This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0219.CIV
DATE: 11/23/2021
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 219 Marketable Record Titles to Real Property
SPONSOR(S): Tuck
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice & Property Rights Subcommittee Mawn Jones
2) Tourism, Infrastructure & Energy Subcommittee
3) Judiciary Committee
SUMMARY ANALYSIS
The Marketable Record Title Act (“MRTA”) simplifies the title examination process by clearing ancient clouds
on a property’s title. More specifically, MRTA automatically extinguishes all estates, interests, claims, or
charges, existing due to any act, title transaction, event, or omission occurring more than 30 years ago, unless
a statutory exception applies. In 2016, a court decision held that where a restrictive covenant is recorded “in
compliance with a government-imposed condition of a land use approval,” such covenant is not extinguished
by MRTA.
HB 219 establishes a bright-line rule to clarify MRTA’s operation in light of the 2016 court decision. Specifically,
the bill:
Clarifies that a property conveyance subject to existing encumbrances identified in a muniments of title
does not restart MRTA’s 30-year marketability period on such encumbrances without:
o An affirmative statement of the parties’ intent to do so in a muniments of title; or
o A specific reference in the property’s legal description to the identified encumbrance’s official
records book and page number, instrument number, or plat name.
Modifies the definition of “covenant or restriction” to include agreements or limitations imposed by a
governmental entity or required by such an entity as a condition of a development permit.
Adds covenants, restrictions, zoning requirements, and building or development permits to the list of
encumbrances extinguished by MRTA but excepts from extinguishment:
o Comprehensive plans or plan amendments; zoning ordinances; land development regulations;
building codes; development permits and orders; and other laws, regulations, or regulatory
approvals operating independently of matters recorded in the official record; and
o Any recorded covenant or restriction that states on the face of the first page of the document
that it was accepted by a governmental entity as part of, or as a condition of, any such
comprehensive plan or plan amendment; zoning ordinance; land development regulation;
building code; development permit or order; or other law, regulation, or regulatory approval.
Allows a person with an interest in land which may be extinguished by the bill and whose interest has
not been extinguished before July 1, 2022, to file a notice with the clerk of the court by July 1, 2023, to
preserve such interest.
The bill provides that it is intended to clarify existing law, remedial in nature, and applicable to all estates,
interests, claims, covenants, restrictions, and charges on or after the bill’s effective date.
The bill does not appear to have a fiscal impact on state or local governments.
The bill provides an effective date of upon becoming a law. STORAGE NAME: h0219.CIV PAGE: 2
DATE: 11/23/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Marketable Record Title Act
Before the Marketable Record Title Act’s (“MRTA”) 1963 passage, a title examination involved
laboriously reviewing all documents relating to the real property recorded in the public records of the
county from the oldest public records – which could in some cases date back to a land grant from the
king of Spain
1
– to the most recent.
2
This usually required the purchase of a title abstract and a review
and analysis of every document and title transaction
3
listed in the abstract.
4
However, MRTA created a new title concept, the marketable record title, by automatically eliminating
ancient defects or stale claims to real property.
5
In other words, MRTA simplified the title examination
process by confirming a piece of real property’s marketability based on a 30-year marketable record
period and a consideration of certain statutory exceptions rather than on a perfect record from the
oldest public records. Specifically, MRTA provides that any person with legal capacity to own land who
has been vested with any estate in land of record for 30 years or more, has marketable record title to
such land free and clear of all claims other than those specified in statute or otherwise preserved.
6
After 30 years, MRTA automatically extinguishes all estates, interests, claims, or charges, existing due
to any act, title transaction, event, or omission occurring before the effective date of the root of title
7
and
not statutorily excepted from extinguishment.
8
All extinguished estates, interest, claims, or charges
become null and void.
9
The rights and interests not extinguished by MRTA include:
Estates or interests, easements and use restrictions disclosed by and defects inherent in the
muniments of title
10
on which the estate is based beginning with the root of title.
11
Estates, interests, claims, or charges, or any covenant or restriction
12
preserved by the filing of a
proper notice in accordance with MRTA.
13
Rights of any person possessing the land as long as the person is in such possession.
14
Estates, interests, claims, or charges arising out of a title transaction recorded after the root of
title effective date.
15
1
See The Florida Bar, Florida Real Property Title Examination and Insurance chapter 2, (8th ed. 2016).
2
Gregory M. Cook, The Marketable Record Title Act Made Easy, 66 Fl. Bar J. 55 (Oct. 1992), https://www.floridabar.org/the-florida-bar-
journal/the-marketable-record-title-act-made-easy/ (last visited Nov. 22, 2021).
3
“Title transaction” means any recorded instrument or court proceeding affecting title to any estate or interest in land and describing the
land sufficiently to identify its location and boundaries. S. 712.01(7), F.S.
4
Id.
5
Id.
6
S. 712.02(1), F.S.
7
“Root of title” means any title transaction purporting to create or transfer the estate claimed by any person which is the last title
transaction to have been recorded at least 30 years before the time when marketability is being determined. The effective date of the
root of title is the date it was recorded. S. 712.01(6), F.S.
8
S. 712.04, F.S.
9
Id.
10
“Muniments of title” are written instruments or evidence which the owner of lands, possessions, or inheritances has entitling said
owner to defend the title. Muniments of title need not be recorded to be valid, except that recording statutes do give good-faith
purchasers certain rights over other persons. 42 Fla. Jur. 2d s. 16.
11
S. 712.03(1), F.S.
12
“Covenant or restriction” means any agreement or limitation imposed by a private party and not required by a governmental agency
as a condition of a development permit which is contained in a document recorded in the public records of the county in which the
parcel is located and which subjects the parcel to any use restriction that may be enforced by a parcel owner. “Development permit”
means any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official
local government action having the effect of permitting land development. Ss. 163.3164(16) and 712.01(2), F.S.
13
S. 712.03(2), F.S.
14
S. 712.03(3), F.S.
15
S. 712.03(4), F.S. STORAGE NAME: h0219.CIV PAGE: 3
DATE: 11/23/2021
Recorded or unrecorded easements in the nature of easements, rights-of-way, and terminal
facilities.
16
Rights of a person in whose name the land is assessed on the county tax rolls under specified
circumstances.
17
State title to lands beneath navigable waters acquired by virtue of sovereignty.
18
Any right, title, or interest held by the Board of Trustees of the Internal Improvement Trust
Fund,
19
specified water management districts, or the United States.
20
Preserving Interests Under MRTA
MRTA provides a mechanism for an interested party to preserve from extinguishment a right or interest
the party holds. Specifically, a person with an interest in land or some other right subject to
extinguishment by MRTA may preserve such interest or right by filing a written notice at any time during
the marketability period immediately after the effective date of the root of title.
21
Additionally, a property
owners’ association
22
may preserve and protect a community covenant or restriction
23
by filing a:
Written notice in the form required by MRTA;
24
Summary notice complying with the specifications of s. 720.3032(2), F.S.;
25
or
Community covenant or restriction amendment indexed under the association’s legal name and
referencing the information to be preserved.
26
Such an action creates a new marketable record period, preventing extinguishment of the interests and
rights contained in the notice or community covenant or restriction amendment for 30 years from the
date of filing.
27
Recent Issues
Florida real estate practitioners commonly except outstanding encumbrances or restrictions from a
seller’s warranty of title in a deed by making the deed subject to all matters of record and instruments
identified by their official records book and page numbers assigned by the clerk of the court.
28
Though
the parties may not intend to restart MRTA’s 30-year marketability period on a prior existing
encumbrance or restriction by such an action, it can be argued that identifying the official records book
and page number of an encumbrance or restriction in a muniments of title could do just that.
29
Additionally, in 2016, the Third District Court of Appeal (“Third DCA”) held that a restrictive covenant
recorded in compliance with a government-imposed land-use restriction is not a title interest
extinguished under MRTA, acknowledging established Florida law recognizing that government-
imposed property restrictions do not affect marketability of title.
30
The court also acknowledged that no
16
S. 712.03(5), F.S.
17
S. 712.03(6), F.S.
18
S. 712.03(7), F.S.
19
The Board of Trustees of the Internal Improvement Trust Fund is composed of the Governor and the Cabinet. See Florida
Department of Environmental Protection, Division of State Lands, https://floridadep.gov/lands (last visited Nov. 22, 2021).
20
S. 712.03(8), F.S.
21
S. 712.05, F.S.
22
A POA is a homeowners’ association, a corporation or other entity responsible for the operation of property in which voting
membership is made up of the property owners and their agents, or a combination thereof, and in which membership is a mandatory
condition of property ownership, or an association of parcel owners authorized to enforce a community covenant or restriction imposed
on the parcels. S. 712.01(5), F.S.
23
“Community covenant or restriction” means any agreement or limitation contained in a document recorded in the public records of the
county where the property lies which subjects the parcel to any use restriction enforceable by a property owners’ association or
authorizes a property owners’ association to impose a charge or assessment against the parcel or parcel owner. S. 712.01, F.S.
24
S. 712.05(2)(a), F.S.
25
S. 712.05(2)(b), F.S.
26
Id.
27
S. 712.05(3), F.S.
28
See Real Property, Probate & Trust Law Section of the Florida Bar (“RPPTL”), White Paper: Revisions to Chapter 712, (July 28,
2018).
29
Id.
30
See Save Calusa Trust v. St. Andrews Holdings, Ltd., 193 So. 3d 910 (Fla. 3d DCA 2016) (citing Wheeler v. Sullivan, 106 So. 876
(Fla. 1925)). STORAGE NAME: h0219.CIV PAGE: 4
DATE: 11/23/2021
language in MRTA reaches zoning regulations, finding that a restrictive zoning ordinance is not a
hidden property interest of the kind MRTA seeks to extinguish.
31
However, in some cases, there is no
way to determine on the face of the documents whether a restrictive covenant recorded in the official
records was recorded in compliance with a government-imposed land-use,
32
and thus whether the
restrictive covenant is extinguished by MRTA or preserved under the judicially-created exception.
Effect of Proposed Changes
HB 219 establishes a bright-line rule to clarify MRTA’s operation in light of the Third DCA opinion.
Specifically, the bill clarifies that a real property conveyance subject to a prior existing encumbrance or
restriction identified in a muniments of title does not restart MRTA’s 30-year marketability period on
such encumbrance or restriction unless:
The parties to the instrument include an affirmative statement of their intent to do so; or
There is specific reference made in the property’s legal description to the identified
encumbrance’s official records book and page number, instrument number, or plat name.
The bill also:
Redefines “covenant or restriction” to include, in line with the Third DCA’s holding, agreements
or limitations imposed by a governmental entity or required by such an entity as a condition of a
development permit.
Provides that MRTA extinguishes covenants, restrictions, zoning requirements, and building or
development permits but conforms MRTA to the Third DCA’s holding by excepting from
extinguishment:
o Comprehensive plans or plan amendments; zoning ordinances; land development
regulations; building codes; development orders or permits; and any other laws,
regulations, or regulatory approvals operating independently of matters recorded in the
official record; and
o Any recorded covenant or restriction that states on the face of the document’s first page
that it was accepted by a governmental entity as part of, or as a condition of, any such
comprehensive plan or plan amendment; zoning ordinance; land development
regulation; building code; development permit or order; or other law, regulation, or
regulatory approval.
Provides that it is intended to clarify existing law, remedial in nature, and applicable to all
estates, interests, claims, covenants, restrictions, and charges, whether imposed or accepted
before, on, or after the bill’s effective date.
Allows a person whose interest in land may be extinguished by the bill and whose interest has
not been extinguished before July 1, 2022, to file a notice with the clerk of the court by July 1,
2023, to preserve the interest.
The bill provides an effective date of upon becoming a law and directs the Division of Law Revision to
replace the phrase “the effective date of this act” wherever it appears in the bill with the date the bill
becomes law.
31
See Save Calusa Trust, 193 So. 3d at 916 (citing Blanton v. City of Pinellas Park, 887 So. 2d 1224 (Fla. 2004)).
32
See RPPTL, supra note 28. STORAGE NAME: h0219.CIV PAGE: 5
DATE: 11/23/2021
B. SECTION DIRECTORY:
Section 1: Amends s. 712.03, F.S., relating to exceptions to marketability.
Section 2: Amends s. 712.04, F.S., relating to interests extinguished by marketable record title.
Section 3: Amends s. 712.12, F.S., relating to covenant or restriction revitalization by parcel owners
not subject to a homeowners; association.
Section 4: Provides that the bill is intended to clarify existing law, remedial in nature, and applicable to
all estates, interests, claims, covenants, restrictions, and charges, whether imposed or
accepted before, on, or after the bill’s effective date.
Section 5: Provides a grace period for a person whose interest in land may be extinguished by the bill
to preserve such interest.
Section 6: Directs the Division of Law Review to replace the phrase “effective date of this act”
wherever it appears in the bill with the date the bill becomes law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
STORAGE NAME: h0219.CIV PAGE: 6
DATE: 11/23/2021
2. Other:
Retroactive Application of Laws
In Florida, absent an express statement of legislative intent, a law is presumed to operate
prospectively, not retroactively.
33
Both the Florida and the United States Constitutions explicitly forbid
passage of a law criminalizing past conduct, but the legislature may provide that a non-criminal law
applies retroactively in certain situations.
34
In determining whether a law may be applied
retroactively, courts first determine whether the law is procedural, remedial, or substantive in
nature.
35
A purely procedural or remedial law may apply retroactively without offending the
Constitution, but a substantive law generally may not apply retroactively absent clear legislative
intent to the contrary.
36
However, even where the legislature has expressly stated that a law will have
retroactive application, a court may reject that application if the law impairs a vested right, creates a
new obligation, or imposes a new penalty.
37
Further, where a law is designed to serve a remedial
purpose, a court may decide not to apply the law retroactively where doing so “would attach new
legal consequences to events completed before its enactment.”
38
HB 219 provides that it is intended to clarify existing law, is remedial in nature, and is applicable to all
estates, interests, claims, covenants, restrictions, and charges, whether imposed or accepted before,
on, or after the bill’s effective date. Therefore, the bill may have retroactive application in some
situations. Whether a court would determine that retroactive application is permissible will likely
depend on the facts of the particular case.
B. RULE-MAKING AUTHORITY:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
33
Fla. Ins. Guar. Ass’n, Inc. v. Devon Neighborhood Ass’n, Inc., 67 So. 3d 187 (Fla. 2011).
34
U.S. Const. art. I, ss. 9 and 10; Art. 1, s. 10, Fla. Const.
35
A procedural law merely establishes the means and methods for applying or enforcing existing duties or rights. A remedial law
confers or changes a remedy, i.e., the means employed in enforcing an existing right or in redressing an injury. A substantive law
creates, alters, or impairs existing substantive rights. Windom v. State, 656 So. 2d 432 (Fla. 1995); St. John’s Village I, Ltd. v. Dept. of
State, 497 So. 2d 990 (Fla. 5th DCA 1986); McMillen v. State Dept. of Revenue, 74 So. 2d 1234 (Fla. 1st DCA 1999).
36
State Farm Mutual Automobile Ins. Co. v. Laforet, 658 So. 2d 55 (Fla. 1995).
37
Menendez v. Progressive Exp. Ins. Co., Inc., 35 So. 3d 873 (Fla. 2010).
38
L. Ross, Inc. v. R.W. Roberts Const. Co., 481 So. 2d 484 (Fla. 1986).