S1438 GENERAL BILL
by Senator Campbell (Identical H 0589) Marketable Property
Titles; defines terms; provides that marketable record title does
not affect certain interests that have been reinstated or that arise
out of documents re creation of condominiums or cooperatives; provides
requirements for reinstatement of certain covenants or restrictions
by filing of statutory notice; extends 30-year vesting period for
creating marketable title; provides applicability, etc. Amends Ch.
712, 720.301; creates 720.313.
EFFECTIVE DATE: 07/01/2004.
01/08/04 SENATE Prefiled
01/16/04 SENATE Referred to Judiciary;
Banking and Insurance;
Regulated Industries; Comprehensive Planning
CODING: Words stricken
are deletions; words underlined are
additions.
32-289C-04
1
A bill to be entitled
2
An act relating to marketable record titles to
3
real property; amending s. 712.01, F.S.
4
defining terms; amending s. 712.03, F.S.;
5
providing that marketable record title does not
6
affect certain interests that have been
7
reinstated or that arise out of documents
8
relating to the creation of condominiums or
9
cooperatives; amending s. 712.06, F.S.;
10
providing requirements for the reinstatement of
11
certain covenants or restrictions by the filing
12
of statutory notice; amending s. 712.09, F.S.;
13
extending the 30-year vesting period for
14
creating marketable title; providing for
15
reinstating certain covenants or restrictions
16
that have been extinguished; amending s.
17
720.301, F.S.; providing applicability of
18
certain definitions; creating s. 720.313, F.S.;
19
providing for the reinstatement of certain
20
extinguished covenants or restrictions;
21
providing applicability; providing an effective
22
date.
23
24 Be It Enacted by the Legislature
of the State of Florida:
25
26
Section 1. Section 712.01, Florida Statutes, is
27 amended to read:
28
712.01 Definitions.--As used in this chapter,
the term
29 law:
30
(1) The term "Person"
as used herein denotes singular
31 or plural, natural or corporate,
private or governmental,
1
1 including the state and any
political subdivision or agency
2 thereof as the context for
the use thereof requires or denotes
3 and including any homeowners'
association.
4
(2) "Root of title" means any title transaction
5 purporting to create or
transfer the estate claimed by any
6 person and which is the
last title transaction to have been
7 recorded at least 30 years
prior to the time when
8 marketability is being determined.
The effective date of the
9 root of title is the date
on which it was recorded.
10
(3) "Title transaction" means any recorded instrument
11 or court proceeding which affects
title to any estate or
12 interest in land and which describes
the land sufficiently to
13 identify its location and boundaries.
Recorded amendments to
14 covenants
or restrictions, as defined in subsection (6), are
15 deemed
"title transactions," as are the recordation of
16 amended,
restated, or amended and restated covenants or
17 restrictions.
However, to be effective as a title transaction,
18 such
amendments, restatements, or amendments and restatements
19 must
reference, by citation to official record book and page
20 of the
land records of the county where the property is
21 located,
the covenant or restriction affected thereby, or must
22 describe
the land affected by the covenant or restriction
23 sufficiently
to identify its location and boundaries.
24
(4) The term "Homeowners'
association" means a
25 homeowners' association as defined
in s. 720.301, or an
26 association of parcel owners
which is authorized to enforce
27 covenants
or use restrictions
against a parcel or the parcel
28 owner
or occupant by an assignment of enforcement rights, by
29 ownership
of property subject to such covenants or
30 restrictions,
or by other means that are imposed
on the
31 parcels.
2
1
(5) The term "Parcel"
means real property which is
2 used for residential purposes
that is subject to exclusive
3 ownership and which is subject
to any covenant or restriction
4 bthat
is enforceable by of
a homeowners' association.
5
(6) The term "Covenant
or restriction" means any
6 agreement or limitation,
including, but not limited to, use
7 restrictions,
contained in a document recorded in the public
8 records of the county in
which a parcel is located which
9 subjects the parcel to any
use restriction which may be
10 enforced by a homeowners' association
or which authorizes a
11 homeowners' association to impose
a charge or assessment
12 against the parcel or the owner
of the parcel or which may be
13 enforced by the Florida Department
of Environmental Protection
14 pursuant to chapter 376 or chapter
403.
15
Section 2. Subsection (2) of section 712.03, Florida
16 Statutes, is amended, and subsection
(9) is added to that
17 section, to read:
18
712.03 Exceptions to marketability.--Such marketable
19 record title shall not affect
or extinguish the following
20 rights:
21
(2) Estates, interests, claims, or charges, or any
22 covenant or restriction, preserved
or reinstated by the filing
23 of a proper notice in accordance
with the provisions of s.
24 712.06
hereof.
25
(9) Estates, interests, claims, rights,
obligations,
26 or charges
arising out of a declaration of condominium or the
27 cooperative
documents creating or governing a cooperative, any
28 exhibits
thereto, or amendments to any of the foregoing.
29
Section 3. Paragraphs (a) and (d) of subsection (1) of
30 section 712.06, Florida
Statutes, are amended to read:
31
712.06 Contents of notice; recording and indexing.--
3
1
(1) To be effective, the notice referred to in s.
2 712.05 shall contain:
3
(a) The name or description of the claimant or the
4 homeowners' association
desiring to preserve or restate any
5 covenant or restriction
and the name and particular post
6 office address of the person
filing the claim or the
7 homeowners' association.
8
(d) A statement of the claim showing the nature,
9 description, and extent
of such claim or, in the case of a
10 covenant or restriction, a copy
of the covenant or
11 restriction, except that it shall
not be necessary to show the
12 amount of any claim for money
or the terms of payment. A
13 homeowners'
association, as defined in s. 712.01(4), which
14 preserves
or reinstates covenants or restrictions as provided
15 in paragraph
(b) shall not be required to rerecord such
16 covenant
or restriction, provided that the notice recorded by
17 the
homeowners' association complies with paragraphs (a)-(c).
18
Section 4. Section 712.09, Florida Statutes, is
19 amended to read:
20
712.09 Extension of 30-year period.--
21
(1) If the 30-year period for
filing notice under s.
22 712.05 shall
have expired prior to July 1, 2006
1965, such
23 period shall be extended to July
1, 2006 1965.
However, if the
24 filing
occurs after the 30th anniversary of the initial
25 recordation
of a covenant or restriction that has not been
26 extended
as provided in s. 712.05(1) or subsection (2), such
27 covenant
or restriction may be reinstated if it has been
28 routinely
enforced by the homeowners' association. Enforcement
29 includes
levying and collecting assessments or maintaining
30 common
property pursuant to covenants or restrictions.
31 Reinstatement
of an extinguished covenant or restriction must
4
1 be
approved in writing by a majority of all voting interests
2 of
the association present or represented by limited proxy at
3 a
noticed association meeting at which a quorum is present.
4
(2) If a homeowners' association has placed
of record
5 a
title transaction as described in s. 712.03(3), such title
6 transaction
is deemed properly recorded for the purpose of
7 serving
as a root of title as defined in s. 712.01(2). The
8 30-year
preservation of the covenants or restrictions and
9 governing
documents to which the title transaction relates,
10 whether
or not amended or restated, applies based upon the
11 date
of recordation.
12
Section 5. Section 720.301, Florida Statutes, is
13 amended to read:
14
720.301 Definitions.--As used in this
chapter ss.
15 720.301-720.312,
the term:
16
(1) "Assessment" or "amenity fee" means a sum or sums
17 of money payable to the association,
to the developer or other
18 owner of common areas, or to
recreational facilities and other
19 properties serving the parcels
by the owners of one or more
20 parcels as authorized in the
governing documents, which if not
21 paid by the owner of a parcel,
can result in a lien against
22 the parcel.
23
(2) "Common area" means all real property within a
24 community which is owned or leased
by an association or
25 dedicated for use or maintenance
by the association or its
26 members, including, regardless
of whether title has been
27 conveyed to the association:
28
(a) Real property the use of which is dedicated to the
29 association or its members by
a recorded plat; or
30
(b) Real property committed by a declaration of
31 covenants to be leased or conveyed
to the association.
5
1
(3) "Community" means the real property that is or
2 will be subject to a declaration
of covenants which is
3 recorded in the county where
the property is located. The
4 term "community" includes
all real property, including
5 undeveloped phases, that
is or was the subject of a
6 development-of-regional-impact
development order, together
7 with any approved modification
thereto.
8
(4) "Declaration of covenants," or "declaration,"
9 means a recorded written
instrument in the nature of covenants
10 running with the land which subjects
the land comprising the
11 community to the jurisdiction
and control of an association or
12 associations in which the owners
of the parcels, or their
13 association representatives,
must be members.
14
(5) "Developer" means a person or entity that:
15
(a) Creates the community served by the association;
16 or
17
(b) Succeeds to the rights and liabilities of the
18 person or entity that created
the community served by the
19 association, provided that such
is evidenced in writing.
20
(6) "Governing documents" means:
21
(a) The recorded declaration of covenants for a
22 community, and all duly adopted
and recorded amendments,
23 supplements, and recorded exhibits
thereto; and
24
(b) The articles of incorporation and bylaws of the
25 homeowners' association, and
any duly adopted amendments
26 thereto.
27
(7) "Homeowners' association" or "association" means a
28 Florida corporation responsible
for the operation of a
29 community or a mobile home subdivision
in which the voting
30 membership is made up of parcel
owners or their agents, or a
31 combination thereof, and in which
membership is a mandatory
6
1 condition of parcel ownership,
and which is authorized to
2 impose assessments that,
if unpaid, may become a lien on the
3 parcel. The term "homeowners'
association" does not include a
4 community development district
or other similar special taxing
5 district created pursuant
to statute.
6
(8) "Member" means a member of an association, and may
7 include, but is not limited
to, a parcel owner or an
8 association representing
parcel owners or a combination
9 thereof.
10
(9) "Parcel" means a platted or unplatted lot, tract,
11 unit, or other subdivision of
real property within a
12 community, as described in the
declaration:
13
(a) Which is capable of separate conveyance; and
14
(b) Of which the parcel owner, or an association in
15 which the parcel owner must be
a member, is obligated:
16
1. By the governing documents to be a member of an
17 association that serves the community;
and
18
2. To pay to the homeowners' association assessments
19 that, if not paid, may result
in a lien.
20
(10) "Parcel owner" means the record owner of legal
21 title to a parcel.
22
(11) "Voting interest" means the voting rights
23 distributed to the members of
the homeowners' association,
24 pursuant to the governing documents.
25
Section 6. Section 720.313, Florida Statutes, is
26 created to read:
27
720.313 Extinguished covenants or restrictions;
28 amendments
or reinstatement.--
29
(1) Notwithstanding any provision of law
to the
30 contrary,
a covenant or restriction in the governing documents
31 of a
homeowners' association that has been extinguished
7
1 pursuant
to chapter 712 may be reinstated if it has been
2 routinely
enforced by the homeowners' association. Enforcement
3 includes
levying and collecting assessments or maintaining
4 common
property pursuant to covenants or restrictions.
5 Reinstatement
of an extinguished covenant or restriction must
6 be
approved in writing by a majority of all voting interests
7 of
the association present or represented by limited proxy at
8 a
noticed association meeting at which a quorum is present.
9
(2) Recorded amendments to the governing documents of
10 a homeowners'
association or recorded restated governing
11 documents
that specifically reference the official record book
12 and
page number of the land records of the county where the
13 property
is located, or that sufficiently identify the
14 locations
and boundaries of the property affected by the
15 amendments
or restatements, are title transactions as defined
16 in s.
712.01(3), for the purposes of extending the 30-year
17 root
of title period set out in chapter 712
18
(3) Notwithstanding any provision of law
to the
19 contrary,
if, because of prior extinguishment, title policies
20 have
been issued without an exception for the covenants or
21 restrictions
in the governing documents to which the title
22 transaction
relates, which covenants or restrictions are
23 reinstated
pursuant to this section, title policies issued
24 prior
to the effective date hereof are deemed to have included
25 the
governing documents for the covenants or restrictions as
26 exceptions
to title.
27
Section 7. This act shall take effect July 1, 2004.
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SENATE SUMMARY
3 Revises provisions
relating to the effect of marketable
record
title on certain interests that have been
4 reinstated or
that arise out of specified condominium or
cooperative
documents. Provides requirements for the
5 reinstatement
of certain covenants or restrictions.
Extends
the 30-year period for creating marketable title.
6 Provides for
reinstating certain extinguished covenants
or
restrictions. Provides for the application of certain
7 reinstated covenants
and restrictions to title policies.
(See
bill for details.)
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CODING: Words stricken
are deletions; words underlined are
additions. |