A Brief Overview of Florida Notary and Witness Laws
Deeds are a vital part of every real estate transaction in Florida as they serve as the legal document that conveys ownership from one party to another. The act of giving someone a deed does not, in itself, complete the sale. Florida law requires a formal process of transferring ownership and deeds are the finalization of that legal process. While the Florida Statutes do not require witnesses to sign of a deed , having witnesses adds a level of security and protection to both the seller and buyer. Witnesses can help support the legitimacy of the deed if its authenticity is ever challenged in court. Knowledge of what witnesses are required by law to provide is necessary for any individual or business looking to buy or sell property in Florida.
Witness Requirements for a Florida Deed
Witnesses are part of the standard, statutory Florida deed. However, Florida law does not require a Deed to be witnessed. For example, a Deed executed on or after October 1, 1965 must also be signed by two subscribing witnesses who have witnessed the execution of the instrument or a subscribing witness shall make oath before a person entitled to administer an oath that she or he was present at the execution of the instrument and that she or he knows the executing party or parties thereto by seeing the party or parties sign the same, or by the party or parties making acknowledgment thereof before her or him. Sections 689.01 and 689.02, Florida Statutes. Therefore, a Florida Deed may still be valid and effective even if there were no witnesses at all. However, if a Deed is to be recorded, Florida Statute requires two subscribing witnesses to bring the Deed into compliance and therefore recordable. Thus, we always answer law school questions (and bar exam questions) who are not familiar with this Florida Deed requirement, "Yes, but." On the other hand, a statement from a subscribing witness is additional proof that the grantor or party granting the interest in the property signed the Deed. Of course, also remember the requirement that the Deed be either acknowledged or sworn to before a Notary Public or Deputy Clerk of Circuit Court. See Florida Statute Section 695.03. So what you want on the Deed is an acknowledgment and signature from a Notary Public or Deputy Clerk who is a subscribing witness because that satisfies both Section 689.01 and Section 695.03. Where the error usually is that the two witnesses must sign the Deed in front of each other. For example, the testimony in a case involving a Deed executed in 1969 went as follows: One of the witnesses to the Deed testified that he appended his signature "in Mr. Grubbs’s presence at the time he executed the document." The other witness (who is now deceased) was said to have signed the Deed "in the presence of Grantor and Mr. Kelly." (Mr. Kelly was one of the two witnesses.) This type of testimony is not the best, but it is often all you will get. The problem from a legal perspective is that we do not know whether the two witnesses actually witnessed the execution of the Deed by the Grantor; however, we do have two "subscribing" witnesses, so there’s that, and we have Mr. Kelly.
The Notary’s Role in Executing a Florida Deed
Although a witness is not required to sign a deed, it is usually a good idea for the parties to have one or two witnesses sign a deed due to an evolved assumption on the part of title issuing entities such as title insurance companies and lenders that doing so may be necessary for valid execution. If you think about a time when you were asked to notarize a signature on a deed or other instrument, and the notary asked: "Is the signer doing this voluntarily and of his or her own free will, and does he or she know generally what they are signing?", in almost all circumstances, that notary was not saying you should read the whole instrument (which would be silly). A witness is not exonerated from the responsibilities noted above, but the witness is not typically expected to understand the legal ramifications of the language contained in the deed, which is more the province of the notary public.
In addition to ensuring that a document is properly executed, notaries also verify the identity and signature of the person signing the document. This means that both the notary and the witness must employ the same rules of proper identification for the purpose of validating the identity of the person signing the deed. Florida is unique in that it does not require that the notary and witness share the same responsibilities for observing and assessing the conditions which should be in place for the signature of the grantor, nor do the duties of the two parties overlap except for the ability of either party to testify at a later time. Therefore, in Florida, a witness is not required to be present during the notarization of a deed but the act of notarization should be completed before a witness signs the deed.
Mistakes Made When Witnessing a Deed
Common mistakes with witnesses include:
- Not having two witnesses: F.S. 689.01(1) specifically states "a deed … shall be deemed to have been executed in accordance with s. 689.01 if it is witnessed by two subscribing witnesses …". In other words, the law says you must have witnesses – and the law says it must be two (not one or three or four or more).
- Having witnesses sign in the wrong place: The same F.S. 689.01 (1) specifically states "the assignment shall be attested by the witnesses subscribing their names to said instrument in the presence of Grantor, or in the presence of one or more of Grantor’s subscribing witnesses." Words in statutes used to make things clearer are called "definitive phrases." The definitive phrase here is "attested by the witnesses subscribing their names to said instrument in the presence of Grantor." This means the witness must actually sign their name at the time the Grantor is signing in the witnesses "presence." However, it does not necessarily mean that it must be done at the time of actual signing. What must be present, however, in both our statute and case law, is that you must have the witness signing in the presence of the Grantor – and unless it was done in the Grantor’s presence, it becomes a problem.
- Having witnesses sign in the wrong order: This can be a problem if done improperly, particularly in our electronic age where you can have two witnesses stand in a line and your copy is signed first and handed to the first witness, where she then signs. The second witness copies the signature on the preceding document and then hands it back to the Grantor, who hands it to the second witness who signs it and hands it back. A lot of hand offs and transfers of the document which would be problematic should it be challenged in court.
How to Select the Appropriate Witnesses
Witnesses — those who observe the parties executing the deed — can be crucial to the validity of the documents. Although some websites on Florida real estate law suggest that the witnesses must have "no interest," the Florida Supreme Court has rejected this interpretation. Therefore, you need to be particularly thoughtful in reserving your witness capacity, which is often easily overlooked.
The Right Witness Should Be More than a Relative or Spouse
It is not that family and spouses cannot or should not be witnesses. But if a deed turns into litigation, there is a good chance that those individuals may not be reliable witnesses. You want witnesses to be persons who really do not have an interest but are there as neutral observers. Remember the adage: "there is always 2 sides to every story?" I am much more inclined to rely on witnesses who can tell "this is exactly what happened." When depositions are taken or trials occur, you have to show that your witness was present and they can present the circumstances when the deed was executed . Were there any statements made that fraud was intended? Could this person know where the funds were that paid for the property? Was there any undue influence shown or coercion? Did the person really understand what they were doing?
What Factors Affect Witness Selection?
Florida law doesn’t require you to use third parties as witnesses, but there are practical considerations that limit who you may ask to witness a deed. Among them: In short, who to choose as a witness? You are free to use common sense and good judgment in your decision making. Remember that anyone 18 years old and older can be a deed witness.
Who Should Not Be a Deed Witness?
In addition to family members and close associates, avoid using the following non-neutral witnesses: There is no hard and fast rule in Florida that says that persons who are ready, willing and able to testify should not be used as witnesses. But that is often the end result if and when you have to go near the courthouse to clear up an issue or problem about the deed.
Case Examples of Witness Mistakes and Consequences
In Case 1, a trial court determined that a non-resident witnessed the execution of a deed. On appeal, the Florida 5th District Court of Appeal held that the deed was void for failure to comply with F.S. 689.05 because section 689.05 requires witnesses to be within the presence of the grantor. The appellate court dismissed the impact of case law stating that this is a "technicality" and that equity will "impress a trust" in the property, stating that previous case law suggesting an equitable remedy for technical defects in the execution of a deed was superseded by amendments to Florida’s laws of real property which deleted statutory provisions authorizing the imposition of an implied or resulting trust where there is a defect in the execution of an instrument.
Case 2 involved a situation where a nonresident foreigner hired a broker, John Smith, to find a buyer for his real estate. Smith found a buyer who promised to pay cash for the property. The seller’s deed was recorded. Before closing, but as soon as the buyer saw what he was buying, he looked up defect in title and found a problem: a mechanic’s lien on the property. After learning of the lien, the buyer refused to close. A quiet title suit was filed and the lien was discharged. After the lien was discharged, the buyer sought to enforce the contract and a deed was executed with the recitation: "WITNESSETH the parties hereto have hereunto set their hands and seals the day and year first above written." The buyer’s wife, a resident of Florida, signed as a witness. Shortly thereafter the buyer defaulted on the loan.
The lender sought to enforce the contract and obtain the subject property by foreclosing and taking a title of the buyer via the foreclosure sale. Based on Smith’s missing signature, the trial court found the deed unenforceable. The appellate court held that despite non-resident status, Smith’s signature as a witness was sufficient and the lender won.
Closing Checklist for Florida Deed Execution
- Be Prepared for the Signing Event. Remember that spouses do not have to sign at the same time.
- Bring a Witness to the Signing Event. You have the option of having two witnesses at the signing event. In fact, there are benefits to having an additional witness not related to the real estate.
- Remember Spouses Do Not Have to Sign in Front of Each Other.
- Signer must be of sound mind and be able to identity parties signing the deed.
- Be Sure Grantor(s) Sign Using Full Name(s) – No Nicknames.
- Be Prepared to note: Date, names of parties, address being conveyed, consider complete legal description and parcel identification number. Both preprinted legal description and hand written.
7 . If a corporation or LLC is signing the deed, the signer must be a person legally authorized to do so, and state they are signing in their capacity as an officer of the corporation (and then include title held in corporation). For example, president or treasurer of company. If the instrument is executed on behalf of a corporation, it should reveal the capacity of the person executing it. 689.07(1)
- If a corporation is signing, evidence of signers authorization to sign for the company must be attached to the deed for a deed to be valid. 689.07(1) and (2). In addition, the statement should include the name of the corporation and name of the officer executing the deed, as well as a statement that such officer is duly authorized to execute the deed.
- Prepare and sign an acknowledgment.
- Also retain a fully complete copy of all documents and have all parties write notes about the closing.