USA – FLORIDA Law and Practice Contributed by: Eduardo M. Soto and Fabio Giallanza, Weiss Serota Helfman Cole + Bierman, P.L
Easements are non-possessory interests that grant the right to use another’s land for a specific purpose, such as access, utilities, drainage or conservation. Easements may be appurtenant (benefiting adjacent land) or in gross (benefiting a specific person or enti - ty) and may be created by express grant, implication, prescription or necessity. Easements do not convey ownership but impose binding use rights on the servi - ent estate. In addition to these categories, Florida recognises various forms of concurrent ownership, under which multiple parties hold interests in the same property simultaneously. Common forms include tenancy in common, joint tenancy with right of survivorship, and tenancy by the entirety, the latter being available only to married couples and providing significant creditor protection. The form of concurrent ownership deter - mines survivorship rights, transferability and exposure to claims of creditors. 2.2 Laws Applicable to Transfer of Title Fla. Stat. § 689.01 governs the transfer of title for free - hold estates (ie, estates for an indefinite term) and for estates with a duration of more than one year. It requires that any instruments conveying such estates shall be “signed in the presence of two subscribing witnesses by the party so assigning or surrendering, or by the party’s lawfully authorised agent, or by the act and operation of law”. Transfer of title generally occurs by deed. A deed is an instrument conveying real property from a gran - tor to a grantee and is classified by the warranties (covenants of title) it contains, which are enforceable promises by the grantor, including present covenants assuring ownership, authority to convey, absence of encumbrances at delivery and future covenants guar - anteeing defence of title, quiet enjoyment, and further assurances that define the scope of the purchaser’s protection during and after conveyance. Fla. Stat. § 689.02 provides a form of statutory war - ranty deed that the parties may use to convey title to property. The statutory warranty deed requires the grantor to fully warrant and defend title against the claim of third parties.
Under Fla. Stat. § 45.031, title to property can also be transferred via a certificate of title filed by the clerk of courts after a foreclosure sale has taken place and no objections are filed within ten days after the sale. Conveyances may also take place via a special war - ranty deed, by which the grantor only agrees to war - rant and defend title against acts of the grantor or anyone claiming title through the grantor. A quitclaim deed, instead, offers no such warranty of title and it is generally used in transfers between related parties. While Florida law does not mandate the use of a spe - cific deed to transfer title to specific types of property in Florida, the FR/BAR “AS-IS” Residential Contract for Sale and Purchase requires the seller to deliver a statutory warranty deed to the buyer. The FR/BAR “AS-IS” Residential Contract for Sale and Purchase, jointly developed by Florida Realtors and the Florida Bar and periodically updated, is the template most often used in Florida for the conveyance of residential property. 2.3 Effecting Lawful and Proper Transfer of Title A lawful transfer of title is accomplished by delivery to the grantee of a written instrument which meets the statutory requirements set forth in Fla. Stat. § 689.01. Specifically, the instrument needs to be in writing and signed by the grantor in the presence of two sub - scribing witnesses. The instrument, generally a deed, must contain ordinary words of conveyance evidenc - ing the intent to effect a transfer of real property ( Flinn v Van Devere , 502 So. 2d 454 (Fla. 3d DCA 1986), rev. den., 511 So. 2d 998 (Fla. 1987)). The deed must describe the property such as to identify it from oth - ers. A description is deemed sufficient if a surveyor could locate the land “in light of all facts and circum - stances referred to in the instrument” ( Mendelson v Great Western Bank , F.S.B., 712 So.2d 1194, 1196 (Fla. 2d DCA 1998)). The execution and delivery of a deed to the grantee is sufficient to transfer title between two parties and recording is not essential to its validity (see Sweat v Yates , 463 So.2d 306, 307 (Fla. 1st DCA 1984)). Recording is, however, required by law for the convey - ance to be “good or effectual in law or equity against
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