Chapter 712, Florida Statutes, the Marketable Record Title Act (“MRTA”), presents a mortal risk to Florida homeowners association, potentially rendering them unable to levy and collect assessments or otherwise enforce their governing documents.[1] Generally, MRTA extinguishes interests in a parcel of real property which are older than the “root of title” for the parcel – defined as the first deed or other instrument transferring ownership of the parcel which is at least thirty years old – unless an exception applies. Since a homeowners association developer typically records the declaration of covenants and restrictions and then begins to deed individual parcels to owners, a homeowners association’s declaration of covenants and restrictions is at risk of expiring beginning thirty years after the initial deed from the developer, unless an exception applies.
There are several exceptions to MRTA commonly applicable to prevent extinguishment of declarations of covenants and restrictions for homeowners associations. An exception arises where the root of title or subsequent deeds or other muniments of title identify the declaration of covenant and restrictions by book and page. An exception also arises where, subsequent to July 1, 2018, a homeowners association records a properly adopted amendment to its declaration of covenants and restrictions prior to extinguishment. Finally, an exception arises where the homeowners association records notice of preservation in accordance with Sec 712.06 or Sec 720.3032(2), Florida Statutes, prior to extinguishment. The simplest option for filing a notice of preservation is compliance with Sec 720.3032(2),[2] which allows a duly authorized officer of the Association (i.e., pursuant to board vote) to record a notice of preservation containing basic information relating to the community specified in the statute, such as the legal name and address of the association, names of affected subdivisions, and identification of the recording location of the covenants, without limitation. See Sec 720.3032(2) for complete requirements. Continue reading “Homeowners Associations and the Marketable Record Title Act (“MRTA”)”