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Homestead Sale/Purchase Contracts & Witness Signature Issues

Prepared by: Kristy L. Harrington, Esq.

The 1968 amendment of Article X, Section 4(c) of the Florida Constitution dispensed with any requirement that a contract for the sale of homestead property contain two witness signatures.

Prior to 1968, Article X, Section 4(c) of the Florida Constitution stated, in pertinent part, that “Nothing in this Article shall be construed to prevent the holder of a homestead from alienating his or her homestead so exempted by deed or mortgage duly executed by himself or herself . . .” Courts commonly interpreted the language “duly executed” to mean that a mortgage on homestead property must be executed with the same formalities as a deed, which, pursuant to Section 689.01, Florida Statutes, requires the signatures of two subscribing witnesses.1

Following this logic, various Florida courts have held in the past that a contract for the sale of homestead property, which contemplates the creation of a deed, must also contain two witness signatures.2 Notably, in so holding, some of these same courts also acknowledged there is no actual, specified requirement in this regard.3

However, the 1968 amendment to Article X, Section 4(c) did away with the above- referenced language, including the term “duly executed.” The new Article X, Section 4(c) merely advises, in pertinent part, that “The owner of homestead real estate, joined by the spouse
if married, may alienate the homestead by mortgage, sale or gift . . .” This particular language still governs today. As a result, courts have begun to note that the removal of “duly executed” from Article X, Section 4(c) indicates a departure from the requirement for two subscribing
witness signatures on mortgages and/or contracts for sale.4 As the Second District Court of Appeal noted, “the language of the new provision has been rephrased in the form of an authorization to alienate the homestead rather than as an exception to a restriction against
alienation . . .”5 The Florida Supreme Court’s 1957 decision was historically the case most courts relied upon in holding that a contract for the sale of homestead property must contain two witness signatures.6 In its analysis of the issue, the Court considered, inter alia, Section 689.01, Florida Statutes, and Chapter X, Section 4(c) of the Florida Constitution, which had not yet been amended. Accordingly, the post-1968 court decisions which relied upon the Florida Supreme Court’s 1957 decision are inaccurate, as they failed to even visit the 1968 removal of “duly
executed” from Chapter X, Section 4(c).7

Moreover, as the Second District acknowledged in 1978, Section 689.01, Florida Statutes, does not apply to any contracts to sell or transfer real estate, although a property owner who signs such a contract may legally bind himself to execute a deed.8 The court therefore analyzed the origin of the perceived requirement for two witness signatures on contracts to sell homestead property.9 Its analysis concluded this was grounded on the language “duly executed” in “the old constitution.” 10 As such, the Second District explained that “Section 689.01 was only pertinent for the purpose of determining what these words meant.”11 Now that “duly executed” no longer appears in Chapter X, Section 4(c), contracts to sell homestead property easily fall into the same category as contracts to convey any other kind of real estate.12 The Fourth District Court of Appeal agreed, stating,

The [Second DCA] declined as legislative prerogative to undertake to interpret Section 689.01 ‘to require two witnesses on a contract to convey homestead realty when the same statute has always been construed as not requiring two witnesses on a contract to convey non-homestead realty. We agree with the [Second DCA].13