Covenant Preservation – A Mandatory Topic of Conversation

Filed Under: Legal Guides

In 2018, the Florida legislature made perhaps one of the more important and positive changes to Chapter 720 that I’ve seen in my 20 years of representing Community Associations.

Specifically, the legislature made it mandatory that Homeowners Association Boards discuss preservation of the community covenants at the first Board meeting excluding the organizational meeting, which follows the annual meeting of the members. (F.S. 720.303(2)(e)). Pursuant to Florida’s Marketable Record Title Act, covenants must be preserved through the filing of a statutory preservation notice within 30 years of the “root of title” which is typically the recording date of the original declaration of covenants. HOA Board members must now discuss preservation of the covenants at the first Board meeting after the election and subsequent organizational meeting of the Board of Directors.

This has led to many questions, and in my opinion the need for a gentle reminder that all communities subject to covenants which may expire under the Marketable Record Title Act must discuss this issue even if the covenants have already been preserved. The following are a couple of the more common questions which arise:

  • Must we still discuss preservation of the covenants if we’ve already completed and recorded the required preservation notice?
  • Can we combine this with other items on the agenda at the first Board meeting after the election?

The statute makes no exceptions to this new requirement. Even if the Association has already recorded the required preservation notice, the subject must still be discussed. The Board should include a reference to the discussion in the minutes of the meeting.

Second, the statute is also clear that the discussion must take place at the first Board meeting after the organizational meeting. The statute does not prohibit conducting multiple, back to back Board meetings. Many communities would like to address this matter at or in conjunction with the organizational meeting or the annual meeting itself. Should the Association wish to “multitask”, I suggest scheduling a separate Board meeting to take place immediately after the organizational meeting which follows the election for purposes of discussing the preservation notice and any other issues the Board wishes to address. The main point here is that the statute does require that the discussion take place at the first Board meeting after the organizational meeting. This seems to clearly prohibit addressing the matter at the organizational meeting itself and can only happen at a subsequent Board meeting.

As always, consult your Association counsel with any specific questions related to your community and its covenants.