Many of you
that live in an HOA are learning or have already learned the
hard way that pursuant to The Florida Marketable Record Title
Act, your governing documents expire after thirty years if they
are not properly preserved. That’s right. Suddenly, after 30
years, you’re no longer living in a community that is governed
by a declaration of covenants. There is no obligation to pay
assessments or otherwise conform to any requirements of the
As I teach
this concept around the state, it is shocking that so many
communities had no idea about this area of the law. As a
result, many communities found themselves with unenforceable
expired documents. The worst part is that it only took a
two-thirds vote of the board of directors at a properly noticed
meeting to vote to preserve the documents by recording the
required statutory form in the public records. It really wasn’t
hard at all. If you blow the deadline however, now the
documents have to be “revitalized”; a much more difficult and
expensive process where a majority of the members of the
community must vote in favor of revitalization and then the
Department of Economic Opportunity would have to approve.
As of July 1st,
2018 The Florida Legislature made it mandatory for your HOA
Board of Directors to at least think about the fact that your
governing documents may be expiring. Florida Statute 720.303(2)
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.
As of now,
you have a responsibility as a director to ensure that the board
“consider the desirability” of preserving the covenants or
restrictions at the first board meeting (other than the
organizational meeting) following the annual meeting.
The Florida Legislature even made a form to use to be recorded
in the county where the community is located which must contain:
legal name of the association.
mailing and physical addresses of the association.
names of the affected subdivision plats and condominiums or, if
not applicable, the common name of the community.
name, address, and telephone number for the current community
association management company or community association manager,
(e) Indication as to whether the association desires to preserve
the covenants or restrictions affecting the community or
association from extinguishment under the Marketable Record
Title Act, chapter 712.
listing by name and recording information of those covenants or
restrictions affecting the community which the association
desires to be preserved from extinguishment.
legal description of the community affected by the covenants or
restrictions, which may be satisfied by a reference to a
signature of a duly authorized officer of the association,
acknowledged in the same manner as deeds are acknowledged for
There was always confusion about whether or not a community that
amended their governing documents within the past thirty years
was safe. In other words, did the 30 year clock restart when
the amendment was recorded. Now, it is clear that an amendment
recorded after July 1st, 2018, does restart the clock
and your documents can be preserved by recording an amendment
to a community covenant or restriction that is indexed under the
legal name of the property owners’ association and references
the recording information of the covenant or restriction to be
directors you are now on notice of your immense responsibility
here. There is no longer an excuse to accidentally let your
covenants lapse. Have that meeting, have that discussion, fill
out the form and record it. Even if you want the covenants to
lapse, as some people in some associations do, the meeting is
still required and on the form you can indicate that the board
did not vote in favor of preserving the covenants. Then you can
separately deal with the ramifications that decision may bring
from your fellow parcel owners.