What can a Florida commissioner of deeds actually do, and do they have to live in the foreign country?

Plain-English summary

Robert Koehler, who held the title Commissioner of Deeds for the State of Florida in the Bahamas, wrote the Attorney General's office asking about the duties and responsibilities of commissioners of deeds in foreign countries. Senior Assistant Attorney General Gerry Hammond replied with informal comments.

The office walked through where the office of commissioner of deeds comes from. Section 695.03 sets the requirements for making an instrument concerning real property eligible to be recorded, and when execution happens in a foreign country, the acknowledgment may be taken before a commissioner of deeds. But that statute just prescribes how to execute a valid document abroad; it does not hand the commissioner substantive powers. Part IV of Chapter 721, titled "Commissioner of Deeds," is where the appointment comes from. Section 721.97 lets the Governor appoint commissioners of deeds, for four-year terms, to take acknowledgments, proofs of execution, and oaths in a foreign country or outside the 50 states, mainly in connection with timeshare transactions tied to property in Florida, when the document is executed outside the United States. The office stressed that a commissioner of deeds is a legislatively created office whose holders cannot stretch their powers beyond what the Legislature granted. It also noted that prior opinions require a commissioner of deeds, for purposes of section 695.03(3), to actually reside in the foreign country where the acknowledgment is taken, and it pointed out that Koehler's address was in Florida. Because he was a gubernatorial appointee, the office suggested he contact the Governor's Office for further direction.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What does a Florida commissioner of deeds do?
A: The opinion described the office as having limited statutory powers: taking acknowledgments, proofs of execution, and oaths outside the United States, largely in connection with timeshare transactions involving Florida property, as set out in section 721.97.

Q: Who appoints a commissioner of deeds, and for how long?
A: Under section 721.97, the Governor appoints commissioners of deeds, and the term of office is four years.

Q: Does a commissioner of deeds have to live in the foreign country?
A: The opinion noted prior opinions concluding that, for acknowledging instruments concerning Florida real property under section 695.03(3), the commissioner must actually reside in the foreign country where the acknowledgment is taken.

Q: Can a commissioner of deeds take on other notarial-type duties?
A: The opinion cautioned that the office is created by statute and its holders may not extend their powers beyond what the Legislature specifically granted, so their authority is confined to the acknowledgment, proof, and oath functions the statutes describe.

Background and statutory framework

The office sits at the intersection of two statutes. Section 695.03 governs when an instrument concerning real property can be recorded, allowing acknowledgment, proof, or authentication abroad before a commissioner of deeds, but it supplies procedure, not substantive authority. Part IV of Chapter 721 creates the office itself. Section 721.97 authorizes the Governor's appointment, fixes the four-year term, and specifies that the commissioner's acknowledgments, proofs, and oaths, taken in the manner directed by Florida law including section 117.05, carry the same effect as those of a Florida notary public, provided the instrument is executed outside the United States and connects to a timeshare interest or plan located in the state.

Because the powers are limited and specifically prescribed, the opinion treated the residency requirement from earlier opinions and the timeshare-centered scope of section 721.97 as the boundaries of what a commissioner of deeds may do, and directed questions about official actions to the appointing authority, the Governor's Office.

Citations and references

Statutes:

• Section 695.03, Florida Statutes (acknowledgment of instruments concerning real property)
• Section 721.97, Florida Statutes (appointment and authority of commissioners of deeds)
• Part IV, Chapter 721, Florida Statutes (Commissioner of Deeds)
• Section 117.05, Florida Statutes (manner of taking acknowledgments)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/commissioner-of-deeds
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8213

Original opinion text

Mr. Robert Koehler

Commissioner of Deeds for the

State of Florida in the Bahamas

331 Windwood Oaks Drive #101

Tampa, Florida 33613-2068

Dear Mr. Koehler:

Thank you for contacting the Florida Attorney General's Office regarding the duties and responsibilities of commissioners of deeds within foreign countries. Attorney General McCollum has asked me to respond to your letter.

Section 695.03, Florida Statutes, provides that "[t]o entitle any instrument concerning real property to be recorded, the execution must be acknowledged by the party executing it, proved by a subscribing witness to it, or legalized or authenticated by a civil-law notary or notary public who affixes her or his official seal, before the officers and in the form and manner [provided by this statute.]" If the acknowledgment, legalization, authentication, or proof is made in a foreign country, the statute then provides that it may be made before a commissioner of deeds. This statute merely provides the requirements for executing a valid legal document concerning real property when execution of the document occurs in a foreign country. The statute does not provide substantive powers and duties for a commissioner of deeds.

Part IV, Chapter 721, Florida Statutes, is entitled "Commissioner of Deeds." Again, the legislatively expressed purpose for this part is to provide for the appointment of commissioners of deeds to take acknowledgments, proofs of execution, and oaths "outside the United States" in connection with timeshare transactions. Section 721.97, Florida Statutes, provides:

"The Governor may appoint commissioners of deeds to take acknowledgments, proofs of execution, or oaths in any foreign country, in international waters, or in any possession, territory, or commonwealth of the United States outside the 50 states. The term of office is 4 years. Commissioners of deeds shall have authority to take acknowledgments, proofs of execution, and oaths in connection with the execution of any deed, mortgage, deed of trust, contract, power of attorney, or any other writing to be used or recorded in connection with a timeshare estate, personal property timeshare interest, timeshare license, any property subject to a timeshare plan, or the operation of a timeshare plan located within this state; provided such instrument or writing is executed outside the United States. Such acknowledgments, proofs of execution, and oaths must be taken or made in the manner directed by the laws of this state, including but not limited to s. 117.05(4), (5)(a), and (6), Florida Statutes 1997, and certified by a commissioner of deeds. The certification must be endorsed on or annexed to the instrument or writing aforesaid and has the same effect as if made or taken by a notary public licensed in this state." (e.s.)

The powers and duties of commissioners of deeds are limited and specifically prescribed by statute. The office of commissioner of deeds is legislatively created and the holders of that office may not extend their powers beyond those which the Legislature has specifically granted.

As discussed above, a commissioner of deeds is appointed by the Governor to act in a foreign county as a representative of this state. I note that your address is within the State of Florida and I am enclosing several Attorney General Opinions expressing this office’s opinion that a commissioner of deeds for purposes of section 695.03(3), Florida Statutes, must actually reside in the foreign country where an acknowledgment of an instrument concerning real property located in Florida is to be taken by such commissioner.

If you have additional questions relating to your position as Commissioner of Deeds for the State of Florida in the Bahamas, you may wish to contact the Governor’s Office for assistance. As a gubernatorial appointee, that office may be able to provide you with further direction regarding your official actions.

I trust that these informal comments will be of assistance to you.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

Enclosures: Ops. Att'y Gen. Fla. 84-53 (1984) and 81-77 (1981).