The audit every association with a legacy restriction should run

The lesson is not about golf. It is that a restriction an association assumes it has may not exist, and finding out during litigation is the expensive way to learn it.

The questions to put to counsel, in order:

1. What is the root of title for the parcel the restriction burdens, and when does the MRTA window run from?
2. Has a preservation notice ever been recorded under Chapter 712? This is the clean, deliberate route and it does not depend on arguing about what counts as a muniment.
3. If not, what post-root instruments reference the restriction, and are any of them muniments of title? A reference inside an ancillary recorded instrument — an authority affidavit, a mortgage, a corporate resolution — is exactly what failed here.
4. Is the association's own declaration affected, or only a separate restriction burdening a third party's land? These are different problems with different answers.

Chapter 712 contains preservation machinery for community covenants specifically. An association that has never used it, and is relying on a chain-of-title argument instead, is relying on the argument this case rejected.

The pattern across this year's Florida decisions

Read alongside two other 2026 decisions, a consistent theme emerges: an association's authority is exactly as good as its documents, and courts are reading those documents closely in both directions.

In Sable Pass Community Association, Inc. v. Call (Fla. 4th DCA, No. 4D2024-3084, 25 March 2026), the direction favoured the association. Owners who built a chickee-style structure without architectural approval argued that the Florida Building Code's chickee-hut exemption in s. 553.73(10)(i) shielded them. The court disagreed:

“Section 553.73 merely creates an exemption from the Florida Building Code. Section 553.73 contains no language abrogating a private homeowners' association's authority. By accepting the Calls' defense that this administrative exemption shielded them from the declaration, the circuit court erroneously expanded a limited permit exemption into a total bar on private covenant enforcement.”²

The court also corrected the burden, which is the more portable holding: “Once Mr. Call testified that he failed to obtain approval before building the chickee hut, Sable Pass was entitled to a strong presumption of validity. The burden then shifted to the Calls to prove that enforcement was ‘unreasonable and arbitrary.’” A trial court should not demand that a board explain its denial as a precondition to relief once non-application is established.

In Zoble v. Kensington Estates Homeowners' Association of Hillsborough, Inc. (Fla. 2d DCA, No. 2D2023-2625, 19 September 2025), the direction ran the other way. The association had won summary judgment on the basis that the business judgment rule gave it “absolute discretion” over common-area maintenance. The Second DCA reversed, noting that “to the extent the business judgment rule applies here, that judgment cannot be exercised at the expense of Zoble's easement rights,” and that courts defer “only if [the decision] is within the association's authority and is reasonable—that is, not arbitrary, capricious, or made in bad faith.”³

Because the association held the servient tenement, it could use it “in any manner that does not unreasonably interfere with the lawful dominant use,” and whether overhanging limbs unreasonably interfered with the owner's access easement was “ordinarily a question of fact.”

Three rules worth carrying

• A recorded restriction is only as durable as its chain of title. Audit the MRTA position before you rely on it.
• A statutory or code exemption is not a covenant defence. Permit exemptions exempt you from the permit.
• The business judgment rule is a deference standard, not immunity. Where a governing document creates a property right — an easement over common areas, an access way — board discretion is bounded by it, and “the board decided” will not carry summary judgment.

Status and what to watch

La Minnesota Riviera and Sable Pass both carry the standard notation that they are not final until the time for rehearing expires or a motion is disposed of, and Zoble is marked “opinion subject to revision prior to official publication.” None had its rehearing status verified.

The subject to watch is preservation practice. If associations across Florida begin recording Chapter 712 preservation notices in response to decisions like this, the litigation moves from “does the restriction survive?” to “was the notice effective?” — a narrower and much more answerable question.