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.