## Facts

- Roland D. Waller and Joseph Gerhard Matissek owned neighboring lots in Hidden Lakes Estates Unit One in Pasco County, Florida, an “airpark” subdivision designed to allow owners to build aircraft hangars.
- In April 1971, the developer platted the subdivision, and in May 1971 recorded a second plat that set out restrictive covenants applicable to all lots, including a requirement that all buildings have masonry (or similar) walls.
- In August 1977, the developer recorded an amendment that revised certain provisions and stated the remaining restrictions stayed in effect.
- In November 1977, the developer recorded another amendment that restated a controlling list of restrictions for future owners and explicitly retained the masonry-wall requirement.
- The developer conveyed the lots that included Matissek’s property by a deed recorded in June 1974; that deed referenced the recorded plat and stated the conveyance was “subject to easements and restrictions of record,” but it did not cite the May 1971 covenant-recording instrument or the 1977 amendments.
- Later deeds in the chain of title likewise failed to specifically identify the recorded restrictions or the 1977 amendments, using only general “subject to” language or making no mention of restrictions.
- In December 1995, the Matisseks acquired fee simple title to Lot 25 and part of Lot 24; their deed did not cite the restriction documents and did not mention restrictions.
- During the summer of 2007, Mr. Matissek began building a pre-engineered airplane hangar with a steel frame and metal paneling.
- Waller objected that the metal exterior violated the masonry-wall covenant and, in January 2008, sued for a mandatory injunction requiring removal of the hangar or modification to comply with the masonry-wall requirement.
- The trial court denied the Matisseks’ motion for summary judgment based on Florida’s Marketable Record Title Act (MRTA), proceeded to trial, and entered judgment requiring the hangar to be removed or brought into compliance with masonry walls.
- Although the trial court concluded MRTA extinguished the original 1971 restrictions, it ruled the 1977 amendments survived and supported injunctive relief.

## Issues

1. Whether, under Florida’s MRTA, the subdivision’s 1971 restrictions and the 1977 amended restrictions were extinguished as to the Matisseks’ property because they were not preserved by a specific reference in the post-root chain of title or by a statutory notice, thereby barring Waller’s enforcement action.

## Decision

- The Second District Court of Appeal reversed the judgment for Waller.
- The court held MRTA extinguished both the original 1971 restrictions and the 1977 amendments as to the Matisseks’ property.
- The court rejected the trial court’s view that the after-root 1977 amendments survived on their own; because the amendments were tied to and modified the original restriction scheme, they did not remain enforceable once the original restrictions were extinguished and the amendments were not separately preserved in an MRTA-compliant manner.
- Because the restrictions were extinguished, the Matisseks held a “free and clear, marketable record title,” and Waller could not obtain a mandatory injunction enforcing the masonry-wall requirement.
- The case was remanded for proceedings consistent with the conclusion that MRTA barred enforcement of the restrictions against the Matisseks.

## Legal Principles

- Florida’s MRTA (chapter 712, Florida Statutes) is intended to clear old claims from title by extinguishing interests that predate a property’s “root of title,” unless the interest is preserved as the statute requires.
- Recorded subdivision covenants and restrictions are subject to MRTA extinguishment unless preserved by:
  - a specific identification of the recorded covenant in the muniments of title within the relevant period (not merely general “subject to restrictions of record” language), or
  - a timely recorded notice that meets MRTA’s preservation requirements.
- Generic deed references to “easements and restrictions of record,” without citation to the recorded instrument creating the covenants, do not preserve those covenants for MRTA purposes.
- Amendments that modify or restate an earlier covenant scheme generally do not survive as independent, enforceable servitudes when the underlying restrictions have been extinguished and the amendments have not been separately preserved in compliance with MRTA.
- When MRTA extinguishes deed restrictions as to a parcel, neighboring owners lack an enforceable basis to compel compliance through injunctive relief.

## Conclusion

The court held that MRTA cut off enforcement of Hidden Lakes Estates’ masonry-wall covenant against the Matisseks because neither the original 1971 restrictions nor the 1977 amendments were preserved by specific reference in the post-root chain of title or by a statutory notice, so Waller could not force removal or modification of the metal-sided hangar.


Matissek v. Waller, 51 So.3d 625 (2011)