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Expiring Covenants, Conditions, and Restrictions…Oh My!

A large percentage of residents throughout Florida reside within communities that are subject to covenants, conditions, and restrictions that are usually enforced through a home owner’s association (“HOA”). These covenants, conditions, and restrictions are typically designed to retain uniformity and compliance with certain characteristics throughout the neighborhood by imposing building specifications, home color requirements, and terms and conditions in the usage of community facilities. In essence, the covenants, conditions, and restrictions are intended to increase and preserve property value within the community.

Although many Floridians reside within communities that are subject to covenants, conditions, and restrictions, they are unaware that these restrictions can expire. In 1963, the Florida legislature enacted the Marketable Record Title Act (MRTA) which preserved marketability of title to real property by extinguishing old interests of record not specifically claimed or reserved. Due to MRTA, you could purchase real property in Florida and limit your search of the real property chain in title to the preceding thirty years before root of title to the property. In many instances MRTA saved Florida property owners time and effort in no longer having to trace their property’s “chain of title” a period of time as far back as the Spanish land grants. However, due to the common method of transferring title, MRTA had the unintended consequence in some instances of exterminating self-imposed covenants, conditions, and restrictions on communities throughout Florida if those restrictions were not referenced in the root of title.

So how do you prevent your covenants, conditions, and restrictions from expiring? What if they already expired? Are you doomed to live in a neighborhood with purple houses and unkept yards? Thankfully, the answer is no. The Florida legislature has addressed these issues as summarized below.


A. Our covenants, conditions, and restrictions are almost thirty years old and are about to expire. What can we do?

An HOA can file a Notice of preservation of covenants, conditions, and restrictions only if it is approved by at least two-thirds of the members of the board of directors and if other meeting requirements are satisfied. The Notice must include multiple items. A non-exhaustive list includes a full and complete description of all land affected by such Notice; copies of the covenants, conditions, and restrictions; and notarization of the Notice. In addition, the Notice must be published in a manner and for a time as set forth in Fla. Stat. 712.06.


B. Our covenants, conditions, and restrictions have already expired. What can we do?

The Florida legislature has enacted a statutory process by which an HOA can revive its expired covenants, conditions, and restrictions. The process of reviving covenants, conditions, and restrictions involves approval by homeowners; revising the covenants, conditions, and restrictions; and approval of the proposed revised covenants, conditions, and restrictions by the Department of Community Affairs. This process requires strict compliance with the timing and procedures to successfully revive the covenants, conditions, and restrictions.


C. How long are the covenants, conditions, and restrictions valid for now?

The extended and/or revived covenants, conditions, and restrictions will be valid for a maximum of thirty additional years, unless a different period is set forth within the covenants, conditions, and restrictions.


D. Who should our HOA hire to ensure that our covenants, conditions, and restrictions are enforceable?

The bottom line is that HOAs and individuals can revive and/or extend their community’s covenants, conditions, and restrictions. However, the process can be time consuming and involves strict compliance with the statutory requirements. Failure to comply with all the statutory requirements can result in failing to revive the covenants, conditions, and restrictions and/or additional title issues being created.


It is recommended that you seek the legal advice of experienced real estate attorneys to resolve issues pertaining to your community’s covenants, conditions, and restrictions. Carver Darden has experienced real estate attorneys who have previously assisted communities in reviving and extending covenants, conditions, and restrictions. If you or your HOA is interested in reviving and/or extending your covenants, conditions, and restrictions, then please contact us below.

 

By: 

travis-morock-1024x684-1.jpgbrian-hoffman-1024x684-1.jpg    


Brian W. Hoffman
and Travis M. Morock

Mr. Hoffman and Mr. Morock are attorneys practicing in the firm's Pensacola office.

 

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