When a Commercial Deed Doesn't Say What You Agreed To

A Florida court can reform a commercial deed after a drafting mistake when the written deed does not match what the parties agreed to. Reformation is a court order that corrects the document itself. Florida courts can reform a written instrument when a mutual mistake keeps it from accurately expressing the parties’ true agreement (Tobin v. Michigan Mutual Insurance Co.). This page explains the grounds, the proof, how recorded title changes the picture, and the first steps. Eduardo A. Maura is the responsible lawyer for this page.

What Reforming a Commercial Deed in Florida Means

Reformation is a court order that rewrites a deed so it says what the parties meant. The judge corrects the written record. The judge does not create a new deal.

Re-recording a corrected deed is different. If the other side refuses, or a third party objects, you need a court to decide the question. That is when the matter becomes a real estate litigation case.

A deed controls recorded title. Once it is recorded, the error can affect who owns the property, who can sell it, and what a lender or title insurer relies on. Florida’s conveyance statute sets the signing rules for any instrument that creates, transfers, or releases an estate of freehold or a term of more than 1 year in land, though no subscribing witnesses are required for a lease of real property (Fla. Stat. § 689.01). Fla. Stat. § 689.01 reads: “unless by will and testament, or other testamentary appointment, duly made according to law; and no estate or interest, either of freehold, or of term of more than 1 year, or any uncertain interest of, in, to, or out of any messuages, lands, tenements, or hereditaments, shall be assigned or surrendered unless it be by instrument signed in the presence of two subscribing witnesses by the party so assigning or surrendering, or by the party’s lawfully authorized agent, or by the act and operation of law; provided, however, that no subscribing witnesses shall be required for a lease of real property or any such instrument pertaining to a lease of real property.” A corrective deed that transfers an interest has to follow those same rules.

Grounds for Reformation: Mutual Mistake and Scrivener’s Errors

A court can reform a deed for a mutual mistake. A mistake is mutual when the parties agree to one thing, but the written document says something different. That happens through a scrivener’s error (a drafting or typing slip) or inadvertence (Waterside at Boynton). This is the most common ground in deed cases.

Rescission for a mutual mistake of fact requires a fact that goes to the essence of the contract. A mistake about a non-essential term, or a mistake made by only one side, won’t support rescission on that theory (Waterside at Boynton). Reformation fixes the words. It doesn’t rewrite the whole bargain.

A one-sided mistake follows a different path. Florida law allows rescission for a unilateral mistake in limited circumstances (DePrince v. Starboard Cruise Services). Rescission undoes the contract, which may not be what an owner wants.

Fraud can also come into play. Under Florida’s rule for fraud actions, the time runs from when the facts were discovered, or should have been discovered with due diligence. In any event, the action must begin within 12 years after the fraud (Fla. Stat. § 95.031).

Proof usually comes from the paper trail. That includes the signed contract, drafts, emails, closing statements and the survey. Gather these early.

Common Drafting Errors in Commercial Deeds

Most deed errors fall into a few groups. Each one can change who owns what.

• Wrong legal description. A wrong section, lot number or boundary call can point to land the parties never meant to sell.
• Wrong grantee name. A missing LLC suffix, or a parent company listed in place of the subsidiary that actually bought, can misstate ownership.
• Missing parcels or rights. An access easement, parking rights or a second parcel may have been part of the sale but left off the deed.

Keep two claims separate. Reformation asks the court to fix the document. A claim against the professional who drafted it raises different questions and needs different proof. Those claims should be reviewed on their own terms.

How Recorded Title, Lenders and Third Parties Affect the Fix

A recorded deed affects people who were not part of the original sale. Later buyers, lenders and title insurers may rely on what the public record shows.

Expect the other side and third parties to ask hard questions. What did each party know, and when? Who relied on the deed? A lender that funded a loan based on the wrong description may have its own position. The fix can reach beyond the two original parties.

Timing matters. Delay can be used against a party who learned of the error and did nothing. Under Florida’s ratification rule, a party entitled to rescind a voidable contract can lose that right by failing to act after learning the facts (Flaherty v. Flaherty). That is a general rule, not an automatic result in every case.

Review your title policy and loan papers early. They show how the property is described in those documents.

How a Florida Reformation Case Gets Started

A reformation case usually starts with a complaint filed in court. Under Florida’s venue statute, an action may be brought in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located (Fla. Stat. § 47.011). For land in Hillsborough County, the county where the property sits is one option. That statute does not apply to actions against nonresidents.

Once a case is filed, the procedures that apply depend on the court and the facts of the dispute, including the Florida Rules of Civil Procedure. Florida courts must, on one party’s request and provided the requesting party is willing and able to pay the costs of the mediation or the costs can be equitably divided between the parties, refer most filed civil actions for monetary damages to mediation, unless an exception applies, and may refer other civil cases to mediation (Fla. Stat. § 44.102).

Early steps are practical. Collect the signed contract, drafts, the closing file, the survey and the recorded chain of title. Write down the date you found the error. That date can matter later.

Related Commercial Property Issues Tied to a Deed Error

A deed error can touch other parts of a sale. An easement or access right may depend on the exact wording in the deed. A purchase agreement may set terms for who fixes the error and who pays for it. If the error ties into a broader sale, the dispute may also raise contract questions.

Environmental history can also matter when the deed and the property records don’t line up. Each issue needs its own review of the documents. For the wider practice area, see our real estate litigation overview.

Talk With Ayala Law PA About Your Deed

Ayala Law PA focuses on business litigation, including commercial litigation, contract disputes, shareholder disputes, construction litigation and real estate litigation in Florida courts and arbitration. Eduardo A. Maura is the responsible lawyer for this page. The firm’s bona fide office is at 1646 W Snow Ave in Tampa, Florida, and it represents businesses in Tampa and Hillsborough County. The firm serves businesses in Tampa, Hillsborough County and the wider Tampa Bay area. Your case may be referred to another lawyer or law firm.

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