Florida’s two witness signature requirement is well known but not well understood by both Florida landlords and some attorneys. This article clarifies Florida’s two witness signature requirement.
The Two Witness Signature Requirement Applies to Leases Longer Than One Year
The witness requirement comes from Fla. Stat. § 689.01. If the lease is more than one year, the landlord’s execution of the lease must be signed in the presence of two subscribing witnesses. There is no witness requirement for leases that are one year or less.
The statute says “subscribing witnesses,” meaning that the witnesses must sign their names on a document attesting that they witnessed the landlord’s signature of the lease.
The Witness Requirement Is For The Landlord, Not The Tenant
There is a lot of confusion about this. Many landlords believe that the tenant’s signature must be witnessed, as if the landlord needs some kind of extra proof that the tenant signed a lease longer than one year. This is not true.
Only the landlord’s signature must be witnessed because the landlord is transferring the right to use the property to the tenant. Fla. Stat. § 689.01 sets forth the procedures for granting or transferring estates in land. A lease is a type of an estate in land. The statute is designed to protect the grantor of the estate in land, which is the landlord.
What if the tenant’s signature is witnessed? This is no big deal; it will not affect the validity of the lease. The law does not require that the tenant’s signature be witnessed, but you can do so if you want to (or did so in the past.)
Please note, there is an exception for corporate conveyances. Landlords that are corporations, ( as opposed to LLCs or partnerships) may create a lease longer than two years without the need for witnessed signatures.
What If The Lease Is Longer Than One Year And The Landlord’s Signature Is Not Witnessed By Two Subscribing Witnesses?
Ah, here is the heart of the issue. Which party wants out of the lease and the legal concept of estoppel are important in these cases. Estoppel is when one party is prevented from doing something, like breaking a lease. In general, both landlords and tenants are estopped from a breaking an otherwise valid lease, even if the landlord’s execution of the lease lacks two subscribing witnesses.
If Landlord Wants To Break The Lease
The lease may still be valid even if the lease is longer than one year and the landlord’s signature was not witnessed by two subscribing witnesses. If the landlord wants to break the lease, the tenant may be able to pursue a breach of contract claim against the landlord, depending on the facts of the case. Courts have held that the landlord is estopped from breaking the lease.
In Skylake Insurance Agency, Inc. v. NMB Plaza, LLC, 23 So.3d 175, the Third District Court of Appeals ruled:
- The landlord drafted the lease and signed it, but failed to have his signature witnessed by two witnesses. He could have cured this deficiency at any time, but failed to do so, instead relying on the absence of witness signatures to disavow the contract. The landlord will not be allowed to profit from its own wrong. See Cabrerizo v. Fortune Int’l Realty, 760 So. 2d 228, 229 (Fla. 3d DCA 2000). Stated differently, the landlord breached the implied covenant of good faith and fair dealing. See Speedway SuperAmerica, LLC v. Tropic Enter., Inc., 966 So. 2d 1, 5 (Fla. 2d DCA 2007).
In other cases, the landlord can be estopped from cancelling a lease when breaking the lease works to the advantage of the landlord at the expense of the tenant. See Bodden v. Carbonell, 354 So.2d 927 (1978), and Gill v. Livingston, 158 Fla. 577, 29 So.2d 631 (1947). Based upon the caselaw, a landlord will need to show more than simply that the lease was not witnessed in order to get a lease cancelled, especially if the tenant had moved in and was paying rent per the lease.
If Tenant Wants To Break The Lease
Estoppel works against a tenant who wants to break an otherwise valid lease that lacks two subscribing witnesses. In Taylor v. Rosman, App. 3 Dist., 312 So.2d 239 (1975), the tenant was estopped from defeating the second year of a two-year lease agreement by asserting statutory requirement that there be two subscribing witnesses to the landlord's signature on the agreement where tenant and her husband had occupied apartment for almost two years under a prior rental agreement, subscribed by single witness, and had made rental payments thereunder.
In Arvanetes v. Gilbert, App. 3 Dist., 143 So.2d 825 (1962), the tenants were estopped to contend lease and assignment thereof by the landlords were invalid for lack of subscribing witnesses, where tenants accepted the lease from the landlords, took possession and occupancy, sublet the premises to a third party, and made rental payments for a substantial portion of term of the lease.
So, When Does The Two Witness Requirement Matter?
Remember that the two subscribing witnesses requirement stems from the law of conveyances of estates in land. The courts are going to be a lot more stringent on the requirements of a deed than that of a lease, since a lease is a temporary transfer and the existence of a lease can be shown in other ways (i.e. keys were given, rent was paid, etc.) The lack of two subscribing witnesses might be a claim that has more punch if the tenant has not moved in or relied upon the lease and there is a genuine dispute as to whether the lease exists at all.
To Summarize This Topic
Does this requirement apply to you?
- It applies to leases longer than one year.
- It is required for the landlord’s signature, not the tenant’s.
- In Florida caselaw, both landlords and tenants have been estopped from breaking an otherwise valid lease that lacks the adequate number of subscribing witnesses. The existence of a valid lease contract becomes a question of fact without regard to the number of subscribing witnesses.