Community Association Living [Part 3: Has Your HOA Died? Tuesday, Mar 12 2013 

Your homeowners association may have died a natural death and you are not aware of it.  The Marketable Record Title Act, or MRTA (pronounced “marta”), was enacted to remove clouds and encumbrances on deeds and titles after thirty years.  The effect of this legislation is to extinguish deed restrictions after thirty years by operation of law unless there are record title transactions preserving them some way.  If your association was organized and the Declaration of Restrictive Covenants (also known deed restrictions, CC&Rs, covenants) were recorded more than thirty years ago, then there are a few things you should research to see if you should contact an attorney for further review.

Keep in mind MRTA analysis must be done by individual lots because there could be a title transaction in your chain of title that preserves the restrictions.  A title transaction is a transfer of interest in real property.

First, you will need to research the county records.  You can do this by putting the name of your county with “official records” behind it in your search engine, or Google.  For instance, residents of Orange County can enter “Orange County Official Records.”

You will need to review your Declaration of Restrictive Covenants to check if the date they were recorded was more than thirty years ago.  You will also need to check if there have been any “Restated and Amended” declarations recorded that are not more than thirty years old.  While filing restated declarations may preserve the restrictions another thirty years, there could be defects that do not make this an automatic preservation.  You will also need to look for a document called a “Notice of Preservation,” which also preserves the restrictions for another thirty years.

u will want to look for a copy of your deed.  Check your deed to see if it refers to covenants or restrictions by OR Book and Page Number.  A specific reference to restrictions by book and page number is sufficient to preserve the restrictions against your lot. Fla. Stat. 712.01.

If there is no reference to the book and page number containing restrictions, you will need to look at the Plat Book containing the plat of your community.  The plat is referenced in your deed in the legal description of the property.  Not all counties have their plat books online, so you may need to take a trip to the county records office.  If the recorded plat contains restrictions or refers to the covenants or restrictions by book and page number on the plat, this will also preserve the restrictions.

If your deed or your plat does not reference the restrictions by book and page number, the next step is to research the deeds in your chain of title, going backwards.  If there are any deeds referencing the restrictions by book and page number, chances are the restrictions are not extinguished by MRTA.   If you do not find any, then you should consult with an attorney who is experienced in MRTA analysis.  This is a special area of law not practiced by all real estate attorneys, so you will need to obtain a referral or do some research into attorneys providing this type of service.

Copyright ©2013 Law Offices of Stage & Associates P.A.

 

This communication is not intended to create an attorney/client relationship. It is always recommended you consult an attorney in person to discuss your case. The Law Offices of Stage & Associates practices state-wide and represents homeowners and community associations. Please visit our website at http://www.stagelaw.com.

Community Association Living [Part 2 - Mandatory versus Voluntary HOA] Friday, Mar 8 2013 

This blog is all about homeonwer associations.  Condo associations are rarely invalidated or dissolved.

 

It is important to review your association’s governing documents and research your homeowners’ association for yourself.  Your association will not admit to you it is not a mandatory association and may even lie to your face and claim it is mandatory when, in fact, it is not. You could spend $100,000 or more fighting with them over this issue and run the risk of losing some valuable defenses against mandatory membership if the problem is allowed to  persist.

 

There are several ways an association can be a voluntary association rather than a mandatory association.  They can even start out as a mandatory association and then lose their status if the Marketable Record Title Act extinguishes the deed restrictions after thirty (30) years.  The Marketable Record Title Act, or MRTA (pronounced “Marta”)  will be the topic of another blog because it is a pretty complicated issue.

 

The first step to creating a mandatory association requires the declarant, usually the developer, to make such a proclamation in the Declaration of Restrictive Covenants (also called Decs, Covenants, CCRs, Restrictions, Deed Restrictions).  There are a number of communities in existence which have recorded land use restrictions (no cows, no cattle fences, no mobile homes, etc.). These are not the same and,absent any language designating an association and declaring membership is a mandatory condition when purchasing property, these land use restrictions do not create an association.

 

An association must have its documents recorded and be properly formed before any lots are sold in the community.   While lots sold after documents are recorded can create a duty on the owner to comply with those documents, a community in which not all lots are subject to mandatory membership loses its status as a mandatory association.  The statutes define a mandatory association as one in which membership is a mandatory condition of lot ownership and each lot owner is responsible for paying their pro rata share of assessments.  The very definition of a mandatory association fails under the statute if not all of the lots are required to participate.

 

An association can lack authority to enforce deed restrictions  if the Declarations do not contain language for the rights and duties of the developer to pass to the association when the members are given control of the association or the developer fails to execute an assignment giving the association all the rights and duties held by the developer.

 

An association can lack authority to require mandatory membership if there are defects in the documents, such as the legal description of the property being omitted, signatures omitted, or an amendment that fails to state it was properly approved and executed.

 

Sometimes it is obvious an association is not mandatory, but sometimes it is a very complex issue and not easily determined.

Stay tuned for a later post which will include a checklist of provisions and clauses to look for in the governing documents.

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