Florida's Marketable Record Title Act, Chapter 712, extinguishes covenants and restrictions 30 years after the root of title to a parcel unless an exception applies or the covenants have been preserved by a recorded notice. For a homeowners association, that means the declaration itself, the source of its authority to assess, to lien, and to enforce, can expire, parcel by parcel, without anyone noticing until an owner refuses to pay and a title search shows why. Chapter 720 gives associations a simple way to prevent it, requires the board to consider the question every year under section 720.303(2)(e), and provides a revitalization procedure in sections 720.403 through 720.407 for covenants that have already lapsed. Whether a decades-old restriction can still be enforced therefore depends first on MRTA, and only then on the more familiar defenses of waiver and selective enforcement.
How MRTA works
MRTA was enacted to simplify title searches: a person with a recorded chain of title going back at least 30 years holds a marketable title free of interests that predate the "root of title," the last title transaction recorded at least 30 years ago. Covenants and restrictions recorded before the root are among the interests extinguished, unless they fall within an exception in section 712.03. The relevant exceptions for associations are interests disclosed by the muniments of title, meaning the deeds in the chain, and interests preserved by a notice recorded under sections 712.05 and 712.06.
The muniments exception is where associations are most often surprised. In Sunshine Vistas Homeowners Association v. Caruana, the Florida Supreme Court held that a deed's specific reference to the recorded instrument containing the restriction preserves it as to that parcel, but a general reference to "restrictions, easements, and reservations of record" does not. The restriction there was a setback in a 1925 subdivision plat, and it survived because the legal description in the chain of title named the recorded plat. Chapter 712 allows either route. The version of the statute the court applied required, for a general reference to preserve an interest, "specific identification by reference to book and page of record or by name of recorded plat" — so a plat name in the legal description sufficed. Chapter 712 has been amended since that decision, so the current text should be read before relying on this route in any particular chain of title. Because every parcel's chain of title is different, a subdivision more than 30 years old may have covenants that survive on some lots and have lapsed on others, depending on how each closing agent drafted each deed. An association cannot enforce a covenant against a lot where it has been extinguished, and it cannot know which lots those are without a title examination of each.
Which communities are at risk
Any homeowners association whose declaration was recorded 30 or more years ago, and any whose declaration will reach that age within the next few years. In Southwest Florida that includes much of the housing built in the 1970s, 1980s, and early 1990s in Cape Coral, Fort Myers, Lehigh Acres, North Fort Myers, Port Charlotte, Naples, and Bonita Springs. Communities with amended and restated declarations recorded within the last 30 years have generally reset the clock, but only if the restatement was itself recorded and properly approved. Condominium declarations are generally treated differently, in part because every deed to a unit necessarily identifies the declaration; the analysis for a condominium should nonetheless be confirmed by counsel.
The annual Statement of Marketable Title Action
Section 720.303(2)(e) requires the board, at its first meeting after the annual meeting (excluding the organizational meeting), to consider the desirability of filing notices to preserve the covenants from extinguishment under MRTA and to authorize and direct the appropriate officer to file them. The agenda for that meeting must contain the statutory Statement of Marketable Title Action, in the form the statute prescribes, so that owners are on notice the question will be considered. Many boards have never seen the statement and never placed it on an agenda; those boards should add it to next year's first post-annual meeting and, in the meantime, determine whether their covenants are already at risk.
Preserving the covenants
A homeowners association preserves its covenants by recording a notice of preservation that complies with section 712.06: it identifies the association, the covenants or restrictions being preserved by their recording information, the legal description of the affected land (a reference to the recorded plat generally suffices), and the fact that the board approved the notice at a meeting whose agenda contained the Statement of Marketable Title Action. The statute permits the board to approve the notice without a membership vote. The notice is recorded in the county's official records, and the association mails or otherwise gives notice to owners as the statute directs. Recording restarts the 30-year period as to the preserved covenants, and the association should calendar the next preservation deadline accordingly.
Preservation must occur before the covenants are extinguished. A notice recorded after the 30 years have run as to a given parcel does not revive the covenants for that parcel; revitalization is then the only path.
Revitalizing lapsed covenants
Sections 720.403 through 720.407 provide the procedure when the covenants have already expired:
- Organizing committee. At least three parcel owners in the community form an organizing committee and prepare the proposed revived declaration, together with the articles and bylaws.
- Content limits. The revived declaration may not contain covenants more restrictive than those in the expired declaration, except as the statute permits, and it must be consistent with current law.
- Owner approval. The revived documents must be approved by a majority of the affected parcel owners, by written consent or by a vote at a meeting noticed to all affected owners, with the proposed documents provided in advance.
- State review. Within 60 days after approval, the committee submits the documents, the approval evidence, and the required information to the Florida Department of Commerce (formerly the Department of Economic Opportunity), which has 60 days to determine whether the statutory requirements were met.
- Recording. Within 30 days after state approval, the revived documents are recorded in the county's official records, and copies are provided to owners. The declaration is effective on recording as to all affected parcels.
Section 712.12 extends a comparable revitalization procedure to communities that were never governed by a homeowners association. Revitalization typically takes six to twelve months and requires an organized campaign to obtain the majority approval, which is why prevention through preservation is preferred.
What happens while the covenants are lapsed
An association whose declaration has been extinguished as to a parcel cannot collect assessments from that parcel, cannot lien it, and cannot enforce use or architectural restrictions against it. Owners of lapsed parcels who have continued to pay may stop, and some have sought refunds. The association's other functions (maintaining common areas it owns, operating as a corporation) continue, but its funding shrinks with every lapsed lot. Boards that discover a lapse should stop enforcement against the affected parcels, begin revitalization immediately, and obtain counsel's advice on assessments already collected.
Old restrictions that survive MRTA
A covenant that is still in force may nevertheless be unenforceable for other reasons, each of which should be examined before a letter goes out. Statutory preemption: Chapter 720 now prohibits enforcement of restrictions on protected flags, Florida-friendly landscaping, interiors and items not visible from the street, and, since 2024, certain parking, garbage receptacle, and holiday decoration rules; a 1985 covenant banning pickup trucks in driveways is void regardless of its age. Waiver and selective enforcement: a restriction the association has knowingly ignored for years may be enforced only prospectively after written notice to all owners, as our covenant enforcement guide explains. Ambiguity: old restrictions written for a different era ("no trailers," "no commercial vehicles," "single family") are construed in favor of the owner where unclear. Limitations: an action to enforce a written covenant must be brought within five years of the violation. The changed conditions doctrine, under which courts refuse to enforce restrictions that no longer serve their purpose, exists in Florida but succeeds rarely.
Recommendations for boards
- Determine the recording date of the declaration and its amendments and calculate the earliest possible extinguishment date.
- If the declaration is more than 25 years old and no preservation notice has been recorded, place the Statement of Marketable Title Action on the next eligible agenda and record a notice of preservation.
- If the declaration is more than 30 years old, obtain a title review of a sample of parcels to determine whether covenants have lapsed, and begin revitalization if they have.
- Calendar the next preservation deadline after recording.
- Use the occasion to modernize: an amended and restated declaration that removes preempted restrictions and conforms to current Chapter 720 both resets the MRTA clock and reduces enforcement disputes. Our Governing Documents page describes that process.
Frequently Asked Questions About Old Covenants and MRTA
How do we know if our covenants have expired?
Start with the recording date of the declaration. If it is more than 30 years old and no notice of preservation has been recorded, some or all parcels may be affected, depending on how each deed in each chain of title referenced the declaration. A title examination of representative parcels answers the question for those parcels; only preservation or revitalization answers it for all.
Does the annual mention on the agenda preserve the covenants by itself?
No. The Statement of Marketable Title Action is the required agenda item at which the board considers preservation; the covenants are preserved only when the board approves a notice and it is recorded under sections 712.05 and 712.06. Considering and doing nothing preserves nothing.
Do we need an owner vote to preserve the covenants?
No. The statute allows the board to approve the notice of preservation at a properly noticed meeting whose agenda carried the statutory statement. Revitalization of lapsed covenants, by contrast, requires approval by a majority of the affected parcel owners.
Can we still collect assessments from a lot whose covenants have lapsed?
Not on the basis of the extinguished declaration. The assessment obligation is a covenant, and once extinguished as to a parcel it cannot be enforced against that parcel until the covenants are revitalized. Counsel should advise on any assessments collected after the lapse.
Can the revived declaration add new restrictions?
Generally no. The revived declaration may not be more restrictive than the expired one except as the statute permits, and it must conform to current law. Once revitalized, the community may amend its documents through the ordinary amendment process.
Do condominium declarations expire under MRTA?
Condominium declarations are generally treated as not extinguished by MRTA, in part because every unit deed necessarily identifies the declaration, but the point should be confirmed by counsel for any condominium more than 30 years old rather than assumed.
Contact Hamilton Mikes
Hamilton Mikes prepares notices of preservation, guides revitalization campaigns, and updates aging declarations for homeowners associations throughout Southwest Florida. Call 239-594-7227 or visit our Governing Documents page.
Statutes and authorities referenced
- § 712.02 and § 712.03, Fla. Stat. (marketable record title 30 years after root of title; exceptions, including interests disclosed by muniments of title and preserved by notice)
- § 712.05 and § 712.06, Fla. Stat. (preservation of covenants by recorded notice; homeowners association procedure; notice contents)
- § 712.11 and § 712.12, Fla. Stat. (revival of extinguished covenants; revitalization for communities without a homeowners association)
- § 720.303(2)(e), Fla. Stat. (Statement of Marketable Title Action on the agenda of the first board meeting after the annual meeting)
- §§ 720.403–720.407, Fla. Stat. (revitalization of HOA covenants: organizing committee, approval by affected parcel owners, state review, recording)
- Sunshine Vistas Homeowners Ass'n v. Caruana, 623 So. 2d 490 (Fla. 1993) (specific reference to the recorded plat or declaration preserves the covenant; general reference does not)
- § 95.11(2)(b), Fla. Stat. (five-year limitations period for actions on written instruments)