The 2nd DCA expands Florida’s five-year statute of limitations to articles of incorporation in community associations.

Although Florida courts previously held that the five-year statute of limitations set forth in Florida Statute § 95.11(2)(b) applied to restrictive covenants, the 2^nd DCA recently expanded this limitation to encompass amendments to articles of incorporation in the context of community associations. The court affirmed the trial court’s ruling that the plaintiff had no justifiable claim as to the validity of its articles of incorporation because the amendment they were challenging was implemented and filed with the Secretary of State in 1988.

Florida Statute § 95.11(2)(b) clearly states, “[a] legal or equitable action on a contract, obligation, or liability founded on a written instrument… shall be commenced within five years.” This had previously been applied to challenges to restrictive covenants and recorded amendments. Here, the amendment to the articles of incorporation were not recorded but, instead, filed with the Secretary of State.  The date of accrual is when the documents becomes “effective” and not necessarily recorded.

Nevertheless, the trial court opined that whether the amendment was recorded did not affect the validity of the amendment, nor the time of accrual, because at the time the initial amendment was created, there was no requirement that it be recorded.

This expansive view of the statute of limitations should put associations on notice that a challenger cannot contest the validity of its controlling instrument, or their amendments, after five years. Additionally, the controlling instrument, or their amendments, need not be recorded to start the clock if they were implemented prior to the 1992 enactment of § 720.303, which mandated recording.

*Pending hearing on Motion for Rehearing

_{Case Law Alerts, 4th Quarter, October 2019}

_{Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2019 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}