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By: Melissa Santalone
A recently enacted section of the Florida Statutes allows property owners to seek court intervention to prevent their community associations from revitalizing lapsed covenants and restrictions as to their parcels. Property owners can commence an action for judicial determination that any revitalization of those covenants or restrictions as to the property owners’ parcels would “unconstitutionally deprive” the property owners of rights or property. Fla. Stat. § 712.12(3), enacted in March and effective as of October 1, 2018, is a new section of the Marketable Record Title Act (MRTA) and allows homeowners to bring these actions until October 1, 2019. Property owners that take advantage of this new right of action can only challenge covenants and restrictions that community associations have allowed to lapse on or before October 1, 2018. If such a property owner is able to obtain a court order or judgment under this section declaring that revitalization of the covenant or restriction would unconstitutionally deprive him or her of rights or property and the covenant or restriction is revived, the covenant or restriction may not alter the rights of the property owner without his or her consent.
This change in the law could result in fascinating litigation in the Florida courts. Under MRTA, community associations’ covenants and restrictions, if not properly preserved or revitalized, are extinguished after 30 years. Therefore, under the new addition to MRTA, it would be possible for a homeowner in a community that has inadvertently let its covenants lapse to go to court and ask that his property not be subject to any community assessments, even if such a covenant imposing them is revived. The end result could leave community associations with fewer resources to manage the same shared property.
With this change in the law, Florida community associations now more than ever need to pay close attention to the age of their covenants and restrictions. Preservation of covenants and restrictions prior to lapse is a relatively simple process in Florida, while the process of revitalization after lapse is more complicated and requires approval from the Florida Department of Economic Opportunity. It is important to note that the lapse of community covenants and restrictions happens in other jurisdictions as well, like in California and for certain communities in Georgia.
Attorneys in FMG’s HOA National Practice Section can advise you as to whether and how covenants and restrictions can expire, preservation, and revitalization in your area. For more information, contact Melissa Santalone at [email protected].