Please review the following topics before contacting us directly. You may be able to find answers to your questions faster. If you still have any questions about expired homeowners associations covenants, please contact the person listed on the right side of the page.
In 1963, the Florida Legislature enacted the Marketable Record Title Act ("The Act"), codified as Chapter 712, Florida Statutes. The Act was intended to simplify title searches by extinguishing old title defects and other recorded issues affecting title to real property after 30 years, except for certain matters (see Section 712.03, Florida Statutes - Exceptions to marketability).
An unanticipated consequence of The Act was that it extinguished the covenants of some large planned communities, which had taken no action to prevent the covenants from being extinguished and suddenly found they had lost their legal authority to collect assessments and enforce the covenants. Since then, the Florida Legislature has amended the statutes to provide both a process to preserve the covenants before they are extinguished by The Act, and a process to reinstate them if they have already been extinguished.
Determining Whether the Covenants for a Subdivision Have Been Extinguished by the Marketable Record Title Act and / or Have Otherwise Ceased to Govern the Parcels
If the declaration of covenants was filed more than 30 years ago in the official records of the Clerk of Court for the county in which the subdivision is located, and the homeowners' association has taken no action to extend its duration, the covenants may have been extinguished by the Marketable Record Title Act.
Many people also use the term "expired" to refer to the condition of the covenants after the Marketable Record Title Act extinguishes them, although there are other reasons why covenants might expire. Part III of Chapter 720 uses the broader phrase "ceased to govern" to describe the condition of the affected covenants, rather than "expired" or "extinguished." It will probably be necessary to research the covenants and the title history of the lots in the subdivision in order to determine whether the covenants have truly ceased to govern any or all of the lots. There are a number of factors that may affect their status, including amendments, restatements, automatic extension clauses, and references to the covenants in individual deeds. Unless you or your association has learned from a judicial determination that the covenants have ceased to govern, it will be necessary to hire a private attorney if you wish to obtain legal advice on whether the covenants for your subdivision have ceased to govern for any reason, including expiration or extinguishment. The Department of Economic Opportunity does not issue legal opinions.
A common source of confusion involves the difference between the expiration of covenants under the Marketable Record Title Act and the administrative dissolution of a homeowners' association for failure to file annual reports and pay registration fees to the Department of State's Division of Corporations. These are separate issues that do not necessarily occur together. Most homeowners associations are corporations, and all Florida corporations must comply with the reporting and fee requirements of the Department of State's Division of Corporations. If a homeowners' association fails to comply with the reporting and fee requirements, the Division of Corporations may declare it to be administratively dissolved and inactive as a corporation. This does not mean that the covenants for the subdivision have expired. Usually all that is necessary to restore the homeowners' association to active status as a corporation is to file the missing reports and pay the outstanding fees to the Division of Corporations. Information about a corporation's status with regard to annual reports and fees can be obtained from the Division of Corporations website, www.Sunbiz.org.
Revitalizing Homeowners Associations Covenants
Please review the following topics before contacting us directly. You may be able to find answers to your questions faster. If you still have any questions about revitalizing homeowners associations covenants, please contact the person listed on the right side of the page.
Chapter 720, Part III, Florida Statutes - Covenant revitalization, creates a mechanism to revive / reinstate / revitalize (these terms are all used to mean the same thing) a declaration of covenants that has ceased to govern some or all of the parcels in a subdivision. Briefly, the process includes the following steps:
- Parcel owners within a community must initiate an organizing committee composed of community members.
- The committee must prepare the declaration of covenants, which must then be approved by a majority of affected parcel owners.
- Next, the committee must send the proposed revived declaration to the following, which has 60 days to review it for compliance with statutory requirements:
Department of Economic Opportunity
Attn: Division of Community Planning
107 East Madison - Mail Station 160
Tallahassee, Florida 32399
- If the Department approves the proposed revived declaration, the declaration must be recorded with the Clerk of the Circuit Court in the county where the affected parcels are located.
Revitalizing Expired Covenants
When it was first created by the Florida Legislature in 2004, the covenant revitalization process could only be used by communities whose homeowners' associations were required to comply with Chapter 720, Florida Statutes. These associations are defined in chapter 720. They have mandatory membership, can enforce the covenants, can make assessments, and can place liens on the parcels if the assessments are not paid. In 2007, the Legislature amended Chapter 712, Florida Statutes, to broaden the procedures for covenant revitalization. As a result, some homeowners' associations that are not otherwise subject to Chapter 720, Florida Statutes, may now revitalize their covenants through the provisions in Part III of Chapter 720, Florida Statutes. However, section 712.11, Florida Statutes, requires that in order to revitalize the covenants, the homeowners' association must be authorized to enforce those covenants, and the covenants must have ceased to govern the parcels as a result of extinguishment by Chapter 712 (the Marketable Record Title Act). The original covenants, amendments to the covenants, and other governing documents must be examined carefully to determine whether they meet the statutory criteria for revitalization.
Declaration of Covenants Revival Process and Homeowners Associations
The revival of homeowners associations' declaration of covenants is governed by:
Chapter 720, Florida Statutes, deals with homeowners' associations in general, but does not apply to all homeowners' associations. Part III of chapter 720, Florida Statutes, deals with the revival process. Section 712.11, Florida Statutes, deals with revival of covenants by homeowners' associations that are not of a type that is otherwise required to comply with Chapter 720, Florida Statutes.
You may need to contact a private attorney who is experienced in real estate and community association issues to assist with the revival process. Although the statutes do not require that you hire an attorney, matters affecting real estate can be legally complex. Most associations and organizing committees decide that it is wise to approach the revival process cautiously, and under the guidance of an attorney.
The Department of Economic Opportunity can provide examples of documents that other associations have included in their revitalization submissions, but we cannot give you legal advice.
Deciding Whether to Revitalize Expired Covenants
The statutes do not require expired covenants to be revitalized. However, some communities may decide it is important to revitalize expired covenants for legal or financial reasons. The legislature originally created the revitalization process to assist communities that were experiencing difficulty collecting assessments and maintaining common property because their covenants had expired. Not all communities have common property to maintain, and for this reason and others, those communities may question whether it is necessary and/or desirable to revitalize their covenants and continue to have a homeowners' association. A private attorney who is experienced in community association law can advise the community on whether revitalization is necessary in its particular circumstances. Should the community choose not to revitalize, a private attorney can provide advice on how to dissolve the homeowners' association and dispose of any property and funds in accordance with applicable laws, or on how the association can continue to operate on a voluntary basis.
If you have further questions, you can contact us through the Expired Homeowners' Associations Covenants form.
Extending the Duration of the Covenants
For more information, see the following Florida Statutes:
This process does not involve review by the Department of Economic Opportunity. It is usually simpler to accomplish than revitalizing covenants after they have expired. However, because real estate matters can be complex, it is wise to obtain legal advice before undertaking this process. The department is not involved in this process and cannot advise you.
Frequently Requested Information
How to Obtain Copies of Your Homeowners' Association Covenants
The governing documents for a subdivision and homeowners' association consist of the declaration of covenants, the articles of incorporation, and the bylaws. The declaration of covenants for a subdivision is usually recorded in the Official Records of the Clerk of Court of the Circuit Court for the county in which the subdivision is located. Copies can often be obtained from the Clerk of Court's web site, though in some instances it may be necessary to visit the Clerk's office. Copies of the Articles of Incorporation can be obtained from the Department of State, Division of Corporations. Copies of the governing documents may also be obtained directly from the homeowners' association.
How to Exempt a Revived Declaration of Covenants From Applying to Your Parcel
Section 720.407(5), Florida Statutes states:
"With respect to any parcel that has ceased to be governed by a previous declaration of covenants as of the effective date of this act, the parcel owner may commence an action within one year after the effective date of this act for a judicial determination that the previous declaration did not govern the parcel as of the effective date of this act and that any revival of such declaration as to that parcel would unconstitutionally deprive the parcel owner of rights or property. A revived declaration that is implemented pursuant to this act shall not apply to or affect the rights of the respective parcel owner recognized by any court order or judgment in any such action commenced within one year after the effective date of this act, and any such rights so recognized may not be subsequently altered by a revived declaration implemented under this act without the consent of the affected property owner."
The legislation became effective October 1, 2004. Any property owner seeking the kind of judicial determination described in that section of the law would therefore have been required to begin legal action before October 1, 2005. If the property owner didn't begin such a legal action by then, he or she could still ask the homeowners' association if it would voluntarily exempt his or her parcel from those to be governed by the proposed revitalized documents. This property owner might also wish to consult a private attorney to see if other options are available. The Department cannot help you with this matter.
Concerns About How a Homeowners' Association Conducts the Revitalization Process
You may wish to promptly consult a private attorney who is experienced in real estate law and/or community association issues and who can help resolve the problems and concerns before the documents are submitted for review. Once the revitalization documents are submitted, the Department of Economic Opportunity has up to 60 days to review them and determine whether they comply with the requirements of Chapter 720, Florida Statutes - but the Department often completes its review in less than 60 days, so your opportunity to act may be limited. After the Department has issued a letter of determination, your options may be even more limited.
What is Meant by "Verified Copies" and "Affidavits"
Part III of Chapter 720, Florida Statutes, states that "verified copies" and "affidavits" must be submitted as part of the covenant revitalization process.
A "verified copy" means that someone has sworn under oath and in the presence of a notary public that it is a true and accurate copy of a legal document. When verified copies are required, a notarized letter from a member of the organizing committee or an officer of the homeowners' association may be attached to the copies as verification that they are accurate copies. The letter should say that the person signing it verifies that these are accurate (or true and correct, or exact) copies of the documents, and should also state what specific documents it refers to. Copies of the association's governing documents that have been obtained from the official records of the county where the subdivision is located and have been certified as accurate by the Clerk of Court are also acceptable.
An "affidavit" is a written statement confirmed by the oath or affirmation of the person making it, taken before a person having authority to administer such an oath or affirmation. In other words, it is a written statement that is signed and sworn to be true in the presence of a notary public or other official who is legally authorized to administer oaths. It must bear the original stamp or seal of the notary/official.
Topics That Do Not Involve Reviving Expired Homeowners' Associations Covenants
Topics That Involve Reviving Expired Homeowners' Association Covenants
If your question is about expired homeowners' associations covenants or revitalizing homeowners associations covenants and you did not find an answer above, please contact us through the appropriate link below.
We are unable to answer questions about other matters related to homeowners' or condominium associations.