Buying a Home
When buying real property (a home) in Florida, to be absolutely, positively sure there are no clouds on your title, you need to check all the way back to the Spanish land grants of the 1790s. Under Spanish rule, land grants were offered to induce settlement of Florida. In 1819, Spain ceded Florida to the United States and the land grants were honored if they were shown to be valid. Searching titles for your little piece of paradise would be a daunting task.
Marketability Record Titles Act
To ease the burden of tracing these land grants, in 1964 Florida implemented the Marketability Record Titles Act (MRTA). The act was codified in Florida Statutes 712. Under MRTA, encumbrances on real property may be rendered unenforceable and extinguished thirty years after the date they were last recorded.
Homeowner’s Associations
One of the side effects of MRTA was its impact on homeowner’s associations (HOA). During the development of a neighborhood, the builder can create Restrictive Covenants for the community. These Restrictive Covenants attach to the title of property. Most Restrictive Covenants contain a statement that they are effective for forty years and automatically renewed for ten year increments after the first forty years. But this statement within the Restrictive Covenant has no effect on MRTA. The Restrictive Covenants can still be extinguished after 30 yeras. To ensure the HOA’s Restrictive Covenants are not extinguished by MRTA, the HOA must reestablish the Restrictive Covenants prior to thirty years from the date the Restrictive Covenants were recorded.
Root of Title
For homeowners with HOAs that are older than thirty years, those Restrictive Covenants may no longer be effective. To determine if the Restrictive Covenants are still valid, the property owner must first determine the “Root of Title.” Root of Title means any title transaction purporting to create or transfer the property which is the last title transaction to have been recorded at least thirty years prior to the time when marketability is being determined. The effective date of the Root of Title is the date on which it was recorded.
Check this Root of Title and any subsequent title for reference to the Plat and reference to the Restrictive Covenant. The Plat describes the layout of the community and may also contain a statement that the community is bound by Restrictive Covenants. That statement about the Restrictive Covenants must give the book and page of the Restrictive Covenant or must give a specific reference to the Restrictive Covenant. If the Restrictive Covenant is referenced by title and not by its book and page, then do a search for that Restrictive Covenant title in the county official records. In a recent case, the Restrictive Covenant was titled one way but recorded in the county’s official records differently. The Restrictive Covenant could only be found knowing the book and page, but it was not referenced that way in the title. The Restrictive Covenant was not specifically referenced and could not be found. It failed to be an encumbrance on the property.
Conclusion
To determine if MRTA can removed Restrictive Covenants, (1) determine if your community is older than 30 years; (2) find the Root of Title; and (3) check for the book and page or a specific description of the Restrictive Covenant. If the Restrictive Covenant cannot be found in the chain of titles from the Root of Title to your title, then the Restrictive Covenant no longer encumbers your property.