Page 83 - Akerman | 2016 Guide to Doing Business in Florida

absence of evidence to the contrary, that a marriage is continuous from the date of its
inception.

9.3.3 Alienation of Homestead Property

If record title to homestead property is vested in one married person, the spouse must join in
any mortgage, encumbrance, or conveyance of that property. However, in the absence of
spousal joinder, Florida courts may nonetheless impose a constructive trust or equitable lien on
the property in favor of a creditor where the mortgage is obtained by fraud and the subject
funds are used to acquire or improve homestead property. See, e.g., Hirchert Family Trust v.
Hirchert, 65 So.3d 548 (Fla. 5th DCA 2011).

If record title to homestead property is vested in one married person, upon the death of that
person, title vests in the surviving spouse if there are no lineal descendants. If there are lineal
descendants, the surviving spouse takes a life estate, and a vested remainder vests in the
lineal descendants. For surviving spouses who cannot afford / are not willing to assume the
burdens associated with a life estate, Florida Statutes § 732.401(2) allows the spouse to forgo
his/her rights to a life estate and instead take an undivided one-half in interest in the property,
with the other half passing to any lineal descendants, per stirpes. Such election is irrevocable
once made.

9.4 Purchase and Sale of Property
9.4.1 Purchase Agreements

In Florida, there is no general presumption that the initial purchase agreement is to be prepared
by seller or purchaser. Many commercial transactions begin with a non-binding letter of intent
and the parties then negotiate who will prepare the initial purchase agreement. In residential
transactions, it is common but not required that the purchaser will submit an initial purchase
agreement to the seller for the seller’s review.
Essential elements of a real estate purchase agreement under Florida law are: (a) identity of the
seller and purchaser, (b) the amount of consideration to be paid, and (c) an adequate
description of the subject real property. A description of the subject real property is considered
adequate if a land surveyor can locate the real property using such surveyor’s professional
training and tools. To comply with the Statute of Frauds, Florida Statutes § 689.01, a contract
to sell real property in Florida must be in writing, signed by the party to be changed and be
definite in its term without the use of parol evidence. Other typical provisions in a commercial
transaction may include deposit requirements; due diligence/inspection periods; title insurance
and survey review/objection periods; representations and warranties; conditions precedent to
closing; establishment of the closing date; the documents necessary for closing; required title
insurance; the allocation of responsibilities for payment of title insurance premiums,
documentary stamp taxes, and other closing costs and expenses; prorations of ad valorem real
estate taxes; time of the essence; default/remedy/specific performance provisions; grounds for
termination of the purchase agreement; non-jury trial and venue provisions; merger and
integration clauses; financing contingencies (if applicable); and provisions dealing with the
recording/non-recording of the purchase agreement or a memorandum thereof in the public
records.

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