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BRIEF BYTES: Question and Answer
Forum
The purpose is to answer frequently
asked or unusual questions. Topics will range from real estate,
business, litigation and trusts and estates. Your feedback
is appreciated. Direct your comments to Cherisse Roy at croy@scott-harris.com
PREPARATION
OF RESIDENTIAL LEASES
 In
September, 1998, the Florida Supreme Court deleted the Residential
Lease for Single Family Home and Duplex from the approved
forms package. This action by the Court means that this form
can no longer be completed by a non-lawyer. On October 5,
1998, the Florida Association of Realtors petitioned the Florida
Supreme Court to reinstate the lease form as an approved form;
but, unless and until the Court reinstates the form, Realtors
cannot complete the form for their clients or others. A Realtor
completing the form will be guilty of unauthorized practice
of law.
Preparation
of residential lease forms by Realtors has long been a confusing
issue. For years there existed a debate among lawyers as to
whether the completion of a residential lease for a term not
to exceed one year was the practice of law. I was always of
the opinion that if Realtors are authorized to prepare form
contracts for the sale of real property, they should certainly
be authorized to prepare form residential leases. However,
the Supreme Court of Florida is the body which determines
what is and what is not the practice of law. Therefore, until
the Supreme Court ruled, no one could say with certainty if
a Realtor preparing a lease was performing a legal act.
To
resolve the issue the Unauthorized Practice of Law Committee
of the Florida Bar petitioned the Supreme Court for a ruling
that the preparation of a residential lease for a term of
one year was not the practice of law and that licensed real
estate agents could prepare such forms. However, the Court
would not so rule. Instead, the Court used rule 10-2.1(a)
of the Rules Regulating the Florida Bar to address the issue.
This rule allows the Supreme Court to approve certain legal
forms. When a form is approved by the Court, any non-lawyer
may prepare the form for another person (even for a fee) and,
if the requirements of the rule regarding the preparation
of the form are met, the preparation of the form will not
be the practice of law. In its 1991 opinion, the Court approved
the Residential Lease for Single Family Home and Duplex as
well as other forms. However, what the Court gave in 1991,
it took away in September of this year.
I
believe that many Realtors never fully understood the restrictions
that the Court imposed when it adopted lease forms for use
by non-lawyers. Many Realtors do not understand that rule
10-2.1(a) and the adoption of the lease forms by the Court
require that the form leases be used without any modification.
If a change to the lease form is negotiated by the parties
and that change to the lease is drafted by the Realtor, the
Realtor is guilty of unauthorized practice of law. Since many
Realtors believe that the lease forms contain provisions detrimental
to the landlord, changes are often required and the Realtor
modifying the lease runs a serious risk. For these reasons,
I have never thought that the approved forms were a benefit
to Realtors.
Where
does the Court's decision leave the Realtor? A Realtor who
uses the approved lease forms can no longer prepare the form
lease for a single family residence or duplex. Is this a bad
thing? Although I certainly believe that a Realtor should
be given authority to prepare a form residential lease, such
authority does not exist. For this reason I have long advised
that Realtors should establish a working relationship with
a knowledgeable real estate lawyer for the easy preparation
of leases. There are lawyers willing to undertake such duties
for a reasonable fee and, unfortunately, having the leases
prepared by a lawyer is the only reasonable way to service
the needs of landlord and tenant clients and customers without
being guilty of unauthorized practice of law.
To Contact Us, call (561)
624-3900. Or fax
(561) 624-3533. To correspond online, please fill
out our contact form with your comments.
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