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. Due to the limited exceptions, MRTA generally does not affect condominium associations and co-op associations, but it does apply to the covenants and restrictions for most homeowners’ associations.
As set forth in a previous article I wrote Don’t Let Your Covenants and Restrictions Expire, Be Sure to Preserve, there is a procedure to preserve covenants and restrictions before they expire. Unfortunately, many associations rely on the time periods in their covenants and restrictions, which state a duration of the covenants and restrictions, but then state that the covenants and restrictions automatically renew. However, MRTA controls over the time periods set forth in an association’s covenants and restrictions. 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 roof 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.
What can an association do if the covenants and restrictions expire? Luckily, in 2004, the legislature set forth a revitalization procedure in Chapter 720, Sections 720.403 through 720.407, Florida Statutes. Unlike a preservation, the revitalization procedure requires the approval of the members of the association.
The revitalization procedure requires an organizing committee made up of at least three (3) parcel owners in the community. The organizing committee must provide copies of the governing documents to the owners, along with plats or a graphic depiction of the real property, the names, addresses and phone numbers of the organizing committee members, and a list of all the owners in the community, along with the legal description of all the lots. While MRTA can be voted on at an owners’ meeting, the procedure used by many attorneys is a written consent procedure.
Once the association has the required number of signatures from the owners, which is a majority of the parcel owners, an affidavit must be signed by an organizing committee member or board member, and the revitalization package must be submitted to the Department of Commerce (“DOC”) for approval. If approved by the DOC, the association must record a certificate of revival, along with copies of the governing documents, the list of owners and the legal descriptions of all the lots, and the approval letter from the DOC. Once recorded, the covenants and restrictions are valid for another thirty (30) years.
The procedure above can be challenging in that the DOC has specific items it is looking for when the documents are submitted to it for approval. The DOC also carefully scrutinizes the revitalization process that was used for statutory compliance. Therefore, if your covenants and restrictions have expired, you should contact the association’s attorney to prepare the necessary documents for a revitalization.
