Definition of a contract                       

A contract is an agreement between two or more parties who, in a “meeting of the minds,” have pledged to perform or refrain from performing some act. A valid contract is one that is legally enforceable by virtue of meeting certain requirements of contract law. If a contract does not meet the requirements, it is not valid and the parties to it cannot resort to a court of law to enforce its provisions.

Note that a contract is not a legal form or a prescribed set of words in a document, but rather the intangible agreement that was made in “the meeting of the minds” of the parties to the contract.

Real estate contracts are the legal agreements that underlie the transfer and financing of real estate, as well as the real estate brokerage business. Sale and lease contracts and option agreements are used to transfer real estate interests from one party to another. Mortgage contracts and promissory agreements are part of financing real estate. Listing and representation contracts establish client relationships and provide for compensation.

In order to work with real estate contracts, it is imperative first to grasp basic concepts that apply to all contracts in general. These concepts provide a foundation for understanding the specifics of particular types of real estate contract.

Preparation of contracts                     

The preparation of contracts and other legal instruments is the practice of law and the exclusive business of attorneys. Real estate licensees, unless they are also attorneys, can lose their licenses for preparing such documents. The offense is known as the  unauthorized practice of law.

The authority of real estate licensees to prepare contracts. Because real estate licensees must work with such contracts as listing agreements, buyer brokerage agreements, sale and purchase contracts, and option contracts as part of their normal course of business, they have received special dispensations to assist buyers and sellers with the drawing of these contracts to the extent that they may fill in the blanks on standardized forms prepared by attorneys.

Legal status of contracts                 

In terms of validity and enforceability, a court may construe the legal status of a contract in one of four ways:

  • valid
  • valid but unenforceable
  • void
  • voidable

Valid. A valid contract is one which meets the legal requirements for validity. These requirements are explained in the next section.

A valid contract that is in writing is enforceable within a statutory time period. A valid contract that is made orally is also generally enforceable within a statutory period, with the exceptions noted below.

Valid but unenforceable. State laws declare that some contracts are enforceable only if they are in writing. These laws apply in particular to the transfer of interests in real estate. Thus, while an oral contract may meet the tests for validity, if it falls under the laws requiring a written contract, the parties will not have legal recourse to enforce performance. An oral long-term lease and an oral real estate sales contract are examples of contracts that may be valid but not enforceable.

Note that such contracts, if valid, remain so even though not enforceable. This means that if the parties fully execute and perform the contract, the outcome may not be altered.

Void. A void contract is an agreement that does not meet the tests for validity, and therefore is no contract at all. If a contract is void, neither party can enforce it.

For example, a contract that does not include consideration is void. Likewise, a contract to extort money from a business is void. Void contracts and instruments are also described as “null and void.”

Voidable. A voidable contract is one which initially appears to be valid, but is subject to rescission by a party to the contract who is deemed to have acted under some kind of disability. Only the party who claims the disability may rescind the legal effect of the contract.

For example, a party who was the victim of duress, coercion, or fraud in creation of a contract, and can prove it, may disaffirm the contract. However, the disaffirmation must occur within a legal time frame for the act of rescission to be valid. Similarly, if the party who has cause to disaffirm the contract elects instead to perform it, the contract is no longer voidable but valid.

A voidable contract differs from a void contract in that the latter does not require an act of disaffirmation to render it unenforceable.

Criteria for validity     

A contract is valid only if it meets all of the following criteria.

Competent parties. The parties to a contract must have the capacity to contract, and there must be at least two such parties. Thus, the owner of a tenancy for life cannot deed his interest to himself in the form of a fee simple, as this would involve only one party. Capacity to contract is determined by three factors:

  • legal age
  • mental competency
  • legitimate authority

In Florida, a minor may contract, but the contract will be voidable and the minor can disaffirm the contract.

To be mentally competent, a party must have sufficient understanding of the import and consequences of a contract. Competency in this context is separate and distinct from sanity. Incompetent parties, or parties of “unsound mind,” may not enter into enforceable contracts. The incompetency of a party may be ruled by a court of law or by other means. In some areas, convicted felons may be deemed incompetent, depending on the nature of the crime.

During the period of one’s incompetency, a court may appoint a guardian who may act on the incompetent party’s behalf with court approval.

If the contracting party is representing another person or business entity, the representative must have the legal authority to contract. If representing another person, the party must have a bona fide power of attorney. If the contracting party is representing a corporation, the person must have the appropriate power and approval to act, such as would be conferred in a duly executed resolution of the Board of Directors. If the contracting entity is a general partnership, any partner may validly contract for the partnership. In a limited partnership, only general partners may be parties to a contract.

Mutual consent. Mutual consent, also known as offer and acceptance and meeting of the minds, requires that a contract involve a clear and definite offer and an intentional, unqualified acceptance of the offer. In effect, the parties must agree to the terms without equivocation. A court may nullify a contract where the acceptance of terms by either party was partial, accidental, or vague.

Valuable consideration. A contract must contain a two-way exchange of valuable consideration as compensation for performance by the other party. The exchange of considerations must be two-way. The contract is not valid or enforceable if just one party provides consideration.

Valuable consideration can be something of tangible value, such as money or something a party promises to do or not do. For example, a home builder may promise to build a house for a party as consideration for receiving money from the home buyer. Or, a landowner may agree not to sell a property as consideration for a developer’s option money. Also, valuable consideration can be something intangible that a party must give up, such as a homeowner’s occupancy of the house in exchange for rent. In effect, consideration is the price one party must pay to obtain performance from the other party.

Valuable consideration may be contrasted with good consideration, or “love and affection,” which does not qualify as consideration in a valid contract. Good consideration is something of questionable value, such as a child’s love for her mother. Good consideration disqualifies a contract because, while one’s love or affection is certainly valuable to the other party, it is not something that is specifically offered in exchange for something else. Good consideration can, however, serve as a nominal consideration in transferring a real property interest as a gift.

In some cases, what is promised as valuable consideration must also be deemed to be sufficient consideration. Grossly insufficient consideration, such as $50,000 for a $2 million property, may invalidate a contract on the grounds that the agreement is a gift rather than a contract. In other cases where there is an extreme imbalance in the considerations exchanged, a contract may be invalidated as a violation of good faith bargaining.

Legal purpose. The content, promise, or intent of a contract must be lawful. A contract that proposes an illegal act is void.

Voluntary, good faith act. The parties must create the contract in good faith as a free and voluntary act. A contract is thus voidable if one party acted under duress, coercion, fraud, or misrepresentation.

For example, if a property seller induces a buyer to purchase a house based on

assurances that the roof is new, the buyer may rescind the agreement if the roof

turns out to be twenty years old and leaky.

Validity of a conveyance contract                       

In addition to satisfying the foregoing requirements, a contract that conveys an interest in real estate must:

  • be in writing
  • contain a legal description of the property
  • be signed by one or more of the parties

A lease contract that has a term of one year or less is an exception. Such leases do not have to be in writing to be enforceable.

Enforcement

limitations                   

Certain contracts that fail to meet the validity requirements are voidable if a damaged party takes appropriate action. The enforcement of voidable contracts, however, is limited by statutes of limitation. Certain other contracts which are valid may not be enforceable due to the statute of frauds.

Statute of limitations. The statute of limitations restricts the time period for which an injured party in a contract has the right to rescind or disaffirm the contract. A party to a voidable contract must act within the statutory period.

Statute of frauds. The statute of frauds requires that certain contracts must be in writing to be enforceable. Real estate contracts that convey an interest in real property fall in this category, with the exception that a lease of one year’s duration or less may be oral. All other contracts to buy, sell, exchange, or lease interests in real property must be in writing to be enforceable. In addition, listing agreements for a term longer than one year must be in writing.

The statute of frauds concerns the enforceability of a contract, not its validity. Once the parties to a valid oral contract have executed and performed it, even if the contract was unenforceable, a party cannot use the Statute of Frauds to rescind the contract.

For example, a broker and a seller have an oral agreement. Following the terms of the agreement, the broker finds a buyer, and the seller pays the commission. They have now executed the contract, and the seller cannot later force the broker to return the commission based on the statute of frauds.

UETA & electronic contracting                  

Contracting electronically through email and fax greatly facilitates the completion of transactions. Clients, lenders, title agents, inspectors, brokers, and other participants in a transaction can quickly share documentation and information. Electronic contracting is made possible by the Uniform Electronic Transactions Act (UETA) and the Electronic Signatures in Global and National Commerce Act (E-Sign), which are federal laws. UETA, which has been incorporated into Florida law, provides that electronic records and signatures are legal and must be accepted. E-Sign makes contracts, records, and signatures legally enforceable, regardless of medium, even where UETA is not accepted.