What Happens When a Covenant Expires?

Posted On Apr 13, 2021 Read Time 3 min Tags CC&Rs, Covenant, Covenant revitalization, Expire, Florida Statutes, HOA Author Dania S. Fernandez, Esq.

HOA covenants form the rules and regulations of a community association that must be adhered to by members and the BOD. They are referred to as the community’s Declaration of Covenants, Conditions, & Restrictions, or CC&Rs.

When you purchase a home in a planned community you are automatically bound by the CC&Rs of your association. They are legally binding and if you violate any of the terms there can be consequences.

But what happens if a covenant expires? Is this even possible?

Covenants can and typically do have expiration dates. It varies state by state and covenant to covenant. In Florida, if a covenant is older than 30 years it may no longer be enforceable.

What this means for the community association is that the CC&Rs can no longer be enforced, assessments can no longer be collected and the BOD’s power is nullified.

Luckily, there is a process to reinstate the covenant called “Covenant Revitalization.”

Chapter 720, Part III, Florida Statutes, provides a way to revitalize a declaration of covenants. We’re not going to get into the nitty gritty here, but the gist of the legal jargon states:

• The revived declaration needs to be approved by a majority of homeowners at an approved meeting.
• The new covenant can’t contain more restricted covenants than the old one, with a few exceptions. It can have a longer term than the old declaration. It can take out restrictions in the old declaration. I can govern fewer homes or parcels than the old declaration. It can contain new amendments to the declaration and other governing documents. And it can contain new provisions that Chapter 720 now requires.

• The new declaration must give the same voting interests.

• Proportional assessments can’t be changed.

• The amendment provisions can’t be changed if the old declaration did not include amendment provisions. If they are changed, they requiring approval of two-thirds of the property owners.

Additionally, section 720.405, Florida Statutes, says that at least three unit owners are required to propose the covenant revitalization. Then this committee must submit the proposed covenant revitalization to all unit owners at a properly noticed meeting. They must follow all the specific guidelines of the statute including getting an attorney or court reporter to certify proof of notice of the meeting.

The final step, under section 720.406, Florida Statutes, is to submit the proposed revived governing documents to the Department of Economic Opportunity within 60 days of the vote.

Revitalizing a covenant is no small matter, but letting a covenant expire is an even greater worry. Do you know if your covenant has an expiration date?

Contact us for assistance with covenant revitalization.

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