CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...disclaimed, (iv) be signed by the person making the disclaimer, (v) be witnessed and
acknowledged in the manner provided for by deeds of real estate, and (vi) be
delivered in the manner provided in section
739.301 of the Florida Statutes.2 §
739.104(3), Fla. Stat. (2014).
Section
739.601 provides additional requirements if the disclaimer is to be
recorded, thus providing constructive notice to anyone conducting a title search that
might involve real property that has been disclaimed. See §
739.601(1) - (2), Fla.
1
Because we are called on to review a pure question of law (i.e., the probate court’s
determination that the subject disclaimer is legally insufficient), our review is de
novo....
...nless the disclaimer contains a legal
description of the real estate to which the disclaimer relates and unless the disclaimer
is filed for recording in the office of the clerk of the court in the county . . . where
the real estate is located.” § 739.601(1), Fla....
...subsection (1) constitutes constructive notice to all persons from the time of filing.
Failure to record the disclaimer does not affect its validity as between the
disclaimant and persons to whom the property interest or power passes by reason
of the disclaimer.” § 739.601(2), Fla....
...the disclaimer, regardless of whether the disclaimer includes a description of the real
property. If the legislature had intended for all disclaimers of real property, whether
recorded or not, to contain a legal description, there would have been no need in
section
739.601(1) to include a requirement of a legal description for disclaimers
that would be recorded.
5
The instant disclaimer meets each statutory requirement found in section
739.104(3). While the absence of a legal description of the subject property renders
the disclaimer incapable of recordation under section
739.601, the lack of a legal
description does not otherwise affect its validity.
Finally, we note that the trial court summarily determined that the disclaimer
did not meet the requirements of the statute of frauds, section
725.01...
