Community Association Living [ [Part 3: Has Your HOA Died?]

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.

You 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.


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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 www.stagelaw.com.
ociations. Please visit our website at www.stagelaw.com.

Is Your HOA Mandatory or Voluntary?

A very common assumption people make when they it purchase a home in a community managed by a homeowners association is that membership in the association is mandatory. Why wouldn’t they when the association asserts it is and demands payment?

The truth is the association is not going to tell you if it has lost status as a mandatory association or, worse yet, was never mandatory. The State of Florida does not regulate homeowner associations and does not certify them as mandatory, despite many associations telling their members the State has approved them or certified them. The State’s only involvement is to accept their corporation registration if the filing fee is paid.

All homeowners need to read the governing documents of their association: the Declarations, Bylaws and Articles of Incorporation. A review of these documents is necessary to check if the association was properly created to form a mandatory association prior to property being sold or to check if the documents may have expired under the Marketable Record Title Act (MRTA), which extinguishes deed restrictions after 30 years unless certain actions are taken to preserve them.

Other problems I have encountered in my practice of law include associations formed to enforce land use restrictions that fail to designate an association, older documents that fail to assign the developer’s rights to operate the community to an association, and illegal amendments to the governing documents.

Anyone who doubts the status of their association as a mandatory association should consult with a competent HOA or condo lawyer to review the documents.