Witnessing Lease Agreements: What Did, and Did Not, Change
Prior to July 1, 2020, some landlords and tenants did not realize their lease agreement contained a minor defect which undermined the enforceability, in whole or in part of the lease agreement itself. Leases for a term of more than one year were distinguished under Florida law and an interest in real estate for a term of years and Section 689.01(a) of the Florida Statutes required two witnesses for the lease to be valid. When Governor DeSantis signed HB469 on June 27, 2020, the witness requirement for leases was removed from Section 689.01, meaning that, moving forward, leases, regardless of the length of the term, or their character as residential or commercial are effective with the signature of both parties, even if there are no witnesses to the document.
The problems addressed by the changes
For the past two decades, digital signatures on leases were statutorily recognized but that often-made witness execution a complicated affair. The question of whether witnesses needed to be present with the landlord or the tenant when they signed was challenged when other lease issues arose, as did the question of how you prove compliance with the witness requirement. Likewise, there were conflicting rulings on the overall impact of the lack of witnesses. Some courts have ruled the lease became a written memorandum supporting a month to month lease term. Other courts would find the lease valid for the first year, and then would become month to month. Others still took an equitable approach when the lack of witnesses was raised many months or years down the road and found the conduct of the parties, in using the space and collecting the rent, supported a lease’s validity despite the lack of signatures. In each instance, the validity or length of the lease term needed to be decided by the court based on the given facts of the case or needed to be agreed upon by the parties to avoid litigation. The change addresses this uncertainty for all leases executed on or after July 1, 2020, by striking the witness requirement.
The effective date of the statute being July 1, 2020, begs the question of whether the change affects existing contracts. The statute does not clearly address this, but it does speak in very clear affirmative prospective terms. The change reads “…provided, however, that no subscribing witnesses shall be required for a lease of real property or any such instrument pertaining to a lease of real property…” As existing contract rights are strongly protected by the constitution, a strong argument can be made that the statue is only prospective in nature. Therefore, the problems mentioned earlier (validity, term of lease) remain as to all leases executed on or before June 30, 2020.
If you are a landlord or tenant, review your existing lease(s) and identify any previously overlooked defects in execution and make note of them. If such defects are found, you then need to consider whether the case law in your jurisdiction is favorable to enforcement or invalidation of your lease and consider your options to resolve or address the defect. Especially in these pandemically influenced times, it may be time to sign with your attorney and determine if your lease rights are different than you thought.