In May 2023 the Florida legislature enacted Senate Bill 264. SB 264 makes seven significant changes to Florida law. This new legislation: (1) prohibits purchase of Florida real property from persons who are domiciled in China; (2) requires registration of Florida real property by persons who are domiciled in China and are neither USA citizens nor USA lawful permanent residents; and (3) prohibits purchase of Florida real property without an Affidavit of compliance with SB 264.
Four Chinese citizens and a real estate broker challenged SB 264, claiming violations of the Equal Protection Clause, Fair Housing Act, and Due Process Clause. The US District Court denied the Plaintiffs’ motion for an injunction.
Plaintiffs appealed.
The Equal Protection Clause is derived from the 14th Amendment of the US Constitution. Plaintiffs contend that classifications based on national origin and alienage must fail, as a function of that Amendment.
The US Court of Appeals analyzed the connection between Chinese domicile and Chinese national origin, using a case that is more than 100 years old. Finding no evidence to support that connection, the argument of the Plaintiffs fails.
Next up: Plaintiffs claim that registration and affidavit requirement are discriminatory as US citizens are exempt. Here, the Court determined that while the registration obligation classifies based on alienage, the affidavit does not, as all purchasers must comply regardless of country of origin. These are Equal Protection Clause issues.
The Court admits that although strict scrutiny is required for matters of alienage classifications, a 1984 US Supreme Court case allowed States to deny property ownership to aliens. The rights of non-citizens differ substantially from those enjoyed by citizens. The only test that remains is to review the statute to determine if it is “arbitrary and capricious.”
Finding a reasonable basis for the law in the 1984 case means that the same reasonable basis exists for Florida SB 264. States are allowed to make differing classifications among citizens and non-citizens.
Non-citizens who are not lawful permanent resident are admitted to the US only for the duration of their status and must depart at the discretion of the Attorney General. As well, non-citizens have a political capacity that is tied only to their temporary connection to USA.
Holding that the registration requirements are not arbitrary, capricious, or unreasonable, and balancing SB 264 against Chinese espionage, harassment, blackmailing, and cyber espionage (as stated in the appellate opinion), yields the conclusion that a sufficient national security justification exists to determine that Plaintiffs are not substantially likely to succeed in their claims against the State of Florida.
The district court’s order is dismissed; the injunction is denied. Pending further appeals to the US Supreme Court, Florida SB 264 appears to be lawful.
See Xu v. Florida, Case 23-12737; US Court of Appeals, 11th Circuit, November 4, 2025: https://media.ca11.uscourts.gov/opinions/pub/files/202312737.pdf.
Questions / Issues:
- It’s A Difficult Read. There is much to unpack here. The Court decision is 83 pages in length, which includes 20 pages of dissent. All of it interesting, at least for constitutional scholars. For the rest of us, the struggle is real.
- Similar Challenges. More than 30 other States, including mine, have adopted similar legislation which is now undergoing similar challenges. Ultimately the Supreme Court of the United States will make this decision and give us guidance. Spoiler alert: I suspect that SCOTUS will uphold the prohibition against USA property ownership by various individuals and entities, as well as registration and affidavit requirements.
- Impact. Some levels of discrimination are lawful. Lawyers, brokers, investors, sponsors, fund advisors, lenders, landlords, and tenants all need to check the status of these new laws before transactions can proceed, loans can be processed, titles can be insured, and opinions of counsel can be rendered.
Stuart A. Lautin, Esq.*
* Board Certified, Commercial and Residential Real Estate Law, Texas Board of Legal Specialization
Licensed in the States of Texas and New York