By Shay S. Raja, Florida Business and Real Estate Law Attorney
Homeowner’s associations have become more and more prevalent in Florida over the years. For those that have existed for quite some time, there is a real risk of not being able to collect HOA dues or enforce their covenants and restrictions. So, what may cause this risk you ask? That would be the Marketable Record Title Act, or MRTA. MRTA is a Florida law passed in 1963 to simplify land sales by rendering property free and clear of stale claims of record. MRTA’s purpose was to strip restrictions and encumbrances from ownership of a property after thirty years if those encumbrances did not fall within a class of statutory exceptions.
Covenants Approaching the 30-Year Mark
For example, covenants and restrictions that are disclosed by official record book and page in a deed or other “muniment” of title are exempt. The problem though for many HOA covenants that are pushing that thirty-year period is that they are often not referred to by official record book and page or by sufficient plat reference in deeds. As property ownership in a community did not begin at the same time for all owners, once the restrictions start being stripped from properties within a community after thirty years, properties within an HOA cease to be bound by the governing documents one by one, creating a community where assessments cannot be collected, and restriction cannot be enforced against all owners within the community.
Revitalization and Preservation Procedures
Traditionally, HOAs had two avenues by which to deal with MRTA issues. One method was to record a notice in the public records to extend their restrictions prior to the expiration of the thirty-year deadline. The second more complicated method was to revive stale or expired covenants through a revitalization process requiring the creation of a committee, an update to the documents, and a vote of the members, among numerous other specific requirements. However, in 2018, various changes were made to MRTA to simplify the revitalization and preservation procedures for HOAs. Additionally, changes were made to incorporate other types of associations being governed by MRTA as well. The most important change made to MRTA rules in 2018 was it requires boards of communities to annually discuss the preservation of the covenants and restrictions. Hence, the board of directors needs to openly review and discuss its governing documents to determine if action is required to preserve them.
Reviewing Governing Documents is Essential
Clearly, associations approaching the thirty-year period need to make a conscious effort to review their governing documents to be sure they will not run afoul of MRTA. However, with the changes made in 2018, the process by which action can be taken to prevent or rectify any MRTA issues has been simplified and associations must take advantage of this to assure their association continues to be governed by their association documents.
About the Author
Shay Raja joined Woodward, Pires & Lombardo, P.A. as an associate attorney in 2020 serving clients with real estate law and business law matters. He is resident in the Firm’s Marco Island, Florida location. Shay returns to the Firm after having been a summer associate previously. Shay graduated from the University of North Carolina where he was Senior Articles Editor of the North Carolina Journal of Law & Technology. He is a member of both The Florida Bar and the District of Columbia Bar. Contact Shay at (239) 394-5161 or firstname.lastname@example.org.
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