Posted:
I still can't find a clear path to "Preserve" our CC&Rs via our voluntary association construct (FS 617). The latest revisions to FS712 and FS720 make it very easy for POAs to "preserve" their CCR's ...but, there doesn't appear to be a clear path for a voluntary organizations.
This is a BIG DEAL so I am continuing to lean into it ... I need to get this done, if it is possible, as soon as possible - while we are about 5 years early wrt the 30 years timeline, the neighborhood grows older every day with less and less interest by the owners.
I apologize if this is long, but I can't figure out a way to speak to it without the FS excerpts, below.
Could anyone with suitable interest to drag through all of this, please provide your thoughts?
Thanks.
712.01âDefinitions.âAs used in this chapter, the term:
(1)ââCommunity covenant or restrictionâ means any agreement or limitation contained in a document recorded in the public records of the county in which a parcel is located which:
(a)âSubjects the parcel to any use restriction that may be enforced by a property ownersâ association; or
(b)âAuthorizes a property ownersâ association to impose a charge or assessment against the parcel or the parcel owner.
(2)ââCovenant or restrictionâ means any agreement or limitation contained in a document recorded in the public records of the county in which a parcel is located which subjects the parcel to any use or other restriction or obligation.
(3)ââParcelâ means any real property that is subject to any covenant or restriction of a property ownersâ association.
(4)ââPersonâ includes the singular or plural, natural or corporate, private or governmental, including the state and any political subdivision or agency thereof as the context for the use thereof requires or denotes and including any property ownersâ association.
(5)ââProperty ownersâ associationâ means a homeownersâ association as defined in s. 720.301, a corporation or other entity responsible for the operation of property in which the voting membership is made up of the owners of the property or their agents, or a combination thereof, and in which membership is a mandatory condition of property ownership, or an association of parcel owners which is authorized to enforce a community covenant or restriction that is imposed on the parcels.
(6)ââRoot of titleâ means any title transaction purporting to create or transfer the estate claimed by any person which is the last title transaction to have been recorded at least 30 years before the time when marketability is being determined. The effective date of the root of title is the date on which it was recorded.
(7)ââTitle transactionâ means any recorded instrument or court proceeding that affects title to any estate or interest in land and that describes the land sufficiently to identify its location and boundaries.
History.âs. 1, ch. 63-133; s. 11, ch. 65-420; s. 1, ch. 81-242; s. 1, ch. 97-202; s. 56, ch. 2000-258; s. 16, ch. 2000-317; s. 2, ch. 2018-55.
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712.05âEffect of filing notice.â
(1)âA person claiming an interest in land or other right subject to extinguishment under this chapter may preserve and protect such interest or right from extinguishment by the operation of this chapter by filing for record, at any time during the 30-year period immediately following the effective date of the root of title, a written notice in accordance with s. 712.06.
(2)âA property ownersâ association may preserve and protect a community covenant or restriction from extinguishment by the operation of this chapter by filing for record, at any time during the 30-year period immediately following the effective date of the root of title:
(a)âA written notice in accordance with s. 712.06; or
(b)âA summary notice in substantial form and content as required under s. 720.3032(2); or an amendment to a community covenant or restriction that is indexed under the legal name of the property ownersâ association and references the recording information of the covenant or restriction to be preserved. Failure of a summary notice or amendment to be indexed to the current owners of the affected property does not affect the validity of the notice or vitiate the effect of the filing of such notice.
(3)âA notice under subsection (1) or subsection (2) preserves an interest in land or other right subject to extinguishment under this chapter, or a covenant or restriction or portion of such covenant or restriction, for not less than 30 years after filing the notice unless the notice is filed again as required in this chapter. A personâs disability or lack of knowledge of any kind may not delay the commencement of or suspend the running of the 30-year period. Such notice may be filed for record by the claimant or by any other person acting on behalf of a claimant who is:
(a)âUnder a disability;
(b)âUnable to assert a claim on his or her behalf; or
(c)âOne of a class, but whose identity cannot be established or is uncertain at the time of filing such notice of claim for record.
The property ownersâ association or clerk of the circuit court is not required to provide additional notice pursuant to s. 712.06(3) for a notice filed under subsection (2). The preceding sentence is intended to clarify existing law.
(4)âIt is not necessary for the owner of the marketable record title, as described in s. 712.02, to file a notice to protect his or her marketable record title.
History.âs. 5, ch. 63-133; s. 798, ch. 97-102; s. 3, ch. 97-202; s. 1, ch. 2003-79; s. 7, ch. 2014-133; s. 3, ch. 2018-55.
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712.12âCovenant or restriction revitalization by parcel owners not subject to a homeownersâ association.â
(1)âAs used in this section, the term:
(a)ââCommunityâ means the real property that is subject to a covenant or restriction that is recorded in the county where the property is located.
(b)ââCovenant or restrictionâ means any agreement or limitation imposed by a private party and not required by a governmental agency as a condition of a development permit, as defined in s. 163.3164, which is contained in a document recorded in the public records of the county in which a parcel is located and which subjects the parcel to any use restriction that may be enforced by a parcel owner.
(c)ââParcelâ means real property that is used for residential purposes and that is subject to exclusive ownership and any covenant or restriction that may be enforced by a parcel owner.
(d)ââParcel ownerâ means the record owner of legal title to a parcel.
(2)âThe parcel owners of a community not subject to a homeownersâ association may use the procedures set forth in ss. 720.403-720.407 to revive covenants or restrictions that have lapsed under the terms of this chapter, except:
(a)âA reference to a homeownersâ association or articles of incorporation or bylaws of a homeownersâ association under ss. 720.403-720.407 is not required to revive the covenants or restrictions.
(b)âThe approval required under s. 720.405(6) must be in writing, and not at a meeting.
(c)âThe requirements under s. 720.407(2) may be satisfied by having the organizing committee execute the revived covenants or restrictions in the name of the community.
(d)âThe indexing requirements under s. 720.407(3) may be satisfied by indexing the community name in the covenants or restrictions as the grantee and the parcel owners as the grantors.
(3)âWith respect to any parcel that has ceased to be governed by covenants or restrictions as of October 1, 2018, the parcel owner may commence an action by October 1, 2019, for a judicial determination that the covenants or restrictions did not govern that parcel as of October 1, 2018, and that any revitalization of such covenants or restrictions as to that parcel would unconstitutionally deprive the parcel owner of rights or property.
(4)âRevived covenants or restrictions that are implemented pursuant to this section do not apply to or affect the rights of the parcel owner which are recognized by any court order or judgment in any action commenced by October 1, 2019, and any such rights so recognized may not be subsequently altered by revived covenants or restrictions implemented under this section without the consent of the affected parcel owner.
History.âs. 6, ch. 2018-55.
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720.301âDefinitions.âAs used in this chapter, the term:
(1)ââAssessmentâ or âamenity feeâ means a sum or sums of money payable to the association, to the developer or other owner of common areas, or to recreational facilities and other properties serving the parcels by the owners of one or more parcels as authorized in the governing documents, which if not paid by the owner of a parcel, can result in a lien against the parcel.
(2)ââCommon areaâ means all real property within a community which is owned or leased by an association or dedicated for use or maintenance by the association or its members, including, regardless of whether title has been conveyed to the association:
(a)âReal property the use of which is dedicated to the association or its members by a recorded plat; or
(b)âReal property committed by a declaration of covenants to be leased or conveyed to the association.
(3)ââCommunityâ means the real property that is or will be subject to a declaration of covenants which is recorded in the county where the property is located. The term âcommunityâ includes all real property, including undeveloped phases, that is or was the subject of a development-of-regional-impact development order, together with any approved modification thereto.
(4)ââDeclaration of covenants,â or âdeclaration,â means a recorded written instrument or instruments in the nature of covenants running with the land which subject the land comprising the community to the jurisdiction and control of an association or associations in which the owners of the parcels, or their association representatives, must be members.
(5)ââDepartmentâ means the Department of Business and Professional Regulation.
(6)ââDeveloperâ means a person or entity that:
(a)âCreates the community served by the association; or
(b)âSucceeds to the rights and liabilities of the person or entity that created the community served by the association, provided that such is evidenced in writing.
(7)ââDivisionâ means the Division of Florida Condominiums, Timeshares, and Mobile Homes in the Department of Business and Professional Regulation.
(8)ââGoverning documentsâ means:
(a)âThe recorded declaration of covenants for a community and all duly adopted and recorded amendments, supplements, and recorded exhibits thereto;
(b)âThe articles of incorporation and bylaws of the homeownersâ association and any duly adopted amendments thereto; and
(c)âRules and regulations adopted under the authority of the recorded declaration, articles of incorporation, or bylaws and duly adopted amendments thereto.
(9)ââHomeownersâ associationâ or âassociationâ means a Florida corporation responsible for the operation of a community or a mobile home subdivision in which the voting membership is made up of parcel owners or their agents, or a combination thereof, and in which membership is a mandatory condition of parcel ownership, and which is authorized to impose assessments that, if unpaid, may become a lien on the parcel. The term âhomeownersâ associationâ does not include a community development district or other similar special taxing district created pursuant to statute.
(10)ââMemberâ means a member of an association, and may include, but is not limited to, a parcel owner or an association representing parcel owners or a combination thereof, and includes any person or entity obligated by the governing documents to pay an assessment or amenity fee.
(11)ââParcelâ means a platted or unplatted lot, tract, unit, or other subdivision of real property within a community, as described in the declaration:
(a)âWhich is capable of separate conveyance; and
(b)âOf which the parcel owner, or an association in which the parcel owner must be a member, is obligated:
1.âBy the governing documents to be a member of an association that serves the community; and
2.âTo pay to the homeownersâ association assessments that, if not paid, may result in a lien.
(12)ââParcel ownerâ means the record owner of legal title to a parcel.
(13)ââVoting interestâ means the voting rights distributed to the members of the homeownersâ association, pursuant to the governing documents.
History.âs. 33, ch. 92-49; s. 52, ch. 95-274; s. 4, ch. 99-382; s. 44, ch. 2000-258; s. 16, ch. 2004-345; s. 13, ch. 2004-353; s. 62, ch. 2008-240; s. 16, ch. 2011-196; s. 15, ch. 2015-97.
Note.âFormer s. 617.301.
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720.3032âNotice of association information; preservation from Marketable Record Title Act.â
(1)âAny property ownersâ association desiring to preserve covenants from potential termination after 30 years by operation of chapter 712 may record in the official records of each county in which the community is located a notice specifying:
(a)âThe legal name of the association.
(b)âThe mailing and physical addresses of the association.
(c)âThe names of the affected subdivision plats and condominiums or, if not applicable, the common name of the community.
(d)âThe name, address, and telephone number for the current community association management company or community association manager, if any.
(e)âIndication as to whether the association desires to preserve the covenants or restrictions affecting the community or association from extinguishment under the Marketable Record Title Act, chapter 712.
(f)âA listing by name and recording information of those covenants or restrictions affecting the community which the association desires to be preserved from extinguishment.
(g)âThe legal description of the community affected by the covenants or restrictions, which may be satisfied by a reference to a recorded plat.
(h)âThe signature of a duly authorized officer of the association, acknowledged in the same manner as deeds are acknowledged for record.
(2)âRecording a document in substantially the following form satisfies the notice obligation and constitutes a summary notice as specified in s. 712.05(2)(b) sufficient to preserve and protect the referenced covenants and restrictions from extinguishment under the Marketable Record Title Act, chapter 712.
Notice of (Name of association) under s. 720.3032, Florida Statutes, and notice to preserve and protect covenants and restrictions from extinguishment under the Marketable Record Title Act, chapter 712, Florida Statutes.
Instructions to recorder: Please index both the legal name of the association and the names shown in item 3.
1.âLegal name of association:
2.âMailing and physical addresses of association:
3.âNames of the subdivision plats, or, if none, common name of community:
4.âName, address, and telephone number for management company, if any:
5.âThis notice does does not constitute a notice to preserve and protect covenants or restrictions from extinguishment under the Marketable Record Title Act.
6.âThe following covenants or restrictions affecting the community which the association desires to be preserved from extinguishment:
(Name of instrument)
(Official Records Book where recorded & page)
(List of instruments)
(List of recording information)
7.âThe legal description of the community affected by the listed covenants or restrictions is: (Legal description, which may be satisfied by reference to a recorded plat)
This notice is filed on behalf of (Name of association) as of (Date) .
(Name of association)
By:
(Name of individual officer)
(Title of officer)
(Notary acknowledgment)
(3)âA copy of the notice, as filed, must be included as part of the next notice of meeting or other mailing sent to all members.
(4)âThe original signed notice must be recorded in the official records of the clerk of the circuit court or other recorder for the county.
History.âs. 8, ch. 2018-55.