Florida Real Estate Litigation: Deed Defects and Curing Deed Defects

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Florida Real Estate Litigation: Deed Defects and Curing Deed Defects

February 9, 2017

Florida Real Estate LitigationFew areas create real estate disputes in Florida more frequently than defective conveyances of Florida real estate.  The topic often appears in the context of a challenge to the validity of a deed transfer after the grantor named in the deed has passed away.  Of course, once the grantor is dead, he or she is no longer capable of executing a new deed to effectuate his or her wishes.  Thus, beneficiaries of such a grantor’s estate usually stand to benefit from having the deed set aside, because the absence of the transfer increases the size of the estate in which they are entitled to share.

Under Florida real estate law, a conveyance of real property must be done in conformance with Section 689.01, Florida Statutes, or else the transfer is void, ineffective, and invalid.  Section 689.01 reads:

How real estate conveyed.—No estate or interest of freehold, or for a term of more than 1 year, or any uncertain interest of, in or out of any messuages, lands, tenements or hereditaments shall be created, made, granted, transferred or released in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses by the party creating, making, granting, conveying, transferring or releasing such estate, interest, or term of more than 1 year, or by the party’s lawfully authorized agent, unless by will and testament, or other testamentary appointment, duly made according to law; and no estate or interest, either of freehold, or of term of more than 1 year, or any uncertain interest of, in, to, or out of any messuages, lands, tenements or hereditaments, shall be assigned or surrendered unless it be by instrument signed in the presence of two subscribing witnesses by the party so assigning or surrendering, or by the party’s lawfully authorized agent, or by the act and operation of law.

What on earth does that mean?  What is a messuage?  It doesn’t much matter.  The point is that a real estate transfer must be accomplished only by a writing signed by the grantor in front of “two subscribing witnesses”—i.e., witnesses to the execution who also sign the deed.

But what if one or more of witnesses to the deed execution doesn’t actually sign the deed?  In that case, the deed is invalid but can be corrected.  As long as the subscribing witnesses eventually sign the deed, the witnesses may sign after each of the delivery of the deed, the death of the grantor, and the initial recording of the deed.  In a famous case styled Sweat v. Yates, 463 So. 2d 306 (Fla. 1st DCA 1985), a grantor of real estate signed and delivered a deed transferring her property, but shortly thereafter died without any of the witnesses to the execution signing the deed. The deed was then recorded.  However, the transferee later recognized the defect and, after the grantor’s death, had the deed signed by the witnesses and re-recorded. A beneficiary of the grantor’s estate challenged the validity of the transfer based on the initial absence of subscribing witnesses.  The appellate court, however, found that the subsequent execution of the deed by the witnesses after the grantor’s death rendered the deed valid.

If you wish to challenge the validity of a real estate transfer, or are otherwise involved in a Fort Lauderdale real estate dispute, call a Fort Lauderdale real estate dispute lawyer at (954) 440-0901 to assist you with your matter.

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