When Writing Can Go Wrong

A Recent Reminder on the Requirements of Florida's Statute of Frauds

Every purchase and sale of real estate begins with an agreement on the terms of sale. The question then is: at what point do you have an enforceable agreement?

Under Florida law, any agreement must contain basic elements to constitute a valid and enforceable contract. These generally include: 1) an offer; 2) an acceptance that mirrors the offer; 3) valid consideration; and 4) a sufficient specification of essential terms (in other words, the agreement must reflect a mutuality of obligation based upon a common intention.) Unlike certain other kinds of contracts that may not necessarily need to be in writing to be enforceable, in Florida all contracts concerning the sale of real estate must be in writing and signed – due to the Statute of Frauds.

The Statute Of Frauds

Under Florida Statutes section 725.01, commonly known as the Statute of Frauds, “no action shall be brought... upon any contract for the sale of lands... 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...” In other words, for an agreement concerning the sale of real estate to be enforceable in Florida, there must be a signed contract underlying the sale or, at the very least, some signed document or memorandum reflecting the essential terms of the sale; even unsigned documents or writings are insufficient.

This reality was recently exhibited in the case of Walsh v. Abate, 336 So. 3d 50 (Fla. 4th DCA 2022). In the Walsh case, a real estate agent emailed an offer executed by the prospective buyer to purchase a home for $3.1 million on the FR/BAR Contract. Id. at 52. The sellers’ agent replied via email that the sellers would only accept $3.4 million. Id. The buyer’s agent then responded via email that the buyer agreed to the price of $3.4 million with all other terms remaining the same. Id. The sellers’ agent confirmed via text message that the sellers “accept the $3.4 million.” Id. The buyer’s agent texted back, “perfect and confirmed. Thank you!” Several days later, the sellers’ agent again emailed the buyer’s agent, stating: “Please let the buyer know that the seller thanks him for his patience and accepts $3.4 million.” Id. Thereafter, an attorney for the sellers emailed the buyer to inform him that the “Seller accepted a different offer.” Id.

The prospective buyer commenced a lawsuit against the sellers seeking specific performance, alleging that a binding contract existed between the parties by virtue of the emails and text messages exchanged between the agents for the parties. The trial court dismissed the case, which was affirmed on appeal. In its opinion, the Fourth District Court of Appeal explained that dismissal of the case was appropriate because there was no written agreement signed by the parties as required by the Statute of Frauds, but only “unsigned text messages and emails exchanged between the buyer’s and sellers’ agents.” Id. The Court also pointed out that the FR/BAR contract itself contemplates countersignature of the contract (or a counteroffer initialed and signed by both parties) to be enforceable by virtue of the effective date being defined as “the date when the last one of the Buyer and Seller has signed or initialed and delivered this offer or final counter-offer.” Id.

What this means in practice is that no matter what may be said or communicated in negotiation, even in the form of written communications, an agreement for the purchase and sale of real estate has not been reached until there is a signed contract. If you do not have this, you likely do not have an enforceable contract for the sale of real estate in Florida.

*This article is meant for educational purposes only. It is not intended to serve as legal advice and should not be used as a substitute for consultation with an attorney.