Types of Deeds Used in Florida to Convey Title

Such as Transfer of title and ownership of Real estate in Florida.

We prepare many types of deeds to transfer title (legal instrument used to transfer title and ownership of real property). Please call us today to schedule a consult regarding the best course of action to take when transferring or selling property.

 When you transfer title and ownership of real estate in Florida, you sign a deed conveying or transferring the property to the new owner. In most real estate closings, the seller is responsible for providing the deed that is signed at closing. A seller can allow a buyer’s attorney to prepare the deed or the seller can retain a Daytona real estate attorney to represent the seller during the real estate closing process.

All deeds executed in Florida must be signed in the presence of a notary public and two witnesses. Because there are several different types of deeds used to convey real estate, it is important to work with a Daytona real estate attorney. Using the incorrect deed type could result in a cloud on the title that might prevent the new owner from obtaining a mortgage or transferring clear title.

Types of Deeds Used in Florida to Convey Title

The two most common types of deeds used to transfer real estate are a Warranty Deed and a Quitclaim Deed. Below are descriptions of those deeds and the other deeds that may be used to transfer real estate in Daytona and throughout the state.

• General Warranty Deed — A Warranty Deed is the most common type of deed used in Florida real estate transactions. When an owner signs a General Warranty Deed, the owner is asserting that he is the current owner; he has the right to transfer the property; there are no undisclosed liens or encumbrances; there is no defect of title that will interfere with the new owner’s ability to use the property; and, the seller agrees to protect the new owner from damages caused by a title defect and to defend the buyer against all claims by others to the property.

• Statutory Warranty Deed — Provides the same five assertions as the General Warranty Deed, but it was created by a Florida statute as a short-form version of the General Warranty Deed.

• Special Warranty Deed — A Special Warranty Deed conveys the title to the new owner with the same five assertions as a General Warranty Deed. However, the period covered by the assertions is limited to the time that the owner held title to the property. Instead of warranting the property for all previous owners, the Special Warranty Deed only provides the warranty for the time the current seller owned the property. Somewhere within the deed, the seller’s liability for the five covenants is limited by specific language such as “arise by, through, or under the Grantor, but no others.”

• Fee Simple Deed — A Fee Simple Deed only conveys title to the property to the new owner. The seller/grantor is not offering any warranties, covenants, or guarantees.

• Quit Claim Deed — A Quit Claim Deed does not provide any warranties and does not claim to transfer fee simple title. The purpose of a Quit Claim Deed is for someone to state that if they own an interest in the property that they are “quitting” their “claim” to the property. In other words, they are giving away any claim or interest they might have owned in the property. The deed is used to clear title defects.

• Life Estate Deeds — Life Estate Deeds transfer title to the property to a person or person for and during their natural lives. When the person or persons dies, the property passes to another person in fee simple. Life Estate Deeds are often used for estate planning purposes.

• Personal Representative’s Deeds — When a personal representative (PR) transfers real property from an estate to an heir or a buyer, the PR uses a special deed.

It is extremely important to choose the correct deed type to convey title. As a buyer, you want a General Warranty Deed because it provides the highest level of covenants and warranties from the seller.

Business Law/FCCPA

Did you know that the Florida Consumer Collection Practices Act allows for consumers to sue CREDITORS for the most minor statutory/legal technical violations. 

Most Consumer lawyers utilize these technical violations as leverage and defenses to obtain settlements from Creditors/Businesses. It is therefore crucial that all Creditors/Businesses underaged the statutory requirements of FCCPA. The FCCPA is found at Sections 559.55-559.785 of the Florida Statutes. 

What is a Force Majeure clause?

Erum Kistemaker, Managing Partner, Kistemaker Business Law Group

Force Majeure clauses have become a hot topic among legal circles and within the business and real estate worlds. With so many companies and individuals finding themselves in difficult and unique times many are looking for ways to terminate their legal contractual obligations. often times,  contracts include “Force Majeure” clause.  Such clauses are often drafted to assist the parties when unforeseeable circumstances arise that prevent a party from fulfilling its obligations under a contract.  The COVID-19 pandemic and current civil unrest make it necessary for all businesses to consider the implications of the Force Majeure terms of its contracts.   

A Force Majeure provision in a contract is intended to excuse a party’s performance if specified circumstances beyond the party’s control arise making performance impracticable, illegal, or impossible. Force Majeure provisions typically have three elements:  (1) a list of types of events that are deemed to be triggering events, (2) a statement identifying the party bearing the risk of such a triggering event, and (3) a set of statements identifying the effect of such a triggering event on the obligations of the parties to the contract. 

Triggering events typically fall into two groups.  The first group comprises acts of nature such as earthquakes, floods, fire, famine, plague, and “Acts of God.”  The second group comprises political and governmental acts.  These include terrorism, riots, war, strikes, change of law or regulation, and orders issued by the government.  The COVID-19 pandemic could arguable fall within the first group, and the orders being issued by the federal government, and state and local governments across the country, fall into the second group.  

It is important to review the Force Majeure provisions of a specific contract to see exactly what triggering events are listed. It can be argued that if there is NO language contemplating a pandemic or health crisis as a triggering event, the COVID-19 pandemic may not be recognized as an event to terminate a contract. 

More importantly, It is not enough, that the event be identified as a triggering event in the contract’s Force Majeure provisions.   The event must also be a direct cause of a party’s inability to perform its contractual obligations.  If the party’s performance is not unduly hampered by an event, performance is typically not excused.  For example, several states have ordered non-essential businesses to cease operations.  If a company is not operating in one of these states or is deemed to be an essential business, the issuance of the order may not excuse performance.

One must also read the Force Majeure provisions to see what affect the event has on the performance requirements of the parties.  Sometimes the effect is to delay performance until the time the circumstances return to normal.  Other times, the effect is to excuse performance altogether.  In still other cases, the Force Majeure clause may specify that the contract is terminated (or may be terminated at the option of a party) should a Force Majeure event occur and affect operations for an extended period specified in the contract.

Phantom Condo Units

Developers should be aware of the risk of creating Phantom Units. With the downturn of the real estate market and economy. Now is a good time for developers to be mindful of creating Phantom Units.

Florida Law does not require that a condo unit be constructed before it is legally created. In fact, a “phantom unit” is a condominium unit that has been declared, created by the recording of the declaration of condominium, but not constructed. Thereby, creating units that have little to no economic value but can cause significant liability to the developer/investor. The biggest liability being the need to pay assessments on each phantom unit. 

If you are developer and or investor considering purchasing a distressed condo property. It is essential that the project is analyzed to ensure and limit the risk in creating Phantom Units.