Marketable Record Title Act: The Clock May Be Ticking Against Homeowners Associations

Real property in Florida is subject to the Marketable Record Title Act

Real property in Florida is subject to the Marketable Record Title Act*. This Act is designed to remove encumbrances against property in order to promote free and clear alienability of property. The Act generally applies to remove clouds from title which have not been re-recorded for thirty years.

In other words, if a document was recorded effecting the property over thirty years ago the Act may remove the claim from your title completely.

A core concern of the Marketable Record Title Act is that there be no hidden interest in property that could later be asserted against the property owner. See Blanton v. City of Pinellas Park, 887 So.2d 1224, 1232 (Fla. 2004).

The Marketable Record Title Act can extinguish homeowners’ covenants and restrictions if same have been abandoned and not re-recorded in the thirty year timeframe. The failure to preserve by re-recording can be fatal to homeowners associations covenants and restrictions. See Berger v. Riverwind Parking, LLP, 842 So.2d 918, 922 (Fla. 5th DCA 2000).

Homeowners associations are permitted to preserve their covenants and restrictions by recording a statement of the homeowners association’s claim pursuant to 712.06 of the Florida Statutes. H&F Land, Inc. Panama City-Bay County Airport and Industrial District 736 So.2d 1167 (Fla. 1999). The legislature adopted the statutory notice mechanism to preserve covenants and restrictions in 1997. Before that date homeowners associations routinely filed amendments, restatements and consolidations of the covenants and restrictions all designed to give notice in the chain of title in order to safeguard the restrictions from extinction.

Accordingly, each homeowners association must record it or lose it.

*Chapter 712 of the Florida Statutes.

ABOUT THE AUTHOR: Houston E. Short
Houston Short grew up in the Central Florida area, and continues to reside in Orlando with his family. He provides representation in arbitration actions for the American Arbitration Association and engages in alternative dispute resolutions including mediation both binding and non-binding arbitration, and settlement negotiations. He is an active member of the American Arbitration Association Panel Review Committee, the Orange County Bar Association, and the Florida Bar. He graduated from Florida State University in 1984 with a bachelors of science degree (cum laude) and received his juris doctor from the University of Florida in 1987 (with honors). Houston co-authored, "The Constitutionality of the Legislatures Mandate to Sever Counterclaims in Mortgage Foreclosure Action," the Real Property, Probate and Trust Law Section, The Florida Bar.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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