Post by Admin on Feb 13, 2015 0:20:45 GMT -5
Here is a memorandum filed with the Court; it is entitled
Memorandum.pdf (211.94 KB)
MEMORANDUM OF LAW RE: IMPACT OF MARKETABLE RECORD TITLE ACT ON A SUBDIVISION’S COVENANTS AND RESTRICTIONS
Filing # 23588864 E-Filed 02/10/2015 02:41:37 PM
IN THE CIRCUIT COURT IN AND FOR POLK COUNTY, FLORIDA
Case No. 2014CA-001257
SUSAN Tg, Section 11 (Hon. Mark H. Hofstad)
Plaintiff(s)
vs.
S-bag LAKE OWNERS
ASSOCIATION, INC.,
Defendant(s).
MEMORANDUM OF LAW RE: IMPACT OF MARKETABLE RECORD TITLE ACT ON A SUBDIVISION’S COVENANTS AND RESTRICTIONS
Plaintiff, SUSAN Tg (”Plaintiff”), files this memorandum of law re: the impact of ch. 712 (“Marketable Record Titles of Real Property”) (hereafter “MRTA”), Florida Statutes, on a subdivision’s covenants and restrictions.
Florida cases construing MRTA’s impact on a subdivision’s covenants and restrictions –
Three, Florida appellate cases construing MRTA’s impact on a subdivision’s
covenants and restrictions are the following:
- Berger v. Riverwind Parking, LLP, 842 So.2d 918 (Fla. 5th DCA 2003)
(“Berger”);
- Cunningham v. Haley, 501 So.2d 649 (Fla. 5th DCA 1986) (“Cunningham”);
and,
- Matissek v. Waller, 51 So.3d 625 (Fla. 2nd DCA 2011) (“Matissek”).
Purpose of MRTA
In Berger, the Fifth District states the purpose of MRTA as follows:
“The purpose of MRTA is to extinguish claims which are at least 30 years old and which predate the root of title of the property in question.” Berger, supra, 842 So.2d at 920.
In Cunningham, the Fifth District states the purpose of MRTA as follows:
“[5] In a nation such as ours, where property is subject to private ownership, the rights of citizens to own, to use, and to transfer land are most valued rights. The enjoyment of those rights is directly related to the existence of a relatively safe, simple, and inexpensive system for assuring the marketability of land titles and their ready transferability. Because of the enduring nature of land, the value of its use and ownership, and the variety and complexity of interests in land permitted under English and American law, land titles tend in time to accumulate defects, divergent claims and rights and restrictions and limitations which erode their marketability. Good public policy decrees that there be a limit to which these matters are permitted to adversely affect the marketability of land titles. The past should not be able to forever rule the present from the grave. The Marketable Record Title Act is intended to help with this problem.” (Emphasis supplied). Cunningham, 501 So.2d at 652.
In Matissek, the Second District states that the purpose of MRTA is “to simplify and facilitate land transactions.” Matissek, supra, 51 So.3d at 628.
In short, in order to simplify and facilitate land transactions, MRTA is intended to create a “cut off date” for certain “claims,” “rights,” “restrictions” and “limitations” that tend to clutter title to real property. As detailed below, this includes those “restrictions” and “limitations” contained in the covenants and restrictions governing a subdivision. Section 712.10 (“Law to be liberally construed”), Fla.Stat., states that the provisions of chapter 712 are to be “liberally construed” to effect this purpose.
Background of MRTA –
In Matissek, the Second District gives the following, concise background of MRTA and its provisions:
“Background of the MRTA
“The Florida Legislature enacted the MRTA in 1963 to simplify and facilitate land transactions. See Blanton v. City of Pinellas Park, 887 So.2d 1224,1227 (Fla.2004).
To effectuate this legislative purpose, section 712.10 requires the MRTA "be liberally construed ... by allowing persons to rely on a record title as described in [section] 712.02 subject only to such limitations as appear in [section] 712.03." Section 712.02, titled "Marketable record title; suspension of applicability," provides:
“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, sH all have a marketable record title to such estate in said land, which sH all be free and clear of all claims except the matters set forth as exceptions to marketability in [section] 712.03.
“Similarly, section 712.04, titled "Interests extinguished by marketable record title," provides:
“Subject to the matters stated in [section] 712.03, such marketable record title sH all be free and clear of all estates, interests, claims, or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title.
“Subsection (1) of the exceptions listed under section 712.03 states:
“Such marketable record title sH all 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 sH all 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).” (Emphasis supplied). Matissek, supra, 51 So.3d 625, 628-29.
“Root of title,” “muniments of title” and “chain of title”
To understand how MRTA works, it is important to understand three terms of art used in MRTA: “Root of title,” “muniments of title,” and “chain of title,”
“Root of title" is defined in section 712.01(2) as “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.”
“Muniments of title” are defined in Cunningham as follows:
“On the other hand the statute does not define “muniments of title.” A muniment of title is any documentary evidence upon which title is based. Muniments of title are deeds, wills, and court judgments through which a particular land title passes and upon which its validity depends.” (the court’s emphasis). Cunningham, supra, 501 So.2d at 652.
A property’s “chain of title” are those muniments of title recorded since the root of title up to the time when the marketability of the property is being determined. See, e.g., Cunningham, supra, 501 So.2d at 651-52.
To determine whether particular restrictions have been preserved by a specific reference to their recording information, one must look at each of the muniments of title contained in the property’s chain of title since the root of title up to the time when the marketability of the property is being determined. If there is no such “specific reference” to the restrictions by book and page of record in any of those muniments of title and if the restrictions have not been timely preserved by the recording of a section 712.05 notice, then they are extinguished by operation of MRTA:
“Under section 712.03(1), Florida Statutes, actual notice does not suffice to protect use restrictions created prior to a root of title from being extinguished by section 712.02(1), Florida Statutes.
The material question is: Do muniments in the chain of title since the root of title disclose the use restrictions by specific reference so as to meet the provisions of section 712.03(1) and thereby preserve the restrictions from being extinguished by section 712.02(1)? When applicable, section 712.02(1), Florida Statutes, simply clears basic titles of all adverse, limiting, or competing claims, estates, interests, easements, and use restrictions existing prior to the root of title unless muniments of title in the chain of title since the root of title specifically identify (by reference to book and page of record or
name of recorded plat) a recorded title transaction which imposed, transferred, or continued such easement or use restrictions.” (the Court’s emphasis). Cunningham, supra, 501 So.2d at 651-52.
Facts of Cunningham, Berger and Matissek
Cunningham, Berger and Matissek provide practical examples of how MRTA operates to provide a cutoff date for a subdivision’s original declaration of covenants and restrictions (as well as any purported amendments to that original declaration).
In Cunningham, the plaintiff-lot owners filed suit against owners of all other lots in their subdivision seeking a declaration that use restrictions on the plaintiff-lot owners’ property had been extinguished by operation of MRTA. The original restrictions were placed on the lots of the subdivision back in 1944 and 1945, prior to the plaintiff-lot owners’ root of title. The defendants argued that the restrictions had been specifically identified by reference to book and page of record in two prior lawsuits involving the subject property. Defendants argued that was sufficient to preserve the restrictions. The trial court sided with the defendants and the plaintiff-lot owners appealed.
On appeal, the Fifth District reversed and held, “The two law actions relied on by [defendants] are not muniments in any chain of title because the two law actions do not transfer title to any estate and no title is dependent upon them notwithstanding that the 1978 action “affects,” at least, the title [to the subject lots] by its adjudication that the title to those lots were still encumbered by the restrictions in question.” The Fifth District went on to emphasize that the law actions were outside the chain of title since neither the lawsuits nor the restrictions involved in those lawsuits were specifically referenced by book and page of record in any of the muniments in the plaintiff-lot owners’ chain of title.
In Berger, adjacent lot owners brought suit against the defendant-lot owner seeking to enjoin his use of six lots in the subdivision as a parking lot. The adjacent lot owners based their suit on recorded restrictions stating that lots in the subdivision could only be used for residential purposes. The subject restrictions were recorded in 1957. Amendments to the restrictions were recorded in 1959 and 1965. The roots of title for the defendants’ six lots were recorded between 1958 and 1963. Though the 1965 amendment was recorded after the roots of title of the six lots, the Fifth District found the amendment (as well as the original declaration) to have been extinguished as to two of the lots by MRTA since it was not specifically referenced by book and page of record in any of the muniments in the chains of title of those lots:
“But what is the effect of the amended restrictions which were recorded after the root of title but outside the chain of title to lots 7 and 8? The initial restrictions reserved the right for the owner of at least 50% of the lots to amend the restrictions and ... As urged by the [plaintiffs], the [defendant] should be bound by subsequent amendments contemplated and authorized at the time of his purchase so long as he had notice of them and so long as the amendments are made in accordance with the reserved authority. ... [T]he recording of the amended restrictions outside the chain of title of lots 7 and 8 did not give constructive notice. We find the amended restrictions inapplicable to lots 7 and 8.” Berger, supra, 842 So.2d at 920-21.
In Matissek, the defendants sought to build an airplane hanger on their property. In 1971, the developer of the defendants’ subdivision recorded covenants and restrictions for the subdivision. In 1974, defendants’ root of title was recorded. In 1977, the developer recorded two amendments to the original covenants and restrictions. None of the deeds in the defendants’ chain of title specifically referenced by book and page of record the original covenants and restrictions or the 1977 amendments.
In 2007, the defendants began constructing their airplane hangar. In 2008, one of their neighbors sued the defendants to stop the construction.
The defendants moved for summary judgment, arguing MRTA had extinguished the 1971 covenants and restrictions since those restrictions were recorded prior to the defendants root of title. The defendants further argued they were not bound by the 1977 amendments since, although the 1977 amendments had been recorded subsequent to defendants’ “root of title,” the 1977 amendments had never been specifically referenced in any of the muniments in defendants’ “chain of title” by book and page of record.
The trial court disagreed, holding the 1977 amendments had not been extinguished by MRTA, since the 1977 amendments had been recorded subsequent to defendants’ “root of title.”
The trial court went on to find that, since the 1977 amendments prohibited the construction of defendants’ airplane hangar, that construction would be enjoined.
The defendants appealed and the Second District reversed. In their opinion, after citing and discussing both Berger and Cunningham, the Second District held that, since the 1977 amendments had been recorded outside the defendants’ chain of title and were not specifically referenced in any of the muniments in defendants’ chain of title by book and page of record, it did not bind defendants’ property.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been delivered by email delivery to the following persons on this 10th day of February, 2015:
Anthony J. Petrillo, Esq. (1st email address – lukstpa-pleadings@ls-law.com)
Kelly M. Klein, Esq. (2nd email address kklein@ls-law.com)
Luks, Santaniello, LLC.
100 North Tampa Street
Suite 2120
Tampa, FL 33602-5809
s/FurrRedIck B. O’Neal, Esq. FurrRedIck B. O'N eel (Attny), Esq. Florida Bar No. 252611 P.O.Box 842
Windermere, FL 34786
(407) 719-6796
FAX (407) 292-5368 Fredonealatlaw@aol.com
Memorandum.pdf (211.94 KB)
MEMORANDUM OF LAW RE: IMPACT OF MARKETABLE RECORD TITLE ACT ON A SUBDIVISION’S COVENANTS AND RESTRICTIONS
Filing # 23588864 E-Filed 02/10/2015 02:41:37 PM
IN THE CIRCUIT COURT IN AND FOR POLK COUNTY, FLORIDA
Case No. 2014CA-001257
SUSAN Tg, Section 11 (Hon. Mark H. Hofstad)
Plaintiff(s)
vs.
S-bag LAKE OWNERS
ASSOCIATION, INC.,
Defendant(s).
MEMORANDUM OF LAW RE: IMPACT OF MARKETABLE RECORD TITLE ACT ON A SUBDIVISION’S COVENANTS AND RESTRICTIONS
Plaintiff, SUSAN Tg (”Plaintiff”), files this memorandum of law re: the impact of ch. 712 (“Marketable Record Titles of Real Property”) (hereafter “MRTA”), Florida Statutes, on a subdivision’s covenants and restrictions.
Florida cases construing MRTA’s impact on a subdivision’s covenants and restrictions –
Three, Florida appellate cases construing MRTA’s impact on a subdivision’s
covenants and restrictions are the following:
- Berger v. Riverwind Parking, LLP, 842 So.2d 918 (Fla. 5th DCA 2003)
(“Berger”);
- Cunningham v. Haley, 501 So.2d 649 (Fla. 5th DCA 1986) (“Cunningham”);
and,
- Matissek v. Waller, 51 So.3d 625 (Fla. 2nd DCA 2011) (“Matissek”).
Purpose of MRTA
In Berger, the Fifth District states the purpose of MRTA as follows:
“The purpose of MRTA is to extinguish claims which are at least 30 years old and which predate the root of title of the property in question.” Berger, supra, 842 So.2d at 920.
In Cunningham, the Fifth District states the purpose of MRTA as follows:
“[5] In a nation such as ours, where property is subject to private ownership, the rights of citizens to own, to use, and to transfer land are most valued rights. The enjoyment of those rights is directly related to the existence of a relatively safe, simple, and inexpensive system for assuring the marketability of land titles and their ready transferability. Because of the enduring nature of land, the value of its use and ownership, and the variety and complexity of interests in land permitted under English and American law, land titles tend in time to accumulate defects, divergent claims and rights and restrictions and limitations which erode their marketability. Good public policy decrees that there be a limit to which these matters are permitted to adversely affect the marketability of land titles. The past should not be able to forever rule the present from the grave. The Marketable Record Title Act is intended to help with this problem.” (Emphasis supplied). Cunningham, 501 So.2d at 652.
In Matissek, the Second District states that the purpose of MRTA is “to simplify and facilitate land transactions.” Matissek, supra, 51 So.3d at 628.
In short, in order to simplify and facilitate land transactions, MRTA is intended to create a “cut off date” for certain “claims,” “rights,” “restrictions” and “limitations” that tend to clutter title to real property. As detailed below, this includes those “restrictions” and “limitations” contained in the covenants and restrictions governing a subdivision. Section 712.10 (“Law to be liberally construed”), Fla.Stat., states that the provisions of chapter 712 are to be “liberally construed” to effect this purpose.
Background of MRTA –
In Matissek, the Second District gives the following, concise background of MRTA and its provisions:
“Background of the MRTA
“The Florida Legislature enacted the MRTA in 1963 to simplify and facilitate land transactions. See Blanton v. City of Pinellas Park, 887 So.2d 1224,1227 (Fla.2004).
To effectuate this legislative purpose, section 712.10 requires the MRTA "be liberally construed ... by allowing persons to rely on a record title as described in [section] 712.02 subject only to such limitations as appear in [section] 712.03." Section 712.02, titled "Marketable record title; suspension of applicability," provides:
“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, sH all have a marketable record title to such estate in said land, which sH all be free and clear of all claims except the matters set forth as exceptions to marketability in [section] 712.03.
“Similarly, section 712.04, titled "Interests extinguished by marketable record title," provides:
“Subject to the matters stated in [section] 712.03, such marketable record title sH all be free and clear of all estates, interests, claims, or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title.
“Subsection (1) of the exceptions listed under section 712.03 states:
“Such marketable record title sH all 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 sH all 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).” (Emphasis supplied). Matissek, supra, 51 So.3d 625, 628-29.
“Root of title,” “muniments of title” and “chain of title”
To understand how MRTA works, it is important to understand three terms of art used in MRTA: “Root of title,” “muniments of title,” and “chain of title,”
“Root of title" is defined in section 712.01(2) as “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.”
“Muniments of title” are defined in Cunningham as follows:
“On the other hand the statute does not define “muniments of title.” A muniment of title is any documentary evidence upon which title is based. Muniments of title are deeds, wills, and court judgments through which a particular land title passes and upon which its validity depends.” (the court’s emphasis). Cunningham, supra, 501 So.2d at 652.
A property’s “chain of title” are those muniments of title recorded since the root of title up to the time when the marketability of the property is being determined. See, e.g., Cunningham, supra, 501 So.2d at 651-52.
To determine whether particular restrictions have been preserved by a specific reference to their recording information, one must look at each of the muniments of title contained in the property’s chain of title since the root of title up to the time when the marketability of the property is being determined. If there is no such “specific reference” to the restrictions by book and page of record in any of those muniments of title and if the restrictions have not been timely preserved by the recording of a section 712.05 notice, then they are extinguished by operation of MRTA:
“Under section 712.03(1), Florida Statutes, actual notice does not suffice to protect use restrictions created prior to a root of title from being extinguished by section 712.02(1), Florida Statutes.
The material question is: Do muniments in the chain of title since the root of title disclose the use restrictions by specific reference so as to meet the provisions of section 712.03(1) and thereby preserve the restrictions from being extinguished by section 712.02(1)? When applicable, section 712.02(1), Florida Statutes, simply clears basic titles of all adverse, limiting, or competing claims, estates, interests, easements, and use restrictions existing prior to the root of title unless muniments of title in the chain of title since the root of title specifically identify (by reference to book and page of record or
name of recorded plat) a recorded title transaction which imposed, transferred, or continued such easement or use restrictions.” (the Court’s emphasis). Cunningham, supra, 501 So.2d at 651-52.
Facts of Cunningham, Berger and Matissek
Cunningham, Berger and Matissek provide practical examples of how MRTA operates to provide a cutoff date for a subdivision’s original declaration of covenants and restrictions (as well as any purported amendments to that original declaration).
In Cunningham, the plaintiff-lot owners filed suit against owners of all other lots in their subdivision seeking a declaration that use restrictions on the plaintiff-lot owners’ property had been extinguished by operation of MRTA. The original restrictions were placed on the lots of the subdivision back in 1944 and 1945, prior to the plaintiff-lot owners’ root of title. The defendants argued that the restrictions had been specifically identified by reference to book and page of record in two prior lawsuits involving the subject property. Defendants argued that was sufficient to preserve the restrictions. The trial court sided with the defendants and the plaintiff-lot owners appealed.
On appeal, the Fifth District reversed and held, “The two law actions relied on by [defendants] are not muniments in any chain of title because the two law actions do not transfer title to any estate and no title is dependent upon them notwithstanding that the 1978 action “affects,” at least, the title [to the subject lots] by its adjudication that the title to those lots were still encumbered by the restrictions in question.” The Fifth District went on to emphasize that the law actions were outside the chain of title since neither the lawsuits nor the restrictions involved in those lawsuits were specifically referenced by book and page of record in any of the muniments in the plaintiff-lot owners’ chain of title.
In Berger, adjacent lot owners brought suit against the defendant-lot owner seeking to enjoin his use of six lots in the subdivision as a parking lot. The adjacent lot owners based their suit on recorded restrictions stating that lots in the subdivision could only be used for residential purposes. The subject restrictions were recorded in 1957. Amendments to the restrictions were recorded in 1959 and 1965. The roots of title for the defendants’ six lots were recorded between 1958 and 1963. Though the 1965 amendment was recorded after the roots of title of the six lots, the Fifth District found the amendment (as well as the original declaration) to have been extinguished as to two of the lots by MRTA since it was not specifically referenced by book and page of record in any of the muniments in the chains of title of those lots:
“But what is the effect of the amended restrictions which were recorded after the root of title but outside the chain of title to lots 7 and 8? The initial restrictions reserved the right for the owner of at least 50% of the lots to amend the restrictions and ... As urged by the [plaintiffs], the [defendant] should be bound by subsequent amendments contemplated and authorized at the time of his purchase so long as he had notice of them and so long as the amendments are made in accordance with the reserved authority. ... [T]he recording of the amended restrictions outside the chain of title of lots 7 and 8 did not give constructive notice. We find the amended restrictions inapplicable to lots 7 and 8.” Berger, supra, 842 So.2d at 920-21.
In Matissek, the defendants sought to build an airplane hanger on their property. In 1971, the developer of the defendants’ subdivision recorded covenants and restrictions for the subdivision. In 1974, defendants’ root of title was recorded. In 1977, the developer recorded two amendments to the original covenants and restrictions. None of the deeds in the defendants’ chain of title specifically referenced by book and page of record the original covenants and restrictions or the 1977 amendments.
In 2007, the defendants began constructing their airplane hangar. In 2008, one of their neighbors sued the defendants to stop the construction.
The defendants moved for summary judgment, arguing MRTA had extinguished the 1971 covenants and restrictions since those restrictions were recorded prior to the defendants root of title. The defendants further argued they were not bound by the 1977 amendments since, although the 1977 amendments had been recorded subsequent to defendants’ “root of title,” the 1977 amendments had never been specifically referenced in any of the muniments in defendants’ “chain of title” by book and page of record.
The trial court disagreed, holding the 1977 amendments had not been extinguished by MRTA, since the 1977 amendments had been recorded subsequent to defendants’ “root of title.”
The trial court went on to find that, since the 1977 amendments prohibited the construction of defendants’ airplane hangar, that construction would be enjoined.
The defendants appealed and the Second District reversed. In their opinion, after citing and discussing both Berger and Cunningham, the Second District held that, since the 1977 amendments had been recorded outside the defendants’ chain of title and were not specifically referenced in any of the muniments in defendants’ chain of title by book and page of record, it did not bind defendants’ property.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been delivered by email delivery to the following persons on this 10th day of February, 2015:
Anthony J. Petrillo, Esq. (1st email address – lukstpa-pleadings@ls-law.com)
Kelly M. Klein, Esq. (2nd email address kklein@ls-law.com)
Luks, Santaniello, LLC.
100 North Tampa Street
Suite 2120
Tampa, FL 33602-5809
s/FurrRedIck B. O’Neal, Esq. FurrRedIck B. O'N eel (Attny), Esq. Florida Bar No. 252611 P.O.Box 842
Windermere, FL 34786
(407) 719-6796
FAX (407) 292-5368 Fredonealatlaw@aol.com