A Declaration of Covenants, Conditions and Restrictions is the fundamental governing document for homeowner associations. Unfortunately, under the Florida’s Marketable Record Title Act (“MRTA”), this document does not live in perpetuity even if the Declaration includes an automatic renewal provision. As a result, after thirty years, the recorded Declaration expires.
A homeowners’ association can act to preserve the covenants and restrictions and protect them from extinguishment by filing a written notice in the public records before they expire. The association must comply with statutory requirements as outlined in the statute in order to achieve preservation. The process does not include a vote by the lot owners in the subdivision.
The process becomes much more cumbersome when the covenants and restrictions expire. The statute governing the revival process includes an organizing committee, notice to owners, a vote by the owners, and submission of documents for review to the Florida Department of Economic Opportunity (the “DEO”). If the DEO determines that the proper procedures were followed, the organizing committee will be notified to record the revived community documents in the public records. The committee then must provide a copy of the recorded documents to all parcel owners.
The Florida legislature considered a bill in the 2015-2016 legislative session that would have addressed extinguishment of covenants and restrictions, but unfortunately it failed to pass.