MRTA and Covenant Revitalization/Preservation. What does it mean?

By Susan P. Bakalar, Esq.

Without taking steps to either preserve or revitalize expiring or expired covenants, a HOA’s ability to govern, enforce, collect assessments and function as a corporation may be lost. The Marketable Record Title Act, or “MRTA” [Chapter 712, Fla. Stat] as it is commonly known, was enacted in 1963 by the Florida legislature and was amended in 1997, 2003 and again in 2010. The last round of amendments and the act in its present form affords associations the ability to take action to either preserve its Declaration of Covenants and Restrictions (the Declaration”) or to take steps to “revitalize” an expired Declaration.

What does this mean to an association in practical terms? If an association (usually a HOA) allows for its governing Declaration to expire, it would not be able to collect assessments, enforce rules and regulations, approve [and enforce] architectural modifications, maintain a 55+ designation [if applicable, for example], enter into contracts or operate as a corporation. Essentially the Association has no rights.

According to Section 712.02 of the Florida Statutes, any person having a legal capacity to own land in the state, who, alone or together with his predecessors in title has been vested with any estate in land of record for 30 years or more, shall have a marketable record title in such estate and land, which shall be free and clear of all claims except the matters as set forth as exceptions to marketability. Sections 712.05 and 712.06 provide the process, including notice requirements, for the recording of interest in land and preservation of covenants and restrictions for community associations which may be extinguished under operation of the act. Section 720.405(1) requires that a written notice must be recorded to claim an interest in land to preserve and protect from extinguishment any covenants or restrictions. There is a laundry list of terms and conditions which must be met in order to preserve a declaration subject to expiration.

Not only does an Association, through its Board of Directors, have the right to preserve or revitalize the Declaration, it has a fiduciary obligation to take such actions. Associations who do not take the proper actions to preserve their Declaration could be subject to litigation should it not exercise its duty to preserve the Declaration from expiring or by taking action to revitalize a Declaration which may have unfortunately expired. There are several cases on record in which an owner or group of owners has sued their respective associations for failure to take actions required to preserve the governing Declaration.

In a recent case, Matissek v Waller, a property owner (Matissek) bought property in an airpark community and intended to erect a hangar for his airplane. Waller, a neighbor of Matissek advised that the association’s declaration prohibited certain types of structures (steel frame walls vs masonry). Matissek went forward and built the hangar with steel frame walls despite being prohibited by the Declaration. Since the Declaration had expired, the court, in simplistic terms (and after long debate and being taken up on appeal) ruled in favor of Matissek and the owner was not required to remove or modify the steel hangar.

Imagine if an association, who had been enforcing its architectural guidelines to maintain community standards and promote architectural harmony was suddenly unable to prevent an owner from painting their home pink and purple, to stop an owner from installing a fence or hedge which blocks views of the lake, to stop an owner from installing a pool with a 3 story slide or from pulling out all of the grass on their property and installing artificial grass and a putting green in front of their home?

Don’t let this happen to your community. If you are not sure of when your Declaration will expire or how to determine same, contact your Community Association attorney for assistance. Should you require assistance, we are happy to help!

Susan P. Bakalar, Esq. is the Managing Attorney at Bakalar & Associates, PA, a practice dedicated to the representation of community associations in Florida.