Recently, we had a few inquiries about homeowners’ association (HOA) covenants and restrictions. In one case, the HOA was over 30 years old, and the director was unaware of the requirements under the Florida Marketable Record Titles Act (MRTA), Chapter 712, Fla. Stat. for HOAs to reaffirm and renew their covenant and restrictions 30 years after they were originally recorded in the local county records. MRTA was created in 1963 to extinguish claims to property which are at least 30 years old 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 old interests of record. 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 on which they were recorded.
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 to avoid the possibility of challenges to covenants and restrictions.
MRTA also provides a specific process for HOAs to renew and preserve their covenants and restrictions to keep them in place after the 30-year term.
Notice to Preserve
The MRTA statute requires that a “Notice to Preserve” must be led 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.
Reviving Declarations
For associations seeking to revive declarations that have already expired, MRTA also provides procedures. Sect. 720.403 – Sect. 720.407, Fla. Stat. The statutes include guidelines as to the substance of the Declaration of Covenants, Conditions and Restrictions that is 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 for review. No later than 30 days after approval by the DCA, the revived documents must be recorded in the Public Records and then immediately served upon each property owner. See Sect. 720.403 – Sect. 720.407, Fla. Stat.
If you serve as a director or board member on an HOA that is approaching 30 years old, you should consult with the association’s attorney to ensure the HOA’s Declaration of Covenants and Restrictions has been renewed.