Does a Florida clerk of court have to record a document someone claims is an 'agreement'?

Plain-English summary

Legal counsel for the Palm Beach County Clerk asked the Attorney General's Office whether certain documents had to be recorded in the county's Official Records. The person who wanted them recorded argued that one or more of the documents was an "agreement by default" falling within section 28.222(3)(a), Florida Statutes, which lists instruments the clerk shall record on payment of the service charge, including "agreements." Assistant Attorney General Joslyn Wilson offered general informal comments rather than a binding answer.

The comments restated two settled points: a clerk may not record a document that the law does not authorize or require to be recorded, and (per AGO 05-17) the office cannot make the factual determination of whether a particular document is recordable, because that is the clerk's duty. To be helpful, the letter discussed how the term "agreement" is ordinarily understood, a mutual understanding or manifestation of mutual assent, requiring a meeting of the minds, and noted that under contract law acceptance by silence is exceptional and a person generally cannot turn another's silence into agreement. But the office expressly did not decide whether the documents in question reflected mutual assent; it left that determination to the clerk.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Does the clerk have to record any document a person submits?
A: No. The office reiterated that a clerk may not accept for recording any document the law does not authorize or require to be recorded. Section 28.222(3)(a) lists the categories of instruments the clerk records on payment of the service charge.

Q: Did the Attorney General decide whether these documents were recordable?
A: No. The office stated that it cannot make the factual determination of whether a particular document may be recorded; that is the clerk of court's duty. The comments were offered only as general guidance.

Q: What makes something an "agreement" the comments discussed?
A: The letter described an "agreement" as a mutual understanding or manifestation of mutual assent, requiring a meeting of the minds. It noted that, as a rule, silence does not amount to acceptance and an offeror cannot force the offeree's silence to operate as agreement.

Q: What can someone do if they think the clerk wrongly refused to record a document?
A: The opinion noted (citing AGO 05-17) that a person who claims the clerk failed to carry out a ministerial duty to record a document may seek a writ of mandamus to compel the clerk to act.

Background and statutory framework

Section 28.222(3)(a), Florida Statutes, directs the clerk of the circuit court to record, on payment of the prescribed service charges, instruments such as deeds, leases, bills of sale, agreements, mortgages, liens, and other instruments relating to the ownership, transfer, or encumbrance of, or claims against, real or personal property. The office has long held that a clerk may not record documents outside what the law authorizes, and that whether a specific document qualifies is the clerk's factual call (AGO 05-17, AGO 01-01, AGO 92-24, AGO 90-69).

For interpretive help, the letter applied the rule that common words in a statute carry their plain and ordinary meaning (Sieniarecki v. State; Rollins v. Pizzarelli) and summarized Florida contract-formation principles: a contract requires mutual assent to a definite proposition, a meeting of the minds (ABC Liquors v. Centimark; Glosser v. Vasquez; Nu-Vision v. Corporate Convenience), and assent must be communicated, with acceptance by silence being exceptional (Restatement (Second) of Contracts s. 69). The office did not apply these principles to decide the documents' status, leaving that determination to the clerk.

Citations and references

Statutes:

• § 28.222(3)(a), Fla. Stat. (instruments the clerk of the circuit court shall record)

Cases:

• Sieniarecki v. State, 756 So. 2d 68 (Fla. 2000), common words given plain and ordinary meaning
• Rollins v. Pizzarelli, 761 So. 2d 294 (Fla. 2000)
• ABC Liquors, Inc. v. Centimark Corporation, 967 So. 2d 1053 (Fla. 5th DCA 2007), mutual assent to a definite proposition
• Nu-Vision, LLC v. Corporate Convenience, Inc., 965 So. 2d 232 (Fla. 5th DCA 2007), no meeting of the minds while essential terms are still negotiated
• Glosser v. Vasquez, 898 So. 2d 1179 (Fla. 3d DCA 2005), meeting of the minds

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/clerk-of-court-recording-documents
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8197

Original opinion text

Ms. L. Denise Coffman

Legal Counsel, Palm Beach County Clerk

Post Office Box 229

West Palm Beach, Florida 33402

Dear Ms. Coffman:

On behalf of the Palm Beach County Clerk, you ask whether certain documents must be recorded in the Official Records of the county.

You state that the individual requesting that the documents in question be recorded believes that one or more of the documents constitute an "agreement by default" and therefore fall within the meaning of section 28.222(3)(a), Florida Statutes. That subsection provides that the clerk of the circuit court shall record the following kinds of instruments presented for recording, upon payment of the service charges prescribed by law:

"Deeds, leases, bills of sale, agreements, mortgages, notices or claims of lien, notices of levy, tax warrants, tax executions, and other instruments relating to the ownership, transfer, or encumbrance of or claims against real or personal property or any interest in it; extensions, assignments, releases, cancellations, or satisfactions of mortgages and liens; and powers of attorney relating to any of the instruments."

This office on several occasions has stated that the clerk of court may not accept for recording in the official records any document which the law does not authorize or require him or her to record.[1] However, as noted in Attorney General Opinion 05-17, this office cannot make the factual determinations as to whether a particular document may be recorded; rather it is the duty of the clerk of court to make such a determination.[2]

In an effort to be of some assistance, however, I would note that words of common usage, when used in a statute, should be construed in their plain and ordinary sense.[3] The term "agreement" is generally defined as a mutual understanding between two or more persons about their relative rights and duties or a manifestation of mutual assent by two or more persons.[4] Moreover, the courts of this state have recognized that the creation of a contract requires that there be mutual assent to a certain and definite proposition[5] or, as commonly referred to, a meeting of the minds.[6] As discussed in American Jurisprudence 2d, "[m]utual assent, which is essential to the formation of a binding contract, must be manifested by each party to the other; uncommunicated assent does not create a contract. . . . In other words, the apparent mutual assent of the parties must be gathered from their outward expressions and acts, and not from their unexpressed intentions."[7] Moreover, as stated in the comment on the Restatement (Second) of Contracts,

"a. Acceptance by silence is exceptional. Ordinarily an offeror does not have power to cause the silence of the offeree to operate as acceptance. See Comment b to § 53. The usual requirement of notification is stated in § 54 on acceptance by performance and § 56 on acceptance by promise. The mere receipt of an unsolicited offer does not impair the offeree's freedom of action or inaction or impose on him any duty to speak. The exceptional cases where silence is acceptance fall into two main classes: those where the offeree silently takes offered benefits, and those where one party relies on the other party's manifestation of intention that silence may operate as acceptance. Even in those cases the contract may be unenforceable under the Statute of Frauds."[8]

While this office cannot state that the documents necessarily reflect a mutual assent by the parties to the terms expressed therein, as noted above, the determination as to whether a particular document may be recorded is one that the clerk of court must make. I hope, however, that the above informal comments may be of assistance.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/tsh

[1] See, e.g., Ops. Att'y Gen. Fla. 01-01 (2001), 92-24 (1992), 90-69 (1990).

[2] As noted in Attorney General Opinion 05-17, in the event an individual claims that the clerk has failed to carry out his or her ministerial duty to record a document, the aggrieved individual may seek a mandamus order compelling the clerk to act.

[3] See, e.g., Sieniarecki v. State, 756 So. 2d 68 (Fla. 2000) (in absence of a statutory definition, words of common usage are construed in their plain and ordinary sense and, if necessary, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary); Rollins v. Pizzarelli, 761 So. 2d 294 (Fla. 2000); Ops. Att'y Gen. Fla. 93-47 (1993) (in construing statute which is clear and unambiguous, the plain meaning of statute must first be considered); 93-2 (1993) (since it is presumed that the Legislature knows the meaning of the words it uses and to convey its intent by the use of specific terms, courts must apply the plain meaning of those words if they are unambiguous).

[4] Black's Law Dictionary p. 74 (8th ed. 2004). And see 11 Fla. Jur. 2d Contracts s. 1, citing Williston on Contracts s. 1:3 (4th ed.).

[5] See, e.g., ABC Liquors, Inc. v. Centimark Corporation, 967 So. 2d 1053 (Fla. 5th DCA 2007); Bankers Trust Co. v. Basciano, 960 So. 2d 773 (Fla. 5th DCA 2007), review denied, 973 So. 2d 1119 (Fla. 2007); Acosta v. District Board of Trustees of Miami-Dade Community College, 905 So. 2d 226 (Fla. 3d DCA 2005). And see Nu-Vision, LLC v. Corporate Convenience, Inc., 965 So. 2d 232 (Fla. 5th DCA 2007) (where it appears that the parties are continuing to negotiate as to essential terms of an agreement, there can be no meeting of the minds as required for formation of a contract).

[6] See, e.g., Glosser v. Vasquez, 898 So. 2d 1179 (Fla. 3d DCA 2005).

[7] 17A Am. Jur. 2d Contractss. 33.

[8] Restatement (Second) of Contracts s. 69 (1981).