The Marketable Record Title Act (“MRTA”) is set forth in Chapter 712, Florida Statutes, and provides that interests in real property are extinguished after thirty (30) years, with limited exceptions, unless preserved through compliance with Chapter 712. MRTA generally does not affect condominium associations and co-op associations (except in limited situations), but it does apply to the covenants and restrictions for most homeowners’ associations.
MRTA is primarily intended to facilitate real estate transactions by eliminating “stale claims” against real property. Florida’s courts have held that covenants and restrictions are subject to MRTA and can expire. It is important to understand that the duration of the covenants and restrictions is different than expiration under MRTA. Many covenants and restrictions have a time period when the covenants and restrictions will expire, but then state they automatically renew. Therefore, covenants and restrictions can expire under MRTA, even though the covenants and restrictions have not expired on their own terms.
MRTA extinguishes covenants and restrictions thirty (30) years from the “root of title.” The root of title applies to each Lot, and it can be labor intensive to determine the root of title for each Lot. Therefore, the most prudent yardstick for determining potential MRTA extinguishment is thirty (30) years from the recordation of the original covenants and restrictions.
The effects of MRTA can be harsh. Among the more notable consequences are the inability to enforce use restrictions, and loss of the right to utilize the provisions of the Declaration of Covenants to collect assessments. Therefore, an association should preserve prior to the thirty (30) year expiration of the covenants and restrictions. Effective October 1, 2018, Chapter 712 was amended to provide that amendments to covenants and restrictions can preserve the covenants and restrictions, if the amendment is indexed under the legal name of the association and references the recording information of the covenant or restriction to be preserved. Therefore, amendments recorded after October 1, 2018, and prior to the expiration of the covenants and restrictions can be used to preserve the covenants and restrictions.
Until 2018, Chapter 720 made no mention of MRTA, but did provide for a procedure to revitalize covenants and restrictions that had already expired. However, in 2018, a summary procedure to preserve covenants and restrictions before they expired was added to Chapter 720 by adding Section 720.3032, Florida Statutes. By following this procedure, covenants and restrictions can be preserved by a vote of a majority of the Board of Directors at a properly noticed Board Meeting. Therefore, if the date of the recording of your covenants and restrictions is nearing the thirty (30) year time period, your association should contact its attorney to take action to properly preserve the covenants and restrictions.
