Is Time Running Out on Your Association’s Covenants and Restrictions? How to Preserve your Covenants and Restrictions under Florida Law

The Florida Marketable Record Title to Property Act (“MRTA”) can operate to extinguish interests in real property that were recorded prior to the “root of title” to a property.  In Florida, the root of title must be established by a “title transaction” recorded at least 30 years prior to the time that marketability of title is being determined.  In plain English, if the Covenants and Restrictions for your Property Owners’ Association were recorded in the public records more than 30 years ago, they may no longer be enforceable against some or all of the properties within your community.

Fortunately, Florida law provides a mechanism to preserve covenants and restrictions that are at risk of no longer being enforceable, and to revive covenants and restrictions that can no longer be enforced against some or all of the properties within the community.

What is the Process for Preserving Covenants and Restrictions that are at Risk of Expiring?

Section 712.05 and Section 712.06, Florida Statutes, establish the procedure an association must follow to preserve its covenants.  An association desiring to preserve its aging covenants and restrictions should perform the following actions:

  1. Send a notice to all property owners of a meeting of the Board of Directors, including Statement of Marketable Title Action required by Section 06;
  2. Obtain approval of 2/3 of the Board as required by 05;
  3. Have attorney prepare and record a Notice of Preservation of Covenants and Restrictions in public records, which must include:
  1. The name and address of the association;
  2. A copy of the covenants and restrictions to be preserved;
  3. The legal description of all land affected by the Notice of Preservation of Covenants and Restrictions;
  4. An affidavit of a board member attesting that the Statement of Marketable Title Action was provided to all members of the Association; and
  5. A properly authorized and notarized signature of the member of the Board executing the Notice of Preservation of Covenants and Restrictions.
  1. Publish the Notice of Preservation of Covenants and Restriction to all property owners within the association by either:
  1. Arranging the clerk of court to mail a copy of the Notice to all owners; or
  2. Publish the notice, including the recording information, in a local newspaper for 2 weeks.

Conclusion

The Board of Directors of a property owners’ association may have a duty to enforce the association’s covenants and restrictions, which could include taking action to preserve covenants that may be at risk of expiring under the Florida Marketable Record Title to Property Act.  If your covenants and restrictions were recorded more than 28 years ago, it is time to take action to preserve those covenants before they are extinguished.

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