Root Title Search MRTA Covenants

Cindy,

The statute section the 2011 Matissek case discusses and applies has changed significantly since 2011. I think this is important.

You presented the following facts:

The deed dated 1986 says: "Subject to restrictions of record and taxes for 1986." The only Book page the deed refers to is in the legal description of the lot in the Plat Book.

The deed dated 2003 says the same thing.

The later deed has no reference to any restrictions.

Matissek v. Waller is dated 2011. Only one subsequent appeals court case (Lyday v. Myak Myakka Valley Ranches Improvement Ass'n, Inc. 2019) cited Matissek, but the Lyday case did not overrule the part of Matissek that seems relevant here. This means that, as long as the statute sections discussed in Matissek did not change, Matissek is helpful here. The problem is that the statute sections did change.

Here's the 2011 language of FS 712.03 (1):
"Estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title; provided, however, that a general reference in any of such muniments to easements, use restrictions or other interests created prior to the root of title shall not be sufficient to preserve them unless specific identification by reference to book and page of record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such easement, use restrictions or other interests; subject, however, to the provisions of subsection (5)." [https://law.justia.com/codes/florida/2011/titlexl/chapter712/section712.03/]

Here's the 2022 language of 712.03 (1):
"Estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title, provided that in the muniments of title those estates, interests, easements, or use restrictions created before the root of title are preserved by identification in the legal description of the property by specific reference to the official records book and page number, instrument number, or plat name or there is otherwise an affirmative statement in a muniment of title to preserve such estates, interests, easements, or use restrictions created before the root of title as identified by the official records book and page or instrument number; subject, however, to subsection (5)."

Notice how from 2011 to 2022, the phrase "general reference" was struck. Notice how from 2011 to 2022, "specific identification" was changed to "specific reference." Notice how from 2011 to 2022, the phrase "or there is otherwise an affirmative statement in a muniment of title to preserve such estates, interests, easements, or use restrictions created before the root of title as identified by the official records book and page or instrument number;" was added.

The 2011 Matissek case relied heavily on "general reference" being insufficient (per the 2011 statute). The 2011 Matissek case also relied heavily on the 2011 statute's phrase "specific identification." Lastly the 2011 Matissek case did not have to consider whether there was "otherwise an affirmative statement in a muniment of title to preserve such... use restrictions... "

These new phrases seem important to me. So far they do not seem to have been litigated up to an appeals court. It's always a roll of the dice when any dispute comes before a court. These facts seem to indicate the gamble is even bigger. Because of the new wording, I would expect such a lawsuit is going to cost more money and take a longer time.

I understand this might be relevant even with the current wording of MRTA. But respectfully just figuring out if the above, 1992 passage is wholly applicable after all the changes to MRTA since 1992, and presumably some new MRTA interpretations by the courts since 1992, is a chore to which I do not want to give time.

If you want to disregard the 1992 article and ask a question pertaining to MRTA today with a specific situation, maybe I will look at the case law.

But I admit: This is probably the one HOA law area that I loathe. I still struggle with the basic vocabulary.

A lot of people come here with questions about Florida's MRTA. This is understandable. However I continue to feel all the forum can do is introduce basic MRTA notions and vocabulary, in preparation for a meeting with a //competent//, MRTA specialized HOA attorney.

You might very well know a lot more than I do. Of course, I always want to see citations (to the extent I can grok the citation).
I believe various law firm web sites have something to say about this. So much depends on the specifics, and the subject is so complicated, that it's hard for me to offer any opinion that I feel has value. Whence I resist doing so often. I would send people to the web sites, as prep for a meeting with an attorney.

I am not a lawyer. Even if I were say a HOA lawyer (not specialized in MRTA), I would not feel comfortable tackling this. I bet you, some others here and I probably know more about MRTA than most non-MRTA HOA lawyers.