Surviving Florida’s Marketable Record Title Act

July 6th, 2018

Posted in Business & Corporate Law

Florida’s Marketable Record Title Act (“MRTA”), Chapter 712 of the Florida Statutes, was enacted to simplify the title examination process and facilitate real property transactions.  MRTA removes title defects and interests in title from properties and extinguishes stale claims which came into existence more than 30 years ago to enhance the marketability of title. Prior to MRTA’s enaction in 1963, practitioners would have to search title records back as far as the initial Spanish land grants.  Now, a title examiner must only look back 30 or more years to find the “root of title,” which is defined as, “any title transaction purporting to create or transfer the estate claimed by a person which is the last title transaction to have been recorded at least 30 years before the time when marketability is being determined.  The effective date of the root of title is the date on which it was recorded.” Fla. Stat. § 712.01(6) (2018).  More simply stated, it is the most recent title transaction that has existed for at least 30 years, i.e., a deed.  MRTA has undoubtedly simplified the title examiners role and enhanced confidence in the marketability of one’s title, however, it has also created unintended consequences for community associations.  The Declaration of Covenants, Conditions and Restrictions (hereinafter “Covenants”) of a Community Association may also be extinguished by MRTA after 30 years from the original recording date.


What does this mean for my community association?


If your association is a condominium association, then you are in luck!  MRTA likely would not apply because each deed conveying an interest in a condominium contains a specific reference to the recorded declaration of condominium, thus renewing the Covenants with each subsequent recorded deed.  If you live in a homeowner’s association, there generally is no such reference so the Covenants must be renewed within 30 years of the recording date in order to be preserved.  Extinguished Covenants are likely unenforceable and could prevent the association from collecting assessments and enforcing restrictions, among other problems.  Simply amending or re-recording the Covenants will not be enough to preserve them under MRTA.  Fortunately, Section 712.05 and Section 712.06 of the Florida Statutes provides a solution and specific direction for how an association can preserve its covenants and restrictions.


What if the Covenants were recorded more than 30 years ago?


If your Covenants were recorded more than 30 years ago and have not been formerly preserved, then the Covenants will likely need to be “revitalized” which is a more laborious process that requires membership approval.  Section 720.403 of the Florida Statutes establishes several requirements and procedures to revitalize the Covenants.


If you are concerned that your community association’s Covenants are approaching or exceeding the 30-year mark, you should act now to determine the appropriate procedure for preserving or revitalizing your association’s Covenants.

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