Filed: Jan. 25, 2019
Latest Update: Mar. 03, 2020
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT EASTWOOD SHORES PROPERTY ) OWNERS ASSOCIATION, INC., ) ) Appellant, ) ) v. ) Case No. 2D17-3467 ) DEPARTMENT OF ECONOMIC ) OPPORTUNITY, ) ) Appellee. ) ) Opinion filed January 25, 2019. Appeal from the Department of Economic Opportunity. Tiffany A. Grant of Cianfrone, Nikoloff, Grant & Greenburg, P.A., Dunedin, for Appellant. Peter L. Penrod, General Counsel,
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT EASTWOOD SHORES PROPERTY ) OWNERS ASSOCIATION, INC., ) ) Appellant, ) ) v. ) Case No. 2D17-3467 ) DEPARTMENT OF ECONOMIC ) OPPORTUNITY, ) ) Appellee. ) ) Opinion filed January 25, 2019. Appeal from the Department of Economic Opportunity. Tiffany A. Grant of Cianfrone, Nikoloff, Grant & Greenburg, P.A., Dunedin, for Appellant. Peter L. Penrod, General Counsel, ..
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
EASTWOOD SHORES PROPERTY )
OWNERS ASSOCIATION, INC., )
)
Appellant, )
)
v. ) Case No. 2D17-3467
)
DEPARTMENT OF ECONOMIC )
OPPORTUNITY, )
)
Appellee. )
)
Opinion filed January 25, 2019.
Appeal from the Department of Economic
Opportunity.
Tiffany A. Grant of Cianfrone, Nikoloff,
Grant & Greenburg, P.A., Dunedin, for
Appellant.
Peter L. Penrod, General Counsel, and
Ross Marshman, Jon F. Morris, and
Christina A. Shideler, Assistant General
Counsels, Tallahassee, for Appellee.
BLACK, Judge.
In this appeal from a final agency order, Eastwood Shores Property
Owners Association, Inc., challenges the Department of Economic Opportunity's
determination that the Association is not entitled to revive its declaration of covenants
and restrictions pursuant to the covenant revitalization statutes, §§ 720.403-.407, Fla.
Stat. (2016), because it is not a "homeowners' association" as defined by the
Marketable Record Titles to Real Property Act (MRTA), §§ 712.01-.11, Fla. Stat. (2016).
We reverse.
I. Background
In April 1979, Eastwood Shores Condominiums recorded its declaration of
covenants and restrictions in the public record of Pinellas County. The Association is
the Florida not-for-profit corporation which maintains and operates various properties
and improvements within Eastwood Shores, as stated in Eastwood Shores' declaration
and in the Association's articles of incorporation. The Association is comprised of unit
owners in Eastwood Shores.
By operation of MRTA, specifically section 712.02, Eastwood Shores'
declaration of restrictions and covenants ceased to govern one or more of the units
within the community in 2009.1 Pursuant to the covenant revitalization statutes, the
Association sought approval from the Department of Economic Opportunity (the
Department) of a proposal to revive Eastwood Shores' declaration, submitting the
documents required by section 720.406.
1The units for which the declaration of covenants and restrictions are no
longer governing are those in which the "muniments of title," the deeds, do not
reference the declaration of covenants and restrictions. See § 712.03(1) (providing that
MRTA does not extinguish "easements and use restrictions disclosed by and defects
inherent in the muniments of title on which said estate is based beginning with the root
of title").
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The Department denied the proposed revival, finding that "the parcels in
the Association are classified as condominiums," that chapter 720 does not apply to the
Association, and that therefore the Association may not revive the declaration of
covenants and restrictions under the covenant revitalization statutes. The Association
sought review of the Department's decision.
Following an administrative hearing, the hearing officer recommended that
the Department affirm the denial of the Association's proposal to revive its declaration of
covenants and restrictions, finding that the Association did not dispute that it is
governed by chapter 718, Florida Statutes (2016), Florida's Condominium Act; that
chapter 720, Florida Statutes (2016), Florida's Homeowners' Association Act, does not
apply to the Association through application of section 720.302;2 that the Association
"does not fall within the definition of 'homeowners' association' as defined by MRTA"
such that section 712.11 of MRTA applies; and that, therefore, the Association is not
entitled to seek revival of its declaration under chapter 720.
The Department adopted the recommended order and issued its final
order. It is that order which we review.
II. Analysis
The issue before us is whether the Association, whose members are unit
owners within a condominium community, is a "homeowners' association" as defined by
MRTA and is therefore entitled to revive its declaration of covenants and restrictions
2Section 720.302(4) provides, in pertinent part: "This chapter does not
apply to any association that is subject to regulation under chapter 718 . . . except to the
extent that a provision of chapter 718 . . . is expressly incorporated into this chapter for
the purpose of regulating homeowners' associations."
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pursuant to sections 720.403-.407. The issue presented is one of statutory
interpretation, and our review is de novo. Lutheran Servs. Fla., Inc. v. Dep't of Children
& Families, 199 So. 3d 286, 288 (Fla. 2d DCA 2015) ("An appellate court may set aside
an agency action where the court finds that the agency erroneously interpreted a
provision of law and a correct interpretation compels a particular result." (citing Metro.
Dade Cty. v. Dep't of Envtl. Prot., 714 So. 2d 512, 515 (Fla. 3d DCA 1998))); see also §
120.68(7)(d), Fla. Stat. (2016).
The Association does not dispute that it is governed by chapter 718 or that
section 720.302(4) unambiguously states that chapter 720 applies to associations
regulated by chapter 718 only when a provision of chapter 718 has been "expressly
incorporated into [chapter 720] for the purpose of regulating homeowners'
associations."3 The Association maintains, however, that it is eligible to seek revival of
its declaration pursuant to the covenant revitalization sections of chapter 720 by virtue
of a specific provision in MRTA, section 712.11.4
MRTA provides for marketable record title to estates in land "free and
clear of all claims" except as to those exclusions expressly set forth. § 712.02.
3Interestingly,
although the Association's declaration of covenants is titled
"Declaration of Covenants and Restrictions for Eastwood Shores Condominiums," the
declaration does not reference chapter 718 or its predecessor, chapter 711.
Nonetheless, the Association appears to have conceded that although the Association
was created in 1979 as a chapter 720 association, it is governed by chapter 718.
4The Association alternatively argues that MRTA is unconstitutional as
applied to it. Because the constitutional issue was not sufficiently raised below and our
resolution based on the plain language of the applicable statutes renders it
unnecessary, we do not address the Association's constitutional question. See In re
Holder, 945 So. 2d 1130, 1133 (Fla. 2006) ("[W]e avoid considering a constitutional
question when the case can be decided on nonconstitutional grounds.").
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However, MRTA also recognizes that covenants and restrictions can be revived: "[a]
homeowners' association not otherwise subject to chapter 720[, the Homeowners'
Association chapter,] may use the procedures set forth in [sections] 720.403-720.407 to
revive covenants that have lapsed under the terms of [MRTA]." § 712.11. MRTA
defines a homeowners' association as (1) "a homeowners' association as defined in
[section] 720.301, or [(2)] an association of parcel owners which is authorized to enforce
use restrictions that are imposed on the parcels." § 712.01(4). There is no dispute that
MRTA effectively terminated the declaration as to certain units within Eastwood Shores.
Whether MRTA also permits revival of the declaration is at issue. In that respect, the
Association does not contend that it is a homeowners' association as defined in section
720.301; only the latter definition of homeowners' association in section 712.01(4) is at
issue.5 Thus, in order for the Association to be eligible to seek revival of Eastwood
Shores' declaration of covenants and restrictions, the Association must be comprised of
owners of residential real property which is subject to exclusive ownership.
MRTA does not define "parcel owner"; it does, however, define a "parcel"
as "real property which is used for residential purposes that is subject to exclusive
ownership and which is subject to any covenant or restrictions of a homeowners'
5Had the Association argued that it meets the definition of a homeowners'
association as provided by section 720.301, reversal would still be required. Section
720.301(9) defines a "homeowners' association" or "association" as "a Florida
corporation responsible for the operation of a community . . . in which the voting
membership is made up of parcel owners . . . and in which membership is a mandatory
condition of parcel ownership, and which is authorized to impose assessments that, if
unpaid, may become a lien on the parcel." For the reasons discussed later in this
opinion, the Association is comprised of parcel owners as defined in chapter 720.
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association." § 712.01(5).6 There is no dispute that Eastwood Shores is a residential
community. Section 718.103, the definitions section of Florida's Condominium Act,
defines a condominium "unit" as "a part of the condominium property which is subject to
exclusive ownership." § 718.103(27), Fla. Stat. (2016).7 A condominium unit within
Eastwood Shores is therefore—by definition—a residential property subject to exclusive
ownership. And because Eastwood Shores' declaration of covenants provides that
"[e]very person or entity who is a record fee simple Owner of a Unit . . . shall be a
member of the Association," that "[m]embership shall be appurtenant to, and may not
6We recognize that the recent amendments to MRTA, effective October 1,
2018, render much of this opinion inapplicable moving forward. See ch. 2018-55, §§ 2,
5-6, Laws of Fla. (2018). The amendments include replacing the term "homeowners'
association" with "property owners' association," and defining "property owners'
association" to include "an association of parcel owners which is authorized to enforce a
community covenant or restriction that is imposed on the parcels." § 712.01(5), Fla.
Stat. (2018); ch. 2018-55, § 2. The amendments also eliminate the exclusive ownership
requirement in the definition of parcel, instead defining parcel as "any real property that
is subject to any covenant or restriction of a property owners' association." § 712.01(3),
Fla. Stat. (2018); ch. 2018-55, § 2; see also §§ 720.3032, Fla. Stat. (2018) (providing
that "[a]ny property owners' association desiring to preserve covenants from potential
termination after 30 years by operation of chapter 712 may record in the official records
of each county in which the community is located a notice specifying . . . [t]he names of
the affected subdivision plats and condominiums or, if not applicable, the common
name of the community"), .403(3) ("[Part III of this chapter] is intended to provide
mechanisms for the revitalization of covenants or restrictions for all types of
communities and property associations and is not limited to residential communities.").
We also note that there is no prohibition against successive proposals to revive a
declaration of covenants; that is, an association or an organizing committee of parcel
owners may seek to revive a declaration of covenants under the 2018 amendments to
MRTA regardless of the outcome of prior attempts to revive the declaration.
7"Condominium property," in turn, is defined as "the lands, leaseholds, and
personal property that are subjected to condominium ownership, whether or not
contiguous, and all improvements thereon and all easements and rights appurtenant
thereto intended for use in connection with the condominium." § 718.103(13).
-6-
be separated from, ownership of any Unit," and that the Association is authorized to
enforce the covenants and restrictions of Eastwood Shores, the Association is a
homeowners' association as defined in section 712.01.
Although "[e]ach unit owner owns a proportionate undivided share of the
common elements appurtenant to the unit" that he owns, Ocean Trail Unit Owners Ass'n
v. Mead, 650 So. 2d 4, 7 (Fla. 1994) (citing § 718.103(10), (24), Fla. Stat. (1987)), the
ownership of an undivided share of the common elements does not change that the unit
is subject to exclusive ownership and that the association is comprised of unit owners,
see § 718.103(2) (defining "association" to include "any entity responsible for the
operation of common elements owned in undivided shares by unit owners"). The
Association is an association of owners of "real property which is used for residential
purposes that is subject to exclusive ownership and which is subject to any covenant or
restriction of [the] association." See § 712.01(4), (5). That unit owners have
nonexclusive ownership of appurtenant condominium property—the common
elements—in addition to exclusive ownership of their units does not remove an
association made up of those unit owners from the definition of homeowners'
association under chapter 712.8 There is no requirement in the definitions of
homeowners' association or parcel in section 712.01 that parcel owners only own the
property which renders them subject to the definitions. Reading the statutes in such a
way as to exclude from MRTA's definition of a homeowners' association an association
8"Appurtenances are things belonging to another thing as principal and
which pass as incident to the principal thing." Blok Builders, LLC v. Katryniok, 245 So.
3d 779, 783 n.1 (Fla. 4th DCA 2018) (quoting Chackal v. Staples,
991 So. 2d 949, 955
(Fla. 4th DCA 2008)). A proportionate undivided interest in the common elements pass
as incident to the unit, which may be exclusively owned.
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made up of owners of residential property subject to exclusive ownership because those
owners also have nonexclusive property ownership interests requires the addition of
words, and in this case the addition of a requirement, to the statutes.9 The courts are
not at liberty to add language to statutes. Gordon v. Fishman, 253 So. 3d 1218, 1221
(Fla. 2d DCA 2018).
Our reading of MRTA is reinforced by the language of the covenant
revitalization statutes themselves. Section 720.404 provides that "[p]arcel owners in a
community are eligible to seek approval from the [Department] to revive a declaration of
covenants" if the statutory requirements are met. Section 720.405 states that "[t]he
proposal to revive a declaration of covenants . . . under the terms of this act shall be
initiated by an organizing committee consisting of not less than three parcel owners
located in the community that is proposed to be governed by the revived declaration." §
9Exclusive ownership is not synonymous with ownership in fee simple.
Jointly owned land and undivided interests in land may be held in fee. See In re Estate
of Cleeves, 509 So. 2d 1256, 1258 (Fla. 2d DCA 1987) ("[S]everal types of estates or
interests, joint or several, may exist in the same fee. A tenancy in common is one such
type of joint interest or concurrent ownership that may exist in a fee." (citation omitted));
Restatement (First) of Property §§ 14, 48 (Am. Law. Inst. 1936); see also Bank One,
Dayton, N.A. v. Sunshine Meadows Condo. Ass'n, 641 So. 2d 1333, 1335 (Fla. 1994)
("The declaration provided that the fee simple title to each condominium parcel would
include both the unit and an undivided interest in the common elements, that any
attempt to separate title to a unit from the common elements appurtenant to that unit
would be 'null and void,' and that the common elements shall remain undivided so long
as the condominium exists."); Daytona Dev. Corp. v. Bergquist, 308 So. 2d 548, 549
(Fla. 2d DCA 1975) (affirming order "adjudg[ing] appellees to be the owners in fee
simple of an undivided interest in the Recreation Unit to the extent of their ownership in
the common elements of Harbour Club Condominium No. 2"); Tower House Condo.,
Inc. v. Millman,
410 So. 2d 926, 930 (Fla. 3d DCA 1981) ("Because a unit owner's
undivided share in the parking area is appurtenant to the unit, Section 718.106(2)(a),
Florida Statutes, supra, and part of the fee simple, Article V, Declaration of
Condominium, supra, the parking area itself is necessarily appurtenant to the unit, even
if regulated by the Association.").
-8-
720.405(1). Chapter 720 defines "parcel owner" as "the record owner of legal title to a
parcel." § 720.301(12). And "parcel" is defined as
a platted or unplatted lot, tract, unit, or other subdivision of
real property within a community, as described in the
declaration:
(a) Which is capable of separate conveyance; and
(b) Of which the parcel owner, or an association in
which the parcel owner must be a member, is obligated:
1. By the governing documents to be a member of an
association that serves the community; and
2. To pay to the homeowners' association
assessments that, if not paid, may result in a lien.
§ 720.301(11).
By the express language of sections 720.404 and 720.405, eligibility for
revival is not determined by the definition of association. The parcel owners are eligible
to seek revival of the declaration of covenants and restrictions. And a condominium unit
is a parcel under the definition of section 720.301(11): the condominium unit is capable
of conveyance separately from the whole of the condominium property in the same way
that a chapter 720 parcel is separately conveyed from the whole of the community,
compare § 718.103(13) (defining "condominium property"), with § 720.301(3) (defining
"community"); the unit owners must be members of the association, per the declaration
of covenants and restrictions, see §§ 718.103(2), .111(1)(a); and the failure to pay
association assessments may result in a lien on the unit, see §§ 718.103(1), .116(5).10
10A "condominium parcel" is the "unit, together with the undivided share in
the common elements appurtenant to the unit." § 718.103(12). "Common elements"
are those "portions of the condominium property not included in the units." §
718.103(8). When the unit is conveyed, its appurtenant percentage share of the
common elements is simply conveyed with it. §§ 718.103(11), (12), .104, .107(1).
Whether the common elements, or the appurtenant undivided share in them, are
capable of separate conveyance is not at issue. Cf. § 718.107(2) ("The share in the
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Therefore, had the unit owners formed an organizing committee and prepared and
submitted the necessary documents to the Department, see § 720.405, the Department
would have been unable to deny the proposed revival on the basis that the organizing
committee is not eligible to seek revival because it is not subject to chapter 720.
Finally, we agree with the Association that the purposes served by
covenant revitalization in residential communities governed by chapter 720 are no less
applicable to condominium properties and communities:
Preserv[ing] existing residential communities, promot[ing]
available and affordable housing, protect[ing] structural and
aesthetic elements of the[] residential community, and, as
applicable, maintain[ing] roads and streets, easements,
water and sewer systems, utilities, drainage improvements,
conservation and open areas, recreational amenities, and
other infrastructure and common areas that serve and
support the residential community by the revival of a
previous declaration of covenants and other governing
documents that may have ceased to govern some or all
parcels in the community.
§ 720.403(1).
Because the Department erroneously interpreted the applicable sections
of MRTA and chapters 718 and 720, we reverse the order determining that the
Association does not qualify as a "homeowners' association" and therefore is not
entitled to revive its declaration of covenants. On remand the Department shall review
the substance of the Association's proposed revived declaration and supporting
documents in accordance with the covenant revitalization statutes.
Reversed and remanded.
common elements appurtenant to a unit cannot be conveyed or encumbered except
together with the unit.").
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BADALAMENTI, J., Concurs.
LaROSE, Chief Judge, Dissents with opinion.
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LaROSE, Chief Judge, Dissenting.
I respectfully dissent. The Association was not a "homeowners'
association" entitled to use sections 720.403-.407 to revive its lapsed declaration of
covenants under MRTA, section 712.11. I would affirm.
We address a narrow issue: whether the Association is a "homeowners'
association" comprised of "parcel owners" entitled to revive its declaration of covenants
under chapter 712. The Association argues that it is a "homeowners' association"
whose members own condominium units that are "parcels" under MRTA. The
Department, in contrast, contends that the Association is not a chapter 712
"homeowners' association" because its parcels are comprised of both condominium
units and undivided ownership in common elements;11 thus the parcels are not
exclusively owned as required by section 712.01(4).
My disagreement with the majority is one of statutory construction. "The
interpretation of a statute is an issue of law that we review de novo." City of Oldsmar v.
Trinh, 210 So. 3d 191, 205 (Fla. 2d DCA 2016) (citation omitted). When construing a
statute, we first look to the statute's plain language for legislative intent. State v. Burris,
875 So. 2d 408, 410 (Fla. 2004). When the statute's plain language is clear and
unambiguous, we look no further.
Id. "[T]he statute's plain and ordinary meaning must
control, unless this leads to an unreasonable result or a result clearly contrary to
11The parties refer to the portions of the condominium property not
included in the units as the "common area." "Common area" is a term used in chapter
720 for homeowner associations. See § 720.301(2). However, because the parties
agree that chapter 718 applies, "common elements" is the appropriate term. See
§ 718.103(8) (" 'Common elements' means the portions of the condominium property
not included in the units.").
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legislative intent." Id. (citing Lee Cty. Elec. Coop., Inc. v. Jacobs,
820 So. 2d 297, 303
(Fla. 2002)). "If the legislature did not intend the results mandated by the statute's plain
language, then the appropriate remedy is for it to amend the statute." Whitney Bank v.
Grant,
223 So. 3d 476, 479 (Fla. 1st DCA 2017) (quoting Overstreet v. State,
629 So.
2d 125, 126 (Fla. 1993)).
Section 712.11 provides that "[a] homeowners' association not otherwise
subject to chapter 720 may use the procedures set forth in [sections] 720.403-720.407
to revive covenants that have lapsed under the terms of this chapter." Section
712.01(4) defines "homeowners' association," in part, as "an association of parcel
owners which is authorized to enforce use restrictions that are imposed on the
parcels."12 Section 712.01(5) defines "parcel" as "real property which is used for
residential purposes that is subject to exclusive ownership and which is subject to any
covenant or restriction of a homeowners' association." (Emphasis added.) Section
712.01(5) unambiguously, and indisputably, requires the "parcel" to be "subject to
exclusive ownership." A person has exclusive ownership when the person has
"[o]wnership free from any kind of legal or equitable interest in any one else," or a fee
simple title to property. See Exclusive Ownership, Black's Law Dictionary (6th ed.
1990); see also City of Miami v. Osborne, 55 So. 2d 120, 122 (Fla. 1951) ("A fee simple
12As the majority recognizes, section 712.01(4) also defines "homeowners'
association" as "a homeowners' association as defined in [section] 720.301." The
Association does not argue on appeal that it was a homeowners' association as defined
by section 720.301(9). I see no need for the majority to conclude in footnote 5 that the
Association might have been successful on that argument had it made it. See Manatee
Cty. Sch. Bd. v. NationsRent, Inc., 989 So. 2d 23, 25 (Fla. 2d DCA 2008) (explaining
that it is inappropriate "to depart from our role as a neutral tribunal and to become an
advocate by developing arguments that" an appellant chose not to make).
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title assumes that all claims against the lands have been cleared."); Exclusive
Ownership, Black's Law Dictionary (10th ed. 2014) ("See fee simple."); Fee Simple,
Black's Law Dictionary (10th ed. 2014).
The Association's members own their respective condominium units in fee
simple and each unit is subject to exclusive ownership. See § 718.103(27) (defining a
condominium "unit" as "a part of the condominium property which is subject to exclusive
ownership"). But each member also owns an undivided interest in the condominium's
common elements, which the members may use and enjoy. See § 718.103(12), (28).
Thus, a member's ownership in the common elements is not free from any kind of legal
or equitable interest in any one else.
Moreover, the members cannot convey the ownership in their
condominium units separate from their undivided interest in the common elements. See
Vill. of Doral Place Ass'n v. RU4 Real, Inc., 22 So. 3d 627, 630 (Fla. 3d DCA 2009)
("Under the plain language of section 718.107, a separate sale of a condominium's
common elements is prohibited."). In point of fact, the members own an indivisible and
hybrid property interest consisting of exclusive ownership of a condominium unit and a
nonexclusive interest in the common elements. See Iezzi Family Ltd. P'ship v.
Edgewater Beach Owners Ass'n, Inc., No. 1D16-5878, 2018 WL 3638341, at *2 n.1
(Fla. 1st DCA Aug. 1, 2018) ("The condominium is a hybrid estate in property law
whereby an individual obtains fee simple ownership of a unit and shares with other unit
owners an undivided interest in the common elements." (quoting Rogers & Ford Constr.
Corp. v. Carlandia Corp., 626 So. 2d 1350, 1352 (Fla. 1993))).
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The majority ignores the hybrid nature of the condominium parcel. Rather,
the majority's cabined analysis rests on the unit owners having exclusive ownership of
their respective units. Section 712.11 applies to associations of owners who own real
property "subject to exclusive ownership." See § 712.01(4), (5). I cannot agree that
section 712.01 extends to an association whose members own an indivisible and hybrid
property interest in the units and the common elements. See § 718.103(12), (28);
Rogers & Ford Constr. Corp., 626 So. 2d at 1352.
The Association's claim that it was established "in 1979 in such a manner
that it would be considered a [c]hapter 720 homeowners['] association" does not compel
a conclusion that it is a chapter 712 "homeowners' association," especially given that it
concedes it is subject to chapter 718. The Association's comparison of its members'
interest in the common elements to hypothetical joint tenants' interest in a lot is also
unavailing because it ignores the fact that the members' interest is nonexclusive.
Further, the Association has failed to demonstrate that the statute's plain
language would lead to an unreasonable result or a result clearly contrary to legislative
intent. The Association argues that the statute's plain language would lead to an absurd
result because it would leave the Association without recourse to prevent or cure the
extinguishing effects of MRTA. The Association overstates its plight. There is a way to
prevent the extinguishment: referencing the declaration of covenants in the
condominium deeds. See § 712.03(1) (stating that MRTA shall not extinguish
"easements and use restrictions disclosed by and defects inherent in the muniments of
title on which said estate is based beginning with the root of title"); Gary A. Poliakoff &
Donna D. Berger, The Reinstatement of Covenants, Conditions, and Restrictions
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Extinguished by the Marketable Record Title Act, 79 Fla. B.J. 14, 15 n.4 (2005) (noting
that generally MRTA does not extinguish a condominium association's declaration of
covenants because condominium deeds reference the declaration, and thus, the
declaration "is considered part of the 'root of title' "); see, e.g., Sunshine Vistas
Homeowners Ass'n v. Caruana, 623 So. 2d 490, 491-92 (Fla. 1993) (holding that the
thirty-one-year-old restriction was preserved when the muniments in the chain of title
identified the recorded restriction).
Finally, the Association has not presented, and I have not found, any
indication that the legislature intended for section 712.11 to apply to condominium
associations.13 If the legislature wishes to apply section 712.11 to facts like those in this
case, "it certainly has the capacity to do so with clarity and specificity."14 See Clark v.
Bluewater Key RV Ownership Park, 197 So. 3d 59, 60, 62 (Fla. 3d DCA 2012) (adopting
en haec verba the trial court's order). "[W]e will not expand the statute to include
13To the contrary, the House of Representatives Staff Analysis noted that
the law prior to section 712.11 did not permit nonmandatory homeowner associations to
revitalize covenants under chapter 720, and then explained that section 712.11 "would
allow homeowners' associations that are not regulated by [chapter 720] to utilize the
covenant revitalization procedures available to mandatory homeowners' associations."
Fla. H.R. Comm. on Cts. HB 433 (2007), Staff Analysis (Mar. 7, 2007), available at
http://www.leg.state.fl.us/data/session/2007/ House/bills/analysis/pdf/h0433a.CTS.pdf.
The legislature was concerned that nonmandatory homeowners' associations would not
be able to revitalize their covenants. It made no mention of condominium associations
when discussing covenant revitalization.
14Infact, the legislature amended MRTA during the pendency of this
appeal to "expand[] the effect of MRTA laws on preservation and revitalization of
covenants or restrictions to cover commercial associations." Fla. H.R. Comm. on Civ.
Justs. & Claims Subcomm. HB 617 (2018), Staff Analysis (Feb. 1, 2018), available at
https://www.flsenate.gov/Session/Bill/2018/617/Analyses/ h0617e.JDC.PDF; see also
ch. 2018-55, §§ 2, 5-6, Laws of Fla. (2018).
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language the [l]egislature did not enact." See Brindise v. U.S. Bank Nat'l Ass'n, 183 So.
3d 1215, 1219 (Fla. 2d DCA 2016).
I would affirm the Department's final order.
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