As many officers and directors of Florida homeowner
associations have learned the hard way and now know, the
governing documents in a Florida homeowner’s association expire
if not properly “preserved” within thirty years of the documents
originally being recorded. That’s right. Suddenly, you are
living in a community not governed by any covenants and
restrictions, no enforcement provisions, no authority of a Board
and no obligation for owners to follow the rules or even pay
assessments.
Florida Statute 712, The Florida Marketable Record
Title Act, “MRTA” is the culprit.
A Florida homeowner’s association was always able to
“preserve” the documents from expiring by a vote of 2/3 of the
Board, proper notice to the community and the filing of certain
documentation in the public records. Many boards knew the
importance of meeting the deadline to preserve the documents and
many did not. Those associations that blew the deadline now had
and continue to have an expensive process on their hands whereby
a majority vote of the community is required to “revitalize” the
declaration of covenants, instead of a 2/3 vote of the board.
In addition, even if the vote is obtained, approval is still
required from The Department of Economic Opportunity. Inasmuch
as thousands of HOAs are at risk of losing the ability to
maintain their restrictive covenants, The Florida Legislature
passed some important amendments last legislative session that
became effective on July 1st, 2018.
720.303(2)(e) states: At the first board meeting, excluding
the organizational meeting, which follows the annual meeting of
the members, the board shall consider the desirability of filing
notices to preserve the covenants or restrictions affecting the
community or association from extinguishment under the
Marketable Record Title Act, chapter 712, and to authorize and
direct the appropriate officer to file notice in accordance with
s. 720.3032.
Clearly, there is now a mandatory obligation of the Board to
hold a meeting each year and consider preserving the documents.
In addition, Florida Statute 720.3032 was amended to allow the
association to file a simplified form in the public records
indicating a desire to preserve the governing documents.
Finally, 712.05 was amended to clarify that subsequent to July
1st, 2018 if the association records an amendment to their
governing documents before they expire, the governing documents
are preserved.
There’s still a couple of loose ends that the statute needs to
clarify. For example, why is a meeting of the association
required every year, once the documents are officially
preserved. Should the form be recorded every year? However,
these kinks will be worked out.
The
bottom line is that HOA directors now have a clear and
unequivocal obligation to follow the new law and hold a meeting
regarding the preservation of the documents. The law is already
in effect.
All I can tell you is DO NOT BLOW THE DEADLINE TO PRESERVE
THE DOCUMENTS. To “revitalize” expired documents is
expensive, time consuming and no sure thing.
