In addition to House Bill 841, containing this year’s community association legislation, as discussed in prior articles, there are several other pieces of legislation that have made their way through the 2018 Florida legislative session and are now signed into law by Governor Scott that affect, or are of interest to, community associations. The following is a digest explanation of some of these newest laws:
MARKETABLE RECORD TITLE ACT
House Bill 617. Approved by Governor 3/21/2018. Effective 10/1/2018
It is clarified that Part III of Chapter 720, Florida Statutes, is intended to provide mechanisms for the revitalization of covenants or restrictions for all types of communities and property associations and is not solely limited to residential communities. In plain English, this means that commercial associations can both preserve and revitalize their covenants. As such, and as you will read below, the terms used in other statutory sections affected by this change are also changed. A new summary process to preserve the covenants is also included in the legislation.
Short Title – Chapter 712 of the Florida Statutes is given the short title, “Marketable Record Title Act.”
Definitions – Terms and definitions were added and revised to the Marketable Record Title Act.
The new term “community covenant or restriction” is defined to mean 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 restriction that may be enforced by a property owners’ association or authorizes a property owners’ association to impose a charge or assessment against the parcel or the parcel owner.
The term “homeowners’ association” is replaced by the term “property owners’ association” which term also includes 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 and/or their agents and membership is a mandatory condition of property ownership.
The definition for the term “parcel” is revised to remove the requirement that the real property be residential and be subject to exclusive ownership.
Finally, the definition for the term “covenant or restriction” was simplified to remove reference to enforcement of such covenant or restriction by a homeowners’ association or the Florida Department of Environmental Protection and authorization of a homeowners’ association to impose a charge or assessment against the parcel or the parcel owner.
Preservation of Covenants Process – Any person claiming an interest in land or other right subject to extinguishment under the Marketable Record Title Act will be able to preserve such right by filing a written notice in accordance with the Marketable Record Title Act at any time during the 30-year period immediately following the effective date of the root of title. As to a property owners’ association, preservation may be accomplished in one of three ways:
- by filing a written notice in accordance with the Marketable Record Title Act, which is a process currently available;
- by filing a summary notice in accordance with section 720.3032(2), Florida Statutes, (a new statute); or
- by filing an amendment to a covenant or restriction indexed under the legal name of the property owners’ association which references the recording information of the covenant or restriction being preserved.
In the event a summary notice or amendment filing is not “indexed” to the current owners of the property affected by the preservation, the validity of the summary notice or the amendment to protect the covenants or restrictions is not affected.
An association is no longer required to mail a seven-day notice to the members providing the statement of marketable title action and the association’s board is no longer required to approve the preservation.
At the first board meeting, excluding the organizational meeting, which follows the annual meeting of the members, the board must consider the desirability of filing notices to preserve the covenants or restrictions affecting the community or association from extinguishment under the Marketable Record Title Act and to authorize and direct the appropriate officer to file notice in accordance with section 720.3032, Florida Statutes. This was added as a constant reminder to Boards to prevent inadvertent extinguishment of existing covenants.
As to the existing “notice” method to preserve, the requirements of what must be in the notice have been clarified and revised to reflect and accommodate the newly defined terms.
As to the new method of preservation by summary notice, a new section 720.3032(2), Florida Statutes, is created to provide for preservation by the recording of a summary notice containing the following information:
- The legal name of the association.
- The mailing and physical addresses of the association.
- The names of the affected subdivision plats and condominiums or, if not applicable, the common name of the community.
- The name, address, and telephone number for the current community association management company or community association manager, if any.
- Indication 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.
- A listing by name and recording information of those covenants or restrictions affecting the community which the association desires to be preserved from extinguishment.
- The legal description of the community affected by the covenants or restrictions, which may be satisfied by a reference to a recorded plat.
- The signature of a duly authorized officer of the association, acknowledged in the same manner as deeds are acknowledged for record.
This new section provides a form which satisfies the required information, as set out above. The originally executed notice must be recorded in the official records of the applicable circuit court clerk or county. A copy of the notice, as recorded, must be included with the next meeting notice or other mailing to all members.
Revitalization of Covenants – A new section 712.12 is added to the Marketable Record Title Act regarding the revitalization of covenants by parcel owners who are not subject to a homeowners’ association.
This new section sets out its own defined terms, including the term “parcel,” which, unlike for the preservation of covenants, is required to be residential and subject to exclusive ownership.
The term “covenant or restriction,” which is defined to mean any agreement or limitation imposed by a private party and not required by a governmental agency as a condition of a development permit 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.
This new section allows for the revitalization of covenants by parcel owners who are not subject to a homeowners’ association by the same revitalization procedures as applicable to a homeowners’ association, except that there is no need to reference a homeowners’ association or articles of incorporation or bylaws of a homeowners’ association.
The approval necessary to revitalize must be in writing, and not at a meeting.
An organizing committee, as opposed to the president and secretary of a homeowners’ association, may execute the revitalized covenants or restrictions; and the community name in the covenants or restrictions are indexed as the grantee and the parcel owners are indexed as the grantors.
Newly created owner rights – The owner of a parcel that has ceased to be governed by covenants or restrictions as of October 1, 2018 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. Revitalization of covenants or restrictions against the parcel after such judicial determination is not affective against the parcel, and the rights of the parcel owner so recognized may not be subsequently altered by revived covenants or restrictions without the consent of the affected parcel owner.
SURPLUS LANDS BEING SOLD BY WATER MANAGEMENT DISTRICT
House Bill 703. Approved by Governor 3/23/2018. Effective 7/1/2018.
Notice of Intention to Sell Surplus Land – In addition to providing newspaper notice of its intention to sell surplus land, a water management district must also publish such notice on its website. The first publication of the notice must occur at least 30 days, nor more than 360 days, before any sale is approved by the district.
Adjacent Property Owners – Certain surplus lands may be offered for sale to “adjacent land owners,” meaning, those owners whose property abuts the surplus lands. If the surplus lands are offered for sale to adjacent property owners, notice of the intention to sell need only be published once and must be sent to the adjacent property owners by certified mail and published on the district’s website. If the surplus lands are not sold to an adjacent property owner, the district may sell the lands at any time to the general public for the highest price obtainable.
Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. He is a regular columnist for The Condo News, a biweekly publication and was inducted into the 2012, 2013 & 2014 Florida Super Lawyers. He can be reached at 561-241-4462.