Effective October 1, 2018, House Bill 617 from the Florida legislature created additional methods for preserving covenants and restrictions. Previously, the preservation process provided that only homeowners associations could preserve their covenants and restrictions and was limited as far as the procedures available for achieving preservation.
The new Fla. Stat. § 712.05 provides three methods for preserving of your community’s records by recording in the public records the following within thirty (30) years:
This fixes an unfortunate legal precedent set forth by the Second District in Matissek v. Waller, 51 So. 3d 625 (Fla. 2d DCA 2011). In Matissek, the Second District Court held that an amendment to the community restrictions was insufficient for preservation of the Declaration. This holding was very detrimental to a lot of communities, and essentially overnight caused for many communities’ governing documents to be legally held to be expired.
This holding was very detrimental to a lot of communities, and essentially overnight caused for many communities’ governing documents to be legally held to be expired.
This statutory change actually is integral for many of the communities that we represent. Many older communities have amended their documents over the years but may not have been advised about the implications of MRTA. With these new revisions, the law is that an amendment would have operated to preserve the governing documents for additional time.
Additional changes to Fla. Stat. § 712.12, F allow parcel owners who are not subject to a homeowners’ association to revitalize covenants and restrictions. Other sections were also modified to similarly recognize the application of covenant revitalization to property owners’ associations. A few years ago, our office attempted to revitalize documents for a commercial condominium but was informed by the Florida Department of Economic Opportunity that could only review applications from homeowners’ associations!
As always, contact our firm if you have any questions about the enforceability of your community’s documents.