration of a land
169 trust.
170 (e) “Recorded instrument” has the same meaning as provided
171 in s. 689.073(1).
172 (f) “Trust agreement” means the written agreement governing
173 a land trust or other trust, including any amendments.
174 (g) “Trust property” means any interest in real property,
175 including, but not limited to, a leasehold or mortgagee
176 interest, conveyed by a recorded instrument to a trustee of a
177 land trust or other trust.
178 (h)(e) “Trustee” means the person or entity designated in a
179 recorded instrument or trust agreement trust instrument to hold
180 legal and equitable title to the trust property of a land trust
181 or other trust.
182 (3) OWNERSHIP VESTS IN TRUSTEE.—Every recorded instrument
183 conveyance, deed, mortgage, lease assignment, or other
184 instrument heretofore or hereafter made, hereinafter referred to
185 as the “recorded instrument,” transferring any interest in real
186 property to the trustee of a land trust and conferring upon the
187 trustee the power and authority prescribed in s. 689.073(1), in
188 this state, including, but not limited to, a leasehold or
189 mortgagee interest, to any person or any corporation, bank,
190 trust company, or other entity duly formed under the laws of its
191 state of qualification, in which recorded instrument the person,
192 corporation, bank, trust company, or other entity is designated
193 “trustee” or “as trustee,” whether or not reference is made in
194 the recorded instrument to the beneficiaries of such land trust
195 or to the trust agreement or any separate collateral unrecorded
196 declarations or agreements, is effective to vest, and is hereby
197 declared to have vested, in such trustee both legal and
198 equitable title, and full rights of ownership, over the trust
199 real property or interest therein, with full power and authority
200 as granted and provided in the recorded instrument to deal in
201 and with the trust property or interest therein or any part
202 thereof. The recorded instrument does not itself create an
203 entity, regardless of whether the relationship among the
204 beneficiaries and the trustee is deemed to be an entity under
205 other applicable law; provided, the recorded instrument confers
206 on the trustee the power and authority to protect, to conserve,
207 to sell, to lease, to encumber, or otherwise to manage and
208 dispose of the real property described in the recorded
209 instrument.
210 (4) STATUTE OF USES INAPPLICABLE.—Section 689.09 and the
211 statute of uses do not execute a land trust or vest the trust
212 property in the beneficiary or beneficiaries of the land trust,
213 notwithstanding any lack of duties on the part of the trustee or
214 the otherwise passive nature of the land trust.
215 (5) DOCTRINE OF MERGER INAPPLICABLE.—The doctrine of merger
216 does not extinguish a land trust or vest the trust property in
217 the beneficiary or beneficiaries of the land trust, regardless
218 of whether the trustee is the sole beneficiary of the land
219 trust.
220 (6) PERSONAL PROPERTY.—In all cases in which the recorded
221 instrument or the trust agreement, as hereinabove provided,
222 contains a provision defining and declaring the interests of
223 beneficiaries of a land trust thereunder to be personal property
224 only, such provision is shall be controlling for all purposes
225 when such determination becomes an issue under the laws or in
226 the courts of this state. If no such personal property
227 designation appears in the recorded instrument or in the trust
228 agreement, the interests of the land trust beneficiaries are
229 real property.
230 (7) TRUSTEE LIABILITY.—In addition to any other limitation
231 on personal liability existing pursuant to statute or otherwise,
232 the provisions of ss. 736.08125 and 736.1013 apply to the
233 trustee of a land trust created pursuant to this section.
234 (8) LAND TRUST BENEFICIARIES.—
235 (a) Except as provided in this section, the beneficiaries
236 of a land trust are not liable, solely by being beneficiaries,
237 under a judgment, decree, or order of court or in any other
238 manner for a debt, obligation, or liability of the land trust.
239 (b) Any beneficiary acting under the trust agreement of a
240 land trust is not liable to the land trust’s trustee or to any
241 other beneficiary for the beneficiary’s good faith reliance on
242 the provisions of the trust agreement. A beneficiary’s duties
243 and liabilities under a land trust may be expanded or restricted
244 in a trust agreement or beneficiary agreement.
245 (b)1. If provided in the recorded instrument, in the trust
246 agreement, or in a beneficiary agreement:
247 a. A particular beneficiary may own the beneficial interest
248 in a particular portion or parcel of the trust property of a
249 land trust;
250 b. A particular person may be the holder of the power of
251 direction with respect to the trustee’s actions concerning a
252 particular portion or parcel of the trust property of a land
253 trust; and
254 c. The beneficiaries may own specified proportions or
255 percentages of the beneficial interest in the trust property or
256 in particular portions or parcels of the trust property of a
257 land trust.
258 2. Multiple beneficiaries may own a beneficial interest in
259 a land trust as tenants in common, joint tenants with right of
260 survivorship, or tenants by the entireties.
261 (c) If a beneficial interest in a land trust is determined
262 to be personal property as provided in subsection (6), chapter
263 679 applies to the perfection of any security interest in that a
264 beneficial interest in a land trust. If a beneficial interest in
265 a land trust is determined to be real property as provided in
266 subsection (6), then to perfect a lien or security interest
267 against that beneficial interest, the mortgage, deed of trust,
268 security agreement, or other similar security document must be
269 recorded in the public records of the county that is specified
270 for such security documents in the recorded instrument or in a
271 declaration of trust or memorandum of such declaration of trust
272 recorded in the public records of the same county as the
273 recorded instrument. If no county is so specified for recording
274 such security documents, the proper county for recording such a
275 security document against a beneficiary’s interest in any trust
276 property is the county where the trust property is located. The
277 perfection of a lien or security interest in a beneficial
278 interest in a land trust does not affect, attach to, or encumber
279 the legal or equitable title of the trustee in the trust
280 property and does not impair or diminish the authority of the
281 trustee under the recorded instrument, and parties dealing with
282 the trustee are not required to inquire into the terms of the
283 unrecorded trust agreement or any lien or security interest
284 against a beneficial interest in the land trust.
285 (d) The trustee’s legal and equitable title to the trust
286 property of a land trust is separate and distinct from the
287 beneficial interest of a beneficiary in the land trust and in
288 the trust property. A lien, judgment, mortgage, security
289 interest, or other encumbrance attaching to the trustee’s legal
290 and equitable title to the trust property of a land trust does
291 not attach to the beneficial interest of any beneficiary; and
292 any lien, judgment, mortgage, security interest, or other
293 encumbrance against a beneficiary or beneficial interest does
294 not attach to the legal or equitable title of the trustee to the
295 trust property held under a land trust, unless the lien,
296 judgment, mortgage, security interest, or other encumbrance by
297 its terms or by operation of other law attaches to both the
298 interest of the trustee and the interest of such beneficiary. A
299 beneficiary’s duties and liabilities may be expanded or
300 restricted in a trust agreement or beneficiary agreement.
301 (e) Any subsequent document appearing of record in which a
302 beneficiary of a land trust transfers or encumbers any the
303 beneficial interest in the land trust does not transfer or
304 encumber the legal or equitable title of the trustee to the
305 trust property and does not diminish or impair the authority of
306 the trustee under the terms of the recorded instrument. Parties
307 dealing with the trustee of a land trust are not required to
308 inquire into the terms of the unrecorded trust agreement.
309 (f) The An unrecorded trust agreement giving rise to a
310 recorded instrument for a land trust may provide that one or
311 more persons or entities have the power to direct the trustee to
312 convey property or interests, execute a mortgage, distribute
313 proceeds of a sale or financing, and execute documents
314 incidental to administration of the land trust. The power of
315 direction, unless provided otherwise in the land trust agreement
316 of the land trust, is conferred upon the holders of the power
317 for the use and benefit of all holders of any beneficial
318 interest in the land trust. In the absence of a provision in the
319 land trust agreement of a land trust to the contrary, the power
320 of direction shall be in accordance with the percentage of
321 individual ownership. In exercising the power of direction, the
322 holders of the power of direction are presumed to act in a
323 fiduciary capacity for the benefit of all holders of any
324 beneficial interest in the land trust, unless otherwise provided
325 in the land trust agreement. A beneficial interest in a land
326 trust is indefeasible, and the power of direction may not be
327 exercised so as to alter, amend, revoke, terminate, defeat, or
328 otherwise affect or change the enjoyment of any beneficial
329 interest in a land trust.
330 (g) A land trust relating to real estate does not fail, and
331 any use relating to the trust property real estate may not be
332 defeated, because beneficiaries are not specified by name in the
333 recorded instrument deed of conveyance to the trustee or because
334 duties are not imposed upon the trustee. The power conferred by
335 any recorded instrument deed of conveyance on a trustee of a
336 land trust to sell, lease, encumber, or otherwise dispose of
337 property described in the recorded instrument deed is effective,
338 and a person dealing with the trustee of a land trust is not
339 required to inquire any further into the right of the trustee to
340 act or the disposition of any proceeds.
341 (h) The principal residence of a beneficiary shall be
342 entitled to the homestead tax exemption even if the homestead is
343 held by a trustee in a land trust, provided the beneficiary
344 qualifies for the homestead exemption under chapter 196.
345 (i) In a foreclosure against trust property or other
346 litigation affecting the title to trust property of a land
347 trust, the appointment of a guardian ad litem is not necessary
348 to represent the interest of any beneficiary.
349 (9) SUCCESSOR TRUSTEE.—
350 (a) The provisions of s. 736.0705 relating to the
351 resignation of a trustee do not apply to the appointment of a
352 successor trustee under this section.
353 (a)(b) If the recorded instrument and the unrecorded land
354 trust agreement are silent as to the appointment of a successor
355 trustee of a land trust in the event of the death, incapacity,
356 resignation, or termination due to dissolution of a land trustee
357 or if a land trustee is unable to serve as trustee of a land
358 trust, one or more persons or entities having the power of
359 direction of the land trust agreement may appoint a successor
360 trustee or trustees of the land trust by filing a declaration of
361 appointment of a successor trustee or trustees in the public
362 records of office of the recorder of deeds in the county in
363 which the trust property is located. The declaration must be
364 signed by a beneficiary or beneficiaries of the land trust and
365 by the each successor trustee or trustees, must be acknowledged
366 in the manner provided for acknowledgment of deeds, and must
367 contain:
368 1. The legal description of the trust property.
369 2. The name and address of the former trustee.
370 3. The name and address of the each successor trustee or
371 trustees.
372 4. A statement that each successor trustee has been
373 appointed by one or more persons or entities having the power of
374 direction of the land trust appointed the successor trustee or
375 trustees, together with an acceptance of appointment by the each
376 successor trustee or trustees.
377 (b)(c) If the recorded instrument is silent as to the
378 appointment of a successor trustee or trustees of a land trust
379 but an unrecorded land trust agreement provides for the
380 appointment of a successor trustee or trustees in the event of
381 the death, incapacity, resignation, or termination due to
382 dissolution of the land trustee, of a land trust, then upon the
383 appointment of any successor trustee pursuant to the terms of
384 the unrecorded land trust agreement, the each successor trustee
385 or trustees shall file a declaration of appointment of a
386 successor trustee in the public records of office of the
387 recorder of deeds in the county in which the trust property is
388 located. The declaration must be signed by both the former
389 trustee and the each successor trustee or trustees, must be
390 acknowledged in the manner provided for acknowledgment of deeds,
391 and must contain:
392 1. The legal description of the trust property.
393 2. The name and address of the former trustee.
394 3. The name and address of the successor trustee or
395 trustees.
396 4. A statement of resignation by the former trustee and a
397 statement of acceptance of appointment by the each successor
398 trustee or trustees.
399 5. A statement that the each successor trustee or trustees
400 were was duly appointed under the terms of the unrecorded land
401 trust agreement.
402
403 If the appointment of any successor trustee of a land trust is
404 due to the death or incapacity of the former trustee, the
405 declaration need not be signed by the former trustee and a copy
406 of the death certificate or a statement that the former trustee
407 is incapacitated or unable to serve must be attached to or
408 included in the declaration, as applicable.
409 (c)(d) If the recorded instrument provides for the
410 appointment of any successor trustee of a land trust and any
411 successor trustee is appointed in accordance with the recorded
412 instrument, no additional declarations of appointment of any
413 successor trustee are required under this section.
414 (d)(e) Each successor land trustee appointed with respect
415 to a land trust is fully vested with all the estate, properties,
416 rights, powers, trusts, duties, and obligations of the
417 predecessor land trustee, except that any successor land trustee
418 of a land trust is not under any duty to inquire into the acts
419 or omissions of a predecessor trustee and is not liable for any
420 act or failure to act of a predecessor trustee. A person dealing
421 with any successor trustee of a land trust pursuant to a
422 declaration filed under this section is not obligated to inquire
423 into or ascertain the authority of the successor trustee to act
424 within or exercise the powers granted under the recorded
425 instruments or any unrecorded trust agreement declarations or
426 agreements.
427 (e)(f) A land trust agreement may provide that the trustee
428 of a land trust, when directed to do so by the holder of the
429 power of direction or by the beneficiaries of the land trust or
430 legal representatives of the beneficiaries, may convey the trust
431 property directly to another trustee on behalf of the
432 beneficiaries or to another representative named in such
433 directive others named by the beneficiaries.
434 (10) TRUSTEE AS CREDITOR.—
435 (a) If a debt is secured by a security interest or mortgage
436 against in a beneficial interest in a land trust or by a
437 mortgage on land trust property of a land trust, the validity or
438 enforceability of the debt, security interest, or mortgage and
439 the rights, remedies, powers, and duties of the creditor with
440 respect to the debt or the security are not affected by the fact
441 that the creditor and the trustee are the same person or entity,
442 and the creditor may extend credit, obtain any necessary
443 security interest or mortgage, and acquire and deal with the
444 property comprising the security as though the creditor were not
445 the trustee.
446 (b) A trustee of a land trust does not breach a fiduciary
447 duty to the beneficiaries, and it is not evidence of a breach of
448 any fiduciary duty owed by the trustee to the beneficiaries for
449 a trustee to be or become a secured or unsecured creditor of the
450 land trust, the beneficiary of the land trust, or a third party
451 whose debt to such creditor is guaranteed by a beneficiary of
452 the land trust.
453 (11) NOTICES TO TRUSTEE.—Any notice required to be given to
454 a trustee of a land trust regarding trust property by a person
455 who is not a party to the trust agreement must identify the
456 trust property to which the notice pertains or include the name
457 and date of the land trust to which the notice pertains, if such
458 information is shown on the recorded instrument for such trust
459 property.
460 (12) DETERMINATION OF APPLICABLE LAW.—Except as otherwise
461 provided in this section, chapter 736 does not apply to a land
462 trust governed by this section.
463 (a) A trust is not a land trust governed by this section if
464 there is no recorded instrument that confers on the trustee the
465 power and authority prescribed in s. 689.073(1).
466 (b) For a trust created before the effective date of this
467 act:
468 1. The trust is a land trust governed by this section if a
469 recorded instrument confers on the trustee the power and
470 authority described in s. 689.073(1) and if:
471 a. The recorded instrument or the trust agreement expressly
472 provides that the trust is a land trust; or
473 b. The intent of the parties that the trust be a land trust
474 is discerned from the trust agreement or the recorded
475 instrument;
476
477 without regard to whether the trustee’s duties under the trust
478 agreement are greater than those limited duties described in s.
479 689.071(2)(c).
480 2. The trust is not a land trust governed by this section
481 if:
482 a. The recorded instrument or the trust agreement expressly
483 provides that the trust is to be governed by chapter 736, or by
484 any predecessor trust code or other trust law other than this
485 section; or
486 b. The intent of the parties that the trust be governed by
487 chapter 736, or by any predecessor trust code or other trust law
488 other than this section, is discerned from the trust agreement
489 or the recorded instrument;
490
491 without regard to whether the trustee’s duties under the trust
492 agreement are greater than those limited duties listed in s.
493 689.071(2)(c), and without consideration of any references in
494 the trust agreement to provisions of chapter 736 made applicable
495 to the trust by chapter 721, if the trust is a timeshare estate
496 trust complying with s. 721.08(2)(c)4. or a vacation club trust
497 complying with s. 721.53(1)(e).
498 3. Solely for the purpose of determining the law governing
499 a trust under subparagraph 1. or subparagraph 2., the
500 determination shall be made without consideration of any
501 amendment to the trust agreement made on or after the effective
502 date of this act, except as provided in paragraph (d).
503 4. If the determination of whether a trust is a land trust
504 governed by this section cannot be made under either
505 subparagraph 1. or subparagraph 2., the determination shall be
506 made under paragraph (c) as if the trust was created on or after
507 the effective date of this act.
508 (c) If a recorded instrument confers on the trustee the
509 power and authority described in s. 689.073(1) and the trust was
510 created on or after the effective date of this act, the trust
511 shall be determined to be a land trust governed by this section
512 only if the trustee’s duties under the trust agreement,
513 including any amendment made on or after such date, are greater
514 than those limited duties described in s. 689.071(2)(c).
515 (d) If the trust agreement for a land trust created before
516 the effective date of this act is amended on or after such date
517 to add to or increase the duties of the trustee beyond the
518 duties provided in the trust agreement as of the effective date
519 of this act, the trust shall remain a land trust governed by
520 this section only if the additional or increased duties of the
521 trustee implemented by the amendment are greater than those
522 limited duties described in s. 689.071(2)(c).
523 (13) UNIFORM COMMERCIAL CODE TRANSITION RULE.—This section
524 does not render ineffective any effective Uniform Commercial
525 Code financing statement filed before July 1, 2014, to perfect a
526 security interest in a beneficial interest in a land trust that
527 is determined to be real property as provided in subsection (6),
528 but such a financing statement ceases to be effective at the
529 earlier of July 1, 2019, or the time the financing statement
530 would have ceased to be effective under the law of the
531 jurisdiction in which it is filed, and the filing of a Uniform
532 Commercial Code continuation statement after July 1, 2014, does
533 not continue the effectiveness of such a financing statement.
534 The recording of a mortgage, deed of trust, security agreement,
535 or other similar security document against such a beneficial
536 interest that is real property in the public records specified
537 in paragraph (8)(c) continues the effectiveness and priority of
538 a financing statement filed against such a beneficial interest
539 before July 1, 2014, if:
540 (a) The recording of the security document in that county
541 is effective to perfect a lien on such beneficial interest under
542 paragraph (8)(c);
543 (b) The recorded security document identifies a financing
544 statement filed before July 1, 2014, by indicating the office in
545 which the financing statement was filed and providing the dates
546 of filing and the file numbers, if any, of the financing
547 statement and of the most recent continuation statement filed
548 with respect to the financing statement; and
549 (c) The recorded security document indicates that such
550 financing statement filed before July 1, 2014, remains
551 effective.
552
553 If no original security document bearing the debtor’s signature
554 is readily available for recording in the public records, a
555 secured party may proceed under this subsection with such
556 financing statement filed before July 1, 2014, by recording a
557 copy of a security document verified by the secured party as
558 being a true and correct copy of an original authenticated by
559 the debtor. This subsection does not apply to the perfection of
560 a security interest in any beneficial interest in a land trust
561 that is determined to be personal property under subsection (6).
562 (14)(11) REMEDIAL ACT.—This act is remedial in nature and
563 shall be given a liberal interpretation to effectuate the intent
564 and purposes hereinabove expressed.
565 (15)(12) EXCLUSION.—This act does not apply to any deed,
566 mortgage, or other instrument to which s. 689.07 applies.
567 Section 3. Section 736.0102, Florida Statutes, is amended
568 to read:
569 736.0102 Scope.—
570 (1) Except as otherwise provided in this section, this code
571 applies to express trusts, charitable or noncharitable, and
572 trusts created pursuant to a law, judgment, or decree that
573 requires the trust to be administered in the manner of an
574 express trust.
575 (2) This code does not apply to constructive or resulting
576 trusts; conservatorships; custodial arrangements pursuant to the
577 Florida Uniform Transfers to Minors Act; business trusts
578 providing for certificates to be issued to beneficiaries; common
579 trust funds; land trusts under s. 689.071, except to the extent
580 provided in s. 689.071(7); trusts created by the form of the
581 account or by the deposit agreement at a financial institution;
582 voting trusts; security arrangements; liquidation trusts; trusts
583 for the primary purpose of paying debts, dividends, interest,
584 salaries, wages, profits, pensions, or employee benefits of any
585 kind; and any arrangement under which a person is nominee or
586 escrowee for another.
587 (3) This code does not apply to any land trust under s.
588 689.071, except to the extent provided in s. 689.071(7), s.
589 721.08(2)(c)4. or s. 721.53(1)(e). A trust governed at its
590 creation by chapter 736, former chapter 737, or any prior trust
591 statute superseded or replaced by any provision of former
592 chapter 737, is not a land trust regardless of any amendment or
593 modification of the trust, any change in the assets held in the
594 trust, or any continuing trust resulting from the distribution
595 or retention in further trust of assets from the trust.
596 Section 4. The Division of Law Revision and Information is
597 directed to replace the phrase “the effective date of this act”
598 wherever it occurs in this act with such date.
599 Section 5. This act shall take effect upon becoming a law.
