Florida Statutes, Chapter 712, entitled “Marketable Record Title Act,” (hereinafter “Act”) requires residential homeowners associations to take action every 30 years in order to preserve covenants and restrictions contained in the association’s governing documents and avoid their extinguishment by operation of the Act. The action to be taken necessitates the recordation of a written notice that contains the specific information set forth in section 712.06 of the Act. The Act mandates that the required notice may be filed by a homeowners’ association only if at least 2/3 of the members of the board of directors have voted to preserve the covenants and/or restrictions in question at a properly noticed meeting. The failure to file the appropriate notice prior to the expiration of 30 years from when the covenants and/or restrictions first took effect (the date of the original recording) will result in the expiration of the covenants and/or restrictions and the inability to continue to enforce the subject covenants and/or restrictions. This could include the ability to continue to collect assessments that are vital to the continuing operations of the homeowners’ association.
While there is a process for reinstating the covenants and/or restrictions that expire due to the association’s failure to take the appropriate action with the 30 years from the initial filing (see Florida Statutes, Chapter 720, Sections 720.403 through 720.407), that process is more costly and time consuming because it requires the consent of homeowners and the approval of the Florida Department of Financial Affairs.
All homeowners’ associations in Florida that have been in existence for more than 30 years should have taken the appropriate action to preserve their declaration. If they have not done so, the covenants and restrictions contained in their declaration have probably expired and immediate action should be taken to reinstate them.Association’s that are approaching 30 years in existence should be aware of the requirements of the Act (a copy of which is available via the below link), and make certain that the appropriate board action is taken and the requisite notice is filed prior to the expiration of 30 years from the initial recording.Given the importance of compliance with the Act, all homeowners’ associations that are faced with issues concerning the preservation of their covenants and/or restrictions, or the reinstatement of covenants and/or restrictions that have expired are urged to consult experienced legal counsel in Florida to make certain that the appropriate steps are taken to comply with the provisions of the Act.
See copy of Florida Statute: Market Record Title Act>