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The common experience that most people have when they sign a document that requires notarization is begrudgingly printing the document, then driving to a bank or postal store that has a notary, showing the notary their identification, and then mailing or scanning their document to the party that requested the signature.   Generally speaking, this is highly inconvenient and to most lay persons, the process lacks any immediately identifiable reason for this seemingly archaic chore. 

The reason for notarization is to ensure that the person signing the document is the person who they claim to be. Fla. Stat. §117.05(5).  Notaries, which are statutorily appointed by the governor of the State of Florida, are authorized to administer oaths and acknowledgments.  Fla. Stat. §§ 117.03 and 117.04.  In administering these oaths or acknowledgments, the notary is performing the same function as a clerk or judge asking a witness in a courtroom “Do you swear or affirm the testimony you are about to give is true and correct.”

The notary is not “fact checking” the document to ensure its contents are correct; the only verification the notary is performing is the administration of the oath or acknowledgment and verify the identity of the person giving the oath or acknowledgement.  This verification is why notaries need to see the document being signed and why the notary should not affix their stamp to a document that was signed without their presence.

If the document (say a contract or deed) was ever challenged as being a forgery, the notarization is an added layer of protection for the parties to the document, as the notary verified the identity of the party who signed the document.  If the signature was forged, the forger could be criminally liable for perjury, as the forger lied to an appointee of the government (the notary). Fla. Stat. Chp. 837.  If the notary falsely or fraudulently acknowledges an instrument, they can be found guilty of a third-degree felony.  Fla. Stat., § 117.105.

At Mangrove Title & Legal, PLLC, we offer parties to the transaction the option to sign their closing documents remotely through RON.

If a party chooses this option, they must have the ability to video-conference using their smartphone, tablet, or laptop equipped with a camera and microphone.

If a party is using their smartphone or tablet to video-conference (presuming their laptop or desktop does not have a webcam), they must still have access to a laptop or desktop computer to complete the signing of the documents, as the mobile technologies have viewing limitations.

Our office can coordinate the scheduling of an appointment with our RON provider and one of our closing attorneys will attend the remote signing with the signer to answer any questions on the documents, just like an in-person closing.

The signer must upload a copy of their valid photo ID prior to the appointment and the RON service provider will ask the signer to answer several Knowledge Based Identification questions to verify the identity of the signer..

The signer then must display the photo ID to the RON service provider through their webcam.

Once the signer’s identity is verified, the closing attorney, RON notary and signer as well as any required witnesses (which are also provided by the RON service provider) go through the documents together and the signer electronically signs.

At the conclusion of the session, the RON notary affixes their seal and electronically transmits the documents to the closing attorney to complete the closing.  

This innovative technology gives parties the option to sign closing documents without physically having to travel to the closing table. 

Please keep in mind that any lenders involved in the transaction must approve the use of the RON notary prior to closing and there is an additional cost for this service. 

If you are interested in utilizing this option, please contact our office for more information.    

According to the National Association of Realtors, 86% of residential real estate buyers financed the purchase of their home. When a lender provides financing for such a purchase, the buyer agrees to pay the lender back via a contract called a note. 

At its core a note is a piece of paper to secure payment.  Most people carry around a number of notes in their wallet every day.  A U.S. Dollar Bill is a note. 

The paper on which a dollar is printed does not have any real intrinsic value. The value from the paper dollar comes from the idea that it can be exchanged for any debts that the person holding it might have, be the debts “public” or  “private.” The Federal Reserve secures the dollar paper with tangible and intangible property, such as gold and U.S. Securities.

A note (like the one used in real estate transactions), is defined as a “negotiable instrument,” which means “an unconditional promise to pay a fixed amount of money, with or without interest.” Fla. Stat. 673.1041. Much like a dollar, lenders can exchange the note to a third party; the benefit to the third-party is that the buyer/debtor is now obligated to pay the third-party.  We will discuss the transfer of notes later in this article, but the core idea is that whoever is holding the piece of paper on which the note is printed, has the right to collect on the underlying debt.

Prior to closing there are a number of agreements that are at play. If the lender did not pay the seller, on the buyer’s behalf, then the seller would not deed the real estate to the buyer. 

In order to make sure that the buyer pays back the lender under the note, the lender requires the buyer to also execute a mortgage in favor of the lender.  Only when the buyer is the owner of the property can the buyer execute a mortgage in favor of the lender.  See Fla. Stat. § 697.02. The mortgage also “attaches,” to the property, meaning if the buyer transferred the property to another person, dies, et c., the lender would still have the ability to enforce the mortgage against the new owner of the property.

The mortgage is crucial because if the buyer fails to pay the lender under the note for whatever reason, the lender has two choices:

1. Sue the buyer for the amounts due under the note and then attempt to collect the outstanding amounts due from the buyer personally; or,

2. Sue the buyer for the amounts due on the note and also seek to foreclose on the mortgage.  At the end of the foreclosure proceeding, the lender will request that the court auction the home.  The proceeds from the auction will then “make the lender whole” for the amounts due from the buyer/debtor.

If a buyer/debtor is not paying the lender the monthly payments, then generally the buyer/debtor does not have the cash to pay for the amounts due on the note.  This is one of the top reasons why lenders require the security in the form of a mortgage from the buyer when the lender provides money to the buyer under the note.

As mentioned above, a lender might sell a note after originating the loan.  The buyer of the real estate, who was initially obligated to pay back the lender, is now obligated to pay the third-party under the terms of the note.

Obviously, buyers need to be protected from multiple parties claiming that the buyer owes them money.  That is why it is crucial that lenders receive a “wet-ink” signature on the note at closing. Copies of the note are sufficient for record keeping purposes, but for enforcement purposes, the original controls. Think of it this way - you can’t photocopy a dollar bill and try to use it to pay for goods and services - you need the original printed by the U.S. Government.   If a buyer defaulted on their loan obligations and the lender sought to enforce the note, a lender would be required to present the original “wet-ink” note to a judge in order to collect on the note, or prove that the original was destroyed or lost. Fla. Stat. §§90.953, 90.954.

If a note is executed electronically and stored in only an electronic format, it is easy to see how buyers would not be protected, as there could be multiple files in the hands of multiple parties, each claiming that the buyer owes them money.  That is where eNotes steps in - to offer the protections of wet-ink, but in a digital format. 

The concept of eNotes is similar to that of BitCoin or other cryptocurrencies.  With cryptocurrencies, there is only one copy of the currency, stored in a secured electronic location. Much like cryptocurrency, a set of systems and processes are in place so that only one party is ever capable  of claiming ownership of the eNote.

eNotes are a creation of laws passed by state and federal government in the late 1990s and early 2000s. At the federal level, eNotes are governed by the Electronic Signatures in Global and National Commerce Act (“ESIGN Act”), 15 U.S.C. §§7001-31, and in particular are governed by 15 U.S.C. § 7021, “Transferable Records.” Florida, through the Electronic Signature Act, set forth a framework that largely mirrors the ESIGN Act. Fla. Stat. § 668.50.  For an eNote to be enforceable under Florida and federal law, the party seeking enforcement must show that the eNote is created, stored, and assigned in a way that ensures the accuracy, reliability, and security that wet-ink paper notes offer.  

The hurdles that accompany the construction, maintenance, and use of the software systems that ensure that eNotes are as reliable and enforceable as traditional notes has made the use of the tried and true paper notes the gold standard for lenders (and the investors that notes are sold to) in the twenty plus years since the enactment of the electronic signature laws.  However, the potential paradigm shift that may be underway due to COVID-19 (as it relates to eClosing) and technological advances that make such a transaction more cost effective, may lead to more lenders accepting eNotes in lieu of wet-ink.

A “pure” eClosing involves no paper documents, and the parties use electronic signatures to sign digital documents (think for instance, the use of DocuSign, but for the entire closing).  Some documents will still require notarization and will need to be completed with the virtual presence  of a Remote Online Notary.  The parties might “sit” at a virtual closing table, using video-conferencing software that has become the “new normal” in the past several weeks.  Lenders and title insurers may promulgate further policies and procedures that ensure the digital environment has the same safeguards that are present in a traditional in office signing.

The most common way to  transfer real property from one owner to another is by recording a document called a deed. There are different types of deeds depending on the covenants of title they contain. Some common types of deeds are warranty deeds, special warranty deeds, and quitclaim deeds. This article focuses on quitclaim deeds.

A quitclaim deed contains no covenants of title. The person who gives the quitclaim deed (aka the grantor) is essentially saying “Whatever I had in this property, you now have. Whatever defects exist on title like judgements, mortgages, code enforcement liens that have attached to the property, you now have. I quit!”

This differs from a typical sale, where the seller will transfer the property with a “warranty deed.” The “warranty” is the seller’s assurance that the buyer has clear title to the property and all covenants of title are contained in the deed. In contrast to a warranty deed, a quitclaim comes with no covenants of title.

Quitclaim deeds are commonly used when property is transferred outside of a sale.  These situations could include:

• Divorce. As part of many martial settlement agreements, the divorcing couple agrees to split their real estate assets. One spouse may continue to live in the property and the other spouse may leave. The spouse that is “quitting” the property may need to sign a quitclaim deed in order to comply with the marital settlement agreement.

• Marriage. If a spouse acquired real property prior to the marriage, the other spouse may not appear on title. By quitclaiming the property to themselves and their spouse, the real property becomes property of the married couple. If one spouse predeceases the other, and a quitclaim was recorded, then full title to the real property would automatically pass to the surviving spouse and no probate estate would need to be filed.

• Non-married partnership. There are many people in committed, long term relationships to each other. However, these people, for a number of reasons, may choose not to marry one another. Florida does not recognize common law marriage and does not recognize domestic partnerships at the state level. In order to afford marriage-like protections, one partner may quitclaim their interest in real property to themselves and their partner as joint tenants with rights of survivorship. This will ensure that when one partner passes, the other will be the owner of the real property.

• Business transfer. A landlord may have acquired real property under their personal name. They may decide to quitclaim the real property into a business entity, like an LLC, in order to rent the real property and take advantage of the protections of the corporate entity.

• Family relationship. An owner may wish to gift an interest in real property to another family member. 

• Boundary dispute between neighbors. Two property owners might wish to transfer a portion of a lot to their neighbor. For example, there may be a sliver of property on one side of a fence that one neighbor wishes to transfer to the next-door-neighbor.

• Smaller transactions or vacant land. Some transactions are small and the buyers may be comfortable with forgoing the cost of a title report and title insurance. A good example would be vacant land that cannot be built on and is used only for recreational purposes. In such an instance, the buyer needs to be aware of the potential risks of not performing a title search and risk of a foreclosure on the real property.

If a property owner uses an attorney, the attorney will consult with the property owner about their goals for the quitclaim. Is the current owner interested in adding someone to title, and if so, what stake will the new joint owner have? Is the property owner gifting land to a child? After consulting with the property owner, the attorney will prepare the quitclaim deed to ensure that the owner’s objectives are realized and that the legal description it accurate.

Next, an attorney can determine whether the transfer is exempt from documentary stamp taxes. In such a circumstance, the attorney will include the proper language in the quitclaim deed that explains why the deed is exempt from documentary stamp taxes.

Subsequently, deeds need to be properly signed, witnessed, and notarized to ensure that they are effectual. An attorney will coordinate the signing of the deed and ensure that it is properly witnessed and notarized.

Finally, a deed is only effective once it is recorded in the official records of the county where the property is located.  Once the deed is executed, the attorney will record the deed for the property owner. This recordation allows the tax collector and any other interested parties to know who is new owner of the real property.

Mangrove Title & Legal, PLLC prepares quitclaim deeds for real estate owners for a reasonable flat fee. Please feel free to call our office to discuss your needs. Generally, we can prepare, sign, and record your quitclaim deed within a week.

In Florida, each county property appraiser assesses all real property within their county as of January 1 each year.  Property taxes are paid in arrears (i.e. the taxes for 2025 are due in November of 2025, instead of the taxes for 2026 being collected in November of 2025).   The tax amount is based on the just value of each parcel of property and the applicable millage rates set by the local governments the properties are located within.   

Each August, the county property appraiser sends property owners within their county an annual Notice of Proposed Property Taxes, which is often called the “TRIM Notice” based on the Truth in Millage Act in Section 200.069, Florida Statutes.  After the local governments determine their annual budgets and adopt any changes in the millage rates, the county tax collectors send the property owners a tax bill in October or November.  

Property taxes are due by March 31, but there are discounts for paying the taxes before this due date.  For instance, there is a 4% discount for paying in November of the current tax year.  In December, that discount drops to 3%, and so on until March 31, when there is no discount. 

To apply for homestead exemption, the property owner must own the property on or before January 1 of the current year.  The application for exemption is due on or before March 1 of the tax year.

Under Article VII, Section 6 of the Florida Constitution and Section 196.031, Florida Statute, certain property owners in Florida are eligible for exemptions that can reduce their property tax liability by decreasing the property’s taxable value by up to $50,000.  The first $25,000 applies to all property taxes, including school district taxes.  The additional exemption up to $25,000 applies to the assessed value between $50,000 and $75,000 and only to non-school taxes.  To benefit from the Florida Homestead Property Tax Exemption, eligible property owners must apply to their local property appraiser.  In Brevard county you can apply here or with this form for 2022. 

Florida offers additional exemptions for military veterans with service connected disabilities.  Veterans applying for this exemption in Brevard County in 2022 should request the exemption on the application.  A veteran who is permanently disabled or the surviving spouse of a veteran or first responder who died in the line of duty, may apply for a total exemption from ad-valorem property taxes on the homestead property, pursuant to Section 196.081, Florida Statutes.  

If a military servicemember is deployed in the prior calendar year, then the servicemember may apply for an exemption from ad-valorem property taxes on the homestead property pursuant to Section 196.173, Florida Statutes.  If approved, the servicemember can receive a discount on the current year’s property taxes, prorated by the prior year’s service.  The servicemember may apply for the exemption with Form DR-501. 

A property owner who acquired title to the property before January 1 and who in good faith makes the property their permanent residence or the permanent residence of his or her dependent is eligible for the Florida Homestead Property Tax Exemption.  Below are answers to some frequently asked questions about eligibility for the Florida Homestead Property Tax Exemption:

• You can only claim the Florida Homestead Property Tax Exemption on one property.

• You can still receive the exemption if the property is owned by a trust or life estate so long as you have legal title or beneficial title to the property and are entitled to the use and occupancy of the property under the terms of the trust. See Rules 12D-7.009 and 12D-7.011, Florida Administrative Code.

• You can rent your home after January 1 of any year and still keep the exemption for that year, as long as the property is not rented for more than 30 days per calendar year for two consecutive years. See Section 196.061, Florida Statutes.

• Once approved, the exemption is automatically renewed each year as long as ownership and residence conditions remain the same for the property.

• If you add someone else as an owner of the property after you already had the exemption, you have to reapply for the exemption.

To apply for the Florida Homestead Property Tax Exemption, the property owner must complete Form DR-501 and submit it to the property appraiser in the county where the property is located by March 1, or if in Brevard County, by using the above links.  The property appraiser will also require specific proof demonstrating that the property is the applicant’s primary residence.  Most property appraisers will accept an applicant’s current deed, Florida drivers license showing the property address, and a utility bill for the property in the name of the applicant.  Other documents commonly accepted include a Florida vehicle registration, Florida voter registration, bank statements and checking account mailing address, address listed on last IRS return, and Social Security card.

• Section 193.155, Florida Statutes, establishes when a property value may be assessed. Most commonly, this is after a change in ownership.  While you technically cannot transfer your Florida Homestead Property Tax Exemption when you move from a previous Florida homestead to a new Florida homestead, you may be able to transfer or “port” all or part of your homestead assessment difference. 

• Section 193.155, Florida Statutes, establishes the “Save Our Homes” assessment limitation which limits annual increases in assessed value of property with a Florida Homestead Property Tax Exemption to 3% or the change in the Consumer Price Index, whichever is lower.  This Homestead portability allows eligible Florida homestead owners to transfer their Save Our Homes assessment limitation from their old homestead to a new homestead, lowering the assessed value for the new homestead. 

• To transfer or port the Save Our Homes benefit, you must establish a homestead exemption for the new home within 3 years of January 1 of the year you abandoned the old homestead (not 3 years after the sale).  You must file the Transfer of Homestead Assessment Difference Form DR-501T along with the homestead application Form DR-501 for your new home
  

“Force Majeure” refers to an unanticipated event or circumstance that makes performance of certain obligations under a contract difficult or impossible.  Most contracts contain provisions that dictate the effects of a Force Majeure event on the time frames for completing contractual obligations.  There is no statutory definition for Force Majeure. Therefore, what constitutes Force Majeure depends on the specific language in the contract in question, and how courts have previously interpreted similar Force Majeure situations.

The FAR/BAR Contracts define Force Majeure in Paragraph 18(G) as “hurricanes, floods, extreme weather, earthquakes, fire, or other acts of God, unusual transportation delays, or wars, insurrections, or acts of terrorism, which, by exercise of reasonable diligent effort, the non-performing party is unable in whole or in part to prevent or overcome.”  

Under this provision, the buyer and seller are not required to perform the contract obligations and are not liable to each other for damages when a Force Majeure event occurs and the Force Majeure event causes services essential for closing to be unavailable.  These services can include utilities such as electricity, water and sewer, as well as homeowners’ insurance.

If an event constituting Force Majeure causes services essential for closing to be unavailable, all time periods under the FAR/BAR Contracts are extended for up to 7 days after the Force Majeure no longer prevents closing.  

If Force Majeure continues to prevent performance for more than 30 days beyond the closing date, the FAR/BAR Contracts allow either party to terminate the contract by delivering written notice to the other party. In such an event, the buyer will receive a return of their earnest money deposit, thereby releasing the parties from all further obligations under the contract.

We most commonly see Force Majeure events causing closing delays for residential real estate transactions in Florida due to hurricanes.  

The most obvious concern for the parties when there is an impending hurricane is what happens in the event the hurricane causes damage to the property.  In that case, Paragraph 18(M) of the FAR/BAR Contracts provides that if the cost to repair the property does not exceed 1.5% of the purchase price, then the cost of repair is a seller obligation and the seller can escrow 125% of the estimated cost to complete the repairs at closing, so that the repairs can be completed after closing.  

However, if the cost to repair the property exceeds 1.5% of the purchase price then the buyer has the option to go forward with the purchase together with the 1.5% or to terminate the contract and receive a refund of their earnest money deposit, thereby releasing both parties from all further obligations under the contract. 

Beyond the risk of property damage posed by hurricanes, hurricanes can also delay closings by:

• Preventing a buyer from being able to conduct appraisals, inspections and walk-through obligations under the FAR/BAR Contracts; 

• Delaying any repairs that the seller agreed to make under the contract; 

• Causing utilities (such as electric, water, and sewer) to be unavailable; or, 

• Preventing homeowners insurance companies from binding policies for buyers.  

In these situations, the FAR/BAR Contracts Force Majeure provisions automatically extend the dates under the contract, including the closing date and inspection periods, for up to 7 days after Force Majeure no longer prevents performance.  If performance of contractual obligations is delayed by more than 30 days, then the FAR/BAR Contracts allow either party to terminate the contract and refund the earnest money deposit to the buyer, as mentioned earlier.  

In the event the parties choose to terminate, they should execute a Cancellation and Release Agreement memorializing that decision.