EFTERPI BENASUTTI, APPELLANT,
v.
CATHERINE COSTALAS, A/K/A KATINA COSTALAS, APPELLEE
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Efterpi Benasutti appealed a summary judgment dismissing her complaint for declaratory judgment seeking enforcement of an agreement whereby Catherine Costalas promised to convey real property to herself and Benasutti as tenants in common upon her husband's death. The trial court erred in applying Florida's statute requiring deed formalities to an executory contract, and the appellate court reversed and remanded for further proceedings.
An executory agreement to convey real property need not comply with the statutory formalities required for deeds under section 689.01. The statute's requirements apply to the actual conveyance instrument, not to the contract for sale. Therefore, summary judgment was improper.
[1] A contract for the sale of homestead property is not subject to the execution formalities required for instruments creating an interest in real property under section 689…
[2] An agreement requiring a party to convey property to themselves and another as tenants in common does not, in itself, create an interest in the property in favor of the o…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a contract for sale of homestead property need not be executed with the formality of a deed required by the statute”
Establishes the controlling legal principle that executory contracts are not subject to the same statutory formalities as deeds.
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Join FLexlaw to unlock all legal intelligenceCatherine Costalas and her deceased husband owned real property jointly as husband and wife, encumbered by a mortgage. An agreement signed by both par…
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RYDER, Acting Chief Judge.
This appeal is from a summary judgment in favor of appellee. The summary judgment dismissed appellant’s complaint for declaratory judgment which requested that the court give effect to an agreement between appellee and appellee’s deceased husband. The agreement required the husband to satisfy a mortgage on a parcel of real property titled in the husband and appellee’s names jointly as husband and wife. The agreement then stated that, in the event appellee survives her husband (which she did), appellee was to convey the property to herself and appellant as tenants in common. The agreement then contains provisions not pertinent to this appeal, and is signed by both the husband and appellee.
The trial court granted summary judgment based on its belief that section 689.01, Florida Statutes (1987), applies to the situation at hand and the agreement cannot be enforced because it was not executed with the formality required by that statute. The statute requires that any instrument creating an interest in real property must be signed “in the presence of two subscribing witnesses.” Id.
We reverse. The trial court erred in applying section 689.01 to the facts of this case. We have previously held that a contract for sale of homestead property need not be executed with the formality of a deed required by the statute. Ford v. Barnes, 366 So. 2d 1235 (Fla. 2d DCA 1979). The agreement in this case can be compared to a contract for sale for purposes of section 689.01. The agreement itself did not create an interest in the property in favor of appellant. If the agreement is valid (which must be determined from further proceedings below), then appellee’s conveyance of the property to herself and appellant pursuant to the agreement will be the instrument creating an interest in the property in favor of appellant. That instrument will fall under the requirements of section 689.01.
We note that appellant’s brief includes a discussion of the merits of some of appel-lee’s other affirmative defenses. We decline the invitation to consider arguments other than the application of section 689.01. We reverse based solely on the inapplicability of section 689.01 to the facts of this case and remand the matter for further proceedings consistent with this opinion.
Reversed and remanded with instructions.
HALL and THREADGILL, JJ., concur.