Fifty or so years ago someone in America whispered to the public the notion that cigarettes were causing cancer. No one listened. Then he said it again, and then again, and soon even politicians heard. Those little white sticks that were required for admission to every boardroom and every fraternity in America began not to smell so good. We reached a tipping point. We got the message.
Two months ago, I wrote an article in this space that implied, maybe too quietly, that the covenants in every subdivision and HOA in Florida have begun to expire. For reasons too complicated and too contrary to good sense to be believed, by legislative fiat, covenants have a lifetime far shorter than the buildings that make up the subdivisions the covenants are intended to protect. A well-intended law called the Marketable Record Title Act, or “MRTA” is the reason. Courts in the last ten years have interpreted MRTA to void covenants if not renewed by very special forms and procedures after 30 years. A simple declaration by the board, or the members, of an intent to extend, even if recorded, is not enough.
I published this message two months ago. Like the first cigarette warnings, the results of MRTA extinguishing covenants, (and with the covenants, HOA assessments and most limitations on the use of the property), is so nonsensical and unthinkable that I think people just didn’t believe the message.
If you are an officer in an HOA or subdivision, contact your lawyer, now. If he or she knows nothing of MRTA, tell him or her to call me. I won’t charge your lawyer a dime to point them in the right direction. It’s that important.
Any HOA officer or board member who lets the covenants in their subdivision lapse because he just did nothing is ignoring a fiduciary duty. Any realtor who does not respect the importance of subdivision (and townhome) covenants doesn’t understand that covenants and assessments are the only thing that makes some subdivisions and all townhomes, livable. Realtors know that Johnson vs. Davis requires sellers to disclose what they know to a buyer if that information would materially affect value. If you live in a townhome especially, your neighbor could destroy the value of your unit by having 12 dogs, or by painting his unit orange, or by any one of the hundreds of things that are perfectly legal, but also perfectly stupid.
Enforcement of community rules and standards will define the worth of more and more neighborhoods as the buildings age.
As the law stands today, if you let the covenants expire in your subdivision it will be both difficult and expensive to reinstate them, if they can even be reinstated. That’s why it’s important to discuss this message with your lawyer, now. If he or she does not believe this message, refer your lawyer to Lyday vs. Myakka Valley Ranches Improvement Association, Inc., Case Number 2D17-1726 decided March 15, 2019.
MRTA is to the value of some properties even more lethal than cigarettes were to your health.
This article was published in the Coastal Homes publication of the Northwest Florida Daily News on April 6, 2019: http://www.coastalhomesfla.com/Olive/ODN/NWFLDNCoastHomes/