Expiring HOA docs

Started by ToniW2 • 18 replies • 2481 views

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ToniW2 (Florida)
Posts: 3

Posted:

In our Restrictions and Covenants it says ours automatically renew for 10-year periods. I am hearing this is not true and MRTA wins, so we are expired. I am confused. I have placed the language below that is in our papers. Can someone tell me if we are expired?

This Declaration shall be binding and in full force and effect for a period of 30 years from the date this Declaration is recorded, after which time this Declaration shall automatically extend for successive 10 year periods, unless an instrument, signed by seventy-five percent (75%) of the then recorded owners of the lots or dwelling units in The Crossings Subdivision, is recorded containing an agreement of the said owners with respect to the alteration, change, modification, or repeal, in whole or in part, of the provisions of this Declaration.

ToniW2 (Florida)
Posts: 3

Posted:

Our docs expired last year, October 2016.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Here is some information from an attorney office. I will find the State Statute.
http://www.kbrlegal.com/homeowner-associations-be-aware-and-wary-of-the-marketable-record-title-act/

JanetB2 (Colorado)
Posts: 4,219

Posted:

Here is the State Statute regarding MRTA: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0712/0712.html

JanetB2 (Colorado)
Posts: 4,219

Posted:

LOL ... Welcome to FL. So glad my mom did not buy her vacation home in FL.

ToniW2 (Florida)
Posts: 3

Posted:

I read all of that. It really doesn't address if it specifically has language saying it rolls over after the 30 yrs. Someone told a board member it did and I am wrong. I don't mind being wrong; it wouldn't be the first time or last. In fact, I hope I am wrong because at the last meeting people talked about why do we even have one. I just wish there was a clear answer regarding that "roll over" language being in our docs.

DouglasK1 (Florida)
Posts: 2,046

Posted:

The CCRs don't override state law. Unless the Covenants were preserved by following the procedure required by the law Janet posted, they have been MRTA'ed. There is a procedure to revitalize after the fact, but the process is much more involved than if they had been preserved before the 30 year point.

Escaped former treasurer and director of a self managed association.

DouglasK1 (Florida)
Posts: 2,046

Posted:

I'll add that it's not unusual for boards to bury their heads in the sand and ignore MRTA. They typically just carry on as usual, until someone takes the association to court over it.

Escaped former treasurer and director of a self managed association.

GenoS (Florida)
Posts: 4,276

Posted:

ToniW2, MRTA can extinguish covenants after 30 years if steps are not taken to preserve them. It's a separate issue from your Declaration's time limits. From what you've described, wouldn't the first 10-year extension have taken effect once the first 30 years were up? Or did 75% of the owners vote not to renew?

Regard;ess of what the Delcaration says, MRTA will expire the Declaration of Covenants unless a notice of preservation was filed with your county. Do you know if such a notice of preservation was filed? If not, the covenants are extinguished on a parcel-by-parcel basis depending on the date that the property was first sold by the developer - the "root title" it's called.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By ToniW2 on 03/29/2017 8:50 PM
I read all of that. It really doesn't address if it specifically has language saying it rolls over after the 30 yrs. Someone told a board member it did and I am wrong. I don't mind being wrong; it wouldn't be the first time or last. In fact, I hope I am wrong because at the last meeting people talked about why do we even have one. I just wish there was a clear answer regarding that "roll over" language being in our docs.

Potentially you did not read all of it:

712.02 Marketable record title; suspension of applicability.—Any person having the legal capacity to own land in this state, who, alone or together with her or his predecessors in title, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03. A person shall have a marketable record title when the public records disclosed a record title transaction affecting the title to the land which has been of record for not less than 30 years purporting to create such estate either in:
(1) The person claiming such estate; or
(2) Some other person from whom, by one or more title transactions, such estate has passed to the person claiming such estate, with nothing appearing of record, in either case, purporting to divest such claimant of the estate claimed.

JanetB2 (Colorado)
Posts: 4,219

Posted:

As Douglas stated your State Law will supersede your CCR's unless the State Law "defers" to the CCR''s. Potentially you are right and the individual who told your BOD member otherwise is wrong. Sorry ... I know you wanted different to avoid the hassel.

CjS (Maryland)
Posts: 21

Posted:

How do you find out when the covenants expire?

GwenG (Florida)
Posts: 669

Posted:

MRTA is not subservient to private law. That is clear.

Here is a post by the biggest HOA Legal Firm in Florida, Becker & Poliakoff:

What are some common misperceptions about MRTA?

My documents say they are good until 2040! The expiration date found in the documents is trumped by the application of MRTA.

We amended and restated our documents within the 30-year time period. If you did not file a Notice of Preservation within the 30-year time period, amending your documents or recording an entirely new amended and restated declaration will not save you from MRTA's harsh effects. There is a case on point, Berger v. Riverwind, which holds that amendments do not create a new root of title and thus do not extend the life of older covenants.

Insofar as expiration, remember that EACH parcel has its own expiration date; they do not all expire at the same time. Each parcel has a birthday--the date of first sale by the developer. That date starts the MRTA clock ticking. It is easy to determine expiration dates by following the chain of title. Only a title conveyance is member of the chain. An amendment/restatement or any other document purporting to "renew" preservations are outside the chain and do not effect MRTA's timeclock.

GwenG (Florida)
Posts: 669

Posted:

@cjs
You asked how to find out if covenants expire.

It is pretty easy. Go to your online property appraiser records website. Pull up the Declaration and Plat. Note the Book/Page on the recorded Declaration. Now look carefully at the Plat and see if it has specifically identified the Declaration by reference to Book/Page. If your Covenants are specifically identified on the Plat, the restrictions can never expire.

More often than not, the Declaration is NOT cited on a Plat and in that case, the first date the parcel is sold by the Developer who platted it begins its "life". That is referred to as the Root of Title. The Root starts the MRTA timeclock ticking.

Follow each title conveyance from Seller to Buyer to see if the Declaration is SPECIFICALLY referenced by Book and Page. A general reference is not sufficient to restart the MRTA timeclock. The reference must be specific by BOOK/PAGE.

If, for at least 30 years (in some states it is 40 years)the Declaration has not been preserved by a specific reference by Book/Page on the instrument of conveyance, it will be MRTA'd out. I have found that there will usually be 2-7 deeds in a chain to look at. Each must be read carefully to assure that there is no language preserving the Declaration. In the absence of such language for at least 30 years--No more Declaration encumbers the land.

An instrument that does not convey title is of no consequence in the timing of MRTA. For example, a "reinstatement/restatement" or an "amendment" is not legally sufficient because these instruments convey nothing and are OUTSIDE the chain of title. The lawyers above cited the Bergerwind decision (recognized as the landmark test of this).

At least 19 states currently have MRTA laws and perhaps more now since when I checked a year ago. Most MRTA laws are very similar.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By CjS on 03/30/2017 6:42 AM
How do you find out when the covenants expire?

CjS, MRTA is a Florida state law enacted in 1963. Performing title searches on real estate in Florida was getting onerous with some restrictions dating back to the Spanish land grants. The legislature decreed that deed restrictions over 30 years old were to be extinguished unless the owner filed a legal notice preserving those restrictions before the 30-year clock ran out. That's a VERY SIMPLIFIED explanation and it's actually more complicated than that, but that was the general idea.

There has been some sentiment in Florida that a MRTA exception should be carved out for HOAs and condominiums, but it hasn't happened yet.

Gwen has been through the trenches on this and has the scars to prove it. Not only did she survive it, she prevailed.

GenoS (Florida)
Posts: 4,276

Posted:

Learn something new every day. I wasn't aware other states had similar MRTA laws. Thanks, Gwen.

GwenG (Florida)
Posts: 669

Posted:

The following states have marketable title acts, sometimes called a Real Property Marketable Title Act or a Marketable Record Title Act:

Connecticut, Florida, Kansas, Illinois, Indiana, Iowa, Michigan, Minnesota, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Utah, Vermont, and Wyoming.

There may be more; this post is not current.

GwenG (Florida)
Posts: 669

Posted:

Add Colorado and Rhode Island

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By CjS on 03/30/2017 6:42 AM
How do you find out when the covenants expire?

In some states CCR's do not expire, in others they potentially automatically renew every X number of years, and some such as FL will demand that owners sign and agree to extend their CCR's. You are from a different state that the Original Poster (OP) so your document and laws may be different than those being discussed on this thread.

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