Most people who buy houses in a homeowners’ association are cognizant of the covenants and restrictions contained in their deeds. These restrictions allow associations to maintain uniformity in design and appearance among the various parcels. However, what some homeowners don’t know is that if these covenants and restrictions aren’t renewed within thirty years of recording, they expire and become unenforceable.
The Marketable Record Title Act (“MRTA”) provides that a person who is vested with an estate of land of record fort thirty (30) years or more has record title to the land free and clear of any and all claims. MRTA removes clouds of title and extinguishes covenants and restrictions on land in Florida. MRTA creates potential problems for homeowners’ associations whose governing documents are more than thirty years old. If an association is not diligent in preserving their covenants and restrictions, it will be vulnerable to assertions by lot owners that the governing documents cannot place restrictions on the use of their properties. Essentially, the association’s covenants and restrictions become meaningless.
If an association wishes to preserve its covenants, it must file a “Notice to Preserve” in the public records of the county where the property is located prior to the expiration of the thirty year period. To file the notice, the association’s board of directors must conduct a duly called and noticed meeting. The association must mail or hand deliver the meeting notice (which contains the meeting agenda) to all owners and post a copy on the property at least seven (7) days prior to the meeting. At the meeting, two thirds of the board must approve the filing. If approved, the association then files the notice. The filing preserves the existing covenant or restriction for the next thirty years.
If an association wishes to revive covenants and restrictions that expired after the thirty year period, the association must obtain the approval of the owners in the association whose covenants were extinguished, as well as the State Department of Community Affairs (the “Department”). An organizing committee composed of at least three parcel owners must compile a list of all proposed covenants, parcels no longer bound by the governing documents (including geographic depictions thereof), the owners of those parcels, and the association’s articles of incorporation and bylaws. The committee must then submit this compilation by mail or hand delivery to every affected parcel owner not less than fourteen (14) days prior to a meeting to vote on the approval of the covenants. If a majority of affected unit owners approve the revived declarations, the organizing committee then has sixty (60) days to submit the compilation to the Department for approval. The Department has sixty (60) days to review and approve the declarations. If the Department approves the declarations, the association has thirty (30) days to record the new declarations in the county where the association is located. Upon recording, the revived declarations become effective for thirty years.
It is important that members of a homeowners’ association review the dates on the governing documents and amendments thereto to determine how many years the association has before its covenants and restrictions expire.
Author(s): Joshua D. Krut & Brooke P. Dolara
