Keeping Your HOA’s Covenants Alive

The Marketable Record Title Act’s (MRTA) purpose is to extinguish old interests and use restrictions on lands and to allow for land sales to be completed more easily and with less expense. Unfortunately, aged homeowners’ association covenants are amongst the interests that can be extinguished by MRTA, and preventing such extinguishment is a very important responsibility for homeowners’ association directors.

Although determining timeframes and exceptions under MRTA is nuanced and technical, as a broad oversimplification, a homeowners’ association should plan to preserve its covenants within thirty (30) years of the date that the developer started lot sales after recording the community declaration. If that date is unknown, then a community should plan to preserve the covenants within thirty (30) years of the date that the original community declaration of covenants was recorded. Pursuant to Section 720.303(2)(e), Florida Statutes, homeowners’ association boards are required to consider the desirability of preserving the community covenants each year at the first board meeting following the organizational meeting. If done each year, it is less likely that a community will miss this important deadline.

There are several ways for homeowners’ associations to preserve their covenants from MRTA extinguishment. The easiest way is to work with legal counsel to record a summary preservation notice, pursuant to Section 720.3032, Florida Statutes. An alternative way is to work with legal counsel to record a notice containing a Statement of Marketable Title Action and meeting the additional statutory requirements found in Section 712.06, Florida Statutes. Neither of these preservation methods requires a membership vote. A third way to preserve homeowners’ association covenants is to record an amendment to the community declaration that is indexed under the legal name of the homeowners’ association and that references the recording information of the declaration to be preserved. Declaration amendments that predate July 2018 (when the statute was broadened to include preserving by amendment) arguably do not have the effect of preserving the covenants. Regardless of the preservation method selected, documentation of the preservation must be recorded in the county public records for the preservation to be effective.

Homeowners’ associations that have not spoken to legal counsel about covenant preservation are urged to do so—particularly in light of the annual requirement for the board to consider the desirability of filing a preservation to keep the covenants from expiring.