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Is My Condominium Subject to the Marketable Record Title Act?

January 27, 2022 Community Association Industry Legal Blog

Reading Time: 5 minutes


Chapter 712 of the Florida Statutes, commonly known as the Marketable Record Title Act (“MRTA”) was enacted in 1963 with the goal of simplifying the transfer of property by extinguishing certain covenants and restrictions after thirty years. This poses a challenge for homeowners’ and community associations as it can inhibit their ability to govern the community, collect dues, and enforce restrictions. While condominium associations are generally not subject to MRTA, there are certain rare circumstances when a condominium is subject to MRTA. This blog will discuss those limited circumstances and how your condominium association can protect its covenants from extinguishment.

Marketable Record Title Act

What is the Marketable Record Title Act?

The Marketable Record Title Act is a Florida law designed to simplify property restrictions and promote the transfer of free and clear titles. MRTA does so by extinguishing certain covenants and restrictions tied to a property’s deed. This poses a challenge to homeowners’ associations and other property owners’ associations as the association’s ability to manage the community is tied to these covenants and restrictions. MRTA extinguishes these covenants and restrictions after 30 years if they are not referenced in the chain of title of the property and pre-date the root of the title. Under MRTA, the root of the title is 30 years. See §§ 712.01(2), 720.04, Fla. Stat.

It is essential that property associations are aware of the age of their association documents, including the declaration, covenants, and restrictions, to ensure that they are not extinguished by MRTA. Extinguishment of such covenants and restrictions means that the association is no longer able to enforce its restrictions and generally manage the community. The good news for property associations is that MRTA provides methods to both preserve these documents before they are extinguished and revitalize these covenants even after extinguishment. §§ 712.06, 712.11 Fla. Stat. MRTA often poses more of a concern for homeowners’ associations as the deed and consequently the chain of title generally does not reference these recorded covenants and restrictions. This differs from the chain of title in a condominium, where the face of the deed will specifically reference the declaration, the book, and the page where it is recorded.

How Does MRTA Impact my Condo?

While MRTA rarely impacts condominium communities due to the unique nature of their chain of title, when the declaration, covenants, and restrictions are not mentioned in the “muniments of title” they are subject to extinguishment under MRTA. In a condominium complex, the deed for each unit is considered “muniments of title.” This means that if the legal description in the deed references the declaration by its recorded book and page numbers, then the documents are not subject to extinguishment under MRTA. However, where the deeds do not make such references, these documents are subject to extinguishment after 30 years under MRTA.

Prior to a 2018 amendment to MRTA and a 2019 decision in Eastwood Shores Property Owners Association, Inc., v. Department of Economic Opportunity, 264 So.3d 264 (Fla. 2d DCA 2019), a condominium could not revive its covenants under MRTA. This is because the section of MRTA governing revitalization referred specifically to homeowners’ associations or an association of parcel owners. § 712.01(4), Fla. Stat. (2016). This created a problem for the association in Eastwood Shores.

The Eastwood Shores Decision

In Eastwood Shores, the condominium association’s covenants were extinguished under MRTA because they were not referenced in the deeds of each unit. The association applied for revitalization of its covenants and was denied by the Florida Department of Economic Opportunity because it was not a homeowners’ association. Eastwood Shores, 264 So.3d at 265.

The association then sued, seeking to be considered a homeowners’ association as defined in MRTA and thus be allowed to revitalize its covenants. The court found that a condominium unit fell within the definition of a parcel as defined in MRTA making it possible for the condominium association to fall within MRTA’s definition of a homeowners’ association. Id.at 267-268. Therefore, the court found that the condominium association was a homeowners’ association for the purposes of revitalizing its covenants under MRTA. Id. at 269.

This decision is impactful for condominiums that attempt to revitalize their covenants under prior iterations of MRTA.

How the 2018 MRTA Amendments Help Condominium Associations

In 2018, the Florida legislature revised the Marketable Record Title Act to avoid the situations that were at issue in Eastwood Shores. The legislature did so by expanding several definitions. Furthermore, the 2018 amendments simplified the process for preserving an association’s documents. In making these amendments, the legislature limited the potential burden and impact of MRTA on condominium associations.

The most significant and beneficial change for condominium associations occurred in § 712.01, Fla. Stat. Here, the legislature replaced “homeowners’ association” with “property owners’ association” and expanded this definition to include entities responsible for the operation of a property where membership is a mandatory condition of property ownership. § 712.01(5), Fla. Stat. In addition, § 712.11, was amended replacing homeowners’ association with property owners’ association. Furthermore, § 712.12 was added allowing for any community subject to a covenant or restriction to revitalize its covenants or restrictions under MRTA.

These amendments are significant for condominium associations because they are now specifically included in the definition of associations that are covered by MRTA. This is means that in situations similar to Eastwood Shores, the condominium association will more simply be able to revitalize its covenants in accordance with the procedures set forth in § 720.403-720.407. § 712.11-12, Fla. Stat.

Conclusion

Though most condominium associations are exempt from the Marketable Record Title Act , it is important that associations, community association managers, and board members are aware of the potential pitfalls of MRTA. Condominium associations should consult their legal counsel to determine whether their association’s covenants and restrictions may be subject to extinguishment by MRTA. The experienced community association attorneys at Jimerson Birr can help your association determine whether it is subject to MRTA and are ready to assist in keeping your association’s covenants and restrictions from being extinguished.

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