If your Property Owners Association (POA) failed to file a Notice of Preservation, the deed restrictions (CC&Rs) governing your property may have been automatically extinguished by operation of law.
Under Florida’s Marketable Record Title Act (MRTA), codified in Chapter 712, Florida Statutes, covenants and restrictions are extinguished if they are more than 30 years removed from the “root of title” and no preservation notice was recorded. This extinguishment is automatic and does not depend on whether the HOA was actively enforcing the rules or whether owners had knowledge of them.
To determine if your specific restrictions are removed, you must verify:
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The 30-Year Rule: Whether the original declaration of CC&Rs was recorded more than 30 years ago relative to the root of title for your specific parcel.
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Chain of Title: Whether any subsequent deed or instrument in your property’s chain of title within the last 30 years specifically references the CC&Rs. A general reference may be insufficient; courts often require a specific reference to the instrument creating the interest.
If the restrictions were extinguished, you are no longer legally bound by them, meaning the HOA cannot enforce restrictions on parking, use, modifications, or assessments. However, the HOA may attempt to revive the covenants under Section 720.403, which requires a petition signed by a majority of affected parcel owners and approval through a specific statutory process. If the HOA has not yet revived them, you may have a strong defense against enforcement actions, potentially seeking a declaratory judgment to establish that the restrictions are extinguished.
The AMENDED AND RESTATED SUPPLEMENTARY DECLARATION OF RESTRICTIONS
AFFECTING LOTS IN THE FIFTY-SECOND ADDITION TO PORT CHARLOTTE
SUBDIVISION
ALSO KNOWN AS THE JOCKEY CLUB is not an MRTA Notice of Preservation
If your Property Owners’ Association (POA) fails to file a MRTA Notice of Preservation within the required 30-year timeframe, Florida’s Marketable Record Title Act (MRTA) automatically extinguishes the community’s covenants and restrictions
- Expiration of Rules: Use restrictions, architectural guidelines, and maintenance obligations are rendered legally void. The HOA loses the legal authority to fine homeowners, dictate property appearances, or regulate the community beyond standard local laws. [1, 2, 3]
- Loss of Assessment Collection: The association loses the automatic right to collect mandatory maintenance fees and dues, which can financially cripple the community
- MRTA clears stale claims on real property titles by limiting title searches to a rolling 30-year period.
- For HOAs, the 30-year clock generally begins from the “root of title”—which is typically the date the initial developer recorded the original declaration for the very first lot in the subdivision
- What Section 720.311 is about: This statute governs Dispute Resolution rather than MRTA. It mandates that you and your HOA participate in Pre-Suit Mediation with a neutral mediator for most covenant enforcement disputes before taking each other to court. [1, 2, 3, 4, 5]
- The Connection: If your HOA’s covenants have expired under MRTA, there are effectively no enforceable covenants to fight over, which changes the dynamics of any Chapter 720 dispute mediation.
- If it’s before the 30-year limit: The Board can simply approve and record a Notice of Preservation with the local county clerk to protect the rules for another 30 years. Under Florida Statute 720.303, boards are obligated to consider this at their first meeting following the annual meeting. [1, 2, 3, 4, 5]
- If it’s after the 30-year limit (Expired): The covenants can no longer be simply “preserved.” Instead, the association must go through a complex Revitalization Process governed by Florida Statutes Chapter 720. This requires a formal organizing committee, state agency approval, and an affirmative majority vote of the property owners to reinstate the governing documents