The primary purpose of Florida’s Marketable Record Title Act (“MRTA”) is to extinguish title claims that predate the root of title. MRTA eliminates ancient claims and defects in title and, as the Act’s title indicates, promotes the marketability of title (i.e., title that is free of stale claims, defects, and adverse interests). The “root of title” is usually a deed, and it must be of record at least 30 years prior to the date of the current title search. There are limited exceptions to the extinguishment of claims which predate the root of title. Among them, is the following:
“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; . . .” Florida Statutes Sec. 712.03(1).
This provision was understood to mean that unless the claim is referenced by official record book and page in the root of title deed itself, or in deeds subsequent to the root of title, it is extinguished by MRTA. As an example, a deed typically contains the phrase: “Subject to easements, restrictions and reservations of record”. This phrase would presumably constitute a “general reference” to such restrictions, and would not preserve them because the official record book and page of the recorded restrictions are not stated.
Recently, the 5th District Court of Appeal had the opportunity to decide whether a reference in a deed to HOA covenants not identified by official record book and page was a “general reference” and therefore the covenants were extinguished by MRTA because they were recorded before the root of title deed. The Court, in Barney v. Silver Lakes Acres Property Owner’s Ass’n. Inc., 159 So. 3d 181 (Fla. 5th DCA 2015), held that the phrase in the root of title deed:
“Subject also to the obligations of the owners of each lot of Silver Lakes Acres s/d to the Silver Lakes Acres Property Owners Association, their successors and assigns, which said obligations Grantee assumes and agrees to pay”,
was NOT a “general reference”, and therefore, the covenants were preserved, even though the book and page of the covenants were not stated in the Deed. Was it the fact that the Grantee assumed the obligations that convinced the Court that the reference was something other than a “general” reference because “[a]ppellants simply cannot claim something was hidden in the chain of title to their lots.” Barney, supra? Would the result have been different if the assumption language were absent? It is unclear from the facts stated in the Case whether the assumption language was contained in all of the deeds in the subdivision. If not, the covenants may have been extinguished with respect to those lots which did not have the assumption language in the root of title deeds.
The HOA covenants in the Barney case were recorded, albeit, before the root of title, so the covenants were not “hidden” as the Court suggests. A person has, at minimum, constructive knowledge of recorded instruments, and it is only the application of MRTA that would extinguish them. If the test for extinguishment were whether the lot owner had “actual or constructive knowledge” of the claim, MRTA would be impossible to apply without a judicial determination of that fact in every title examination. In my opinion, that type of analysis defeats the purpose of the bright line rule which is stated in the MRTA Statute itself – if the claim is not referenced by book and page in the deed, then it is extinguished.The Court might have reached the same result and at the same time have confirmed the bright line rule by holding that the HOA covenants were extinguished by MRTA, but the Grantees waived extinguishment, they were equitably estopped to deny their existence, or they became contractually bound to comply with the covenants, because the Grantees expressly acknowledged their existence and assumed the obligations in the deed.
What was a bright line rule has now been dimmed, and each restriction in a root of title deed (and subsequent deeds) must be interpreted to determine whether the claim “is or is not hidden”, and whether the claim is a “general reference”, or something else, when the book and page of the referenced instrument is not stated in the deed. It will now be problematic for title examiners and title insurers to determine marketability of title and to insure title, without a judicial determination of whether a restriction, estate, interest, or easement in a root of title deed is “general”, or otherwise, when no record reference for them is stated. Future grantees should expect to see more exceptions to title in title policies and claims made against title as a result of this case. It is noted that the case was not appealed to the Florida Supreme Court and rehearing was denied.