All leases are not created equal. Contrary to popular belief, in some situations it takes more than just a landlord and a tenant to make a valid lease. An experienced attorney can be an invaluable asset for navigating these more complex circumstances.
Standard Lease Length
A lease is technically an interest in real estate. It can easily be compared to a Life Estate Deed in that the tenant does not own the property in fee simple. Rather, a tenant owns the real property for a definitive time. Typically, a residential lease is for a year or less. The Florida Bar and the Florida Association of Realtors collaborated to create a standard form lease that should be used by Realtors and Landlords alike. However, what happens when your tenant would like to rent the house for more than a year?
According to Florida Statute § 689.01, any interest in real estate for more than one year must be witnessed by at least two individuals. The witness requirement is not applicable to the tenant. Rather, the Landlord’s signature must be witnessed by two individuals who are not a parties to the rental agreement.
Florida Statute of Frauds
The requirement that the landlord’s signature be witnessed find its roots not only in Florida Statute § 689.01, but also in Florida’s Statute of Frauds. Florida’s Statute of Frauds requires that a conveyance of any interest in real property must be witnessed by two individuals who are not a party to the instrument conveying the real estate.
While the Statute of Frauds requires subscribing witnesses for any conveyance of real estate, Florida Statute § 689.01 changes this default rule for leases and leases only.
The failure of the landlord to have their signature witnessed by two other individuals, could potentially allow the Landlord’s Tenant to escape liability under the lease. As with any legal situation, there are many variables that must be taken into account. For example, if the landlord has accepted rent for the last 14 months on a two-year lease, a judge will likely find that the landlord must acknowledge the validity of the improperly executed lease and give the tenant the remaining 10 months of the rental term.
What Does It Mean For Tenants?
The tenant is truly the party that stands to benefit from an improperly executed lease. For example, if a tenant has a two-year lease and decides at month number 8 that they wish to terminate the lease, it is possible that a tenant will be able to escape the remaining obligation under the rental agreement.
Unfortunately, the standard lease promulgated by the Florida Bar in the Florida Association of Realtors is not compliant with the 2-year witnessing requirement of Florida Statute § 689.01. Thus, any landlord and tenant desiring to rent a parcel of property for more than one year must sit down with an attorney to draft an appropriate lease that complies with Florida’s two witness requirement. With over 45 years’ experience the attorneys Chiumento Dwyer Hertel Grant understand the intricacies of Florida’s Statute of Frauds and two witness requirements found in Florida law. Please contact our trusted lawyers today.
Vincent L. Sullivan is an attorney with the law firm of Chiumento Dwyer Hertel Grant