Covenants, Conditions & Restrictions Expired

(Florida)

Visitor Question: We moved to our neighborhood in Florida in 2012 and were told we are a Deed Restricted community. Title Insurance has plat, book and page where all have been recorded and amended. We asked for a copy of the restrictions at the closing and were told we could get them on the Community's Website.

We just found out that our new President of our POA (property owner's association) found in the covenants and restrictions that the 30 years expired 13 years ago and if 51% doesn't agree to reinstating these, we will have nothing for sure. We have also been paying the POA fees each year.

We feel we were sold our house under false pretense. We would not have bought in this community if we had known that. We have also had a golf course in our community close, which has no maintenance now. Between these two things, our home values are going to drop tremendously.

My question is........Is there anyone that could be held liable for not disclosing this to us when we purchased the house? It seems someone should have caught this when the title was checked.

Editors Reply: The take-away lesson for all our readers here is that they really should slow down the process of closing on a home until they have been supplied a copy of the CC&Rs (covenants) and master deed, and been given time to read them.

Another lesson is that deed restrictions may expire after the original property owner or developer feels that all lots have been sold and the development is autonomous.

Your main question is an important one relevant to many people. To see if you have a legal case of course you must go through the particulars with a Florida attorney.

You might consider it worthwhile to sue the real estate agent or title company, or both. We have been vocal on this site before about our thought that both groups are not working nearly hard enough to make sure that buyers receive a copy of the restrictions in a timely fashion, so that they understand exactly what they are facing.

If the restrictions were supposed to be on the website, and they were not, as a long shot you might consider whether the POA (property owners association) bears some responsibility.

On the other hand, a successful defense might point out that it is your responsibility as a buyer to know and understand the CC&Rs, even though few buyers do.

As the proportion of new homes that are included in a formal homeowners or property owners association grows from the current estimate of 80 percent in the U.S. to an even higher proportion, this topic becomes more and more important to resolve.

The real estate community and state legislatures should be working together to devise a good solution for making sure buyers are informed. With HUD disclosure statements about this, that, and the other thing required at all closings where financing is involved, it would not be breaking too much new ground to make sure that the closing documents include a paper copy of the CC&Rs, and a certification that these have been provided well in advance of closing.

Most CC&Rs are relatively readable--for example, if you had been provided a copy, you would no doubt have been able to discover and understand the expiration date yourself.

The best scenario for you would be a quick reinstatement of the original CC&Rs. Your current POA president may want to work on reinstatement as a first step, and then ask a committee to work with the POA attorney to draft any necessary or appropriate changes.

Alternatively, at least the POA should work hard on problems, such as the abandoned golf course. Those can become real assets if a community has the imagination and technical expertise to turn them into interesting conservation areas, or if can be repurposed as additional housing if that is your community preference. Of course building more housing will entail amending development approvals and could cause many problems in Florida.

We hope these will give you some options to consider in light of your expired covenants conditions and restrictions (CC&R) document.

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