Why Can’t I Amend a Florida Supreme Court Lease? (But I Can Amend a Florida Realtors/Florida Bar ASIS Contract)

ORLANDO, Fla. — Way back in the 1990s (1992 to be exact) the Florida Bar issued an Advisory Opinion. The question at hand was, “Whether it constitutes the unlicensed practice of law for a Florida real estate licensee and/or other nonlawyer to draft a residential lease up to one year in duration for another and, if so, whether the practice should be authorized?”

A little background: 

In 1950, the Florida Supreme Court decided in a case (Keyes Co. v Dade County Bar Association. 46 So. 2d 605 (Fla. 1950)) that Florida real estate licensees are allowed to prepare a sales contract for the sale of real estate. In this case, the Court determined that any other documents must be prepared by a licensed Florida attorney. The drafting of the sales contract is considered the practice of law, but the Court carved out this exception for real estate licensees in these limited circumstances.

This is an issue that comes up regularly in calls to the Florida Realtors® Legal Hotline. 

The Florida Bar is empowered to issue formal advisory opinions regarding activities which may be deemed the unlicensed practice of law. 

There are two things that are considered when determining if an action is the unauthorized practice of law:

1. Does the service or activity constitute the practice of law?

(There is no codified definition, this is based on case law)

2. Once it is determined if an activity is the practice of law, there must be a determination whether the Court or another authorized body has authorized a nonlawyer to perform the activity.

By the 1990s the question about real estate licensees drafting one-year leases was due to be answered. After a public hearing, where testimony was presented, the Standing Committee at the Florida Bar issued an Advisory Opinion. In this Opinion, it was determined that there should be a Court approved residential lease form for leases not to exceed one year. The approval of the form lease did not also approve a nonlawyer to draft leases or prepare addenda to an approved lease form. The Opinion allows the nonlawyer to communicate with the landlord and/or tenant to elicit factual information to complete the form. 

So, all of that to say, the reason Florida real estate licensees can draft a sales contract is because the Florida Supreme Court said they can in that 1950 case. The reason Florida real estate licensees can’t draft their own leases or go beyond just filling in the blanks to the two Florida Supreme Court approved leases (in Form Simplicity) is because there is no exception or case allowing them to.

It is always important to remember, just because you can doesn’t mean you should. There is always the potential for liability if you draft language in a sales contract that doesn’t go as planned. We provide many forms for Realtors to use that create a good starting point for transactions.

Finally, keep in mind that unauthorized practice of law is a 3rd degree felony in Florida.

Maria Marchante is Associate General Counsel

Note: Advice deemed accurate on date of publication

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