By: Peter J. Pike, Esq., Pike Law Firm, PA

There are a lot of forms that REALTORS® use in their work, but two stand out as absolutely essential: the listing agreement and the purchase and sale agreement (PSA). Knowing the right person(s) to sign these documents ensures that the agreements are valid.

Do Your Research

Before signing a listing agreement, you should always look up the most recent deed for the property so that you know who actually owns it. Is it owned by a married couple, an entity (e.g., a corporation or LLC), or held in trust? If it is owned by individuals, are they alive and competent? Is this homestead property?

The answers to the above questions may lead you to have to do additional research. If the property is held by an entity, you will need to find out in which state the entity was formed, to look up who has the authority to sign on behalf of that entity. You should always look at the Florida Department of State’s website, www.sunbiz.org, to determine whether the company is licensed to do business in the state of Florida (note, generally speaking, merely buying, selling, mortgaging, or holding real property is not considered activities that would require a company to be licensed to do business in the state of Florida). Different types of entities have different rules as to who may sign and bind the company.

Homestead Protections

If the property is owned by a married person, a determination should be made whether the property constitutes homestead property. There are actually three different homestead protections, and simply because one does not apply does not necessarily mean that the others do not apply! Most Florida agents are aware of the real property tax exemption available for homestead. However, just because a seller does not have the homestead exemption on their property does not mean it is not protected homestead under the Florida Constitution. Article X, Section 4(c) of the Constitution prohibits a Florida resident from devising homestead property by will or trust if the decedent has a minor child or surviving spouse. For example, if the owner did not file for the homestead tax exemption, the spousal homestead rights under the Constitution would still be in place. For our purposes, this means that even if only one spouse is on the deed, both will need to sign so that any spousal rights under the Constitution are also conveyed.

If the property is titled in a trust with one or more trustees, then unless the deed specifically notes that only one trustee is needed to act on behalf of the trust, all of the named trustees must sign. If one of the trustees is an entity, you will need to look up that entity to see who can sign for it. If one of the trustees has died, or is no longer competent, you may need to see the trust document itself, to figure out who can now sign for the trust.

Power of Attorney

Further muddying the waters would be when your customer wants to use a power of attorney (POA) to execute documents. The POA must include language that the agent can sell and convey real property. Even with that language, if the property is owned in trust or by an entity, the POA probably will not be effective.

What if the Owner Dies?

What happens when an owner (individual, trustee, manager of an LLC, or officer of a corporation) dies? Depending on how the property was titled (husband and wife; joint tenants with right of survivorship, tenants in common, named successor trustees in the deed, etc.) can mean that simply having the death certificate would be enough, to requiring that a probate be opened, and a personal representative named before any contracts could be binding upon a seller.

If you are confused by this (and you should be!), then make sure that you either attend the upcoming class on Who Signs the Deed?, being presented through the Realtor® Attorney Joint Committee on March 27, 2023, at 1:30 PM at RASM South, or speak with your friendly neighborhood real estate attorney to ensure that you get the right person(s) to sign your agreements.