Associations May Lose the Ability to Enforce Covenants and Restrictions as a Result of the Marketable Record Title Act (MRTA). While the MRTA Statute was primarily intended to simplify real property transfers by eliminating “stale claims”, association leaders and homeowners must understand that the recorded covenants and restrictions governing their communities may be considered “stale” after a certain period of time. I’m not referring to the duration of the covenants (usually a paragraph that says something to the effect that the covenants are effective for 50 years and then renew for successive periods of ten years) themselves. I’m talking about a law that may nullify the duties and obligations set forth in the recorded documents during the initial period (or a renewal, as applicable). What would happen if your community didn’t have enforceable covenants? Would homeowners pay assessments or maintenance fees (maybe some would – most probably would not)? Would homeowners build swimming pools (if permitted by code) in the front yard or build an addition that made their house look like a Victorian Mansion in a Key West style community (they may)? How would that impact everyone else? How would you feel if your neighbor had Al Goldstein’s taste in art or the local Steelers fan decided his house must be black & gold and the association didn’t have the power to do anything about it? Section 712.02 of the Florida Statutes, in pertinent part, provides:
Any person having the legal capacity to own land in the state, who, alone or together with his predecessors in title has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate and land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in [F.S.] 712.03.
Accordingly, a person who has owned (or through his/her predecessors in title has owned) his/her land for 30 years or more has marketable record title free and clear of all restrictions (which includes Covenants) unless the restrictions are specifically disclosed and referenced in a document that passes title. The 30-year period commences upon the “root of title”, which (without being too technical) is basically the first deed to each lot that is transferred after the Covenants are recorded. Don’t worry – there is good news.
- First, most of the time MRTA does not impact condominiums or condominium association covenants and restrictions, but there are some cases where MRTA may apply if easements or other restrictions are not referenced in the Declaration.
- Second, there are procedures set forth in the Statutes to preserve and protect covenants and restrictions that have not yet expired. Handling this issue while the covenants are still in effect saves a lot of hassle (and expense) later on.
- Third, there are also procedures for homeowners and homeowners associations to follow if the thirty (30) years has come and gone already to revive or renew the covenants and restrictions.
If you haven’t discussed this issue with your Community Association Attorney yet, don’t wait any longer. Find out what steps you need to take to protect and enforce the recorded covenants.