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Dave Kennett
Dave Kennett, Lawyer
Category: Real Estate Law
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Experience:  25 years experience
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I live in Florida in an 55 and older HOA community. In 2007

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I live in Florida in an 55 and older HOA community. In 2007 I was told that we had to redue the Declaration and Bylaws , because the law states that they have to be refiled every few years? I am trying to find out if this is try, because the package from that long ago had never been recorded only filed (no stamp). So I am trying to see If we have any legal documents to follow, and is it true that they expire if they are not refiled after a certain time frame?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Dave Kennett replied 1 year ago.
-Could you explain your situation a little more?
You say your were told this in 2007. Were the bylaws changed at that time or is someone trying to change them now?
Has anyone refiled the bylaws since 2007?
Who told you this and what exactly is the issue involved?
Are you the one who is being asked to do the refiling or is there an issue with the terms of the bylaws>
I want to check the Florida statutes but I need to know where to start.
Customer: replied 1 year ago.
In 2007 I was on the board I had just moved in. And was told that our bylaws and declaration had not been re filed ( no changes made). Since 1978. And that a lawyer then told them that the covenants and restrictions contained in the Previous Declaration expired pursuant to chapter 712 Florida statutes also known as The Markable Record Title Act
Well I just found out that they were never recorded I'm trying to find out if its true that they can just expire? And does that mean we have been a community without any declaration or bylaws. Legally? And no I'm not the one asked to file. I'm teying to get to bottom of this cause we are going in circles.
Expert:  Dave Kennett replied 1 year ago.
Dear JACUSTOMER - What you are referring to is the law that governs the abstract of title which is performed in the sale or financing of real estate to establish who has what interests in said real estate. So if an abstractor searches a title going back 30 years and sees no record of a lien or encumbrance the abstractor can generally rely on that search without having to go back forever through old records. There is also a list of exceptions in the statute however I see nothing pertaining to HOAs. Unless some other bylaws have been filed in the past 30 years it would be easy to file your current bylaws to bring everything current. I'm still not certain if there is some legal issue on which you want to use this statute to bolster a certain position but if not then you can simply file the bylaws and they would be good for the next 30 years under the current law. It's not that the bylaws are no good but if they are not filed within the time period of the statute then there is no legal notice provided to someone doing a title search.
Customer: replied 1 year ago.

We are trying to find out that since the by laws were not refiled, does that mean that we did not have any bylaws in affect in 2009? Because some people are saying that we did not have the right to collect maintenance or no have children live in the home that were under age 18? So, that is what I am trying to understand. Did we have any legal documents at that time? And are you saying that we Had to refile every 30 years?

Expert:  Dave Kennett replied 1 year ago.
I am assuming there were written bylaws and that when someone purchased a home they were given the bylaws and had notice of the rules. The Marketable Title Act is designed to provide notice, not validate the rules, so my opinion is that if anyone who bought property there was provided notice of the by laws before their purchase and there was a signed acknowledgment that they had received the rules then they are bound by them regardless of the statute. The statute could be used if the people are claiming they had no notice of the rules and the rule had not been filed or were not filed within the past 30 years since a title exam would not have shown the information. In order to be part of the abstract of title the rules should be filed every thirty years or at least some notice of the rules should be on file. But because they weren't filed doesn't mean they are not valid or that people can use this to avoid paying fees or abiding by other rules so long as they were on notice.
Dave Kennett, Lawyer
Category: Real Estate Law
Satisfied Customers: 27687
Experience: 25 years experience
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