Legal Articles

This post will summarize some of the requirements for Recording Instruments Affecting Real Property in Florida.

PRINTED NAME AND ADDRESS REQUIRED OF ALL PARTIES- The name of each person who executed such instrument is legibly printed, typewritten, or stamped upon such instrument immediately beneath the signature of such person and the post-office address of each such person is legibly printed, typewritten, or stamped upon such instrument. In addition: In any instrument other than a mortgage conveying or purporting to convey any interest in real property, the name and post-office address of each grantee in such instrument are legibly printed, typewritten, or stamped upon such instrument.

PRINTED NAME AND ADDRESS REQUIRED OF PREPARING ATTORNEY- The name and post-office address of the natural person who prepared the instrument or under whose supervision it was prepared are legibly printed, typewritten, or stamped upon such instrument.

2 WITNESSES REQUIRED- All interests in real property (including deeds, mortgages, encumbrances, assignments) must have instrument signed 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.

PRINTED NAME REQUIRED BELOW WITNESS SIGNATURE-The name of each witness to the instrument is legibly printed, typewritten, or stamped upon such instrument immediately beneath the signature of such witness.

ACKNOWLEDGEMENT BY NOTARY PUBLIC REQUIRED- To entitle any instrument concerning real property to be recorded, the execution must be acknowledged by the party executing it, proved by a subscribing witness to it, or legalized or authenticated by a civil-law notary or notary public who affixes her or his official seal, before the officers.

PRINTED NAME REQUIRED BELOW NOTARY SIGNATURE-The name of any notary public or other officer authorized to take acknowledgments or proofs whose signature appears upon the instrument is legibly printed, typewritten, or stamped upon such instrument immediately beneath the signature of such notary public or other officer authorized to take acknowledgment or proofs.

COUNTY, STATE, DATE OF ACKNOWLEDGEMENT/JURAT, NOTARY EXPIRATION DATE REQUIRED.

A 3-inch by 3-inch space at the top right-hand corner on the first page and a 1-inch by 3-inch space at the top right-hand corner on each subsequent page are reserved for use by the clerk of the court.

I hope this quick summary of some of the recording rules help you to avoid costly mistakes in recording your documents.

The language on the deed determines the the legal rights of the parties that own the property. The rights that may be affected by the way in which you acquire property include: inheritance, income taxes, gift taxes, ability to transfer the property, exposure to creditors, and real property tax exemptions. The common methods of holding title are sole ownership, co-ownership, and corporate ownership.

Sole ownership means acquiring title in your individual name. This is simple if you are a single person as you take full ownership. If you are married, then it may be important to include language that the property is being taken as one spouse's “sole and separate property” on the deed. Under Florida law, your spouse can have rights over any property you acquire while married so you need to be careful if you are intending to have sole ownership over newly purchased real estate. Your spouse will have to sign a document surrendering any future claims to the property.

Co-ownership means property owned by two or more persons. If you are married, then recording title as husband and wife creates a tenancy by the entirety. This means that the real estate property will pass tax free upon inheritance to the other spouse. There are also statutes that protect property held as tenancy by the entirety from creditors. Only married couples can enter into a tenancy by the entirety. This is the most common choice for married couples holding property. Any two or more people can enter a joint tenancy when buying property. To create a joint tenancy with rights of survivorship it is a good idea to include the language “as joint tenants with rights of survivorship” in the deed. In fact its a requirement that title is acquired at the same time, by the same conveyance, all participants have an equal interest, and the document must expressly declare the intention to create a joint tenancy estate. When one title owner dies in a joint tenancy, the property rights are distributed equally among the remaining title holders. To create a tenancy in common include the language “as tenants in common” in the deed. Any two or more people can enter a tenancy in common when buying property. If you intend for the property to pass separately under your will, it is important to vest title as a tenancy in common. Each party can sell their interest separately. Parties can also have unequal ownership under this arrangement.

In Florida, you can also take title to real estate in the name of a corporation, company, partnership, or trust (specific purpose entities). Taking a property under a specific purpose entity is a good way to protect an individual from business debts and liabilities. Specific purpose entities can continue after the death of an owner or manager. It is important to consult with an attorney to determine all legal consequences of using a specific purpose entity.

Title insurance is an insurance policy that usually insures the entire value of your property against title defects and encumbrances. As a matter of good practice, title insurance is issued whenever a real estate transaction occurs in Florida. Title insurance is a protection above and beyond the title search done by a real estate attorney before your closing. There are many types of claims that could arise that would not show up under a title search and not getting protection against those claims is a risk a buyer should not take. Examples include problems with deeds, forgeries, and other unrecorded documents that the buyer had no way of knowing about. There are two types of title insurance: the lender’s title insurance policy and the owner’s title insurance policy.

Lender’s title insurance protects the interest of the mortgage lender. This is a requirement by all major lending institutions when you get a loan on the property you are purchasing. The owner’s title insurance protects your investment in your property. This policy will also be important when it comes time to resell your property. The owners policy will be used by the next closing attorney as a starting point for his title search. Remember to give your owners policy to the new closing attorney. The attorney may even be able to give you a discount on the insurance if he has a prior policy from your previous closing.