Percentage required to extend or renew deed restrictions

by Jim Sutch
(Seminole, FL)

Visitor Question: My neighborhood deed restrictions expire next year. I am writing from Florida. How many of my neighbors must vote Yes in order to keep the restrictions?

Editors Respond: First, we must tell you that we are not attorneys and that none of us currently practice in Florida. So please verify our comments yourself. However, we took your question because it brings up some good points for all residents of restricted communities to consider.

Chapter 720 of the Florida state statutes governs extension of deed restrictions that are soon to expire under a 30-year limit on covenants that Florida law imposes. Let's deal with that first, since that is your situation.

The law is frankly silent on what percentage must approve, as we planners read it. It just says that the property owners association may record a document in county records stating that the association wishes to renew all or particular specified covenants. The recording document must show the signature of an association officer in the same manner that such signatures are shown on deeds.

Then the finished, recorded document must be sent to every property owner with any general mailing or meeting notice.

We think this implies that the decision making that leads up to the officer signing the document that is recorded must follow the association's usual protocol for making any decision.

So if you have majority votes of property owners, for example, or if there is a voting interest scheme according to the size of your lot or other criteria, those requirements are what must be followed. Frankly it sounds pretty loose.

However, if your association allows the covenants to lapse after 30 years and then decides at some later time to reinstate them, the requirements become more stringent, in our opinion. State law clearly requires a majority vote, either on a written ballot or at a meeting. In addition, an organizing committee of at least three people has to take charge of preparing for the reinstatement, which your state law calls a covenant revitalization. Then the vote results have to be submitted to a state department for approval. So the process for renewing covenants that have lapsed is quite different and more involved.

We think the lesson for all property owner associations is to maintain good governance and transparent, fair procedures at all times. Officers or a board should not take an action without informing all members of the association of the topic under consideration.

One would think that homeowners associations everywhere would act in a responsible manner since boards would not want to antagonize their neighbors by acting in secret or without allowing a vote of the membership. However, our mail indicates otherwise.

So do your part to assure that your property owners association makes this decision in open meeting, considering alternative viewpoints if they come up.

Another advantage to open discussion of whether to extend the covenants is that any covenants that have proven to be more of a problem than a neighborhood support can be discussed for possible exclusion, as allowed by law. This also would be a good opportunity for frank discussion of enforcement issues, which may be a good indication that a particular covenant is not practical and should not be preserved.

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