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 governing documents.
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) now states:
(e) At 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:
(a) The legal name of the association.
(b) The mailing and physical addresses of the association.
(c) The names of the affected subdivision plats and condominiums or, if not applicable, the common name of the community.
(d) The name, address, and telephone number for the current community association management company or community association manager, if any.
(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.
(f) A listing by name and recording information of those covenants or restrictions affecting the community which the association desires to be preserved from extinguishment.
(g) The legal description of the community affected by the covenants or restrictions, which may be satisfied by a reference to a recorded plat.
(h) The signature of a duly authorized officer of the association, acknowledged in the same manner as deeds are acknowledged for record.
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 owner’s association and references the recording information of the covenant or restriction to be preserved.
HOA 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.