Q: I am a member of a homeowners’ association that was established with governing documents written and recorded in 1994. Recently, I received a packet for an upcoming association meeting, which included an item on the agenda about renewing our governing documents under the Marketable Record Title Act. This packet also included a notice informing the membership that these documents will be preserved for future generations, and notably, it stated that this action does not require a vote by the members. Could you explain what the Marketable Record Title Act is? Also, is it permissible for the association to renew these documents without any input from the members? (E.S., via e-mail)
A: The Florida Marketable Record Title Act (MRTA), Chapter 712, Florida Statutes, was enacted by the Florida Legislature to simplify property transactions and modernize land use. Before MRTA, title examinations involved reviewing all documents in the county’s public records, including old grants of mineral rights from inactive mining companies. MRTA simplifies this process by limiting the title examination to a 30-year period, with certain statutory exceptions, nullifying old claims, interests, or covenants.
Suffice it to say – the issue of determining whether a document is within the 30-year period is complex – reference to a declaration of condominium in the description of a deed incorporates that declaration’s terms. Every time a deed is recorded referencing that declaration and the official book and page where it is recorded, it causes that declaration to remain within the period. Therefore, the preservation of condominium covenants is usually unnecessary where they are typically unaffected by MRTA, but it is more relevant to homeowners’ associations, where their covenants and restrictions are not uniformly referenced in deeds of conveyance.
Property owners, particularly those within homeowners’ associations governed by Chapter 720, Florida Statutes, have often faced issues due to their association covenants becoming potentially void due to MRTA. To address this problem, the Florida Legislature amended MRTA by providing a pathway to prevent the extinguishment of these covenants by MRTA. Associations may safeguard the governing covenants from extinguishment by recording a written notice, as outlined in Section 712.05(2) of the Florida Statutes, such as a summary notice that meets the requirements of Section 720.3032(2) of the Florida Homeowners’ Association Act. Properly filing a notice in the county’s public records prevents MRTA-related extinguishment of the covenants and restrictions contained in the notice.
Due to the importance of this issue, the law was amended a few years ago to require that at the first board meeting following the annual members’ meeting – excluding the organizational meeting – the board of a homeowners’ association must determine whether to record a notice under this law. Although I am unsure how widely this law is known and followed, it is intended to serve as a periodic (annual) reminder to the HOA board of this issue, where the implications can be severe if deadlines are missed.
The decision to record a preservation notice only requires a board vote. The association should work with the association counsel to ensure that all proper steps are followed.
If covenants and restrictions have been extinguished due to MRTA, the law also contains a process for their “revitalization.” That procedure is highly complicated and requires approval from a state agency and a majority vote of the property owners.
Q: Our condominium association hired a new attorney, who had previously represented the president personally. A legal opinion was supposedly given that this was not a conflict of interest, but the board will not share it with me. What are my options? (A.M., via e-mail)
A: Section 718.111(12) of the Florida Condominium Act lists all the official records of the association and details the procedures for owners to inspect them. However, the statute states that records of the association protected by attorney-client privilege are not open for owner inspection. Therefore, you are unlikely able to obtain the information you are seeking.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.