A contract to sell real property must be in writing in order to be legally enforceable. In addition, a deed, which is a document that actually transfers title to real property, must be in writing, and must be signed by the person selling the property, and by two witnesses who saw the seller sign the deed. Also, in order for a deed to be recorded in the official records of the county, which provides notice to the public regarding who owns the property, the deed must also be notarized.
This all seems pretty straightforward, and it often is. However, occasionally a deed is not executed properly, which can lead to many less-straightforward questions, such as the following:
Can a party who is an interested party in a deed, such as the seller or the buyer, also serve as a subscribing witness to that deed? Sometimes you will find a deed that is signed by the seller and by two witnesses, but one of the witnesses is the buyer, or a person who is related to the buyer. Unfortunately, a person with a financial interest in a transaction, such as the buyer, cannot serve as a witness to a deed. As a result, neither the grantor nor the grantee is competent to sign a deed as a subscribing witness. This makes sense when you consider that one of the purposes of having a witness to a deed is to provide evidence, through the testimony of the witness, that the grantor signed the deed. A person who is not interested in the transaction is needed so that they can serve as an unbiased witness.
Does one subscribing witness, plus a notary, count as two subscribing witnesses and create a valid deed? If you find a deed that has been signed by one witness, and also notarized by a second person who is a notary, it may be tempting to think that this would satisfy the requirement for two subscribing witnesses. However, a person who signs a deed only as a notary does not count as one of the two required subscribing witnesses. This is due in part to the fact that a notary is not actually required to witness the seller signing the deed. A notary can notarize a document if the person who signed the document acknowledges to the notary that they have already signed the document. Thus, the fact that a person signs as a notary does not necessarily mean that the person witnessed the signing of the deed by the seller, which is required of a subscribing witness. And so, a notary does not ordinarily count as one of the required subscribing witnesses.
However, a person may sign a deed both as a witness and also as a notary, in which case, the person will count as one of the two required subscribing witnesses. In order for a person to sign as both a witness and a notary, the person will have to actually see the seller sign the deed, so that they can sign as a witness.
What happens if there were people in the room during the signing of the deed by the seller, who saw the seller sign, but no one actually signed the deed as a witness? So long as two or more persons actually witnessed the execution of the deed by the seller, even if they did not sign the deed as subscribing witnesses at the time of execution, they can sign the deed as subscribing witnesses at a later date, including after delivery of the deed to the buyer, and this will cause the deed to be valid. Notice that for these people to be able to sign later as witnesses, they still must have actually seen the signing of the deed by the seller. And, as discussed above, one of these witnesses could be the notary, if the notary actually saw the seller sign the deed.
What happens if a deed was not signed by two subscribing witnesses, or was signed as a witness by someone who was not qualified to serve as a witness, such as the buyer? This deed would be invalid. However, what would happen if the deed was notarized and recorded and the buyer moved onto the property and lived there for many years without anyone disputing that they owned the property. Would this buyer be at risk of the seller coming back years later and attempting to take back the property based on the invalid deed? Fortunately, there is a statute in Florida that “cures” this problem after enough time has passed. Florida Statutes Section 95.231(1) cures a lack of necessary witnesses to a deed when the deed has been recorded for 5 years. Thus, after 5 years have passed from the date when the initially invalid deed was recorded, this statute “cures” the problem, and validates the otherwise invalid deed.
Execution of a deed conveying real property can and should be pretty straightforward. However, there are some tricky problems that can arise when a deed is not properly executed. And, this is just one of many issues that can arise in the course of a real estate transaction. Here’s hoping that everyone’s real estate transactions go smoothly and cleanly. However, if problems arise, then buyers and sellers of Florida real property should consult a knowledgeable Florida real estate attorney to ensure that their interests are protected.
If you have any questions or concerns about how to address any problems that may have arisen during a real estate transaction, please contact our office to schedule an appointment to discuss your unique situation.
Please note that this article is intended for informational purposes only, and that nothing contained in this article may be relied upon as legal advice. Every situation is unique and requires unique attention and legal advice.