ROBERT G. RADABAUGH AND PATRICIA RADABAUGH, APPELLANTS,
v.
EARL W. WARE AND GLENDA A. WARE, APPELLEES
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Buyers sued sellers for breach of a contract to purchase homestead property, but the contract lacked the witness signatures required by Florida statute for real property transactions. The court held that a contract lacking statutory formalities cannot create enforceable legal obligations and thus cannot support a damages action, even if the parties intended to be bound.
A contract for the sale of real property that does not comply with Florida Statutes § 689.01 (requiring instruments affecting real property be signed in the presence of two subscribing witnesses) cannot create enforceable legal obligations and therefore cannot support an action for damages for breach, even if the parties intended to be bound and consideration exists.
[1] An instrument creating, granting, transferring, or releasing an estate or interest of freehold must be signed in the presence of two subscribing witnesses.
[2] A contract for the conveyance of real property, even if supported by consideration, is not enforceable if it fails to meet the statutory witness requirements for instrume…
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Join FLexlaw to unlock all legal intelligence“No estate or interest of freehold * * * shall be created, made, granted, [*739] transferred or released in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses * * *”
The controlling Florida statute that requires real property instruments to be executed with witness signatures.
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Join FLexlaw to unlock all legal intelligenceRobert and Patricia Radabaugh entered into a written deposit receipt contract with Earl and Glenda Ware to purchase the Wares' homestead property. The…
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Appellants-plaintiffs, Robert G. Rada-baugh and Patricia Radabaugh, appeal a final judgment entered in favor of the ap-pellees-defendants, Earl W. Ware and Glenda A. Ware, in an action for damages for breach of a contract to convey real property. We affirm.
Appellants entered into a written deposit receipt contract with appellees to purchase real property which was the homestead of appellees. The contract was executed by all parties, but it did not contain the signatures of any witnesses to the execution. Subsequently appellees declined to convey the property. Appellants instituted suit for damages arising from breach of contract. The trial court determined that' the alleged contract was invalid and would not support the action. Final judgment was entered for the appellees and this appeal followed.
Section 689.01, Florida Statutes 1967, F.S.A., provides in part:
“No estate or interest of freehold * * * shall be created, made, granted, *739transferred or released in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses * * * ”
On its face the statute does not require that contracts to purchase be executed with the same formality as instruments of transfer. However, an action for specific performance will not lie unless the contract has been executed with the formalities required by F.S. Section 689.01, F.S.A. Petersen v. Brotman, Fla.App.1958, 100 So.2d 821. To hold otherwise would be to effect the transfer of property by a decree of specific performance although the contract forming the basis of the transfer would have small resemblance to the formality with which it was intended that conveyances of real property should be accomplished. Zimmerman v. Diedrich, Fla.1957, 97 So.2d 120.
In the case at bar, appellants concede that the contract is not specifically enforceable, but they contend that the contract is valid for all other purposes since it embodies an agreement between the parties supported by consideration.
A contract is a legal relationship creating obligations between two or more parties enforceable at law. Kislak v. Kreedian, Fla.1957, 95 So.2d 510.
Under the deposit receipt contract here under consideration, appellees were under no legal duty to convey the homestead property which was the subject of the contract. The authorities cited above make it amply clear that an obligation does not arise unless and until the contract has been executed with the formalities required by F.S. Section 689.01, F.S.A. Therefore, without an enforceable legal obligation on the part of appellees, a valid contract could not exist and no recoverable damages were sustained.
Accordingly, the judgment is affirmed.
Affirmed.
McCAIN and OWEN, JJ., concur.
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Nat'l Educ. Ass'n, Inc. v. LEE Cnty. Bd. OF Pub. Instruction, 260 So. 2d 206 (Fla. 1972)…rting to grant leave retroactively shall be recognized. . . . ” . Fla.Const. art. XII, §§ 9 & 13 (1885), then in effect. . Id. . Kislak v. Kreedian, 95 So. 2d 510 (Fla.1957); Bacon v. Karr, 139 So. 2d 166 (2d DCA Fla.1962); and Radabaugh v. Ware, 241 So. 2d 738 (4th DCA Fla.1970). . Dade County Classroom Teachers’ Ass’n, Inc. v. Rubin, 217 So. 2d 293 (Fla.1968); Pinellas County Classroom Teachers Ass’n, Inc. v. Board of Public Instruction of Pinellas County, 214 So. 2d 34 (Fla.1968). . See Footnote 10.…
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Con-Dev OF Vero Beach, Inc. v. Casano, 272 So. 2d 203 (Fla. 4th DCA 1973)…ee is not concerned, it is unnecessary to have two witnesses to the contract to insure specific performance. Zimmerman v. Diedrich, supra. This is also true in damage suits for breach of contract to convey property. Radabaugh v. Ware, Fla.App. 1970, 241 So. 2d 738; see Kroner v. Esteves, supra. Since the property in question did not fall within the purview of the three classes, defendant’s affirmative defense that the contract was not witnessed as required by Section 689.01 was immaterial to both the damages…
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Koplon v. Smith, 271 So. 2d 762 (Fla. 1972)…DEKLE, Justice. Petition for writ of certiorari asserts direct conflict of Radabaugh v. Ware, 241 So. 2d 738 (Fla.App. 4th 1970), with the Third District’s holding here at 264 So. 2d 73 (Fla.App.3d 1972). Fla.Const, art. V, § 4(2), F.S.A. The question involved is the requirement of two subscribing witnesses on a deposit receipt in order to obtain specific…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kislak v. Koren Kreedian, 95 So. 2d 510 (Fla. 1957)
- Frieda Zimmerman v. Diedrich, 97 So. 2d 120 (Fla. 1957)
- Petersen v. Jonas J. Brotman, 100 So. 2d 821 (Fla. 2d DCA 1958)
- City OF Tampa v. Sperry, 100 So. 2d 821 (Fla. 2d DCA 1958)