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Subject: HOA is Revitalizing Unexpired Deed Restrictions
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DennisR10
(Florida)

Posts:6


10/28/2019 7:43 AM  
I've searched through this forum and found discussion on reviving expired restrictions but nothing about reviving unexpired restrictions so I'll ask my question...

I live in Florida. We have an HOA that was formed in 1978 and extended in 2000 (by a majority vote of the residents) with a current expiration of 01/01/2030. There have been two amendments since the extension was filed in 2000. HOA dues are voluntary.

I just received a package from the HOA and the first paragraph fo the cover letter states the following:

"Florida law provides a procedure for revitalization of Homeowners Association documents (Deed Restrictions). The Board of Directors has recommended proceeding with this revitalization process, in order to preserve the ability to enforce deed restrictions and maintain our property values and desirable community."

The cover letter goes on to state this revitalization process "may not and do not" contain and provisions that are more restrictive than in the previous declaration. I've read through all of the exhibits included and have again read through the restrictions provided and find no changes in the restrictions. I was the Chair of the DR Enforcement Committee for a number of years so I'm very familiar with the restrictions as written.

My question is what is the point of going through a revitalization process for a set of DR/PCs that don't expire for another 11 years?

Any guidance would be greatly appreciated.
SheliaH
(Indiana)

Posts:2749


10/28/2019 8:11 AM  
Is there a cost for this? If not, I see no problem with filing the paperwork now instead of waiting 11 years - this way, homeowners could have better assurance that the board is working from the most current documents.

Your question is best addressed to your board - if you did that already, what was the response?
DennisR10
(Florida)

Posts:6


10/28/2019 8:29 AM  
Thanks for the quick response.

I would guess that any HOA attorney fees for advising on this effort would be minimal at best and the only other cost would be return postage. They will have to file paperwork anyway, after a successful majority vote, to amend the restrictions when they expire in 2030. That's why I'm curious as to the point behind doing anything today if the exact same documents have already been duly filed with the last amendment in 2015.

My next step is to reach out to the HOA Board. Without getting into details, the HOA Board has historically been dysfunctional, especially in DR enforcement, and my past queries to them on various matters have resulted in vague and confusing responses. I asked in this forum first thinking there may have been some legal benefit to going through a "revitalization" effort.
DouglasK1
(Florida)

Posts:1466


10/28/2019 11:17 AM  
We had a board member who was pushing to revitalize when we made some CCR changes at the 22 year point when we had 8 to go. Our attorney suggested to wait a few years, which is what the rest of the board wanted to do anyway.

Escaped former treasurer and director of a self managed association.
GenoS
(Florida)

Posts:3328


10/28/2019 11:20 AM  
Posted By DennisR10 on 10/28/2019 7:43 AM
"Florida law provides a procedure for revitalization of Homeowners Association documents (Deed Restrictions). The Board of Directors has recommended proceeding with this revitalization process, in order to preserve the ability to enforce deed restrictions and maintain our property values and desirable community."

The cover letter goes on to state this revitalization process "may not and do not" contain and provisions that are more restrictive than in the previous declaration.

As far as that goes, it's correct that revitalized covenants and restrictions can be no more restrictive than the originals.

All of that, however, applies to EXPIRED covenants. Documents that have not expired CANNOT be "revitalized". They can, however, be PRESERVED by making some filings BEFORE they expire. It's a lot less of a hassle to preserve them before they expire, too.

Whoever is advising your board needs a refresher course on Preserving Unexpired Covenants vs. Revitalizing Expired Covenants. Either that, or perhaps your documents HAVE already expired and that fact is being kept hidden. Everything they're telling you is legit IF the documents HAVE expired, but if nothing has expired yet then they're way off base.

You might want to double check the dates on everything. MRTA acts to extinguish deed restrictions and covenants 30 years AFTER the root of title was recorded on the property. That happens on a lot-by-lot basis in many cases. You say your HOA was "extended in 2000". What does that mean? Doing that may NOT have reset the ticking 30-year clock for the older properties when it comes to their root of title date. I'm wondering if that's what's going on because the only way "revitalizing" has any effect on anything is if the original restrictions have already expired.
DennisR10
(Florida)

Posts:6


10/28/2019 11:27 AM  
I like your signature. I feel that way as well ;)

The odd thing that I keep coming back to is that nothing is changing. I get what it means to revive/revitalize expired restrictions but not when they are active and nothing is changing.

I have reached out to HOA Board members who are in charge of this effort. The one thing that is different is that when the restrictions have been amended in the past, a ballot was sent to each homeowner asking for a yea or no. For this revitalization process, they are asking for our "written consent".
GeorgeS21
(Florida)

Posts:1373


10/28/2019 11:42 AM  
It sounds like the root of deed could date to 1978. If true, and this usually requires a title search across the development, then the MRTA could have occurred in 2008 ... this is why a revitalization may be required.

FS 720 and FS 712 are pretty clear on this.
DennisR10
(Florida)

Posts:6


10/28/2019 12:00 PM  
Exactly! All of my research was pointing to revitalizing expired convenants - not active ones. To answer your question, the restrictions/protective covenants were originally adopted in 1978 with an expiration date of 01/01/2000. In 1999, I was part of the committee that extended them to 2030. There have been two amendments since (one new restriction, one revision of fence restrictions) and the expiration date is still 2030 with no other verbiage being changed.

As far as root of title, the original development began in 1968. My home was built in 1969. The development was divided into 10 units (units are the individual streets or groups of streets). All but one of the units are covered by the restrictions. I do see what you're saying about the extension of the DR/PCs possibly not resetting the clock on properties like mine that were built before the restrictions were in place.

There is a PDF copy of our current DRs on this page: http://www.ourvi.org/deed-restrictions.html

It will be interesting to hear the Board's response to my question. I will update as soon as I hear.
DennisR10
(Florida)

Posts:6


10/28/2019 12:01 PM  
Posted By GeorgeS21 on 10/28/2019 11:42 AM
It sounds like the root of deed could date to 1978. If true, and this usually requires a title search across the development, then the MRTA could have occurred in 2008 ... this is why a revitalization may be required.

FS 720 and FS 712 are pretty clear on this.




Thanks! I'm going to read through those statutes.
GenoS
(Florida)

Posts:3328


10/28/2019 12:28 PM  
Posted By DennisR10 on 10/28/2019 8:29 AM
I would guess that any HOA attorney fees for advising on this effort would be minimal at best and the only other cost would be return postage.

Maybe. Our attorney charged $2,000 to do our MRTA filing in 2012. Then he tried to sell us the same service again two years ago for $5,000 even though he had already done it. We sent him and his large law firm packing. If he wasn't acting in bad faith then he was incompetent and either reason was enough to terminate his services.

Your mileage may also vary because if your HOA is a voluntary one then you're not subject to FS 720. MRTA is only tangentially related to FS 720, but it will still work to extinguish deed restrictions regardless. Just do a lot of reading to educated yourself and carefully consider what your attorney is telling you. They're not infallible and a significant number of FL attorneys don't really know MRTA. But that won't stop them from telling you that they understand it.
GenoS
(Florida)

Posts:3328


10/28/2019 12:40 PM  
Posted By DennisR10 on 10/28/2019 12:00 PM
To answer your question, the restrictions/protective covenants were originally adopted in 1978 with an expiration date of 01/01/2000. In 1999, I was part of the committee that extended them to 2030. There have been two amendments since (one new restriction, one revision of fence restrictions) and the expiration date is still 2030 with no other verbiage being changed.

Be careful with this, too. "Expiration" dates in your governing documents are internally applicable to your association, but the MRTA dates are completely separate from any language in your own documents. Amending the language in your documents to extend the lifetime of the association probably does not affect the MRTA 30 year period at all.

Example: The association was formed in 2000 and the developer filed the CC&Rs and sold the lots after building homes on them. The Covenants say the Association shall exist for 20 years. In 2019 the association amends the language in the covenants to "extend" the life of the association for an additional 20 years. MRTA will still begin to extinguish your covenants in 2030 unless a very specific preservation filing is made. MRTA doesn't care about what the CC&Rs say about the length of time for the association to exist. The 2 deadlines are independent of each other.
DennisR10
(Florida)

Posts:6


10/28/2019 12:50 PM  
Posted By GenoS on 10/28/2019 12:40 PM
Posted By DennisR10 on 10/28/2019 12:00 PM
To answer your question, the restrictions/protective covenants were originally adopted in 1978 with an expiration date of 01/01/2000. In 1999, I was part of the committee that extended them to 2030. There have been two amendments since (one new restriction, one revision of fence restrictions) and the expiration date is still 2030 with no other verbiage being changed.

Be careful with this, too. "Expiration" dates in your governing documents are internally applicable to your association, but the MRTA dates are completely separate from any language in your own documents. Amending the language in your documents to extend the lifetime of the association probably does not affect the MRTA 30 year period at all.

Example: The association was formed in 2000 and the developer filed the CC&Rs and sold the lots after building homes on them. The Covenants say the Association shall exist for 20 years. In 2019 the association amends the language in the covenants to "extend" the life of the association for an additional 20 years. MRTA will still begin to extinguish your covenants in 2030 unless a very specific preservation filing is made. MRTA doesn't care about what the CC&Rs say about the length of time for the association to exist. The 2 deadlines are independent of each other.




Thanks for the clarification. One of the Board members called me and they are, in fact, looking to make a preservation filing becasue of MRTA. I asked why they didn't say that in the cover letter and he didn't really have an answer.
GeorgeS21
(Florida)

Posts:1373


10/29/2019 6:23 AM  
OP,

It sounds like you need to be certain a full discovery, to determine the root, has been completed.

Given the complicated beginnings of your community, and the risk, it would be a reasonable course of action.
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