legal matters
It’ s a revival: What to do if a homeowner’ s associations’ s governing documents expire
By: Kari L. Martin, Esq., Najimy Thompson, P. L.
Over the years, there has been more focus and education provided to board members and property managers of Homeowners’ Associations governed by Chapter 720, Florida Statutes, regarding the Marketable Record Title Act(“ MRTA”). The provisions of MRTA can be found in Chapter 712, Florida Statutes, and it is the legislation that provides that your Homeowners’ Association’ s declaration of covenants and restrictions( the“ Declaration”) can expire after thirty( 30) years from the date the Declaration was originally recorded. Due to the increase in information and education on MRTA, many Homeowners’ Associations are now aware that they must take proactive steps to“ preserve” the
Declaration prior to the expiration of the thirty( 30) years by following a statutory procedure for preservation as described in Section 720.3032, Florida Statutes.
But what happens to the governing documents if a Homeowners’ Association fails to preserve the Declaration prior to the expiration of the thirty( 30) years? The failure to preserve the Declaration can result in the Declaration expiring, and the Association could lose its ability to enforce the restrictions or collect assessments against some or all of the lots in the community. While there are likely many members of a Homeowners’ Association that would be happy at the thought of unenforceable documents, there are many members that value and appreciate the need for these covenants and restrictions in order to enhance and maintain their property values. So, I have good news for those members.
All hope is not lost if the Declaration is not timely preserved. Sections 720.403 through 720.407 of the Florida Statutes provide for the ability to“ revitalize” or“ revive” the covenants and restrictions.
While the revitalization process can be more time-consuming and costly than preserving the Declaration, it is not impossible. The first step in the revitalization process is to form a committee of not less than three( 3) lot owners located in the community governed by the revived declaration. The committee is required to prepare or cause to be prepared the proposed revived declaration, as well as the proposed( or existing, if the association is an existing corporation) articles of incorporation and bylaws sought to be revived. The committee must provide the owners with a complete copy of the proposed revived declaration, the proposed new or existing articles and incorporation and bylaws, and a graphic depiction of the property to be governed by the revived declaration at least fourteen( 14) days prior to the date which their vote will be required by the committee. A majority of the affected owners must agree in writing( typically through written consent / ballot) or vote at a meeting to approve the revived declaration and governing documents.
Within sixty( 60) days of obtaining the approval of the majority of the affected owners, the committee must submit to the Department of Commerce the proposed revived declaration, verified copies of all of the existing and previous governing documents and all amendments, copies of the written consents of the lot owners, the legal description of all lots to be subject to the revived declaration, the plat or other graphic description of the properties, and an affidavit certifying compliance with the statute.
The Department has sixty( 60) days after receiving the submission to determine whether the revived declaration and other continued on page 10
8 community • June 2025 WWW. CAIWeSTFlORIDA. ORg