“Preserving Government Documents Questioned” – News-Press
Q: In the back of my mind, I recall the board, about 10 years ago, filed some sort of “affirmation” of the governing documents. I cannot seem to find the law that tells how often this happens. Is it every 10 years? 30 years? Some other interval? In 2015, when this was done before, the documents were recorded with the County Recorder’s office. (C.T., via e-mail)
A: I believe you are referring to the Marketable Record Title Act (“MRTA”) which is found in Chapter 712 of the Florida Statutes. If so, the answer is every 30 years.
The original intent of MRTA was to facilitate land transactions by removing old or stale claims from real property after 30 years.
Recorded covenants and restrictions for homeowners’ association can be extinguished by MRTA, due to the passage of 30 years’ time if the association did not take the appropriate steps to preserve and protect their documents.
MRTA provides for a process to “preserve” homeowners’ association documents against MRTA extinguishment and provide a procedure to “revitalize” HOA governing documents that have been extinguished by MRTA. Currently, there are two methods for preservation: (1) a written notice in accordance with MRTA; or (2) a summary notice in substantially the same form and content as required by Florida Homeowners’ Association Act.
If the homeowner’s association acts within the 30-year period, the beginning date of which is subject to a rather complicated legal analysis, the board of directors can approve preservation and stave off the need for further action on the issue for another 30 years. Relatively detailed legal procedures need to be followed, and the required documents should be prepared by a qualified attorney.
The law was amended a few years ago to also permit the use of amendments to homeowners’ association covenants as a means of providing the record notice of the preservation of the covenants against extinguishment by MRTA. Again, there are specific procedures that must be followed, and which should be handled by the association’s attorney.
However, if a homeowners’ association fails to preserve the documents before the expiration of the 30-year period, they are extinguished by MRTA and would need to be revitalized, which requires approval of a majority of the effected owners, which is typically considered to require approval of a majority of all owners.
The application of MRTA is complicated and rigid and can result in very harsh outcomes. As such, the Homeowners’ Association Act, Chapter 720, Florida Statutes, was amended in 2018 to specially require the board of a homeowners’ association to address this issue once per year. Under Section 720.303(2)(e), of the Homeowners’ Association Act, at the first board meeting following the annual meeting of members, excluding the organizational meeting, the board is required to discuss whether the HOA is MRTA compliant.
Generally, condominium documents are typically not affected by MRTA because the deed to each unit specifically references the recording information of the declaration of condominium, which is one of the exceptions to the application of MRTA.
Any association that has a question as to whether MRTA would apply to extinguish any of its documents should consult with an attorney who has experience in addressing MRTA issues.
Q: Our board has been discussing new rules, but we are unsure where to start. How do communities typically create effective rules? (J.D., via e-mail)
A: As laws and community norms change, regular review of the rules and regulations can help associations run smoothly, lead to greater compliance and may foster stronger community engagement.
Before introducing a new rule, the board should ask: what problem is the association seeking to address and is a new rule truly necessary? Sometimes, associations can solve an issue by enforcing existing rules or trying a different approach.
When the community decides a new rule is needed, it is necessary to confirm how the rule must be adopted. Some governing documents require that the membership must approve the rules. However, it is more common that rules and regulations can be adopted by the board. Regardless of how the rule must be adopted, a rule cannot conflict with any right contained within the governing documents, nor any right which is “inferable” from the documents. Also, rules must be reasonable.
Additionally, any rule which regulates the use of a condominium unit or parcel in a homeowners’ association, if adopted by the board, must be adopted at a board meeting with 14 days’ mailed and posted notice.
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.
