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The Florida Statutes

The 2016 Florida Statutes

Title XL
REAL AND PERSONAL PROPERTY
Chapter 712
MARKETABLE RECORD TITLES TO REAL PROPERTY
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CHAPTER 712
CHAPTER 712
MARKETABLE RECORD TITLES TO REAL PROPERTY
712.01 Definitions.
712.02 Marketable record title; suspension of applicability.
712.03 Exceptions to marketability.
712.04 Interests extinguished by marketable record title.
712.05 Effect of filing notice.
712.06 Contents of notice; recording and indexing.
712.07 Limitations of actions and recording acts.
712.08 Filing false claim.
712.09 Extension of 30-year period.
712.095 Notice required by July 1, 1983.
712.10 Law to be liberally construed.
712.11 Covenant revitalization.
712.01 Definitions.As used in this law:
(1) The term “person” as used herein denotes singular or plural, natural or corporate, private or governmental, including the state and any political subdivision or agency thereof as the context for the use thereof requires or denotes and including any homeowners’ association.
(2) “Root of title” means any title transaction purporting to create or transfer the estate claimed by any person and which is the last title transaction to have been recorded at least 30 years prior to the time when marketability is being determined. The effective date of the root of title is the date on which it was recorded.
(3) “Title transaction” means any recorded instrument or court proceeding which affects title to any estate or interest in land and which describes the land sufficiently to identify its location and boundaries.
(4) The term “homeowners’ association” means a homeowners’ association as defined in s. 720.301, or an association of parcel owners which is authorized to enforce use restrictions that are imposed on the parcels.
(5) The term “parcel” means 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.
(6) The term “covenant or restriction” means any agreement or limitation contained in a document recorded in the public records of the county in which a parcel is located which subjects the parcel to any use restriction which may be enforced by a homeowners’ association or which authorizes a homeowners’ association to impose a charge or assessment against the parcel or the owner of the parcel or which may be enforced by the Florida Department of Environmental Protection pursuant to chapter 376 or chapter 403.
History.s. 1, ch. 63-133; s. 11, ch. 65-420; s. 1, ch. 81-242; s. 1, ch. 97-202; s. 56, ch. 2000-258; s. 16, ch. 2000-317.
712.02 Marketable record title; suspension of applicability.Any person having the legal capacity to own land in this state, who, alone or together with her or his predecessors in title, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03. A person shall have a marketable record title when the public records disclosed a record title transaction affecting the title to the land which has been of record for not less than 30 years purporting to create such estate either in:
(1) The person claiming such estate; or
(2) Some other person from whom, by one or more title transactions, such estate has passed to the person claiming such estate, with nothing appearing of record, in either case, purporting to divest such claimant of the estate claimed.
History.s. 2, ch. 63-133; s. 1, ch. 85-83; s. 63, ch. 87-226; s. 797, ch. 97-102.
712.03 Exceptions to marketability.Such marketable record title shall not affect or extinguish the following rights:
(1) Estates or interests, 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; provided, however, that a general reference in any of such muniments to easements, use restrictions or other interests created prior to the root of title shall not be sufficient to preserve them unless specific identification by reference to book and page of record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such easement, use restrictions or other interests; subject, however, to the provisions of subsection (5).
(2) Estates, interests, claims, or charges, or any covenant or restriction, preserved by the filing of a proper notice in accordance with the provisions hereof.
(3) Rights of any person in possession of the lands, so long as such person is in such possession.
(4) Estates, interests, claims, or charges arising out of a title transaction which has been recorded subsequent to the effective date of the root of title.
(5) Recorded or unrecorded easements or rights, interest or servitude in the nature of easements, rights-of-way and terminal facilities, including those of a public utility or of a governmental agency, so long as the same are used and the use of any part thereof shall except from the operation hereof the right to the entire use thereof. No notice need be filed in order to preserve the lien of any mortgage or deed of trust or any supplement thereto encumbering any such recorded or unrecorded easements, or rights, interest, or servitude in the nature of easements, rights-of-way, and terminal facilities. However, nothing herein shall be construed as preserving to the mortgagee or grantee of any such mortgage or deed of trust or any supplement thereto any greater rights than the rights of the mortgagor or grantor.
(6) Rights of any person in whose name the land is assessed on the county tax rolls for such period of time as the land is so assessed and which rights are preserved for a period of 3 years after the land is last assessed in such person’s name.
(7) State title to lands beneath navigable waters acquired by virtue of sovereignty.
(8) A restriction or covenant recorded pursuant to chapter 376 or chapter 403.
(9) Any right, title, or interest held by the Board of Trustees of the Internal Improvement Trust Fund, any water management district created under chapter 373, or the United States.
History.s. 3, ch. 63-133; s. 12, ch. 65-420; s. 1, ch. 73-218; s. 1, ch. 78-288; s. 2, ch. 97-202; s. 17, ch. 2000-317; s. 1, ch. 2010-104.
712.04 Interests extinguished by marketable record title.Subject to s. 712.03, a marketable record title is free and clear of all estates, interests, claims, or charges, the existence of which depends upon any act, title transaction, event, or omission that occurred before the effective date of the root of title. Except as provided in s. 712.03, all such estates, interests, claims, or charges, however denominated, whether they are or appear to be held or asserted by a person sui juris or under a disability, whether such person is within or without the state, natural or corporate, or private or governmental, are declared to be null and void. However, this chapter does not affect any right, title, or interest of the United States, Florida, or any of its officers, boards, commissions, or other agencies reserved in the patent or deed by which the United States, Florida, or any of its agencies parted with title.
History.s. 4, ch. 63-133; s. 1, ch. 65-280; s. 2, ch. 2010-104.
712.05 Effect of filing notice.
(1) A person claiming an interest in land or a homeowners’ association desiring to preserve a covenant or restriction may preserve and protect the same from extinguishment by the operation of this act by filing for record, during the 30-year period immediately following the effective date of the root of title, a written notice in accordance with this chapter. Such notice preserves such claim of right or such covenant or restriction or portion of such covenant or restriction for up to 30 years after filing the notice unless the notice is filed again as required in this chapter. A person’s disability or lack of knowledge of any kind may not delay the commencement of or suspend the running of the 30-year period. Such notice may be filed for record by the claimant or by any other person acting on behalf of a claimant who is:
(a) Under a disability;
(b) Unable to assert a claim on his or her behalf; or
(c) One of a class, but whose identity cannot be established or is uncertain at the time of filing such notice of claim for record.

Such notice may be filed by a homeowners’ association only if the preservation of such covenant or restriction or portion of such covenant or restriction is approved by at least two-thirds of the members of the board of directors of an incorporated homeowners’ association at a meeting for which a notice, stating the meeting’s time and place and containing the statement of marketable title action described in s. 712.06(1)(b), was mailed or hand delivered to members of the homeowners’ association at least 7 days before such meeting. The homeowners’ association or clerk of the circuit court is not required to provide additional notice pursuant to s. 712.06(3). The preceding sentence is intended to clarify existing law.

(2) It shall not be necessary for the owner of the marketable record title, as herein defined, to file a notice to protect his or her marketable record title.
History.s. 5, ch. 63-133; s. 798, ch. 97-102; s. 3, ch. 97-202; s. 1, ch. 2003-79; s. 7, ch. 2014-133.
712.06 Contents of notice; recording and indexing.
(1) To be effective, the notice referred to in s. 712.05 shall contain:
(a) The name or description of the claimant or the homeowners’ association desiring to preserve any covenant or restriction and the name and particular post office address of the person filing the claim or the homeowners’ association.
(b) The name and post office address of an owner, or the name and post office address of the person in whose name said property is assessed on the last completed tax assessment roll of the county at the time of filing, who, for purpose of such notice, shall be deemed to be an owner; provided, however, if a homeowners’ association is filing the notice, then the requirements of this paragraph may be satisfied by attaching to and recording with the notice an affidavit executed by the appropriate member of the board of directors of the homeowners’ association affirming that the board of directors of the homeowners’ association caused a statement in substantially the following form to be mailed or hand delivered to the members of that homeowners’ association:

STATEMENT OF MARKETABLE TITLE ACTION

The [name of homeowners’ association] (the “Association”) has taken action to ensure that the [name of declaration, covenant, or restriction], recorded in Official Records Book  , Page  , of the public records of   County, Florida, as may be amended from time to time, currently burdening the property of each and every member of the Association, retains its status as the source of marketable title with regard to the transfer of a member’s residence. To this end, the Association shall cause the notice required by chapter 712, Florida Statutes, to be recorded in the public records of   County, Florida. Copies of this notice and its attachments are available through the Association pursuant to the Association’s governing documents regarding official records of the Association.

(c) A full and complete description of all land affected by such notice, which description shall be set forth in particular terms and not by general reference, but if said claim is founded upon a recorded instrument or a covenant or a restriction, then the description in such notice may be the same as that contained in such recorded instrument or covenant or restriction, provided the same shall be sufficient to identify the property.
(d) A statement of the claim showing the nature, description, and extent of such claim or, in the case of a covenant or restriction, a copy of the covenant or restriction, except that it shall not be necessary to show the amount of any claim for money or the terms of payment.
(e) If such claim is based upon an instrument of record or a recorded covenant or restriction, such instrument of record or recorded covenant or restriction shall be deemed sufficiently described to identify the same if the notice includes a reference to the book and page in which the same is recorded.
(f) Such notice shall be acknowledged in the same manner as deeds are acknowledged for record.
(2) Such notice shall be filed with the clerk of the circuit court of the county or counties where the land described therein is situated, together with a true copy thereof. The clerk shall enter, record, and index said notice in the same manner that deeds are entered, recorded, and indexed, as though the claimant were the grantee in the deed and the purported owner were the grantor in a deed, and the clerk shall charge the same fees for recording thereof as are charged for recording deeds. In those counties where the circuit court clerk maintains a tract index, such notice shall also be indexed therein.
(3) The person providing the notice referred to in s. 712.05 shall:
(a) Cause the clerk of the circuit court to mail by registered or certified mail to the purported owner of said property, as stated in such notice, a copy thereof and shall enter on the original, before recording the same, a certificate showing such mailing. For preparing the certificate, the claimant shall pay to the clerk the service charge as prescribed in s. 28.24(8) and the necessary costs of mailing, in addition to the recording charges as prescribed in s. 28.24(12). If the notice names purported owners having more than one address, the person filing the same shall furnish a true copy for each of the several addresses stated, and the clerk shall send one such copy to the purported owners named at each respective address. Such certificate shall be sufficient if the same reads substantially as follows:

I hereby certify that I did on this  , mail by registered (or certified) mail a copy of the foregoing notice to each of the following at the address stated:

  (Clerk of the circuit court)  
of   County, Florida,
By  (Deputy clerk)  

The clerk of the circuit court is not required to mail to the purported owner of such property any such notice that pertains solely to the preserving of any covenant or restriction or any portion of a covenant or restriction; or

(b) Publish once a week, for 2 consecutive weeks, the notice referred to in s. 712.05, with the official record book and page number in which such notice was recorded, in a newspaper as defined in chapter 50 in the county in which the property is located.
(4) Failure of any purported owner to receive the mailed notice shall not affect the validity of the notice or vitiate the effect of the filing of such notice.
History.s. 6, ch. 63-133; s. 5, ch. 77-354; s. 7, ch. 82-205; s. 57, ch. 95-211; s. 4, ch. 97-202; s. 2, ch. 2003-79; s. 110, ch. 2003-402; s. 3, ch. 2010-104.
712.07 Limitations of actions and recording acts.Nothing contained in this law shall be construed to extend the period for the bringing of an action or for the doing of any other act required under any statute of limitations or to affect the operation of any statute governing the effect of the recording or the failure to record any instrument affecting land. This law shall not vitiate any curative statute.
History.s. 7, ch. 63-133.
712.08 Filing false claim.No person shall use the privilege of filing notices hereunder for the purpose of asserting false or fictitious claims to land; and in any action relating thereto if the court shall find that any person has filed a false or fictitious claim, the court may award to the prevailing party all costs incurred by her or him in such action, including a reasonable attorney’s fee, and in addition thereto may award to the prevailing party all damages that she or he may have sustained as a result of the filing of such notice of claim.
History.s. 8, ch. 63-133; s. 799, ch. 97-102.
712.09 Extension of 30-year period.If the 30-year period for filing notice under s. 712.05 shall have expired prior to July 1, 1965, such period shall be extended to July 1, 1965.
History.s. 9, ch. 63-133.
712.095 Notice required by July 1, 1983.Any person whose interest in land is derived from an instrument or court proceeding recorded subsequent to the root of title, which instrument or proceeding did not contain a description of the land as specified by s. 712.01(3), and whose interest had not been extinguished prior to July 1, 1981, shall have until July 1, 1983, to file a notice in accordance with s. 712.06 to preserve the interest.
History.s. 2, ch. 81-242.
712.10 Law to be liberally construed.This law shall be liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record title as described in s. 712.02 subject only to such limitations as appear in s. 712.03.
History.s. 10, ch. 63-133.
712.11 Covenant revitalization.A homeowners’ association not otherwise subject to chapter 720 may use the procedures set forth in ss. 720.403-720.407 to revive covenants that have lapsed under the terms of this chapter.
History.s. 1, ch. 2007-173.