The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Judiciary
BILL: SB 1380
INTRODUCER: Senator Rodriguez
SUBJECT: Real Property Rights
DATE: January 28, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Bond Cibula JU Favorable
2. CA
3. RC
I. Summary:
SB 1380 amends laws regarding restrictions on the use of real property. The bill limits how
certain older real estate covenants or restrictions apply in a manner that protects real property
rights and honors zoning requirements and conditions of a building or development permit. The
bill also allows a property owner the right to establish parking rules and rates applicable to the
owner’s property.
The Marketable Recordable Title Act (MRTA) simplifies property transactions and modernizes
land use by eliminating property rights that are more than 30 years old and predate the root of the
title of the property in question. There are, however, numerous exceptions to MRTA whereby a
property right is not extinguished by MRTA. The bill amends MRTA to:
Modify an exception to extinguishment to require that a general reference to a prior right
must include an affirmative statement of intent to preserve such property right.
Specify that MRTA may extinguish a covenant or restriction related to a zoning requirement,
building permit, or development permit. However, this will not extinguish the underlying
zoning or building codes or ordinances; nor will it extinguish a covenant or restriction that
says on its first page that it was required by local codes.
Allow revitalization of a covenant or restriction that had been required by a government
agency as a condition of a development permit.
A person who wishes to protect a property interest potentially extinguished by the change to
MRTA has until July 1, 2023 to file a Statement of Marketable Title Action in the public records
in order to preserve the property interest.
The bill provides that the owner or operator of a private property used for motor vehicle parking
may establish rules, rates, and fines that govern private persons parking motor vehicles on such
private property. A county or municipality may not enact an ordinance or a regulation restricting
REVISED: BILL: SB 1380 Page 2
or prohibiting a right of a private property owner or operator to establish rules, rates, and fines
governing parking on the private property.
The bill is effective upon becoming law.
II. Present Situation:
The Marketable Record Title Act
The Marketable Record Title Act (MRTA) was enacted in 1963 “to simplify conveyances of real
property, stabilize titles, and give certainty to land ownership.”
1,2
Specifically, MRTA
extinguishes most rights in real property that are more than 30 years old based on the date of the
root of the title. The 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 on which it was recorded.”
3
Any person who has been vested with any estate in
land of record for 30 years or more has a marketable record title, free and clear of most claims or
encumbrances against the land that occurred prior to that record title. This allows a prospective
buyer, for example, to rely on the first title transaction that occurred more than 30 years ago,
together with all title transactions to date, as opposed to searching through decades of possible
title transactions. Specifically, MRTA extinguishes the following rights, subject to exceptions:
[A]ll estates, interests, claims, or charges, the existence of which depends
upon any act, title transaction, event, or omission that occurred before the
effective date of the root of title.
4
MRTA includes a number of exceptions—real property rights that MRTA expressly does not
extinguish even if the rights were created in a pre-root instrument. One exception provides that
MRTA does not extinguish any property right or title defect disclosed in an instrument recorded
in the chain of title from the root forward. However, a general reference to the right or defect is
insufficient notice to the title examiner, the reference must be made to the book and page, or to
the name of the recorded plat.
5
Section 712.04, F.S., lists the real property interests that are extinguished where MRTA applies.
Unless one of the exceptions of s. 712.03, F.S., applies, a marketable record title is free and clear
of all estates, interests, claims, or charges, the existence of which depends upon any act, title
transaction, event, or omission that occurred before the effective date of the root of title.
Property owners, particularly those with recorded covenants and restrictions designed to preserve
the character of the neighborhood, were often dismayed in the past when they discovered that
their neighborhood covenants and restrictions had been invalidated by the operation of MRTA.
In response, MRTA was amended to allow for covenant revitalization. Different procedures
1
Save Calusa Trust v. St. Andrews Holdings, Ltd., 193 So. 3d 910, 914 (Fla. 3d DCA 2016).
2
The Marketable Record Title Act is ch. 712, F.S.
3
Section 712.01(6), F.S.
4
Section 712.04, F.S. The exceptions are set forth at s. 712.03, F.S.
5
Section 712.03(1), F.S. BILL: SB 1380 Page 3
apply, depending upon whether the covenants created a homeowners’ association.
Section 712.12, F.S., governs covenant or restriction revitalization by parcel owners not subject
to a homeowners’ association. It does not apply to a covenant or restriction required by a
governmental agency as a condition of a development permit.
Save Calusa Trust
In Save Calusa Trust v. St. Andrews Holdings, Ltd., 193 So. 3d 910 (Fla. 3d DCA 2016), the
court addressed the issue of “whether a restrictive covenant, recorded in compliance with a
government-imposed condition of a land use approval, is a title interest subject to extinguishment
by MRTA.”
6
The court held that the 99-year restrictive covenant was not a title interest under
MRTA, and thus was not subject to extinguishment by MRTA. The court reasoned that the
restrictive covenant in question was an inseparable part of a governmental action to rezone the
property at issue. The court concluded that, based on MRTA’s language and case law, MRTA
did not extinguish zoning regulations, including the one at issue in the case.
7
Power of Local Governments to Enact Ordinances
The State Constitution grants local governments broad authority to take actions furthering
citizens’ health, welfare, safety, and quality of life. This “home rule” authority includes
legislative powers to enact local laws. Specifically, non-charter county governments may
exercise those powers of self-government that are provided by general or special law.
8
Those
counties operating under a county charter have all powers of local self-government not
inconsistent with general law or special law approved by the vote of the electors.
9
Likewise,
municipalities have those governmental, corporate, and proprietary powers that enable them to
conduct municipal government, perform their functions and provide municipal services, and
exercise any power for municipal purposes, except as otherwise provided by law.
10
The home rule power may be limited by the state. State preemption precludes a local government
from exercising authority in a particular area, and requires consistency with the state constitution
or state statute. A local government enactment may be found inconsistent with state law if (1) the
Legislature has preempted a particular subject area to the state or (2) the local regulation
conflicts with a state statute.
11
6
Id. at 914. The restrictive covenant at issue required the owner of a golf course, as a prerequisite to redeveloping the
property, to have the consent of 75 percent of the homeowners whose homes were in a ring around the course.
7
Id. at 915-16.
8
FLA. CONST. art. VIII, s. 1(f).
9
FLA. CONST. art. VIII, s. 1(g).
10
FLA. CONST. art. VIII, s. 2(b). See also s. 166.021(1), F.S.
11
James R. Wolf and Sarah Harley Bolinder, The Effectiveness of Home Rule: A Preemption and Conflict Analysis, 83 Fla.
B.J. 92 (June 2009), https://www.floridabar.org/the-florida-bar-journal/the-effectiveness-of-home-rule-a-preemption-and-
conflict-analysis/ (last visited Jan. 18, 2022). BILL: SB 1380 Page 4
Florida law recognizes two types of preemption: express and implied. Express preemption
requires a specific legislative statement; it cannot be implied or inferred.
12
Express preemption of
a field by the Legislature must be accomplished by clear language stating that intent.
13
Implied preemption is a legal doctrine that addresses situations in which the Legislature has not
expressly preempted an area but, for all intents and purposes, the area is dominated by the state.
Findings of implied preemption are for a very narrow class of areas in which the state has
legislated pervasively.
14
In cases determining the validity of ordinances enacted in the face of state preemption, such
ordinances are found null and void.
15
III. Effect of Proposed Changes:
Section 1 of the bill amends the exception to MRTA at s. 712.03(1), F.S., for real property rights
or title defects referenced in an instrument recorded after the root of title, to provide that such
instrument is not extinguished by MRTA if it either:
Specifically references the official records book and page, instrument number, or plat name,
of the pre-root instrument; or
Generally references the estate, interest, easement or use restriction, together with an
affirmative statement of intent that the property is subject to such estate, interest, easement or
use restriction.
Section 2 of the bill amends the scope of real property rights that may be extinguished by
MRTA, at s. 712.04, F.S., to specifically include covenants and restrictions, including any
covenant or restriction that depends upon a zoning requirement, building permit, or development
permit.
Section 2 also creates two exceptions to the otherwise broad scope of s. 712.04, F.S., to provide
that MRTA does not alter or invalidate:
A comprehensive plan or plan amendment; zoning ordinance; land development regulation;
building code; development permit; development order; or other law, regulation, or
regulatory approval, to the extent such law, regulation, or regulatory approval operates
independently of matters recorded in the official records; or
Any recorded covenant or restriction that on the face of the first page of the document states
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; development order; or other law, regulation, or
regulatory approval.
12
See City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006); Phantom of Clearwater, Inc. v. Pinellas County,
894 So. 2d 1011, 1018 (Fla. 2d DCA 2005), approved in Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla.
2008).
13
Mulligan, 934 So. 2d at 1243.
14
Wolf and Bolinder, supra.
15
See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. City of S. Miami, 812 So.2d 504 (Fla. 3d DCA 2002). BILL: SB 1380 Page 5
Section 3 amends s. 712.12, F.S., to allow covenant or restriction revitalization by parcel owners
not subject to a homeowners’ association where such covenant or restriction was required by a
governmental agency as a condition of a development permit.
Section 4 creates s. 715.075, F.S., to provide that the owner or operator of a private property
used for motor vehicle parking may establish rules, rates, and fines that govern private persons
parking motor vehicles on such private property. Such rules and rates may include parking
charges and fines for violating the property owner’s or operator’s rules.
The new section also creates a local government preemption. A county or municipality may not
enact an ordinance or a regulation restricting or prohibiting a right of a private property owner or
operator to establish rules, rates, and fines governing parking on the private property.
Section 5 provides an affirmative statement to declare that the amendments made to ss. 712.03,
712.04, and 712.12, F.S., pursuant to this bill are to provide clarification to already existing law.
This clarification applies to all estates, interests, claims, covenants, restrictions, and charges,
whether imposed or accepted after the effective date of the bill.
Section 6 requires that an individual who seeks to avoid losing a property interest because of the
changes to MRTA in this bill file a notice in the public records no later than the earlier of the
expiration of the interest or July 1, 2023. The form of notice is governed by s. 712.06, F.S.
16
Section 7 directs the Division of Law Revision to replace any language in the bill regarding “the
effective date of this act” to the date that the bill becomes law.
Section 8 provides that the bill is effective upon becoming law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill does not require counties or municipalities to spend funds or limit their authority
to raise revenue or receive state-shared revenues as specified in Article VII, s. 18 of the
Florida Constitution.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
16
The notice must contain name and address of the claimant, name and address of the owner, legal description of the affected
land, a statement of the legal claim, and the recording information for the document supporting the claim. The notice must be
executed and recorded the same as a deed. BILL: SB 1380 Page 6
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
SB 1380 does not appear to have a fiscal impact on state or local governments.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 712.03, 712.04, and
712.12.
This bill creates section 715.075 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.