As many officers and directors of Florida homeowner associations have learned the hard way and now know, the governing documents in a Florida homeowner’s association expire if not properly “preserved” within thirty years of the documents originally being recorded. That’s right. Suddenly, you are living in a community not governed by any covenants and restrictions, no enforcement provisions, no authority of a Board and no obligation for owners to follow the rules or even pay assessments.
Florida Statute 712, The Florida Marketable Record Title Act, “MRTA” is the culprit.
A Florida homeowner’s association was always able to “preserve” the documents from expiring by a vote of 2/3 of the Board, proper notice to the community and the filing of certain documentation in the public records. Many boards knew the importance of meeting the deadline to preserve the documents and many did not. Those associations that blew the deadline now had and continue to have an expensive process on their hands whereby a majority vote of the community is required to “revitalize” the declaration of covenants, instead of a 2/3 vote of the board. In addition, even if the vote is obtained, approval is still required from The Department of Economic Opportunity. Inasmuch as thousands of HOAs are at risk of losing the ability to maintain their restrictive covenants, The Florida Legislature passed some important amendments last legislative session that became effective on July 1st, 2018.
720.303(2)(e) states: 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.
Clearly, there is now a mandatory obligation of the Board to hold a meeting each year and consider preserving the documents.
In addition, Florida Statute 720.3032 was amended to allow the association to file a simplified form in the public records indicating a desire to preserve the governing documents.
Finally, 712.05 was amended to clarify that subsequent to July 1st, 2018 if the association records an amendment to their governing documents before they expire, the governing documents are preserved.
There’s still a couple of loose ends that the statute needs to clarify. For example, why is a meeting of the association required every year, once the documents are officially preserved. Should the form be recorded every year? However, these kinks will be worked out. The bottom line is that HOA directors now have a clear and unequivocal obligation to follow the new law and hold a meeting regarding the preservation of the documents. The law is already in effect.
All I can tell you is DO NOT BLOW THE DEADLINE TO PRESERVE THE DOCUMENTS. To “revitalize” expired documents is expensive, time consuming and no sure thing.