The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/SB 1436
INTRODUCER: Judiciary Committee and Senator Bradley
SUBJECT: Real Property Fraud
DATE: April 10, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Bond Cibula JU Fav/CS
2. Bond Twogood RC Favorable
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1436 attempts to minimize the potential for fraudulent real property deeds (“title theft”)
by requiring that notices of a pending or recent real estate transaction be transmitted to persons
who may have an interest in the affected property. Specifically:
 A real estate licensee must mail notice of a new listing.
 A real estate closing agent must mail notice of pending closing.
 By July 1, 2024, the clerk of the court in each county must offer electronic notice of the
recording of any instrument naming a person, if that person has signed up for such notice.
Sign-up and notice are free. A county property appraiser may elect to offer a similar service.
The bill also creates an expedited means for clearing title where a fraudulent deed or other
instrument that may affect a real estate title has been recorded, creates a statutory form for a
quitclaim deed, and requires that the address of each witness to a real estate conveyance be
included on the conveyance.
The bill may have a minimal fiscal impact on clerks of court.
The bill is effective July 1, 2023.
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II. Present Situation:
Real Property Conveyances
“Real property” is a parcel 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; and
 Quitclaim deed, which provides no warranties as to title and conveys only that interest which
the grantor has in the property, if any.3
While Florida law prescribes a form for a warranty deed, it does not prescribe a form for a
quitclaim deed.4 Thus, quitclaim deeds filed in the state lack uniformity. However, 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
1 Legal Information Institute, Real Estate, https://www.law.cornell.edu/wex/real_estate (last visited March 16, 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 March 16, 2023).
4 Section 689.02, F.S.
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%20
those%20signatures (last visited March 16, 2023).
7 Sections 689.01(1) and 695.03(3), F.S.
8 Section 695.09, F.S.
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Recording Real Property Conveyances
A conveyance of title to or an interest in real property is not effective unless it is properly
recorded in the official records of the clerk of the circuit court9 where the property lies, and a
clerk of court may not 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;
 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 is legibly
printed, typewritten, or stamped upon such instrument.10
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 numbers11 required under Florida law.12
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 herself13 or a third party14 without the property owner’s knowledge or
consent (“title fraud”).15 Such fraudulent deeds are 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.16 However, because the clerk serves a ministerial17 role, the clerk and his or her
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 services as the official records recorder. FLA. CONST. rt. V., s. 16 and art. VIII, s. 1.
10
Sections 695.01 and 695.26, F.S.
11 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. Section 28.222, F.S.
12 Sections 28.222 and 695.11, F.S.
13 See, example, 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/.
14 See, example, 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/.
15 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/.
16 Legal Information Institute, Ab Initio, https://www.law.cornell.edu/wex/ab_initio (last visited March 16, 2023).
17 “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. Section 112.312(17), F.S.
BILL: CS/SB 1436 Page 4
employees cannot look beyond the four corners of a deed presented for recording to determine its
validity.18 Thus, if it appears on the deed’s face that the above-mentioned statutory requirements
are met, the Clerk must record the deed. Once such a deed is recorded, it 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.
To assist property owners in uncovering title fraud, many clerks throughout the state offer a free
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.19 This service does not prevent the recording of the deed, but rather
puts the 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, such a service is not currently mandated by or standardized in Florida law.
Available Civil Remedies after Title Fraud Occurs
A title fraud victim has several civil remedies available to him or her.
Quiet Title Action
A real property owner who believes that he or she has been the victim of title fraud can file a
lawsuit asking the court to quiet title to the property – that is, determine who is the property’s
true owner.20 In such a lawsuit, known as a quiet title action, the plaintiff must generally prove
his or her title (that is, right of ownership) from the original source for a period of at least seven
years before filing the complaint and set forth in the complaint the official records book and page
number of the instrument allegedly affecting the plaintiff’s title.21 If, based on the evidence, it
appears that the plaintiff is the property’s rightful owner, or if a default is entered against the
defendant (in which case no evidence need be presented), the court must enter judgment
removing the alleged cloud from the title and quieting title in the plaintiff.22 Such final judgment
is then recorded in the official records of the county where the property lies, overriding the
fraudulent deed.23
However, to protect innocent third parties who purchase the property at issue after the title fraud
occurs, a court may quiet title but also order the property’s true owner to share an ownership
interest or other rights in the property with such good faith purchasers. Thus, the true owner may
not recover the full and complete title or rights he or she had before the title fraud.
Declaratory Judgment
As an alternative to a quiet title action, a real property owner who believes that he or she has
been the victim of title fraud may petition the court for a declaratory judgment, which is a
18 See s. 28.222(3), F.S., provides 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 . . . .” FLA. CONST. art. V, s. 16.
19 See, example, Clerk of the Court & Comptroller, Lee County, Florida, Property Fraud Alert, https://www.leeclerk.org/services/property-
fraud-alert (last visited March 16, 2023).
20 Chapter 65, F.S.
21 Id.
22 Id.
23 Id.
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binding judgment defining the legal relationship between specified parties and their rights in a
specified matter, whether or not further relief is or could be claimed, which judgment has the
force of a final judgment.24 The test for a declaratory judgment claim is not whether the evidence
shows that the plaintiff will prevail, but whether there is a bona fide dispute such that the
plaintiff is entitled to a declaration of his or her rights.25 A plaintiff must also show a bona fide,
actual, present, and practical need for the declaration, but these requirements may be met if the
plaintiff shows that “ripening seeds of controversy” make litigation in the immediate future seem
unavoidable.26
Available Protections for Third-Party Purchasers
Title Search
A title search is an in-depth examination of a property’s history, including the public records
pertaining to the property, typically conducted by a real estate attorney or title agent (“title
examiner”) before a property’s sale to determine who holds title to or has an interest in the
property and whether any claims or encumbrances might affect the transfer of ownership.27 After
the examination concludes, the title examiner will issue a title report disclosing his or her
findings.
Lenders issuing mortgage loans to real property buyers generally require a title search before
closing to protect their investment, as will title agencies issuing title insurance. However, Florida
law does not otherwise require a title search, and a buyer who does not have such a search
performed runs the risk of purchasing property with clouds on the title, including title fraud.
Thus, a person wishing to buy property, even if purchasing with cash or a privately-sourced loan,
would benefit from having a title search performed in case the sale stems from discoverable title
fraud.
Title Insurance
Title insurance is a product provided by a title agency which insures a real property buyer (an
“owner’s policy”) or a lender granting a mortgage loan to the buyer secured by the real property
(a “lender’s policy”) against losses arising out of defective titles and the existence of other legal
claims against title.28 An owner’s policy, which is purchased through a one-time premium
payment at closing, does not expire; rather, it remains in effect for as long as the insured or any
of his or her heirs owns the subject property.29 Similarly, a lender’s policy is purchased through a
one-time premium payment at closing and expires when the mortgage loan is paid in full.30
24 Section 86.011, F.S.; Legal Information Institute, Declaratory Judgment,
https://www.law.cornell.edu/wex/declaratory_judgment#:~:text=A%20declaratory%20judgment%20is%20a,means%20to%20resolve%20t
his%20uncertainty (last visited March 17, 2023).
25 Rigby v. Liles, 505 So. 2d 598 (Fla. 1st DCA 1987).
26 Kelner v. Woody, 399 So. 2d 35 (Fla. 3d DCA 1981); So. Riverwalk Invs., LLC v. City of Ft. Lauderdale, 934 So. 2d 620 (Fla. 4th DCA
2006).
27 The title examiner will look for liens and encumbrances on the property, any evidence of title fraud, and other clouds on title that may
prevent or limit the title’s transfer to the buyer.
28 Sections 627.7711-627.798, F.S.; Florida Office of Insurance Regulation, Title Insurance,
https://www.floir.com/sections/pandc/title/default.aspx#:~:text=Title%20insurance%20insures%20owners%20of,similar%20coverage%20r
egarding%20personal%20property (last visited March 17, 2023).
29 Florida Department of Financial Services, Title Insurance Overview, https://www.myfloridacfo.com/division/consumers/understanding-
insurance/title-insurance-overview (last visited Mach 17, 2023).
30 Id.
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A federally-insured lender generally requires the buyer to purchase a lender’s policy; thus, a