EXPIRED CC&R in Florida

Yes, the board attempting to preserve the CCRs after the expiration is ineffective. The problem is that if they continue to do business as usual, your only real way to fight would be to sue, which can get expensive.

The association can still revitalize the CCRs but it is a much more involved process than preserving them would have been.

A new BOD would make no difference in the status. Putting new CCRs in place would probably require agreement of every property owner, or at least only the ones that agree would be bound by them.

I'm not sure what the legal status of the common elements and responsibilities are at this point.

One poster here has been involved in long process regarding MRTA expiration, here is the most recent thread but if you search on his name you'll find much longer ones within the past year or so.

http://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/242017/view/topic/Default.aspx

So I have an update... from the papers given to me at closing, the HOA was established in 1983, and hence because not renewed in 2013, expired. The BOD filed papers says the HOA was renewed by 2/3 vote of the BOD in 2015 however, as you all have told me this was ineffective.

We approached the BOD and they have told us that the HOA was not established in 1983 as stated in our official documents but the MRTA 30 year expiry of an HOA runs from the date of "root title" and not from the data provided in the official HOA declarations.

Does anyone have any comment on this issue of "root title" for calculating when the 30 years commences?

Root of title applies to title transactions and the dates they were recorded. The dates on which HOA governing documents were recorded, e.g. covenants, restrictions, declaration, CC&Rs, etc., are irrelevant. All that matters is the date that the last title transaction was recorded at least 30 years prior. See FS 712.

There are exceptions in Florida, such as if the deed or title instrument references a specific plat book and page in the county's records and the plat itself references, in turn, the book and page the CC&Rs (covenants, restrictions, etc.) in the county's official records, then MRTA will not extinguish those restrictions and covenants.

Good questions. FL is screwed up on this issue. There are as many answers as there are those answering.

Thank you so much extremely helpful. I had seen that Palm Beach case that talks about the Swiss Cheese effect.

As to your last point, ".. Expiration of covenants happens on a parcel-by-parcel basis and it all depends on the dates on the deeds for "root of title".

Heres my question, say 30% of parcels are expired in 2013 and BOD realizes it 2 years later. Doesn't tell community/property owners, but immediately convenes and passes to reinstate by 2/3 vote among themselves. That vote was insufficient to reinstate the CC&R as to the expired parcels. What about as to the other 70% that hadn't expired... was that 2/3 BOD vote sufficient to reinstate those for another 30 years? Regardless the "Swiss cheese" still exists, correct? There still hasn't been a community vote. Would you recommend for 3 parcel owners to initiate the process of 712? The BOD claims they have "opinions" that everything is AOK. But when we ask them out of abundance of caution submit the situation to a full community vote to be on the safe side, but they are not willing because of their own necks... Which is do get from their personal perspective. But for the owners, not reinstating by community vote, keeps the swiss cheese in place.

Here is my opinion and I sued my HOA on a MRTA issue i.e. slander of title" and prevailed and have more than average experience with MRTA law.

MRTA expires lots on a one by one basis based on the date of "root of title". This is not difficult to determine-just look up the term on google and start counting to 30 years and inspect every title from that root date to ascertain any intervening preservations by individual title transactions. This hardly ever happens-but it is possible that an eagle-eyed title preparer preserved the covenants on a title transfer. Typically, in 30 years, a title would change hands 4-6 times so you would have to search those deeds.

Once a single parcel is expired by MRTA, the HOA (or 3 community individuals) can begin the revitalization process. If only one lot is expired, all the remaining lots still are encumbered by active covenants and can be preserved by a 2/3 vote. After the owners vote in favor of revitalization, submit the paperwork to the DEO and they will rubber stamp it as long as you have reasonably dotted the i's and crossed the t's. The checkbox standard is quite modest.

Note that the not-for-profit Association has not been affected by MRTA--only the Covenants and Rules & Regulations expire by operation of MRTA and that makes life problematic to have some "sovereign" parcels amongst the Covenanted.

I have seen smaller communities that have a small percentage of lots expire and the BOD went to each of the expired parcels to ask for voluntary agreement to re-encumber their parcel with the (expired) covenants. That new "contract" was then recorded and the property re-encumbered. This was partially successful and much cheaper than a full-on revitalization effort. I believe that a handful of parcels refused to "sign on" and would not accept the contract; thus, those lots are not subject to HOA property restrictions. The remaining lots that had NOT expired were simply "preserved" by the 2/3 vote of the board and the required filing per law. The HOA decided to suffer with the handful that refused the covenants. IMO a rational decision.

Once lots expire, the BOD cannot use the "preservation" process; it is null and void if attempted. This is VERY OFTEN screwed up by so-called HOA lawyers and recording a preservation over an expired lot is stupid and a....SLANDER OF TITLE. My HOA managed to slander hundreds of titles and thought they could get away with it and no one would notice or object.

They were wrong.

Wow very interesting. Thanks so much for your insight. I had seen the Swiss Cheese analysis in the Palm Beach case and it totally makes sense. I cannot believe the BOD would attempt to do this themselves knowing the covenents had expired on some lots and not tell the home owners. Then paper it with legal opinions that their course of action was correct to protect themselves.

I will also say that it seems many HOAs and attorneys down here seem to have the opinion that they can form their own opinions on the law and operate as if business as usual. I had notified (through myself and my attorney on multiple occasions) regarding MRTA and my warnings were not listened to.

It can be for a number of reasons a board decides to act in a particular way. Mine was more ignorance. An invalid restriction was filed years ago and then future BODs and attorneys accepted it as fact.