New Deadline: The deadline for most reporting companies to file their initial, updated, or corrected BOI reports is now extended to March 21, 2025. This extension provides an additional 30 days from the original deadline of February 19, 2025. Companies that were previously granted a later deadline due to specific circumstances, such as disaster relief, should adhere to their original extended deadlines.

Future Modifications: During this 30-day extension, FinCEN will evaluate options to further modify the deadlines, particularly for entities posing lower national security risks. FinCEN also plans to initiate a process to revise the BOI reporting rule to reduce the regulatory burden on lower-risk entities, including many small businesses.

Action Required: Reporting companies should utilize this extension to ensure compliance with the BOI reporting requirements. Reports can be submitted directly to FinCEN through their E-Filing system, available at FinCEN’s BOI E-Filing System.

Happening in the Background: This extension comes amidst ongoing discussions and legal challenges regarding the implementation of the Corporate Transparency Act. Recently, the U.S. House passed H.R. 736, the Protect Small Businesses From Excessive Paperwork Act of 2025, with a unanimous vote of 408–0. This bill extends the deadline for an estimated 32 million small businesses to report their beneficial ownership information (BOI) to January 1, 2026. The previous deadline was January 1, 2025, but the reporting requirements have been delayed due to numerous court cases. A companion bill has been introduced in the Senate.

There are now 6 different cases pending in front of federal judges that challenge the CTA’s constitutionality.

Our Recommendation: Newly formed companies (after Jan. 1, 2024) need to comply with the obligation to file a report within 30 days after their formation. As to “existing” reporting companies (formed prior to Jan. 1, 2024), there is a possibility of a further extension of the BOI filing date if the bill approved by the House of Representatives is also approved by the Senate in the coming weeks. However, our recommendation is that, unless you care to continue following this never-ending saga, existing companies should also file their report prior to the March 21 deadline and avoid being caught by surprise.

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On December 3, 2024, the U.S. District Court for the Eastern District of Texas issued a nationwide preliminary injunction in the case Texas Top Cop Shop, Inc. v. Garland, temporarily halting the enforcement of the CTA and its beneficial ownership reporting obligations. The court also suspended all related compliance deadlines.

Then, on December 23, 2024, the U.S. Court of Appeals for the Fifth Circuit reversed the injunction, ordering that reporting companies must once again submit their beneficial ownership information to the Financial Crimes Enforcement Network (FinCEN). Companies were given a new, extended deadline of January 13, 2025, to file their reports.

This development was short-lived. On December 26, 2024, the Fifth Circuit vacated its order to stay the injunction, meaning companies were no longer required to submit beneficial ownership reports while the Court continued to consider the merits of the case.

In a further reversal, on January 23, 2025, the U.S. Supreme Court intervened, issuing a stay on the injunction (24A653 McHenry v. Texas Top Cop Shop, Inc. (01/23/2025).

However, on January 7, 2025, a separate nationwide injunction was issued in the case of Smith v. United States Department of the Treasury, also pending in the Eastern District of Texas, further blocking the enforcement of the CTA’s beneficial ownership information (BOI) reporting requirements. This means that, despite the Supreme Court’s recent ruling, the BOI reporting obligations remain unenforceable for now. FinCEN has clarified on its website that “[r]eporting companies […] are not subject to liability if they fail to file [beneficial ownership] information while the Smith order remains in force.”

We continue to monitor the ongoing litigation closely. For the time being, the filing of BOI reports remains voluntary.

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The Financial Crimes Enforcement Network has announced that the reporting of certain stakeholder information is voluntary, pending the resolution of the federal government’s appeal of an injunction by the U.S. District Court for the Eastern District of Texas. This injunction barred enforcement of the CTA and its beneficial ownership reporting requirements, citing potential unconstitutionality.

Fabio pointed out the difference between the Texas court’s decision and an earlier decision by the U.S. District Court for the Northern District of Alabama: “This case in Texas goes a step further, and a big step further, because it imposed the injunction, which is not limited to the plaintiffs in the case, but it’s a nationwide injunction.”

Fabio is a corporate and real estate attorney, representing businesses and investors in the acquisition and financing of property, along with business transactions and corporate matters. He specializes in cross-border transactions involving clients based in the United States, Europe, and Latin America.

Read the full article in the Daily Business Review here: https://www.law.com/dailybusinessreview/2024/12/10/nationwide-injunction-halts-corporate-transparency-act-reporting-requirements/?slreturn=20241218103920&utm_source=rss&utm_medium=rss

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In response, FinCEN issued guidance stating that, while the injunction is in effect, businesses are not required to file their beneficial ownership information. The court also stayed all deadlines for compliance. However, FinCEN also clarified that companies may still voluntarily submit their reports during this time. This guidance ensures businesses are clear on their obligations during the ongoing litigation.

The Department of Justice filed a Notice of Appeal on December 5, 2024, challenging the injunction. While several district courts have upheld the CTA’s constitutionality, including those in Virginia and Oregon, FinCEN will comply with the injunction as long as it remains in effect. Therefore, businesses are not required to submit beneficial ownership reports and will not face penalties for non-compliance during this time, though they may still voluntarily submit the reports.

Given this uncertainty, reporting companies should make a determination as to whether to submit their BOI report voluntarily or await an appellate decision on the injunction. For those companies that decide to wait, completing the analysis to identify their beneficial owners under the CTA may facilitate filing in the event enforcement of the law is reinstated. 

For those reporting companies that choose to file voluntarily or need assistance in determining their beneficial owners, our Firm remains ready to assist them in navigating the process and ensuring compliance with the requirements.

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Reports under the CTA must be submitted by December 31, 2024. For businesses registered on or after January 1, 2024, registration is required within 90 days of filing their initial Articles of Organization or incorporation. Our firm is available to assist clients with this filing.

On March 1, 2024, the U.S. District Court for the Northern District of Alabama deemed the CTA unconstitutional. However, the Financial Crimes Enforcement Network (FinCEN) of the U.S. Department of Treasury maintains that all applicable entities must still file their reports, except for those members of the National Small Business Association, the plaintiff in the case.

If you would like our assistance with your company’s CTA report, we are here to help.

Please note that the CTA report is not an annual filing. You will only need to refile if you sell your company or make significant governance changes, such as appointing a new president or senior officer.

The firm’s legal services will include:

1. Assessing your CTA reporting obligations by reviewing your corporate structure
2. Identifying beneficial owners based on the information you provide
3. Filing your company’s initial Beneficial Ownership Information report with FinCEN

Please be aware that the CTA is a complex law, and non-compliance can lead to significant penalties. We are here to guide you through this process and ensure you remain compliant. To receive an engagement letter, please email Emma Rodgers at ERodgers@wsh-law.com and she can send it to you by email or DocuSign upon request. If you have any questions, feel free to reach out to us by phone at (305) 854-0800 or by email, and we can discuss the process in more detail.

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Creation of Easements by Property Owners-HB 799 Signed Into Law

On June 26, Gov. Ron DeSantis signed House Bill 799 (HB 799) into law. HB 799 allows property owners in Florida to create easements on their own land while retaining ownership of both the dominant and servient estate.

Most states follow the principle that an owner cannot create an easement on its own land. The rationale behind this is that all uses of an easement are already covered by the general right of fee ownership. This was also the common law in Florida prior to the new law.

However, Florida’s HB 799 significantly departs from this common law approach, by introducing a new Section 704.09 to the Florida Statutes, which enables property owners “to create an easement, servitude, or other interest in the owner’s real property.” The new law became effective immediately. Section 2 states that its application is retroactive “to respect the intent of the parties to real property transactions that occurred before the effective date of this act.”

The Common Law in Florida and Other States

Florida courts have so far followed the principle that “one cannot have an easement in his own land.” Property owners can create an easement at the time of conveying a part of their land by reserving the easement in the deed. Florida courts also recognize the possibility of implying the existence of easements, even in the absence of an express reservation, from a pre-existing use in the presence of absolute necessity.

The approach of Florida courts is consistent with the common law in most states and it is premised on the notion that ownership inherently includes the right to use property without restrictions. Therefore, establishing a separate easement would be illogical and unnecessary. Some states have codified this principle. For example, California Civil Code Section 805 (West 2022) states that “A servitude thereon cannot be held by the owner of the servient tenement.” The same principle is at the heart of the “doctrine of merger,” pursuant to which an easement is automatically terminated when the dominant and servient estate become vested in the same owner.

The New Law and Its Impact

The new law introduces the ability for property owners to create easements “notwithstanding that the owner owns all of the affected real property.” The law expressly provides for its retroactive effect, with a statement of policy indicating that “it is the intent of the Legislature to respect the intent of the parties to real property transactions that occurred before the effective date of this act and the parties’ reliance on such easements … .”

The statute does not contain a repeal of the doctrine of merger, which continues to be applicable in Florida. This creates somewhat of an inconsistency, leading to a situation in which, on one hand, the law respects easements created by property owners on their own land and, on the other hand, to the possibility of the inadvertent termination of easements when a property owner acquires both the dominant and servient estate.

Title reviewers will need to be very careful to spot easements created in documents filed prior to a granting deed, for example condominium declarations, even if such easements were not expressly reserved in the deed.

Conclusions

In summary, Florida’s House Bill 799 (HB 799) allows property owners to create easements on their own land while retaining ownership of both the dominant and servient estate. This departure will demand extra care in the title review process.

Read the original article in the Daily Business Review here.

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“We are thrilled to be selected by the DBR as a 2024 Florida Legal Awards finalist in the Innovators category. Our well-rounded RTWC2026 Focus Group is at the forefront of helping businesses and governments take advantage of the exciting opportunities offered by the 2026 FIFA World Cup games being hosted in South Florida,” says Marlon Hill, WSHC+B Partner and member of the RTWC2026 Focus Group.

Our RTWC2026 Focus Group, composed of Alan K. Fertel, Chad S. Friedman, Fabio Giallanza, Marlon A. Hill, Mitchell A. Bierman, and Nelson Slosbergas, will be at the forefront of the Firm’s efforts in assisting clients with their World Cup-related business activities. 

The firm’s RTWC2026 Focus Group will be honored at the DBR’s Florida Legal Awards event on April 4, 2024. 

Read more here: https://www.law.com/dailybusinessreview/2024/03/10/innovators-weiss-serota-helfman-cole-bierman/?utm_source=rss&utm_medium=rss

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Our Road to the World Cup Focus Group – RTWC2026 Focus Group, composed of Alan K. Fertel, Chad S. Friedman, Fabio Giallanza, Marlon A. Hill, Mitchell A. Bierman, and Nelson Slosbergas, was recognized for its innovative approach to providing professional assistance to clients preparing for the 2026 World Cup.

The RTWC2026 Focus Group will be at the forefront of the Firm’s efforts in assisting clients with their World Cup-related business activities. With its multilingual and multicultural team, the RTWC2026 Focus Group is well versed in serving domestic as well as international businesses and organizations in French, Italian, Mandarin Chinese, Portuguese, Spanish and Hebrew.

The firm’s RTWC2026 Focus Group will be honored at the DBR’s Florida Legal Awards event on April 4, 2024. 

To view the full list of honorees and finalists, click here.

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The Statute, entered into law in May 2023 as part of SB 246, introduced restrictions to the sale of real property in Florida to entities and individuals from foreign countries of concern, including The People’s Republic of China, Russia, Iran, North Korea, Cuba, Venezuela, and Syria. Such foreign principals are prohibited from owning a “controlling interest” or acquiring “any interest” in real property located within 10 miles of military installations or critical infrastructure facilities. 

The Statute carves out an exception for a “de minimus (sic) indirect interest”, defined as an equity interest of less than 5 percent in a publicly traded company or a non-controlling interest in an entity controlled by an SEC regulated investment adviser.

The Proposed Rule adds the following very important example of what constitutes a “de minimis indirect interest”:

“a passive ownership interest of a foreign principal in an entity, provided that the foreign entity does not possess, by virtue of that ownership interest, or otherwise, the power to direct or cause the direction of the management of policies of the entity with respect to the interest in real property”.

Furthermore, the Proposed Rule expands on what a “controlling interest” in real property is with the following definition:  

“any interest other than a lease which gives the foreign principal both of the following rights…(a) the right to improve or develop the real property; and (b) the right to attach fixed or immovable structure or objects to the real property”.

Restricted foreign principals are defined as “any person who is domiciled in a foreign country of concern and is not a Citizen or lawful permanent resident of the United States” Fla. Stat. 692.201(4)(d). The Proposed Rule excludes individuals approved for the EB-5 program from this definition. 

Furthermore, the Proposed Rule defines domicile as the place in which an individual is physically present and intends to permanently reside. This addresses the situation of people holding 2 or more nationalities. For example, someone who has Cuban and Italian nationality but permanently resides in Italy would not be deemed to be domiciled in Cuba.

The Proposed Rule offers a glimpse as to how the Department of Commerce will collect reports by indicating that foreign principals will have to use Form COM-73C-60 to report relevant information. The Department indicates that reporting will transition to an online registration system, when available.

The Proposed Rule clarifies under what situation a foreign principal is required to file an updated registration by establishing five specific scenarios (R.783C-60.003(7): 

1. The real property was sold by a foreign principal
2. The real property is no longer owned by said foreign principal
3. The foreign principal’s real property is no longer located within the 10-mile radius 
4. The foreign principal no longer has an interest in said real property
5. The foreign entity no longer meets the definitional criteria for a foreign principal. 

It is worth noting that entities and individuals associated with the People’s Republic of China are subject to a specific blanket prohibition on all purchases of interests in Florida real estate. This prohibition, codified in Fla. Stat. § 692.204, is expected to be the subject of proposed rules from the Dept. of Commerce.

The Department is accepting comments to the Proposed Rule until October 11, 2023.

*Fabio Giallanza is a corporate and real estate attorney at Weiss Serota Helfman Cole + Bierman. He represents businesses and investors in the acquisition and financing of property, along with business transactions and corporate matters. Mr. Giallanza specializes in cross-border transactions involving clients based in the United States, Europe, and Latin America. 

Emma Rodgers is a legal intern in the Real Estate department at Weiss Serota Helfman Cole + Bierman and is an LL.M. candidate in Real Property Development at The University of Miami School of Law. 

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