Florida's Requirement of Two Witnesses For Execution Of Long Term Leases Remains In Force, For Now.

Section 689.01(1) Florida Statutes requires that certain instruments affecting interests in real property must be made in writing and be signed in the presence of two subscribing witnesses, including any instrument creating, making, granting, conveying, transferring, releasing, assigning or surrendering a leasehold estate having a term of more than one year.

Various strategies have been used by parties to attempt to enforce leases, notwithstanding lack of witnesses, including asserting a breach of contract claim even absent any ability to specifically enforce a defective lease, claiming that partial performance estops a landlord from repudiating a defective lease, and asserting that the transaction was ratified by other and related documentation. These efforts have met with varying degrees of success.

The Leasing Committee of the Florida Bar’s Real Property, Probate and Trust Law Section has been providing comments for a proposed legislative amendment to remove the requirement of two witnesses. However, as of now, no changes have been passed, and the two witnesses requirement remains applicable.