In a deed, a grantee may agree to do something or refrain from doing certain acts. This agreement will become a binding contract between the grantor and the grantee. An example would be an agreement to maintain fences on the property or that the property will only be used for residential purposes. This kind of covenant is binding, not only between the grantor and the grantee, but also runs with the land. This means that anyone acquiring the land from the grantee is also bound by the covenant of the grantee. A covenant that provides that the grantee will refrain from certain conduct is called a restrictive or protective covenant. For example, there may be a covenant that no mobile home shall be placed on the property.
A restrictive or protective covenant may limit the kind of structure that can be placed on the property and may also restrict the use that can be made of the land. For example, when a tract of land is developed for individual lots and homes to be built, it is common to use the same restrictive covenants in all of the deeds in order to cause uniform restrictions and patterns on the property. For example, the developer may provide that no home may be built under a certain number of square feet. Any person acquiring a lot within the tract will be bound by the restrictions if they are placed in the deed or a prior recorded deed. Also, these restrictive covenants may be placed in a document at the outset of the development entitled "Restrictive Covenants," and list all the restrictive covenants that will apply to the tracts of land being developed. Any subsequent deed can then refer back to the book and page number where these restrictive covenants are recorded. Any person owning one of the lots in the tract may bring suit against another lot owner to enforce the restrictive covenants. However, restrictive covenants may be abandoned or not enforceable by estoppel if the restrictive covenants are violated openly for a sufficient period of time in order for a Court to declare that the restriction has been abandoned.
The following form shows one way in which Restrictive or Protective Covenants may be amended.
Florida Amendment to Protective Covenant
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The simple answer is NO. HOA rules cannot override state law.
The laws of the land take precedence over all other HOA documents. State laws come before local laws, while federal laws outweigh everything else. Whether you're drafting your governing documents or deciding which one to follow, it's important to always check the law first.
In most cases, homeowners cannot simply sue their HOA. Florida state law generally requires disputes involving property owners and HOAs to move forward through the dispute resolution process. Instead of beginning with traditional litigation, this generally requires the homeowner to seek a resolution through mediation.
In all cases, no matter how old they are, covenants cannot be removed or disregarded unless they are extinguished by agreement, which usually involves some form of payment or an application to the Lands Tribunal a long and costly undertaking. Covenants can be very obscure.
In Florida, the law is clear that Rules (made by the Board) cannot contradict the Association's Declaration or a right reasonably inferred therefrom. While the Declaration is typically drafted by the representatives for the Developer, Florida Law does allow it to be changed or amended from time to time.
As restrictive covenants don't 'expire', if they are breached the person with the benefit of the covenant can enforce them against you.
Homeowners' Association Act§720.301, et. seq., governs the formation, management, powers, and operation of HOAs in Florida. The law specifically applies to not-for-profit organizations operating residential homeowners associations in Florida.
Under MRTA, community associations' covenants and restrictions, if not properly preserved or revitalized, are extinguished after 30 years.
The Florida statute lays out the process that an association must go through to preserve the effectiveness of the recorded covenants if the 30 years has not yet expired. The preservation process will mean that the covenants are effective under MRTA for another 30 years.