Last year, I wrote an article warning homeowners’ associations (“HOAs”) that the enforceability of their covenants and restrictions (“Covenants”) may be affected by the Marketable Record Title Act (“MRTA”). In simple terms, MRTA can eliminate the effectiveness of recorded Covenants if they haven’t been preserved within 30 years from when the covenants and restrictions were recorded.
New Law Offers Relief to Some HOAs
In my prior article, I stated that merely amending or restating the covenants does not restart the 30-year clock, but that a statutory process must be followed.
The good news is that in 2018, the Florida legislature amended MRTA by the passage of House Bill 617, to provide that certain amendments will preserve the Covenants if they are recorded before the time the Covenants would have expired. The bad news is that the new law is not effective until October 1, 2018, and, further, the new law will not save any HOAs from having to go through the statutory revitalization process if their Covenants have already expired under the current law prior to October 1, 2018.
Under the new law, HOAs now have the option to preserve their Covenants during the 30 year period by recording the Statement of Marketable Title Action that was required under the prior version of the law, or they can either record an amendment or they can record a summary notice during the 30 year period. The amendment must be indexed by the clerk of court under the legal name of the HOA and must reference the recording information of the Covenants that are being preserved. The summary notice would need to be approved by the Board of Directors before it is recorded and must include basic information about the HOA and property, as well as an indication of the HOA’s intent to preserve the Covenants from extinguishment under MRTA.
Annual Action Required
The Board is now required to annually consider the desirability of preserving the Covenants at the first Board meeting, excluding the organizational meeting, following the annual meeting of the members. The preservation no longer requires the approval of 2/3 of the Board and it no longer is required to a have a specific notice to affected property owners, so the approval can be done by following the requirements for Board meeting notice and approvals as provided under the Bylaws.
It should also be noted that the amendments to MRTA allow non-residential associations to use the same procedures as HOAs to preserve or revitalize commercial Covenants.
If your HOA or commercial property owners’ association has any concerns regarding the effect of MRTA and the new changes on its Covenants, contact an attorney to confirm whether revitalization or preservation may be required. I may be reached at firstname.lastname@example.org or by phone at 239-344-1108.