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Published: Aug 18, 2022
Updated: May 24, 2023
Under Florida law, a deed is a written instrument that creates, makes, grants, transfers, or releases an estate, a freehold interest, or an interest for a term of more than one year in, of, or out of any messuages, lands, tenements, or hereditaments. Deeds must be signed by the vendor, or their agent, in the presence of two subscribing witnesses.
A deed that follows the form for warranty deeds as prescribed in the Florida Statutes is “held to be a warranty deed with full common-law convenants . . . .” This refers, among others, to the covenant of seisin, the covenant of quiet enjoyment against encumbrances, and the covenant of warranty and defense.
The covenant of seisin is an assurance by the seller that the property they are claiming to be selling is in fact their property.
The covenant against encumbrances is the right to be the only one with a claim to the property, with no other claims that may diminish the value of that property being valid. In other words, the covenant against encumbrances is a guarantee that there are no other claims on a property currently existing.
The covenant of quiet enjoyment applies the guarantee of the covenant against encumbrances to future possible claims.
The covenant of warranty and defense is a guarantee by the seller of the legitimacy of the ownership over the property which they are transferring to the purchaser.
Deeds which follow the form prescribed by law are deemed to be warranty deeds with “full common-law covenants” as though they explicitly enumerated those covenants.
These covenants help determine what kind of rights a purchaser may have if there are problems with title after closing, including some of those founded in fraud.
A quitclaim deed is a deed conveying ownership rights like with a warranty deed, but without any guarantees by the seller that their ownership of the property is exactly as they have claimed it to be. A quitclaim deed transfers the actual ownership stake seller has in the land only and not the stake they claim they have. This presents a challenge in remedying a transfer involving fraud. If the seller of a property is merely offering to give up any rights they have in the property, but makes no promises as to quality of title and the seller didn’t actually own the property, then the purchaser has a difficult battle to recover what she paid. The buyer must prove not only that she didn’t receive what she bargained for, she must also prove that the seller met the element of intent in fraud, rather than mere ignorance as to the state of title.
A bona fide purchaser is an individual who paid to obtain title to a property with no knowledge of another individual’s claim against the same property. Individuals who purchase a property but do not record the deed could have their claim to that property extinguished if a second buyer purchases it without notice or knowledge of the first buyer’s existing title claim. There are three forms of notice: actual, implied, and constructive. Florida courts have described each as follows:
”Actual notice” stems from actual knowledge of the fact in question. “Implied notice” is factual inference of such knowledge, inferred from the availability of a means of acquiring such knowledge when the party charged therewith had the duty of inquiry. “Constructive” notice is the inference of such knowledge by operation of law, as under a recording statute.
In essence, actual notice is when someone saw, was told about, or had some kind of first-hand knowledge of the existence of a claim. Implied notice is often found when someone could have discovered the existence of a claim upon a reasonable inquiry, such as driving by a recently purchased home and seeing cars in the driveway and someone mowing the lawn. The most common type of constructive notice is when a claim, such as a mortgage, is recorded in the official records and would have been easily discovered simply by looking in the records. A more difficult claim for constructive notice is when there is an error in the legal description so that the claim wouldn’t be easily discovered.
It was once the case that purchasers of property through a quitclaim deed could not claim to be bona fide purchasers, but this has since been changed by statute.
Title to a property is an abstract concept that stands for the rights that one or more individuals have to a particular piece of property. Those rights are given to them by others who had title themselves, often with a long chain going back hundreds of years. This is referred to as the “chain of title.” The chain of title can prove or disprove rightful ownership interest in a property and is frequently at the center of fraudulent deeds. A wild deed is a deed which exists outside this chain of title. A wild deed is a deed that grants rights over or interest in property from an individual who does not appear to have had an ownership interest at the time the deed was executed; it does not fit within the chain. Sometimes, wild deeds arise out of forgeries or were based on fraud or even mistake, but can eventually cause problems for future property owners.
Title companies and real estate attorneys, those who are charged with researching this chain of title and discovering defects such as wild deeds would have a much more difficult job if they were required to research the chain of title for all eternity. Thus, states enacted laws that helped to ease that burden by cutting off certain claims and interests beyond a set time period. Florida’s version of this law is known as the Marketable Record Title Act or “MRTA” and is found in Chapter 712 of the Florida Statutes.
MRTA provides that all claims and interests to a property are extinguished if the claim or interest arose before the effective date of the root of title. “Root of title” refers to “ . . . any title transaction purporting to create or transfer the estate claimed by any person which is the last title transaction to have been recorded at least 30 years before the time when marketability is being determined.” In practical terms, wild deeds, if left recorded and then relied upon later by subsequent purchasers (effectively creating a second chain of title) may become valid deeds; likewise, wild deeds that are recorded but never relied upon by subsequent purchasers may have a 30 year expiration date and can then be disregarded.
The Supreme Court of Florida has held that wild deeds can serve as the legitimate root of title under the Marketable Record Title Act. Thus, the possession of title to a property through a wild deed may become legitimate when thirty years passes from the date the wild deed is recorded.
When a seller lies about a “material fact” about the property to a purchaser to the purchaser’s detriment, the seller committed fraud. For a fact to be material, it “must affect the value of the property or cause loss to the purchaser.”
For example, if a seller and purchaser sign a purchase agreement and then the seller later lies to the purchaser, the seller can still be liable for fraud, but only on the contract if the lie was made before the execution of the agreement and the purchaser reasonably relied on that lie to execute the contract.
In Florida, Sections 540 and 541 of the Restatement (Second) of Torts sets the standard for when purchasers can rely on the word of sellers and still be able to hold them liable for any fraud they commit . Section 540 provides that a purchaser is justified in relying on a seller’s word about a property even if they could have learned the truth by investigating; section 541 provides that a purchaser is not justified in relying on a seller’s word if he knows they are false, or such falsity is obvious.
Further, the Florida Supreme Court adopted the comments which are appended to the sections of the Restatement, one of which clarifies that under section 541, a purchaser “cannot recover if he blindly relies upon a misrepresentation the falsity of which would be patent to him if he had utilized his opportunity to make a cursory examination or investigation.”
If a purchaser has the opportunity to inspect and discover a defect in the property, but chooses not to, the purchaser cannot then claim to have been misled by the seller. If the purchaser does attempt to conduct an inspection, but the seller actively tries to conceal any defects, the seller cannot shield themselves from liability.
Caveat emptor is the doctrine that buyers are expected to trust but verify the word of the seller, and, absent reasonable attempts to make this verification, the seller is generally not liable for any defects in the property.
The Supreme Court of Florida has held that this doctrine does not apply to residential real estate transactions but continues to apply for commercial real estate transactions. Thus, for residential real estate transactions, if there is a defect in the property that materially affects its value, there is a duty to disclose. Conversely, in commercial real estate transactions, there is, at the moment, no such duty.
Caveat emptor also does not apply as a shield in situations where trickery is used to prevent the purchaser from making an independent inquiry, where one party does not have equal opportunity to learn the truth, and where one party discloses some facts but not all of them.
The Florida Statutes require that a deed be signed by the grantor and subscribed to by two witnesses. Though forging a signature on a deed is a kind of fraud, it is subject to legal standards that are distinct from fraud. While fraud may be proven on the basis of clear and convincing evidence, forgery must be proven based on a preponderance of the evidence.
Under the Marketable Record Title Act (MRTA), a forged deed can serve as the legitimate root of title to a property, as is the case with a wild deed, but only if it met the requirements under MRTA.
A deed that is proven to be forged is automatically void, rather than voidable, and completely fails to pass title. Thus, any subsequent conveyances on the basis of the forged deed also are void. In other words, if a bona fide purchaser for value, someone who has no knowledge of the forgery, pays full purchase price for a property in reliance of the deed’s validity, the conveyance is still void and they will have no rights to the property.
When a deed is made with all the proper requisites, but the deed was based on fraudulent inducement, the deed is voidable. A voidable deed is one that can be voided at the option of one or more parties, depending on the circumstances. Fraudulent inducement is when a party to a contract is induced to execute that contract on the basis of fraud. The individual who was defrauded may then void the contract on that basis.
If the purchaser uncovers information that warrants cancellation of the contract, the purchaser, assuming she is under no fraud or duress, can still elect to ratify the contract. This is true for property conveyances as well. To ratify the contract, the purchaser need only act in such a manner that recognizes the contract as subsisting, or in a manner inconsistent with the intent of avoiding it. Individuals electing to ratify a contract cannot later attempt to have it rescinded.
In the event of a fraudulent transaction, the purchaser is entitled to recover all the funds they paid and to have their purchase money notes and mortgages cancelled. Generally, a contract will not, however, be rescinded if it is not possible to return the opposing party to their position before the contract was made, even in the event of fraud.
Misrepresentation is only grounds for rescission by the purchaser if that misrepresentation served to induce them to contract.
In addition to other remedies, when a seller commits fraud to induce the sale of property, punitive damages may be awarded to the purchaser in addition to the other remedies discussed above.
The standard of proof in a case involving deed fraud is clear and convincing evidence. However, an allegation that a deed’s signatures have been forged is judged based on the preponderance of the evidence.
Clear and convincing evidence, the standard for fraud, means evidence “. . . sufficient to convince ordinarily prudent minded people . . . .” Preponderance of the evidence, the standard for deed forgery, refers to the “greater weight of the evidence” for a certain proposition. The clear and convincing evidence standard is an “intermediate” level standard, meaning it is more rigorous than the preponderance of the evidence standard and requires more proof.
The Florida Statutes require that, by default, only the original copy of a writing or recording can be admitted as evidence of that writing or recording’s contents. “Writing” in this context means “letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing . . . upon paper . . . or other materials.” This requirement applies to deeds.
Thus, there are additional hurdles to overcome when attempting to prove fraud or forgery when the original deed is lost, destroyed, stolen or otherwise unavailable.
Title insurance is a type of insurance policy that may help purchasers and lenders protect themselves when there is a defect in title, such as wild deeds, forgeries, and fraud.
Fraud is a serious issue in real estate transactions, but there are rules in place that protect purchasers. If a purchaser is the victim of fraud, they may be able to recover damages, void the deed, and rescind the contract to be made whole again. They may also be able to make a claim on their title insurance policy, if purchased.
 Fla. Stat. § 689.01 (2022).Id.
 Fla. Stat. § 689.03 (2022).
B.W.B. Corp. v. Muscare, 349 So. 2d 183, 184 (Fla. 3d DCA 1977) (“The usual common law covenants included in a warranty deed in Florida are the covenants of seisin . . ., quiet enjoyment against encumbrances and that the grantor will warrant and defend the title.”); but see, Brooks-Scanlon Corp. v. Arbuthnot, 116 So. 237, 238 (1928) (describing the covenant of seisin and good right to convey as a singular covenant and holding in that case that“[i]n [that] declaration was combined a covenant of seizin and good right to convey and a covenant of warranty of title. The breach is alleged of both covenants”).
 Burton v. Price, 141 So. 728, 729 (Fla. 1932).
 Gore v. Gen. Props. Corp., 6 So.2d 837, 839-40 (Fla. 1942).
 Id. at 698 (quoting “Thompson on Real Property”) (“The covenant against encumbrances is a covenant in praesenti, and is broken as soon as made, if there is an outstanding paramount title, or any existing charge, burden, or interest diminishing the value or enjoyment of the land”).
 Id. at 698-699 (quoting “Thompson on Real Property”) (When, however . . . [the covenant against encumbrances] is coupled to the covenant for quiet enjoyment, immediately following it and connected with it by the word ‘and’, it may be a covenant in futuro . . .”).
 See Harris v. Sklarew, 166 So.2d 164, 166 (Fla. 1964) (quoting Professor Boyer’s “Florida Real Estate Transactions”) (“. . . [T]he general warranty covenant . . . warrants against the claims of ‘all persons whomsoever.’”); see also Fla. Stat. § 689.02 (2022) (“. . . [T]he said party of the first part does hereby fully warrant the title to said land, and will defend the same against the lawful claims of all persons whomsoever”).
 Fla. Stat. § 689.03 (2022).
 See, Pierson v. Bill, 182 So. 631, 634 (Fla. 1938) (using the definition found in Black’s Law Dictionary).
 Id. at 635 (quoting Alsterberg v. Bennett, 106 N.W. 49, 51 (N.D. 1905)) (“The absence of express or implied covenants in a deed is equivalent to an express declaration therein that the grantor assumes to convey only his right or interest, whatever it may be, and that he declines to bind himself to do more.”); See also Miami Holding Corp. v. Matthews, 311 So. 2d 802, 803 (Fla. 3d DCA 1975) (“It is well established that the execution of a quitclaim deed, without more, does not necessarily import that the grantor possesses any interest at all and if the grantor has no interest in the land described at the time of conveyance, the quitclaim conveys nothing to the grantee”).
 Harkless v. Laubhan, 278 So. 3d 728, 733 (Fla. 2d DCA 2019) (“A party is a bona fide purchaser only when three conditions are met: (1) the purchaser obtained legal title to the challenged property, (2) the purchaser paid the value of the challenged property, and (3) the purchaser had no knowledge of the claimed interest against the challenged property at the time of the transaction”).
 Fla Stat. § 695.01 (“No conveyance . . . of real property . . . shall be good and effectual in law or equity against . . . subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law[.]”) (2022).
 See McCausland v. Davis, 204 So.2d 334, 335 (Fla. 2d DCA 1967).
 Id. at 335-336.
 Pierson at 635 (quoting Babcock v. Wells, 105 Am. St.Rep. 854, 858 (R.I. 1903)) (“The argument has generally prevailed that as a quit-claim deed purports to convey only the interest of the grantor, it cannot have any operation when he has already parted with his interest, and that it is not material that his grantee had no actual notice of that fact; that the restricted language of the conveyance is equivalent to notice and, as a final result, that he who accepts such a conveyance cannot, within the meaning of the registry acts, be a bona fide purchaser . . .”).
 See Fla. Stat. § 695.01(2) (2022).
 City of Miami v. St. Joe Paper Co., 364 So.2d 439, 447 (Fla. 1978) (“This can be so even though a deed is not part of the chain of title emanating from the sovereign and is therefore often called an ‘interloping’ or ‘wild’ deed”).
 Fla. Stat. § 712.001 (2022).
 Fla. Stat. § 712.04 (2022) (“. . . a marketable record title is free and clear of all estates, interests, claims, covenants, restrictions, or charges, the existence of which depends upon any act, title transaction, event, zoning requirement, building or development permit, or omission that occurred before the effective date of the root of title”); see also Fla. Stat. § 712.02 (2022) (“Any person having the legal capacity to own land in this state, who . . . has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims. . . ”).
 Fla. Stat. § 712.01(6) (2022).
 City of Miami at 447 (“This court . . . ha[s] made it clear that the Marketable Record Title Act deviates from common law and prior statutes and, by dicta, ha[s] said that a wild deed, properly executed and recorded, may establish a new and valid title after 30 years”).
 Id. at 447.
 Johnson v. Davis, 480 So.2d 625, 627 (Fla. 1985) (“In the state of Florida, relief for a fraudulent misrepresentation may be granted only when the following elements are present: (1) a false statement concerning a material fact; (2) the representor's knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and, (4) consequent injury by the party acting in reliance on the representation”).
 Pryor v. Oak Ridge Dev. Corp., 119 So. 326, 329 (Fla. 1928) (citing Pomeroy Equity Jurisprudence § 887).
 Johnson at 627 (finding that the affirmative statement that there were no issues with the home’s roof after receiving an initial deposit payment, but before receiving an additional deposit payment, was a false representation of material fact).
 See Winfield Invs. v. Pascal-Gaston Invs., 254 So.3d 589, 593 (Fla. 5th DCA 2018) analyzing the Florida Supreme Court’s holdings with regard to a purchaser’s reliance on the seller’s representations about a property.
 Id. at 593 (quoting Besett v. Basnett, 389 So.2d 995, 997 (1980) (quoting the Restatement (Second) of Torts § 540-541))
 Besett at 997.
 Beagle v. Bagwell, 215 So.2d 24, 25 (Fla. 3d DCA 1968) (“[W]here a purchaser of a house has ample opportunity to inspect . . . or obtain an expert for that purpose and elects instead to accept as true the vendor's statement . . . , the purchaser could not assert that he had been misled by the vendor's representations”).
 Id. at 26 (“In essence, then, where a vendor by his actual deception, artifice, or misconduct conceals the evidence of a defective condition in such a way as to render it incapable of detection from a reasonable and ordinary inspection of the house, the vendor can no longer rely upon the purchaser's duty to inspect . . . .”).
 Haskell Co. v. Lane Co., 612 So.2d 669, 671 (Fla. 1st DCA 1993) (quoting Biff Craine “Real Property – Seller’s Liability for Nondisclosure of Real Property Defects”) (“The doctrine of caveat emptor (literally, ‘let the buyer beware’) provides that, when parties deal at arm's length, buyers are expected to fend for themselves, protected only by their own skepticism as to the value and condition of the subject of the transaction. Absent an express agreement, a material misrepresentation or active concealment of a material fact, the seller cannot be held liable for any harm sustained by the buyer or others as the result of a defect existing at the time of the sale.”) (quotations omitted) (citations omitted).
 Johnson at 627-628 (Holding, in the context of a residential real estate transaction, “It would be contrary to all notions of fairness and justice for this Court to place its stamp of approval on an affirmative misrepresentation by a wrongdoer just because it was made after the signing of the executory contract when all of the necessary elements for actionable fraud are present.”); see also Green Acres, Inc. v. First Union Nat’l. Bank of Fla., 637 So.2d 363, 365 (Fla. 4th DCA 1994) (“We do not agree that Johnson extended the duty to disclose to commercial real estate transactions”).
 Johnson at 629 (“[W]here the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer”).
 Green Acres at 365. (“While the first district [court of appeals] expressed a desire to extend a duty to disclose known material facts to commercial transactions, it recognized the appropriate procedure was to certify the question to the supreme court [of Florida] which it did. Unfortunately the supreme court did not answer the question”).
 Green Acres at 364 (“Exceptions arise: 1) where some artifice or trick has been employed to prevent the purchaser from making independent inquiry; 2) where the other party does not have equal opportunity to become apprised of the fact; and, 3) where a party undertakes to disclose facts and fails to disclose the whole truth”).
 Fla. Stat. § 689.01 (2022).
 Pate v. Mellen, 237 So.2d 266, 267 (Fla. 1st DCA 1970) (“Although admitting that there exists a legal distinction between fraud and forgery, appellant reasons that since forgery is a species of fraud, the same rule applicable to the burden of proof in establishing fraud should be applied in establishing forgery. With this contention we are unable to agree”).
 Id. at 267 (quoting Coulter v. Clemons, 372 S.W.2d 396 (Ark. 1963) (“This is not a case where it is contended that a deed was obtained by duress of fraud; under those circumstances, the law requires that the proof be clear, cogent and convincing . . . . Here, it is simply asserted by appellee that the deed was a forgery, and the quantum of proof necessary to sustain such an allegation is a preponderance of the evidence”)).
 Marshall v. Hollywood 236 So.2d 114, 116 (Fla. 1970) (“The District Court held, in effect, that the [Market Record Title] Act confers marketability to a chain of title arising out of a forged or a wild deed, so long as the strict requirements of the Act are met. We affirm this decision”).
 See, Knowles v. Edwards, 967 So.2d 255, 257 (Fla. 3d DCA 2007)
 See McCoy v. Love 382 So.2d 647, 649 (Fla. 1979) (“Where all the essential legal requisites of a deed are present, it conveys legal title. Fraud in the inducement renders such a legally effective deed voidable in equity”).
 Hendricks v. Stark, 126 So. 293, 294 (Fla. 1930) (applying rules for rescinding a contract to a deed) (“Where a party, with knowledge of facts entitling him to rescission of a contract or conveyance, afterward, without fraud or duress, ratifies the same, he has no claim to the relief of cancellation. An express ratification is not required in order thus to defeat his remedy[.]”).
 Id. at 297 (“It has been repeatedly held that a person by the acceptance of benefits may be estopped from questioning the validity and effect of a contract; and, where one has an election to ratify or disaffirm a conveyance, he can either claim under or against it, but he cannot do both . . .”) (emphasis added).
 Id. at 294 (. . . [A]ny acts of recognition of the contract as subsisting, or any conduct inconsistent with an intention of avoiding it, have the effect of an election to affirm”).
 Id. at 294 (“One having election to ratify or disaffirm conveyance having adopted one course with knowledge of facts cannot afterwards pursue the other”).
 Niesz v. Gehris, 418 So.2d 445 (Fla. 5th DCA 1982) (“In an action for rescission for substantial nonperformance of a contract, as in an action for rescission for misrepresentation in the inducement to enter into the contract, the buyers would have to return the property and all benefits received and would have been entitled to recover all funds paid and cancellation of their purchase money notes and mortgages”) (emphasis added).
 Royal v. Parado, 462 So.2d 849, 856 (Fla. 1st DCA 1985) (“Generally, a contract will not be rescinded even for fraud when it is not possible for the opposing party to be put back into his pre-agreement status quo condition”).
 Pryor at 329 (“The misrepresentation to constitute ground for rescission must have been an inducement to the contract, otherwise it will be no ground for avoiding it”).
 Gold v. Wolkowitz, 430 So.2d 556, 557-558 (Fla. 3d DCA 1983) (“We see no difference in the issues as framed in Besett and those present in the case sub judice. Both Wolkowitz and Ward knew that there was a cloud on the title to the real property in question. Despite their knowledge Ward prepared, and Wolkowitz executed, the affidavit reflecting no clouds on the title. Fraud in the inducement will support a punitive damage award”).
 Pate at 267 (quoting Coulter).
 Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983) (quoting Rowland v. Holt, 70 S.W.2d 5, 9 (Ky. 1934)
 Gross v. Lyons, 763 So.2d 276, 280 (Fla. 2000) (footnote 1) (quoting Black’s Law Dictionary).
 S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC, 139 So.3d 869, 872 (Fla. 2014).
 Fla. Stat. § 90.952 (2022).
 Fla. Stat. § 90.951 (2022).
 Griem v. Zabala, 744 So.2d 1139, 1140 (Fla. 3d DCA 1999). (“Section 90.952, Florida Statutes (1995), requires that the original writing be offered when proving the contents of the writing . . . . Because a deed gives rise to a legal right, the contents of the deed are being proved; thus, a deed falls within the best evidence rule”).
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