This post uses hypothetical scenarios for illustrative purposes only. It does not describe any actual client, transaction, or representation, and is not legal advice.
A common 2026 Florida owner-occupied M&A pattern looks like this: a light-industrial manufacturer, or a family-owned restaurant group, or a specialty auto business owns the dirt it sits on. The building is on the balance sheet. The mortgage is either paid off or a decade into amortization. The buyer runs the deal as a stock or membership-interest purchase because that is what the seller wants. Everyone at the table treats the real estate as an asset that comes along for the ride. And then, three weeks before closing, the title company issues the commitment, the surveyor delivers the ALTA/NSPS survey, and Schedule B-II lights up with encroachments, easements, encroaching improvements from the neighbor, a lapsed lease of a billboard easement, and a Department of Transportation right-of-way that was never subordinated. The deal that was supposed to be a clean equity transfer is now a negotiation about the indemnification carve-out for real property matters.
Owner-occupied Florida M&A is where the title work stops being a real-estate lawyer’s problem and starts being a deal lawyer’s problem. The title commitment defines what the seller can rep about title. The survey defines what the buyer can never rep away with an indemnification cap. And the interaction between the two is what separates a clean closing from a purchase-price adjustment negotiated on the courthouse steps.
The title commitment is not the survey, and neither one is enough on its own
An ALTA title commitment issued by a Florida title agent lists the exceptions to coverage under Schedule B, split into Schedule B-I requirements (things the title company needs before it will issue the policy) and Schedule B-II exceptions (matters the policy will never cover). The standard Schedule B-II exceptions include recorded easements, restrictions, and mineral reservations, plus a set of pre-printed exceptions for taxes not yet due, rights of parties in possession, and matters that would be disclosed by an accurate survey.
That last exception is the pivot. Until the surveyor delivers a current ALTA/NSPS Land Title Survey and the title company reviews it, the survey exception stays in the policy and the buyer has no coverage for anything a survey would have revealed 鈥� encroachments, gaps in the legal description, boundary disputes, setback violations, unrecorded easements evidenced by physical use. A Florida buyer who accepts a title commitment without a survey is buying a policy that specifically does not cover the risks most likely to hurt an owner-occupied operating business. The ALTA/NSPS standards that govern the survey format are maintained by the American Land Title Association and the National Society of Professional Surveyors and are the practical baseline for Florida commercial title diligence 鈥� the current standards live at .
What Marketable Record Title Act cleanup does and does not do
Florida’s Marketable Record Title Act, codified at Chapter 712 of the Florida Statutes, extinguishes claims against a property that predate a thirty-year root of title, subject to preserved-claim notices filed under 搂 712.05. MRTA is the reason Florida title work is materially cleaner than title work in states with common-law recording regimes stretching back to the 1700s. The chain of title only has to be walked back to a qualifying root 鈥� a warranty deed, a probate order, a foreclosure decree 鈥� recorded at least thirty years before the effective date of the commitment.
What MRTA does not do is extinguish easements that are properly preserved, restrictive covenants that a homeowners’ association or successor entity has re-recorded, or any interest evidenced by possession on the ground. Owner-occupied targets frequently sit on parcels where a mid-century easement for utilities, drainage, or ingress-egress runs across the loading dock or the customer parking lot. MRTA does not sweep those away. The survey does the work of finding them, and the Schedule B-II exception is what preserves the buyer’s right to negotiate about them.
The three things a Florida survey finds that title work never will
First, encroachments. A neighboring building that extends six inches over the property line, an HVAC pad that sits inside a recorded easement, a fence line that has drifted five feet into the target’s parcel over forty years 鈥� none of these show up in the title commitment. They only show up in the survey. Under Florida boundary-by-acquiescence and adverse-possession principles, a fence line that has been treated as the boundary for the statutory period may actually be the boundary, regardless of what the deed says. That is a title-insurance claim waiting to be filed, and it is precisely what the standard survey exception excludes.
Second, the delta between the legal description and the improvements. Older Florida industrial and commercial parcels routinely have legal descriptions written by a surveyor in 1962 with a metes-and-bounds call that no longer matches the current improvements. The building may sit half on one legal parcel and half on another. The parking lot may sit on a strip that was carved out for a road-widening that never happened. The Florida Department of Transportation may hold a slope easement that runs into the loading area. All of these get flagged on the survey and none of them appear in the commitment.
Third, permit and setback violations. Florida counties enforce setback requirements at the county code level, and a building that has been in the same footprint since 1974 may have been legally nonconforming, illegally nonconforming, or the subject of a variance that expired with a change of use. The surveyor’s job is to plot the improvements against the recorded setback lines. Whether the buyer treats the deviation as a title matter, a zoning matter, or a general representation-and-warranty matter is a drafting decision 鈥� but it is only a decision the buyer can make if the survey has done its work.
Why the survey drives the real-property indemnification carve-out
In a Florida stock or membership-interest deal for an owner-occupied target, the purchase agreement will contain a title representation. The typical rep says that the target holds good and marketable title, free of encumbrances other than those listed in a disclosure schedule. The disclosure schedule then attaches 鈥� or should attach 鈥� the title commitment and the survey.
Here is where the drafting stops being routine. The buyer will want the title rep to be scoped to the exceptions on Schedule B-II of the commitment, so that anything the surveyor finds later is a breach. The seller will want the rep to be scoped to the exceptions on Schedule B-II as supplemented by the survey, so that the survey items become disclosed exceptions and are not breaches. The two positions can diverge by seven figures depending on what the survey turns up. Whichever position wins on the title rep will then be mirrored in the indemnification carve-out 鈥� real-property matters are typically pulled out of the general indemnification cap and put on a separate, longer-tail, higher-cap indemnity that runs to the title policy exclusions.
The practical rhythm on a Florida deal is that the title commitment issues four to six weeks before closing, the survey arrives two to three weeks later, and the negotiation over the real-property carve-out happens in the final week. A buyer’s counsel who has not made room in the indemnification section for a survey-driven carve-out is going to have to reopen the schedule in the last five days of the deal. For the general framework buyer- and seller-side counsel apply to indemnification allocation, the internal treatment at seller-friendly-vs-buyer-friendly-deal-terms is a useful companion; the broader Florida M&A doctrinal frame lives at montague.law/business-law/m-a-mergers-and-acquisitions.
Owner’s policy, lender’s policy, and who is buying which
In an owner-occupied Florida M&A closing, the question of which title policy gets issued is not academic. A lender’s policy issued to a new acquisition-financing lender covers only the lender’s insured amount, does not run to the buyer, and does not survive payoff. An owner’s policy issued to the buyer covers the equity portion of the transaction, runs indefinitely as long as the buyer holds title, and is the vehicle that pays out on the survey exception once it is deleted. Most owner’s policies do not automatically follow a change of ownership 鈥� the endorsement often costs more than a new policy at the reissue rate. This decision belongs on the closing checklist, not the closing statement.
Doc stamps at closing and the stock-vs-asset structural choice
Florida imposes a documentary stamp tax on deeds transferring an interest in Florida real property at 70 cents per $100 of consideration. On a $12 million owner-occupied light-industrial parcel, the deed doc-stamp is $84,000, apportioned by contract to the seller or the buyer. In a stock or membership-interest deal, no deed is recorded and no doc-stamp is due 鈥� the equity of the target changes hands and the real estate stays where it was. That is one reason so many Florida owner-occupied M&A transactions are structured as equity deals. What does not disappear in an equity structure is the seller’s title rep, the buyer’s need for a survey, and the survey-driven carve-out. The equity-deal structure moves the tax and recording issues off the closing statement but leaves the diligence and indemnification issues squarely on the drafting table.
Where this leaves buyer- and seller-side counsel
The doctrinal frame for Florida owner-occupied M&A title diligence is simple to state and hard to execute. Order the title commitment early. Order the ALTA/NSPS survey the same day. Read Schedule B-II against the survey, not against the commitment. Draft the title representation to align with whichever side of the survey-disclosure question the client is on. Build the real-property indemnification carve-out to run to the survey exceptions, not the title commitment exceptions. And decide the owner’s-policy question before the closing checklist gets frozen.
The deals that go sideways are almost always the deals where the survey arrived too late, the Schedule B-II review happened after the disclosure schedule was locked, or the indemnification section was drafted from a Delaware form that did not contemplate a survey-driven real-property carve-out. Florida owner-occupied M&A has a rhythm to it, and the rhythm is set by the title company and the surveyor. Deal counsel who move at their pace preserve the option to negotiate. Deal counsel who wait for them to move first negotiate at the closing table.
If you are structuring the acquisition of a Florida owner-occupied business and want to walk through how the title and survey diligence should shape the indemnification carve-out, feel free to reach out to my firm manager, Magda, at Magda@montague.law, or fill out our contact form. Mention you read this post.
鈥� John
