Percentage of home owners needed to extend restrictions

by James Sutch
(Seminole, FL)

Visitor Question: I live in a deed restricted neighborhood. In Florida what is the lowest percentage of owners needed to extend the restrictions? Ours run out January 1. Our current documents say 75 percent. But what if we fall short? Why should the minority rule?

Editors Reply: We have to emphasize at the outset that we are not attorneys, but rather planners. So we are going to make some general observations about this situation, but to know the answer to your specific question for sure, you will have to consult an attorney or the counsel for your HOA. We can't give legal advice. Still, we think some discussion will be useful for you and other readers.

In Florida the state has tried to deal with the potential problem of deed restrictions that have become quaint with age by enacting the Marketable Record Title Act ("MRTA"). The essence of this well-intentioned law is that after 30 years, deed restrictions may expire unless specific actions are taken to preserve them.

There are some loopholes and twists too. For instance, if a deed refers to a specific book and page number where the restrictions are recorded by the county, those restrictions are not extinguished after 30 years. The detailed reference to a specific book and page number is required in the deeds to a condo, but not for other deeds, so it gets messy.

Our visitor's specific question though is really about a minimum threshold for preserving the covenants. This is a matter for a Florida attorney. General advice is that the specific wording of your particular deed restrictions usually will trump other laws, unless state law specifically forbids what your restrictions say.

The 75 percent requirement strikes us as being a sort of voting rule by which the HOA decides whether or not to file what is called a summary notice of preservation with your county. However, we are not reading the exact language and thus cannot be certain of that lay person interpretation.

As to why the minority would be allowed to block the extension of the restrictions, that may strike you as unfair but it is within the rights of the developer or whoever imposed the restrictions in the first place to decide this.

If you cannot get 75 percent of the owners to agree to the preservation of the covenants, our take is that a Florida attorney probably will say that they are null and void after the 30-year period. But to be sure, you and-or neighbors need to be talking with an attorney. We just hope that the additional background might make that conversation a little smoother.

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