By L. Chere Trigg, Esq.

The Marketable Record Titles Act (“MRTA”) is a Florida law not known to many homeownerMarketable Record Titles Act: Preserving Restrictive Covenants For Homeowners' Associations association board members which serves to remove certain covenants, restrictions, claims and other encumbrances recorded against real property after 30 years. Included within the types of instruments extinguishable under MRTA are recorded covenants and restrictions that are enforced by homeowners’ associations or that authorize homeowners’ associations to impose charges or assessments against property or property owners. The restrictive covenants which make up the governing documents for homeowner associations in Florida are subject to MRTA, which may operate to extinguish such covenants 30 years after their recordation unless preserved or reaffirmed in accordance with Florida law.

A homeowners’ association may avoid the extinguishment of its covenants by filing a “Notice to Preserve” in the public records of the county where the property is located prior to the expiration of the 30-year period. The filing of the notice in the public records will eliminate the possibility of a challenge by a lot owner claiming that their property is not subject to the terms and conditions set forth in the homeowners’ association’s governing documents based upon MRTA. In other words, the failure to file the notice in accordance with the statute will result in the possibility of a challenge by a lot owner that the governing documents with respect to his/her lot have been extinguished based upon the 30-year timeframe.

The process of preserving restrictive covenants and recording the notice in the public records requires the approval of at least 2/3 of the members of the board of directors at a duly called and noticed meeting. The homeowners’ association must mail or hand deliver the meeting notice, which discusses MRTA and incorporates the agenda, to all owners and post a copy on the property at least 7 days prior to the meeting. The notice of the board meeting must also be prepared in accordance with Florida statutes.

It is imperative for every homeowners’ association to protect the restrictive covenants for their community from being extinguished. In order to determine whether MRTA may affect your governing documents in the near future, check the recording date for the declaration. Your community’s legal counsel should take the steps necessary to avoid the expiration of your covenants as a result of the impact of MRTA and start the process of preserving your governing documents.