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WHO DO YOUR PROTECTIVE COVENANTS PROTECT?

This is a difficult article, directed at those with a serious desire to understand how interests in residential property are affected by the expiration of covenants. Remember that I’ve talked about “MRTA,” the Marketable Records Title Act, in several prior articles.

MRTA (and this is the tough part), starts by defining the “Root of Title” to be the last deed that’s more than 30 years old. That conveyance is the “Root of Title,” and it is applied on a lot by lot basis, not to a subdivision as a whole. Generally everything burdening that lot (other than a mortgage) before that conveyance is treated by MRTA as if it did not occur unless it was referred to specifically in a subsequent deed or constitutes an express exception to MRTA.

For this article, the world began on the date of the Root of Title. There are two primary exceptions: an easement that is in use on the ground, and anything referenced by book and page in a conveyance between the date of the root of title and the time of the records search. Notice the twin requirements for this exception to apply: The reference must be in a deed and it must contain the book and page at which the recording of that thing, (a covenant, for this article) appears.

Though it seems dumb, a recorded agreement between property owners for the extension of covenants, or any other document that is not part of a conveyance (except for a properly filed Extension as authorized under MRTA itself), will not extend covenants.

I’ve recently explained this to the Board of an association whose covenants were first recorded during the 70’s, and for which the public records contain multiple extension of covenants Agreements. I’ve told them they have no covenants because these extensions are not part of a “conveyance.” Their answer was, “We have a friend who’s a personal injury lawyer. He never heard of MRTA, and we’re not going to worry about it.”

MRTA is a subject that in law school every law student knew they would have a one in four chance of getting right on the bar exam. Now it’s showing up in real life.

The only way to know whether any lot has covenants is to search the chain of title on that lot. Identify the root of title. If it does not identify covenants by book and page, and if a 30-year period exists between that document and the next conveyance, that lot has no covenants.

Because at least in this county most deeds say something like, “Subject to restrictions of record, if any,” and there is no recitation of the book and page at which the Declaration of Covenants appears, that conveyance does not extend the covenants.

Please understand that the reason for this second and (I hope) last article on the subject, is to say that this inquiry for the wise buyer or Realtor is made on a lot by lot basis. The proper inquiry is not, for any property more than 30 years old, whether the subdivision has covenants, (unless the covenants have been successfully renewed for the entire subdivision) but, what percentage of lots within this subdivision has expired covenants, and if that percentage is high, do I trust that the character of this neighborhood will stay the same? Remember too that somewhere there may be a speculator with an express motive to buy one lot in a subdivision and change the use of that lot (subject to whatever protection is available through local zoning, if any), thereby change the developed pattern in the subdivision.

Covenants on your lot were never intended to protect you. Generally speaking, your covenants protect the other owners in your subdivision. It’s the restrictions on their lot that protect you. Covenants are intended to create some standard of uniformity in communities. You probably don’t want your neighbor to paint their house glowing orange, or to build a 40-foot-tall boat storage in their yard. Covenants protect you from that.

Even expired covenants can be reinstated, not by any one lot, but by majority vote of the whole subdivision.

Your covenants mean everything to the value of your lot. If you own a townhome the only thing between what you bought and a disorganized tent village with limited resale value, is your covenants.

Informed buyers and owners will begin to pay attention to whether their subdivision control documents have been successfully renewed. Better Realtors will know that if there is no statutory renewal for the entire subdivision, then the inquiry becomes lot by lot. The importance of this article is for you to know that covenants live or die not for the entire subdivision, but on a lot by lot basis. Unless the covenants for the entire subdivision have been extended by statutory process, then each lot must be examined to be assured that a common pattern of control remains in the subdivision.

There is a statutory procedure to revive covenants. That procedure is easy if someone interested acts before the covenants expire. It is difficult and expensive after the fact.

In my opinion the lessons in this article are so important that I have stated general rules at the expense of omitting some exceptions to MRTA. The exceptions are so cumbersome and distracting from the broader message that some are not stated here. Your lawyer is the best source to clarify any confusion that this article creates.

This article was published in the Coastal Homes publication of the Northwest Florida Daily News on June 1, 2019: http://www.coastalhomesfla.com/Olive/ODN/NWFLDNCoastHomes/