If the Covenants and Restrictions for your Homeowners’ 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. Unenforceable covenants create a myriad of problems, including an inability to collect association assessments and an inability to enforce aesthetic covenants that enhance property values within the 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.
Why Can Covenants Become Unenforceable?
The Florida legislature enacted the Marketable Record Title to Property Act (“MRTA”) to simplify the title search process and to extinguish stale claims that could make property more difficult to sell. Passage of MRTA had the side effect of extinguishing the recorded covenants and restrictions of planned developments that were more than 30 years old. If the covenants and restrictions are no longer enforceable against some, or all, of the properties within a community, the associations is in the awkward position of no longer being able to collect assessments to pay for common area maintenance, and no longer being able to enforce architectural criteria and use restrictions against property owners whose covenants have been extinguished.
Do Covenant Amendments Extend Their Enforceability Under MRTA?
Amendments to covenants and restrictions will not preserve the original covenants under MRTA because declarations of covenants and restrictions are not “muniments of title.” Although Chapter 712, Florida Statutes does not define “muniments of title,” Florida case law provides that ‘[a] muniment of title is any documentary evidence upon which title is based. Muniments of title are deeds, wills, and court judgments through which a particular land title passes and upon which its validity depends.” Cunningham v. Haley, 501 So. 2d 649 (Fla. 5th DCA 1986) (emphasis in original). A declaration of covenants and restrictions is not a “muniment of title” because it is not an instrument that passes title to land. Instead, a declaration of covenants and restrictions is a “title transaction” within the meaning of Chapter 712, Florida Statutes. Therefore, even if an association has recorded amendments to its declaration of covenants and restrictions subsequent to the root of title, these amendments will not preserve the original declaration.
What is the Process for Reviving Covenants and Restrictions?
Part III of Chapter 720, Florida Statutes, provides a process for reviving a declaration of covenants and restrictions that no longer applies to some or all of the parcels because of the application of MRTA. Specifically, sections 720.404 and 720.405, Florida Statutes establish the following requirements for reviving covenants that have been extinguished by MRTA:
- All parcels to be governed by revived declaration must have once been governed by a previous declaration that has ceased to govern some or all of the parcels in the community;
- The revived declaration must be approved, in writing, by a majority of the affected parcel owners, at a properly noticed meeting of the affected parcel owners;
- The revived declaration may not contain covenants that are more restrictive on the parcel owners than the covenants contained in the previous declaration, except the revived declaration may:
- Have an effective term of longer duration than the previous declaration;
- Omit restrictions contained in the previous declaration;
- Govern fewer than all of the parcels governed in the previous declaration;
- Provide for amendments to the declaration and other governing documents; and
- Contain provisions that Chapter 720, Florida Statutes, requires for new associations that were not contained in the original declaration.
- The voting interest of each parcel must be the same as it was under the previous declaration;
- The proportional assessments must be unchanged; and
- The amendment provisions must be unchanged of, if the prior declaration did not include amendment provisions, must contain amendment provisions requiring approval of not less than two-thirds of the property owners.
Section 720.405, Florida Statutes, further requires that the proposal to revive the declaration be proposed by an organizing committee comprised of at least three unit owners. Once the organizing committee is in place, it next must submit the proposed revived declaration to all of the unit owners for a vote at a properly noticed meeting. At least fourteen (14) days prior to the meeting at which the property owners will vote to approve the revived declaration, the organizing committee must deliver the following items to all of the property owners who will be bound by the revived declaration:
- a copy of the complete text of the proposal;
- a copy of the proposed, revived declaration of covenants and restrictions;
- a copy of the proposed new, or existing, articles and bylaws of the association;
- and a graphic depiction of the property to be governed by the revived declaration.
An attorney or a court reporter must certify proof of notice of the meeting to all unit owners and of minutes of the meeting recording the unit owner votes on the revived declaration. Finally, Section 720.406, Florida Statutes requires that, within 60 days of vote approving the revived declaration, the Association must submit the proposed revived governing documents to the Department of Economic Opportunity for review and approval.
Reviving expired covenants and restrictions can be a laborious process that is best undertaken with the guidance of an experienced community association attorney. However, associations can avoid the revival process entirely by taking timely action to preserve their covenants and restrictions before they are extinguished by MRTA.