The Dangers of Incorrect Language in Florida Real Estate Deeds

Panicked phone calls from people who just discovered a defect in their property deed right before closing on a sale is an all-too-common experience in my office. Generally, the conversation starts with some poor sole on the other end of the phone saying his closing agent told him to contact a probate attorney to straighten out a defect in the deed as soon as possible—"probate attorney" because the title issue almost always involves a dead person; as you might imagine, there's not much chance of getting a dead person's signature on a corrective deed.

Many of the title issues I see come across my desk involve some well-intentioned attempt at avoiding probate by engaging in a bit of self-help estate planning. Unfortunately, the law—especially when it comes to written instruments like real estate deeds—tends to be unforgiving. Language matters when it comes to properly drafting a deed; no matter what your intent happened to be, it doesn't matter if the cold words on the page didn't mean what you thought they did.

A common scenario goes something like this: Dad died a while back and now mom lives alone, widowed, in the family home. Mom ran into a few hiccups with dad's affairs, and for some reason or another, had to hire a probate lawyer to straighten out a mess with some property in dad's name. Mom's daughter talks to a few friends and gets some advice—not from a lawyer, mind you—telling her to put the family home in both mom and daughter's name to avoid probate. Budget conscious and not wanting to go through the hassle of dealing with a lawyer again, mom and daughter decide to look up forms online and draft up their own quit claim deed. Searching for a few examples on Google makes drafting a deed look easy. All they need to do is change a few places and names, and just like that, they have a deed for no more than the cost of recording it down at the courthouse. When mom dies a few years later, daughter finds herself selling the house. At closing, the title agent discovers the daughter does not have complete ownership of the property, delaying the sale, and now daughter is being threatened by the potential buyers with a lawsuit.

So, what happened? Answer: "Joint tenants with rights of survivorship" was nowhere to be found on the face of the deed. Turns out half the property belongs to mom's estate, which now requires another trip to a probate attorney—not to mention a few months of whistling past the graveyard regarding the possibility of that aforementioned lawsuit.  The absence of six words is all it took to rack up thousands of dollars of additional legal expenses and countless anxiety ridden days waiting for the whole fiasco to resolve in the above example; not to mention, there are already several other potential legal problems that could have cropped up even when mom was still alive. So why does this have to be so complicated?

The law likes to avoid confusion and achieves clarity of a grantor's intent by requiring specific language be used, depending on what the grantor is trying to accomplish. The basic idea is that a person should be able to look at a deed and understand who the ownership of the property is vested in—and for that matter, what happens to a person's partial ownership of the property when they die. To accomplish clarity the law creates some presumptions and requires certain objectives to be stated clearly in precise language on the face of the deed.

Generally speaking, a transfer to two or more individuals will be interpreted as a "tenants in common" deed without the addition of other specific language; a tenants in common deed gives each of the parties an undivided interest that would pass to their estate in the event of their death as opposed to distributing the decedent's interest to the other property co-owners. In the example above, where mom and daughter are simply listed as co-owners, either parties' death would result in that individual's ownership being part of that person's estate. A probate administration of the person's estate would then dictate where the property would be transferred. Contrary intent can be expressed in the deed but does require some specific language be added depending on the scenario.

It's not surprising the law would require specific language to create an automatic transfer of property interest at the time of death. If the law didn't require this kind of precision, the door would be open for endless court disputes over what the intent actually was at the time the deed was executed. Since this dispute would arise most of the time after a co-owner dies, getting to the bottom of what the co-owner intended would be challenging to say the least.   Admittedly, the law does grant some flexibility when it comes to married couples—only requiring some indication on the face of the deed that the co-owners of particular property interest are married in order for the surviving spouse to automatically inherit the other spouses interest on death—but it's much harder to presume what non-married individuals would have intended—or should have intended as a matter of public policy.

All of this is not to say the mother and daughter in the above example should have taken joint title of the family home in the first place. I'm just giving an example of a common problem I've seen far too often. Whether the daughter should even have part ownership of the property in the first place—for a variety of other legal reasons—is a whole separate discussion. What this example is meant to illustrate is the complexity of real estate titling, and how failing to get proper advice can cause some serious consequences down the line. The best thing that could have happened in the above scenario was for the mother and daughter to seek the advice of an attorney and have someone with the requisite understanding of the laws handle the real estate transfer to accomplish their objective.

Much like basic estate planning, this is an area of law where an ounce of prevention really is worth the pound of cure. Legal fees can add up but saving a few dollars on the front end is certainly not worth shelling a whole lot more out in the long run to fix an avoidable mistake—assuming the mistake can even be fixed. Without a full understanding of the consequences of changing legal title to a piece of real estate it's always best to consult with a professional rather than go it alone.