SOUTHFIELDS OF PALM BEACH POLO AND COUNTRY CLUB HOMEOWNERS ASSOCIATION, INC., GLENN STRAUB, SALVATORE SPANO, DR. SCOTT SWERDLIN, ROGER SHINGLER AND MELISSA C. NOTTINGHAM, APPELLANTS,
v.
VICTORIA D. MCCULLOUGH, APPELLEE

Fla. 4th DCA | 2013-04-17
Nos. 4D11-1130, 4D11-4659
STEVENSON and GERBER, JJ„ concur.
111 So. 3d 283 Florida District Court of Appeal, Fourth District (2013)

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Holding

The court held that the trial court properly granted an injunction and writ of mandamus to compel the homeowners association's board to take necessary steps to preserve the Declaration of Restrictions.


Headnotes

[1] A homeowners association's board of directors has a duty to take necessary steps to preserve restrictive covenants governing the property when such action is mandated by…

[2] Injunctive and mandamus relief are appropriate to compel a homeowners association's board of directors to fulfill its duty to preserve restrictive covenants.

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Facts & Procedural History

A landowner sued the homeowners association, alleging its board refused to file a notice required by the Marketable Record Titles to Real Property Act…

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Opinion of the Court
CIKLIN, J.

CIKLIN, J.

Southfields of Palm Beach Polo and Country Club Homeowners Association, et al. (the “association”) appeals the trial *284court’s final judgment granting an injunction and a writ of mandamus to compel the association’s board of directors to take the necessary steps to preserve the Declaration of Restrictions (the “declaration”) governing the property (“Southfields”) within the association.1 Without such board action, the restrictive covenants governing Southfields would have begun to lapse and ultimately expire pursuant to the Marketable Record Titles to Real Property Act (“MRTA”), chapter 712, Florida Statutes (2010). Therefore, we affirm the trial court’s final judgment requiring the association’s board to preserve the declaration.

In 1981, the declaration was created to impose certain covenants, conditions, and restrictions within Southfields. The declaration states that its “provisions hereof shall be liberally construed to effectuate the purpose of creating a uniform plan for the development and operation of the Property.” The declaration created a homeowners association whose stated purpose, according to its articles of incorporation, is “to provide for the regulation, maintenance, and preservation of the development of Southfields.” The association is in turn governed by a board of directors. The declaration, intending to preserve the equestrian nature of South-fields, required that the board exercise its powers to maintain the declaration until and unless ninety-five percent of landowners vote to dissolve the declaration and disband the association.

“MRTA was enacted in 1963 to simplify and facilitate land transactions.... ” Blanton v. City of Pinellas Park, 887 So.2d 1224, 1227 (Fla.2004). “Section 712.02, Florida Statutes (2003), provides that ‘[a]ny person ... vested with any estate in land of record for 30 years or more, shall have a marketable record title ... free and clear of all claims’ except those set forth as exceptions in section 712.03.” Id. (footnote omitted). Section 712.03(2), Florida Statutes (2010), furnishes an exception from MRTA for, among other things, “any covenant or restriction ... preserved by the filing of a proper notice in accordance with the provisions hereof.” Section 712.05(1), Florida Statutes (2010), states, in part: “[A] homeowners’ association desiring to preserve any covenant or restriction may preserve and protect the same from extinguishment by the operation of this act by filing for record, during the 30-year period immediately following the effective date of the root of title,[2] a notice, in writing....”

Victoria McCullough, a landowner in Southfields, filed a complaint with the circuit court, claiming that the association’s board was refusing to file the notice required under 712.05 in order to preserve the declaration. McCullough requested an injunction and a writ of mandamus to compel the board to file the required notice. The trial court granted summary judgment as to both the prayer for injunction and mandamus.

*285We agree with the trial court’s conclusion that “[i]f parcels were to drop out piecemeal without the requisite votes required by the [governing] documents, the Association would begin to resemble a piece of Swiss cheese, with portions of Southfíelds covered by the restrictions and other portions ... not covered by the restrictions.” The trial court also correctly concluded that the language of the declaration itself makes it clear that “the board of directors is mandated to, and has a duty to, protect Southfíelds and protect the restrictive covenants running with the land.” Therefore, injunctive and mandamus3 relief was appropriate to compel the board to fulfill its duty and take the required action to preserve the declaration. We therefore affirm.

However, we remand the final judgment to the trial court to correct a scrivener’s error. Former defendants Salvatore Spa-no and Melissa Nottingham were removed from the case style in the order granting the summary judgment, but their names reappeared in the final judgment. All parties agree that this was an error and should be corrected by the trial court.

Affirmed and remanded with instructions.

STEVENSON and GERBER, JJ„ concur.


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