Article Courtesy of JD SUPRA
By Shumaker, Loop & Kendrick, LLP
Published May 1, 2022
Chapter 712, Florida Statutes, the Marketable Record Title Act (“MRTA”),
presents a mortal risk to Florida homeowners association, potentially rendering
them unable to levy and collect assessments or otherwise enforce their governing
documents. Generally, MRTA extinguishes interests in a parcel of real
property which are older than the “root of title” for the parcel – defined as
the first deed or other instrument transferring ownership of the parcel which is
at least thirty years old – unless an exception applies. Since a homeowners
association developer typically records the declaration of covenants and
restrictions and then begins to deed individual parcels to owners, a homeowners
association’s declaration of covenants and restrictions is at risk of expiring
beginning thirty years after the initial deed from the developer, unless an
There are several exceptions to MRTA commonly applicable to prevent
extinguishment of declarations of covenants and restrictions for homeowners
associations. An exception arises where the root of title or subsequent deeds or
other muniments of title identify the declaration of covenant and restrictions
by book and page. An exception also arises where, subsequent to July 1, 2018, a
homeowners association records a properly adopted amendment to its declaration
of covenants and restrictions prior to extinguishment. Finally, an exception
arises where the homeowners association records notice of preservation in
accordance with Sec 712.06 or Sec 720.3032(2), Florida Statutes, prior to
extinguishment. The simplest option for filing a notice of preservation is
compliance with Sec 720.3032(2), which allows a duly authorized
officer of the Association (i.e., pursuant to board vote) to record a notice of
preservation containing basic information relating to the community specified in
the statute, such as the legal name and address of the association, names of
affected subdivisions, and identification of the recording location of the
covenants, without limitation. See Sec 720.3032(2) for complete requirements.
These exceptions reduce, but do not eliminate, the likelihood of extinguishment
under MRTA. As such, it remains incumbent on the Association to ensure that its
governing documents remain in effect. In recognition of the serious risk MRTA
presents to homeowners associations, effective July 1, 2021, Chapter 720
mandates that each newly elected Board of Directors, at its first regular
meeting following the annual meeting (excluding the organizational meeting),
consider the need to preserve the association’s governing documents against
expiration under MRTA and, as needed, authorize an officer to file a notice in
accordance with sec. 720.3032, described above.
Homeowners associations’ can revive expired declarations of covenants and
restrictions under Part III of Chapter 720, but the revival process is much more
onerous than preservation. Generally, revival requires an organizing committee
of affected parcel owners to create proposed revived declaration of covenants
and restrictions, provide copies to affected parcel owners, and obtain approval
of a majority of affected owners. Once the affected owners approve the revived
declaration of covenants and restrictions, the organizing committee must submit
for approval by the Department of Economic opportunity before recording in the
public records. See Sec 720.403 – 407 for complete requirements.
The process for investigating, preserving, and reviving expired declarations of
covenants and restrictions is full of pitfalls, but is critical for homeowners
associations to continue to operate for the protection of property values and to
the benefit of its members.
 In rarer cases, MRTA may also apply to condominium
associations. See Eastwood Shores Property Owners Association, Inc. v.
Department of Economic Opportunity, 264 So.3d 264 (Fla. 2d DCA 2019).
 Sec 712.06, by comparison, requires the association to send copies of
the governing documents, index them to the certified tax rolls, and contains
other requirements not applicable under Sec 720.3032(2).