Last Update: 11/28/18
Selling your home or condo here in South Florida means marketing your residential property either by yourself (”For Sale by Owner”) or through a real estate broker to find a buyer who has the financial means (cash or mortgage loan) to pay for it. Depending upon the housing market, selling your condo, townhouse, or single family home can be a quick sprint or a long-term adventure.
Part of that journey for many Florida home sellers is enduring all of the steps required to get to the closing and consummating the sale of their property (the inspections, the appraisal, title searches, etc.). While residential buyers have their own responsibilities regarding a Florida closing, sellers of residential real estate also have duties to meet at or before closing, too (providing clear title, disclosing known defects, making repairs, etc.).
How and Why? Both Florida state law and federal statutes and regulations impose requirements upon sellers in the sale of their single family home, condo, or other residential property. These requirements include providing certain documents to a buyer at or before closing.
5 Common Seller Documents Used In Connection With a Florida Residential Real Estate Closing
1. Bill of Sale to Transfer Personal Property
In Florida, when a homeowner sells their home there usually is personal property being sold along with the real estate. Common types of personal property sold with Florida residential real estate include, a range or an oven, a refrigerator, dishwasher, disposal, ceiling fan, intercom, light fixture(s), drapery rods and draperies, blinds, window treatments, smoke detector(s), garage door opener(s), security gate and other access devices, and storm shutters/panels, wine cooler, washer and dryer. Under most Florida residential real estate purchase and sales contracts, the means by which these items are transferred to the buyer is through the use of a bill of sale, which is provided to the buyer at closing.
The Deed, usually a Warranty Deed, is the document that memorializes the transfer of ownership from the seller to buyer. That document is recorded in the public records of the county where the property is located to legally show that title to the property has been transferred. Until the Seller signs the Deed and it is recorded in the the county public records by the clerk’s office, the closing is not finalized and the land and the improvements there have not been legally transferred to the purchaser.
A Warranty Deed confirms certain warranties by the Seller onto the buyer — deeds can be “warranty deeds” or they can be Quit Claim Deeds where the Seller transfers the realty without warranty (a Quit Claim Deed basically means the property is being sold “as is” as it relates to the ownership of the property).
Read: Quit Claim Deed Lawsuits
3. Agreement Related to Property Taxes
At the closing table, the Seller is relieved of his or her duty to pay the ad valorem property taxes on the real estate being sold. However, a lot of times the taxes paid by the seller at closing are based upon the gross tax amount due from the prior year (it is done this way because a lot of times the exact amount of real estate taxes due for the year of the closing has not yet been determined by the taxing authority). In order to avoid the seller paying to much or to little in taxes at the closing, the parties may agree in a separate written agreement that they agree to prorate the taxes when the final tax bill is determined by the county taxing authority (In Florida tax bills are sent out in November for the year in which the taxes are due. Taxes are due before April 1 of the next tax year).
In order to complete the sale, the Seller is required to provide an Affidavit in which he or she, or both, swear at closing that, among other things, there are no outstanding contracts for the sale of the property, there are no liens, encumbrances, mortgages, claims, boundary line or other disputes, against the Property, there have been no improvements made upon the Property within the past ninety (90) days for which there remain any outstanding and unpaid bills for labor, materials or supplies, there are no matters pending against Seller which could give rise to a lien that would attach to the Property, there are no judgments, claims, disputes, demands or other matters pending against Seller that could attach to the Property and there are no violations of governmental laws, regulations or ordinances pertaining to the use of the Property. These representations are made by the seller under the full understanding of the law regarding liability for any misrepresentation. Meaning, the seller can be sued if any of the information is knowingly false.
5. Power of Attorney
A Power of Attorney is a legal document that conveys legal authority upon a party to act on behalf of another party (the party granting the authority is the “principal” and the party receiving the authority is the “agent”). A lot of times, a power of attorney is used when the seller, or buyer, is located out of state or is unavailable at the time of the closing. A power of attorney used in connection with a closing is usually very specific, meaning that it is given only in connection with a particular transaction. When a power of attorney is used, it is recorded in the public records along with the Deed as part of the closing.
Sellers and Florida Residential Closings
Most closings (those where the buyer obtains a mortgage loan) involve more paperwork for the buyers than they do for the sellers of residential real estate. However, this statement is not true when the buyer pays cash for the property – then, the buyer generally only signs a closing statement. Banks and other lenders require lots of disclosures to be made to and by the buyer in a Florida residential real estate transaction. Banks will also require things like special endorsements to title insurance and certain inspections be performed before they will finance the loan.
Sellers, meanwhile, usually do not have as many tasks to perform after the buyer has signed the purchase and sale contract — the big job for many Florida residential sellers is to keep on top of things and make sure that the closing is moving forward efficiently and that things are not getting delayed because they didn’t make their home available for inspection, for example. However, things can become complicated for a seller if title issues arise for issues like construction liens or survey issues or issues related to improvements made to the property without permits.
Having a real estate lawyer represent the seller at the closing table can be just as important as having legal representation when you are buying Florida residential real estate. The expense is not as high as many assume it to be, and for sellers who do meet with surprises having legal counsel in place can be essential to get the deal completed in a timely manner.
A good piece of advice if you are buying or selling real estate in Florida is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
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