“Marketable Title Act Explained,” News-Press

“Marketable Title Act Explained,” News-Press

Q: What vote is required to protect our homeowners’ association documents from MRTA? (Y.G., via e-mail)

A: MRTA or the Marketable Record Title Act is found at Chapter 712 of the Florida Statutes. MRTA extinguishes certain encumbrances on real property after 30 years. The original intent of the Act was to remove old or stale claims from real property after 30 years to facilitate clear titles and the issuance of title insurance.

However, the Florida courts have held that community association documents, particularly homeowners’ association’s declarations, can be extinguished by MRTA. The 30-year deadline runs from the “root of title” which is typically the initial deed for each lot from the developer of the homeowners’ association. As such, if homeowners’ associations do not take appropriate steps to preserve their documents, their documents can be extinguished by operation of the MRTA.

The board of directors is authorized to preserve the homeowners’ association documents by holding a board meeting where the board votes to preserve the documents. The homeowners’ association must then file a statutory notice in the public records stating that the homeowner association’s documents have been preserved, and this resets the clock for another 30 years. There are certain technical procedures that must be followed, and the documents should be prepared by legal counsel.

If a homeowners’ association has failed to preserve its documents before the 30-year deadline, the association can “revitalize” the documents. The process for revitalization requires a vote of the affected property owners, and at least a majority of all affected property owners must vote to approve the revitalization of the subject homeowners’ association documents.

Condominium documents, specifically the declaration of condominium, is generally not subject to MRTA because the deed for each unit must reference the declaration, so it always remains in the chain of title through the deeds of transfer. There are limited situations where condominium associations must also address MRTA issues.

It is important to note that even though the “duration” of most HOA covenants is essentially perpetual (most have an initial fixed term and then periodic automatic renewals), MRTA is a different rule and can extinguish covenants that are still active by their own terms. The application of the law can be harsh. Florida’s courts have ruled that board members have a fiduciary duty to take action to prevent extinguishment of covenants by MRTA.

Q: Is food allowed at our condominium pool? (B.M., via e-mail)

A: The answer depends on the terms of your condominium documents, which may be stricter than state law. Chapter 514 of the Florida Statutes applies to most condominium and homeowners’ associations under the law which generally regulates a “public swimming pools.”

Rule 64E of the Florida Administrative Code is a rule from the Department of Health regulating public swimming pools. Section 9.004(4) of that rules used to provide that food and beverages were prohibited “in the pool and on the pool wet deck area.” In 2016, the rule was amended to say that “food, beverages, glass containers, and animals are prohibited in the pool.” Notwithstanding this change to the rules, it is my understanding that pool inspectors from the Department of Health still enforce the “no food in the pool” rule to include four-foot-wide “wet deck” around the pool edge.

Joseph Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.