The Florida Marketable Record Title Act (MRTA), Chapter 712, Fla. Stat. was created in 1963 in an effort to stabilize property law by clearing old defects from titles, limiting the period of record searches, and clearly defining marketability by extinguishing claims to property which are at the least 30 years old. One of the unintended consequences of the Act is that the Declarations of Covenants, Conditions and Restrictions recorded for HOAs may expire after 30 years of the date which they were recorded.
Many HOA’s Directors are unaware of the requirements for HOAs to reaffirm and renew their covenants and restrictions 30 years after they were originally recorded in the local county records.
HOA declarations enable the associations to impose fees, file liens, collect assessments and implement other protocols that provide for the administration and financial viability of the community. It is imperative that HOAs PRESERVE or REVIVE and maintain their covenants and restrictions under MRTA in order to avoid challenges by lot owners arguing that the covenants and restrictions with respect to their lots have been extinguished.
MRTA provides a specific process for HOAs to PRESERVE or REVIVE their covenants and restrictions thereby keeping them in place after the 30-year term.
PRESERVATION
THE MRTA statute requires that a “Notice to Preserve” must be filed in the public records of the county where the property is located prior to the expiration of the 30-year period, Sect. 712.05, Fla. Stat. This Notice must be approved by the board of directors.
REVIVAL
MRTA also provides mechanisms in Sect. 720.403 – Sect. 720.407, Fla. Stat. for associations seeking to revive declarations that have already expired. The statutes provide that the revived declaration may not contain covenants that are more restrictive than the original declaration of covenants, conditions and restrictions that are being submitted for revival. The proposal to revive a declaration must be initiated by an organizing committee consisting of not less than three parcel owners located in the community and must be approved by a majority of the property owners.
No later than 60 days after the date the proposed revived declaration and other governing documents are approved by the affected parcel owners, the organizing committee or its designee must submit the materials to the State Department of Community Affairs (DCA) for review.
No later than 30-days after approval by the DCA, the revived documents must be recorded in the Public Records, maintained by the Clerk of Court, and then immediately served upon each property owner. See Sect. 720.403 – Sect. 720.407, Fla. Stat.