The Art of the Covenant: Preserving HOA Restrictions

The covenants and restrictions found in the governing documents for homeowners associations are subject to the seldom discussed, but very important Florida Marketable Record Titles Act (“MRTA”).  Under the MRTA, encumbrances on real property, including a homeowners association’s covenants and restrictions (such as those that allow it to control aesthetics, issue violations and levy assessments), may be rendered unenforceable and extinguished 30 years after their date of recordation if not properly preserved or reaffirmed by the association beforehand (See Florida Statute 712).

The good news is that there is a streamlined and relatively simple 4 step process by which the association can ensure that its covenants and restrictions are not extinguished by the MRTA, and in doing so, avoid the possibility of homeowners later contending that the provisions of the community’s governing documents are inapplicable as to their property.

The first step, as if you did not see this one coming, is that the association must properly notice a meeting of the board of directors (hooray for more meetings!).  The association must mail or hand deliver the notice to all the members of the community at least 7 days prior to the meeting, and the notice must include the time and place of the meeting, as well as all the “Statement of Marketable Title Action” as is explicitly set out in Florida Statute 712.06.  A copy of the meeting notice should also be posted throughout the community.

The second step is the holding of the meeting.  At the meeting, the approval of at least 2/3 of the members of the board of directors will be necessary to properly authorize the preservation of the association’s covenants and restrictions (See 712.05).

Once authorized, the third step is for the association to have its attorney prepare and record a Notice of Preservation of Covenants and Restrictions in the public records of the county where the association is located.  The Notice must contain the name and address of the association, a full and complete description of all land affected by the notice, a copy of the applicable covenants and restrictions sought to be preserved, an attached affidavit of a board member attesting that the “Statement of Marketable Title Action” was previously provided to the members of the community and the Notice must be properly signed and notarized.

The fourth and final step is for the association to either arrange and pay for the clerk of court to mail a copy of the notice to all owners (by registered or certified mail) or alternatively (and what probably makes more sense), have the notice, including the recording book and page number, published once a week, for 2 weeks in a local newspaper.

Of course, the lesson here is simple but crucial.  A homeowners association’s ability to assess its members and to exercise certain levels of control are crucial elements of community living and every necessary step (or 4 of them) to preserve those powers must be taken.

Daniel Wasserstein