The Statute of Frauds and its effect on real estate transactions in Florida

Simply stated, the statute of frauds declares that agreements for the sale of any interest in real property or for the lease of realty for a period longer than one year are invalid unless memorialized in a writing. It is important to note that an agreement deemed to be invalid and in violation of the statute of frauds is likely not illegal and can still be performed if not challenged. Florida’s statute of frauds is set forth in Florida Statute 725.01 and provides in pertinent part:

No action shall be brought … upon any contract for the sale of lands, tenements or hereditaments, or of any uncertain interest in or concerning them, or for any lease thereof for a period longer than 1 year, or upon any agreement that is not to be performed within the space of 1 year from the making thereof, … unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.

Florida’s statute simply requires that a note or memorandum be in writing, not necessarily the contract itself, and that the writing be signed by the party to be changed (or an authorized agent of the party to be charged). While Florida’s minimal information requirement is not stringent, market participants would be wise to ensure that their writings are as detailed as possible so as to provide clarity and guidance. Additional information could include, but is not limited to, 1) the identities of all parties to the agreement 2) the price 3) a description of the subject property 4) financing terms and contingencies, if applicable, and 5) all other essential terms to the agreement. The purpose of the statute of frauds from its origination has been to discourage fraudulent activity and dishonesty; and as such, it plays a valuable and important role in the Florida real estate industry.