Florida/Georgia Personal Injury & Workers Compensation

...(2003). 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. [3] Section *1228 712.04, Florida Statutes (2003), titled "Interests extinguished by marketable record title" provides in pertinent part: Subject to the matters stated in s. 712.03, such marketable record title shall be free and clear of all estates, interests, claims, or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title....

...Stated differently, the root of title is "the most recent deed or other title transaction recorded in the unbroken chain of title at least [thirty years] in the past." William B. Stoebuck & Dale A. Whitman, The Law of Property 900 (3d ed.2000). An interest in land that is not exempted from MRTA's provisions under section 712.03 can be preserved by recording that interest as prescribed by sections 712.05 and 712.06, Florida Statutes (2003), within the "30-year period immediately following the effective date of the root of title." § 712.05(1), Fla....

...Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992). Section 712.02 of MRTA 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 (emphasis supplied)....

...d until an action in the circuit court results in the establishment of an easement. Although we recognize that the "all claims" language in MRTA is broad in scope and that MRTA does not contain an express exception for statutory ways of necessity in section 712.03, we note that the "all claims" language is limited by section 712.04....

...[2] As noted in the Second District Court of Appeal's opinion, the property was initially purchased by Blawar Investments, Inc., of which Blanton was president. Blawar then sold the property to Blanton as trustee for Caroline Investments, Inc. Profit Sharing Plan. See Blanton, 854 So.2d at 730 n. 1. [3] Section 712.03, which sets forth a list of interests that cannot be extinguished under MRTA, provides in full: Such marketable record title shall not affect or extinguish the following rights: (1) Estates or interests, easements and use restrictions...

...has been vested with any estate in land of record for thirty years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in § 712.03....

...has been vested with any estate in land of record for thirty years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in § 712.03....

...The clear Legislative *120 intention behind the Act, as expressed in F.S. § 712.10, F.S.A., was to simplify and facilitate land title transactions by allowing persons to rely on a record title as described by F.S. § 712.02, F.S.A., subject only to such limitations as appear in F.S. § 712.03, F.S.A....

...ter conveyed to the city. The city contends that certain exceptions in Florida Statutes, Section 712.04, prevent the application of the Marketable Record Title Act to the city's claim. This statute reads as follows: "Subject to the matters stated in § 712.03, such marketable record title shall be free and clear of all estates, interests, claims or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title....

...Wadsworth and her son conveyed the property to Rayonier. Rayonier claimed a Marketable Record Title free and clear of the children's vested remainder since that interest arose prior to the 1937 root of title. The children argued that Florida Statutes, Section 712.03(1) preserves estates, interests, easements, and use restrictions disclosed by and defects inherent in the muniments of title on which the estate is based, beginning with the root of title....

...eyed the children's remainder interest, so those interests were not saved from extinguishment. The 1944 deed to St. Joe purported to create an estate and qualified as a "root of title." The city gains no help from the provisions of Florida Statutes, Section 712.03(1) because there was nothing on the face of the deed to indicate that it conveyed any interest of the city. This court made it clear that Florida Statutes, Section 712.03(1) refers only to defects in the makeup of the deed when we said: "Section 712.03, Florida Statutes, provides that marketable record title will not extinguish six categories of rights that predate the root of title....

...Joe does not reflect that it was a wild deed nor does it appear that there is any defect in the makeup of the deed. This wild deed may properly constitute a "root of title." The city also implies that the Marketable Record Title Act operates as a means whereby people can steal land. Florida Statutes, Section 712.03(6) excepts the rights of any person in whose name the land has been assessed on county tax rolls for a period of three years....

...has been vested with any estate in land of record for thirty years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in § 712.03....

...The first sentence of Section 712.02 states, "Any person * * * who * * * has been vested with any estate in land of record for thirty years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in § 712.03." (Emphasis added.) The plaintiff argues that the use of the word "vested" in the first sentence of Section 712.02 indicates a legislative intent to apply the operative provisions of the act only to and in favor of a person who is in fact v...

...in many respects from Section 95.23 which was before the Florida Supreme Court in Wright v. Blocker and Reed v. Fain, supra. Section 95.23 has no express exceptions. The Marketable Title Act does. The specific enumeration of exceptions to the act in Section 712.03 and the specific provision in Section 712.05 for the protection of valid claims indicates a legislative intent to exclude no other claims from extinction by the operation of Sections 712.02 and 712.04....

...We, therefore, conclude that the allegations in the second amended complaint affirmatively indicate a marketable record title in the defendants as the same is defined by the act. And this marketable record title bars the plaintiff's claim unless the claim is exempt from marketability under either Section 712.03 or Section 712.05....

...defendants in this case claim title were void and conveyed nothing. Therefore, contends the plaintiff, these deeds contained an "inherent defect" which was not cured or affected by the marketable record title. The plaintiff relies on the language of Section 712.03(1) reading: "Such marketable record title shall not affect or extinguish the following rights: "(1) Estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate i...

...title. The exemption, therefore, is inapplicable here. There are no allegations of fact in the second amended complaint indicating that the plaintiff's claim of title is exempt from the effect of the marketable record title by any other provision of Section 712.03....

...record purporting to divest the plaintiff or any of its predecessors of such estate. Under Section 712.02 this would constitute the title of plaintiff to be free and clear of all claims `except the matters set forth as exceptions to marketability in Section 712.03'. The exceptions in F.S. 712.03 include (1) estates, easements and restrictions `disclosed by and defects inherent in' muniments of title on which the claimed estate is based beginning with the root of title (title transaction recorded thirty years purporting to create or...

...81)) provide that when a person or his predecessors in title has been vested with any estate in land of record for 30 years or more, he shall have a marketable record title to such estate free and clear of all claims with the exceptions set forth in section 712.03....

...northerly 25 feet of Lot 2. [9] Initially MRTA appears to apply to *464 this root of title so as to create a marketable title to such easement in appellees and to extinguish all claims of appellants and others that do not qualify as exceptions under section 712.03. However, section 712.03(4) specifically provides as an exception: (4) Estates, interests, claims, or charges arising out of a title transaction which has been recorded subsequent to the effective date of the root of title....

...The definition of "root of title" in section 712.01(2), recognizes that "title transactions" all purport to either "create or transfer" an estate or interest in land. Therefore, conversely, estates, interests or claims in land are either created or transferred by a title transaction; yet section 712.03(4) uses neither of the terms "create or transfer" but, ambiguously, refers to estates, interests or claims "arising out of" a title transaction....

...bered by the easement claimed by the appellees. Again it appears MRTA applies to this root of title so as to create a marketable title to Lot 2 in appellants and to extinguish all claims of appellees or others that do not qualify as exceptions under section 712.03. Here again though, as in the analysis of the affect of MRTA on appellees' root of title we must determine the meaning and effect of section 712.03(4)....

...it is easy to state that appellees' claimed easement was created by that deed and, therefore, "arises out of" a title transaction which has been recorded subsequent to the effective date of appellants' root of title and, therefore, the exception in section 712.03(4) prevents MRTA from applying to statutorily render appellants' title marketable and prevents MRTA from destroying appellees' claim of an easement in Lot 2....

...It has been said that the chief purpose of MRTA is to extinguish stale claims and ancient defects against the title to real property and accordingly, limit the period of title searches. [13] In view of this objective it would indeed be an anomaly to construe section 712.03(4), so that exception applies to exclude a title transaction recorded during an operative 30 year period which merely transfers an older genuine, main, fee simple absolute title (thereby allowing section 712.02 to make a newer inferior...

...ute title (thereby preventing section 712.02 from applying to improve the older genuine title by invalidating the newer spurious or wild title to a lesser interest). However, from the adoption of the 30-plus year operative period in the exception in section 712.03(4) as well as the limitation as to that period in section 712.02, it is clear that MRTA was not intended to and does not make marketable a title as against adverse record claims that first appear, or that are created, or "arise" during, or subsequent to the commencement of, the operative 30 year period....

...ch is: does MRTA apply to aid appellees' inferior title which, while it arises prior to appellants' root of title, also arises subsequent to appellants' origin of title and is yet itself over 30 years old of record? This question occurs only because section 712.03(4) excepts not just claims arising during the 30 year period immediately prior to the time when marketability is being determined (here August 12, 1951 — August 12, 1981) but also excepts claims arising during a period going back to the effective date of the root of the title being considered....

...ust 30 years but 37 years to July, 1944. On the other hand, while appellees' root of title (entry 26 — January 24, 1951) is old enough (30 plus years old) for section 712.02 to apply to make it marketable as against appellants (if some exception in 712.03 does not apply) appellees' origin of title (entry 13-24 — May 7, 1949) is still young enough to have occurred after appellants' effective root of title (entry 8 — August 8, 1944) thus causing the exception in 712.03(4) to apply to appellees' claim and preventing 712.02 from applying to appellants' title to extinguish appellees' claim....

...e root of a spurious title (causing section 712.02, when applied to both, to potentially cut off the superior in favor of the spurious) and the origin of the spurious title is younger than the root of the superior title (which under the exception in 712.03(4) prevents 712.02 from cutting off the spurious title in favor of the superior title)? In contemplating the answer to this question one should consider two matters, viz: (1) the origin of a true superior title, being sovereignty, will always be before the origin of any spurious title relating to the same land and (2) section 712.01(2) defines root of title as the last title transaction recorded at least 30 years, and section 712.03(4) uses that last title transaction at least 30 years of record (and not the origin of title) as pivotal in determining whether a second competing title arises subsequent to the root of a first or true title (and, hence, is preserved as an exception under section 712.03(4)) or arises prior to the root of a first or true title (and, hence, is extinguished because it is not an exception under section 712.03(4)). This means that when each of two competing titles goes back at least 30 years of record, to initially apply 712.02 and 712.04 to make both titles marketable and to then apply 712.03(4) to exclude MRTA's beneficial effect as to one title but to give it to the other will almost always cause the contest to turn not on which is the superior title traced from sovereignty but on the fortuitous circumstance of which chain of title had a title transaction closest to, but before, the start of the operative 30 year period. This is because the title with the title transaction last next before the 30 year period will always be protected from extinguishment under 712.03(4) as it will always be subsequent to the root of the second title while the second title may, as here, arise prior to the root of title with the last next pre-30 year root and therefore may be within the exception in 712.03(4) and may be subject to extinguishment under 712.02 and 712.04....

...This situation is illustrated in this case by considering the consequences if there had been any title transaction in appellants' chain of title recorded after May 7, 1949 (the date of the title transaction at entry 13-24 from which appellees' claim "arose" as per 712.03(4)) and August 12, 1951 (the commencement of the 30 year period immediately before the filing of this quiet title suit which is "the time when marketability is being determined" (712.01(2))....

...Any title transaction in appellants' title during this two-plus year period would then have been appellants' root of title and appellees' claim (arising in entry 13-24 — May 7, 1949) would then not have been subsequent to appellants' root of title and would not fall in the exception in 712.03(4) and would have been extinguished by the effect of MRTA on appellants' title....

...each of the two titles have an origin in a title transaction recorded over 30 years thus each title has a root of title and MRTA would appear to apply and make each title marketable as against the other unless one title involves some exception under section 712.03 which latter event cannot be depended upon to occur in every such case and when it does occur it may not dependably except the better or superior of the two titles. The purpose of the exception in section 712.03(4) appears to be to prevent MRTA from destroying the rights of those who have or claim estates and interests in the land under an instrument or court proceeding recorded during the 30 years or more MRTA requires to make a title marketa...

...orded notice of a claim of interest in land which prevents the noticed and claimed interest from being extinguished by the act. No such notice was filed as to claims under either of the two titles involved in this case. We also note the exception in section 712.03(6) as to persons in whose name the land is assessed on the county tax rolls. [16] We further note the exceptions in 712.03(3) in favor of the rights of persons in actual possession....

...e 30 or more years old) but not to defeat a current, valid, superior title notice as to which is being actively given by actual possession by an owner, by assessment of the owner on the county tax rolls or by a notice filed under 712.06 (excepted by 712.03(2)) or under 712.03(4) by title transactions recorded subsequent to the effective date of its root of title and during the 30 year operative period relating to a competing interest....

...Both of such conveyances serve equally well to give notice of an actively asserted interest in the land in question and *469 both serve the same purpose as a recorded notice filed under section 712.05 and of assessment on the county tax rolls under 712.03(6). Therefore, solely in the context of two competing chains of title each over 30 years of age of record we construe the words "arising out of" in section 712.03(4) to contemplate not only the unusual occurrence of the owner of a competing and greater title creating a lesser interest during the operative 30 years but also the more common occurrence of a transfer of the whole of an existing interest during the operative 30 year period by a recorded instrument or court proceeding which constitutes a title transaction. Under this construction of the exception in section 712.03(4) a title transaction in a competing chain of title which itself has a root of title as defined in section 712.01(2), which title transaction describes the land sufficiently to identify its location and boundaries and is recorded duri...

...g the operative 30 year period applicable to the competing chain of title, constitutes adequate notice of the existence and active assertion of title of record and has the same effect as either a notice filed under section 712.06 (an exception under 712.03(2)) or notice from a county tax roll assessment (an exception under 712.03(6)) or notice from possession (an exception under 712.03(3)) in preventing an extinguishment of an interest in the land by sections 712.02 and 712.04....

...to make appellees' title superior to appellants'; (2) the easement created by the deed in entry number 9 of appellants' chain of title is not the same as appellees' easement and, therefore, it does not constitute notice of appellees' claim; and (3) section 712.03(4), Florida Statutes (1981), prevents the appellees' root of title, recorded on January 24, 1951, from ripening into a superior title under the Marketable Record Title Act (MRTA)....

...cepting the easement would have breached the grantor's warranty of title. Therefore, the transfer of the fee under appellants' chain at entry number 9 operated to prevent appellees' root of title from becoming superior to appellants' fee under MRTA. § 712.03(4), Fla....

...estate, owned by appellees. If we conclude, as apparently we all do, that the wild deed to appellees constitutes a sufficient root of title to support the easement under MRTA, the remaining question is whether the application of MRTA is prevented by section 712.03(4)....

...The conveyance of the fee is not inconsistent with the existence of the easement, but is subject to it. The purpose of MRTA is to simplify and facilitate land title transactions by allowing persons to rely on a record title described in section 712.02, subject only to the exceptions in section 712.03, and shall be liberally construed to effectuate its purpose....

...t from the one fee simple absolute title the perfection of which is, or should be, the very purpose of a marketable record title act. [10] Boyer & Shapo, Florida's Marketable Title Act: Prospects and Problems, 18 U.Miami L.Rev. 103, 117 (1963). [11] Section 712.03(6) excepts from MRTA (6) rights of any person in whose name the land is assessed on the county tax rolls for such period of time as the land is so assessed and which rights are preserved for a period of three years after the land is last assessed in such person's name....

...ach recorded at least 30 years because, in the absence of a total omission or a double assessment for 30 years, the county tax roll would assess the land only to persons in the one true chain of title to the fee and their rights would be excepted by section 712.03(6) thereby preventing MRTA from applying to a spurious chain of title....

...e land is being continuously assessed on the county tax rolls. However in this particular case when appellees pled section 712.02 of MRTA as perfecting their title to the claimed easement against appellants, appellants did not plead the exception in 712.03(6) by a reply to the affirmative defense and therefore the effect of 712.03(6) in this case has not been properly presented nor preserved....

...ffecting the rights of parties under that chain of title. The only reference to this point before the trial judge is contained in appellees' memorandum of law on motion for summary judgment filed December 2, 1981, page 12, which memorandum refers to 712.03(6) and states that it is not applicable "since plaintiff and defendant are each assessed on their separate estates for tax purposes." This assertion is neither confirmed nor disproved nor put in issue but is contrary to what would be expected...

...The Marketable Record Title Act, section 712.02, Florida Statutes (1963), provides, in effect, that any person whose chain of title extends from any title transaction recorded over thirty years has a marketable record title free and clear of all claims except those set forth in section 712.03, Florida Statutes. When the Marketable Record Title Act was originally adopted in 1963, and at all times relevant to this case, [4] section 712.03 contained no exception in favor of sovereignty lands....

...NOTES [1] NGVD means National Geodetic Vertical Datum of 1929. [2] See Vol. III, Fla. Stat. 1941, Whitfield's Notes, at 230. [3] State ex rel Ellis v. Gerbing, 56 Fla. 603, 615, 47 So. 353, 357 (1908). [4] Effective June 15, 1978, Ch. 78-288, § 1, Laws of Florida, amended section 712.03, Florida Statutes (1977), adding an exception numbered 7 which provides that the Marketable Record Title Act does not extinguish "state title to lands beneath navigable waters acquired by virtue of sovereignty." It will be readily note...

...[5] "This law shall be liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record title as described in § 712.02 subject only to such limitations as appear in § 712.03." Fla. Stat. § 712.10 (1967), F.S.A. [6] These observations as to matters that must be investigated are based upon the exceptions to marketability set out in Section 712.03 of the Act....

...le' within the meaning of Florida Statutes, Sections 712.01 and 712.02? "2. If the answer to 1 is in the affirmative, are the rights of appellants within the exception to the operation of the Marketable Record Title Act provided by Florida Statutes, Section 712.03(1)? "3. If the answer to 1 is in the affirmative, are the rights of appellants within the exception to the operation of the Marketable Record Title Act provided by Florida Statutes, Section 712.03(3)? "4(a)....

...By attempting to enlarge her estate as to her undivided three-fourths interest in the property the deed affects title. Since the 1937 deed is a title transaction which purports to transfer or create an estate, it qualifies as a "root of title." The first question is answered in the affirmative. Question # 2: Section 712.03, Florida Statutes, provides that marketable record title will not extinguish six categories of rights that predate the root of title....

...the District Court in Bradshaw. [7] Since there is nothing on the face of the deed, in its make up or construction, to indicate that it conveys the children's remainder interest, those interests are not saved from extinguishment by subsection (1) of Section 712.03, Florida Statutes. The second question is answered in the negative. Question # 3: Section 712.03(3) provides that the rights of any person in possession of the lands are not extinguished or affected by the Marketable Record Title Act, so long as such person is in possession....

...However, *1012 the statute is not a shield from operation of the Act. As Judge Reed, who coincidentally authored the opinion in this case for the U.S. District Court, Middle District, Florida, as well as the Fourth District's opinion in Marshall, supra, stated in this case: "Section 712.03 delineates specifically the interests which are not subject to extinction by the Act, and the statutory interest of homestead beneficiaries which vested prior to the root of title is not among them....

...ept therefrom such interests of persons claiming under the homestead statute (now F.S.A. § 731.27). See Marshall v. Hollywood, Inc., Fla.App. 1969, 224 So.2d 743, 750, where the Court said: "`... The specific enumeration of exceptions to the act in Section 712.03 and the specific provision in Section 712.05 for the protection of valid claims indicates a legislative intent to exclude no other claims from extinction by the operation of Sections 712.02 and 712.04.' "To adopt the defendants' conten...

...he Florida Supreme Court in Marshall v. Hollywood, Inc., `... to simplify and facilitate land title transactions by allowing persons to rely on a record title as described by F.S. § 712.02, F.S.A., subject only to such limitations as appear in F.S. § 712.03, F.S.A.'" ITT Rayonier v....

...— This law shall be liberally construed to effect the legislature purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record title as described in § 712.02 subject only to such limitations as appear in § 712.03." [2] Id....

...has been vested with any estate in land of record for thirty years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in § 712.03....

...ate; or (2) Some other person from whom, by one or more title transactions, such estate has passed to the person claiming such estate, with nothing appearing of record, in either case, purporting to divest such claimant of the estate claimed." [4] " 712.03 Exceptions to marketability....

...of time as the land is so assessed and which rights are preserved for a period of three years after the land is last assessed in such person's name." [5] " 712.04 Interests extinguished by marketable record title. — Subject to the matters stated in § 712.03, such marketable record title shall be free and clear of all estates, interests, claims or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title....

...We are aware of the fact that the very able jurist, the Honorable Judge Reed of the Fourth District Court of Appeal of Florida, in Marshall v. Hollywood, Inc., 224 So.2d 743 (affirmed by the Florida Supreme Court in 236 So.2d 114) said: "... The specific enumeration of exceptions to the act in Section 712.03 and the specific provision in Section 712.05 for the protection of valid claims indicates a legislative intent to exclude no other claims from extinction by the operation of Sections 712.02 and 712.04....

...ended complaint, the act may be applied to validate a record title even though it may be based on a void deed... ." (Emphasis supplied.) Judge Reed, as concurred in by two other members of his Court, construed that the legislative intent of Chapters 712.03 and 712.05 was, by the specific provisions of said subsections to exclude no other claims from extinction by the operation of said Sections 712.03 and 712.04....

...Record Title of Real Property Act would have been conveyed by the Marshall decision. The pleader is bound by his own allegations in the complaint. The root of title showing defects *184 inherent in the Muniment of Title, the exceptions contained in § 712.03, Florida Statutes, attach and the Act no longer is a remedy to clear the constitutional homestead rights of the heirs....

...Under section 712.02, Florida Statutes, "when a person or his predecessors in title has been vested with any estate in land of record for 30 years or more, he shall have a marketable record title to such estate free and clear of all claims with the exceptions set forth in section 712.03." Holland v....

...tle, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03....

...2), Florida Statutes, to the McDonalds' Parcel A was March 22, 1950; to Parcel B was April 28, 1944; and to Parcel C was April 28, 1944. Under MRTA, then, the McDonalds had marketable record title unless a statutory exception to MRTA, as provided in section 712.03, applied. It is undisputed that no notice, pursuant to section 712.03(2), Florida Statutes (2002), was filed by Appellants or any of their predecessors in title at any time....

...The Legislature clearly expressed that MRTA should be liberally construed and applied "to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record title as described in s. 712.02 subject only to such limitations as appear in s. 712.03." § 712.10, Fla....

...son. Second, subject to six exceptions, it extinguishes all interests in the estate which predate the "root of title." Id. at 1008-09 (footnotes omitted). Section 712.04, Florida Statutes, provides in pertinent part: Subject to the matters stated in s. 712.03, such marketable record title shall be free and clear of all estates, interests, claims, or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title....

...Thus, under Section 712.02 of the Act any person with the legal capacity to own land in this state who, either alone or with his predecessors in title, has been vested with title for thirty years has a marketable record title free and clear of all claims except those enumerated in Section 712.03, F.S. 1971, none of which are applicable in this instance. Section 712.04, F.S. 1971, provides: "712.04 Interests extinguished by marketable record title. — Subject to the matters stated in § 712.03, such marketable record title shall be free and clear of all estates, interests, claims or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title....

...nullify the State's interest so that respondent did have clear title to the claimed, submerged lands. Noting that the Marketable Record Title Act is subject to a group of exceptions, the District Court found that none of the exceptions of Fla. Stat. § 712.03, F.S.A., were applicable to the facts of the case. The District Court then considered Fla. Stat. § 712.04, F.S.A., which provides: "Subject to the matters stated in § 712.03, such marketable record title shall be free and clear of all estates, interests, claims or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title....

...reserved. Section 712.02 of MRTA expressly provides that any person vested with any estate in land of record for thirty years or more shall have a marketable record title free and clear of all claims of an interest in land except those preserved by section 712.03: Any person having the legal capacity to own land in this state, who, alone or together with his predecessors in title, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in § 712.03....

...As in Marshall, our conclusion today is predicated upon the unambiguous provisions of MRTA as well as the fundamental policy concerns underlying its enactment. EXCEPTIONS Having concluded that MRTA does apply to the asserted way of necessity, we must next consider the exceptions provided in section 712.03 of MRTA, only the first two of which merit discussion. [4] The first exception preserves "[e]states or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title [5] on which an estate is based beginning with the root of title." § 712.03(1), Fla....

...face of the title instrument. See ITT Rayonier, Inc. In the instant case, the 1947 transfer to Panama City never mentioned or referenced the common law way of necessity; therefore, it was not "disclosed by" the muniments of title as provided for in section 712.03(1)....

...ITT later claimed a marketable record title free of the other children's vested remainder interests, because the children's interests arose prior to the 1937 conveyance and root of title of ITT. The children contended their interests were preserved under the exception of section 712.03(1) because the 1937 deed was inherently defective in that it purported to convey their remainder interests without their assent and also improperly conveyed property from Mrs. Wadsworth to herself. In rejecting both contentions, this Court disagreed with the children's broad interpretation of section 712.03(1) and held "[s]ince there is nothing on the face of the deed, in its make up or construction, to indicate that it conveys the children's remainder interest, those interests are not saved from extinguishment by subsection (1) of Section 712.03, Florida Statutes." 346 So.2d at 1011....

...ity Airport Board acquired its property. The deed was in regular form and simply conveyed the title to the property that the County intended to convey and the Panama City Airport Board intended to receive. Hence, we conclude that the exception under section 712.03(1) does not apply to a common law way of necessity. FILING OF NOTICE As for the second exception, the statute preserves estates, interests, claims or charges filed with a proper notice in accordance with the provisions of MRTA. See § 712.03(2), Fla....

...and giving a reasonable period of time within which to take the necessary steps to accomplish that purpose. Similarly, in Cunningham v. Haley, 501 So.2d 649, 652-53 (Fla. 5th DCA 1986), the court explained: It is the intent of sections 712.02(1) and 712.03(1), that easements and use restrictions and other estates, interests, and claims created prior to the root of *1175 title be extinguished by section 712.03(1), Florida Statutes, unless those matters are filed under section 712.05(1) or unless, as provided in section 712.03(1), after the date of the root of title, some muniment of title refers specifically......

...It provides: "This law shall be liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record title as described in § 712.02 subject only to such limitations as appear in § 712.03." § 712.10, Fla....

..."... has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03." 712.02, Fla....

...he city's claim sufficient to avert the operation of the MRTA. The city does claim, however, that the trial court was in error in finding that the city failed to prove use of the road, so as to avoid extinguishment, under the provisions set forth in section 712.03(5) of the MRTA, which excepts from operation of the Act: *207 Recorded or unrecorded easements or rights, interest or servitude in the nature of easements, rights-of-way and terminal facilities, including those of a public utility or o...

...ked proof of use of a portion of the Crystal Road easement other than that portion now encompassed by the Horns' claim of ownership. This the city has failed to do. *208 Our resolution of this case has not been without difficulty. While the statute (section 712.03(5)) purports to except from its operation "recorded or unrecorded" easements and rights-of-way, "so long as the same are used," nothing is said concerning what constitutes "use" sufficient to satisfy the exception....

...MRTA). See § 712.04, Fla. Stat. (1993). [1] Although we agree with the trial court's conclusion that application of MRTA effectively extinguishes the 1948 deed restrictions, we base our decision to affirm the final judgment upon sections 712.02 and 712.03 of MRTA....

...___, 114 S.Ct. 1538, 128 L.Ed.2d 191 (1994). MRTA was enacted to simplify and facilitate land title transactions "by allowing persons to rely on a record title as described in s. 712.02 [Florida Statutes (1993)] subject only to such limitations as appear in s. 712.03 [Florida Statutes (1993)]." MRTA must "be liberally construed to effect [this] legislative purpose." § 712.10, Fla....

...Section 712.02 [4] provides that, when a record owner, alone or with its predecessors in title, has been vested with an estate in land of record for 30 years or more, such owner has marketable title free and clear of all claims except matters preserved by section 712.03. Section 712.03 provides in pertinent part: 712.03 Exceptions to marketability....

...e them unless specific identification by reference to book and page of record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such easement, use restrictions or other interests... . § 712.03(1), Fla. Stat. (1993). Thus, pursuant to section 712.03(1), the use restrictions created prior to the 1957 deed (the Town's root of title) [5] are extinguished by section 712.02 unless the use restrictions are disclosed and specifically identified in any muniment of title....

...Importantly, the 1957 deed does not contain the use restriction set forth in the 1948 deed, but instead only generally states that the conveyance is subject to easements, covenants, limitations, reservations, and restrictions of record. Because this language fails to comport with the requirements of section 712.03(1), the use restriction contained in the 1948 deed has not been preserved....

...tle, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03......

...Muniments of title include "deeds, wills, and court judgments through which a particular land title passes and upon which its validity depends." Cunningham v. Haley, 501 So.2d 649, 652 (Fla. 5th DCA 1986) (emphasis omitted). [7] We must decline Martin's invitation to create an exception to sections 712.02 and 712.03 for charitable donations created by deed because appellate courts do not possess the authority to rewrite a statute....

...Chapter 78-288, Laws of Florida, amended chapter 712 (marketable record title act, hereinafter referred to as MRTA), so as to provide that the MRTA should not affect or extinguish "[s]tate title to lands beneath navigable waters acquired by virtue of sovereignty." § 712.03(7), Fla....

...interests would be unconstitutional. In ITT Rayonier, Inc. v. Wadsworth, 346 So.2d 1004 (Fla. 1977), we rejected this argument. In the opinion we quoted with approval from ITT Rayonier v. Wadsworth, 386 F. Supp. 940, 943 (M.D.Fla. 1975) as follows: Section 712.03 delineates specifically the interests which are not subject to extinction by the Act, and the statutory interest of homestead beneficiaries which vested prior to the root of title is not among them....

...The legislature expressly directed that the act be liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record title "as described in s. 712.02 subject only to such limitations as appear in s. 712.03." § 712.10, Fla....

...e clearly intended for the MRTA to affect state properties as well as that of private citizens. The interests extinguished by the MRTA are described in section 712.04, Florida Statutes (1977), which reads as follows: Subject to the matters stated in s. 712.03, such marketable record title shall be free and clear of all estates, interests, *14 claims or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title....

...(Emphasis added.) One important exception for governmental entities is any right, title, or interest reserved in the patent or deed by which it parted with the title. Section sixteen lands, or school lands, could not be included in this exception or the exceptions to marketability listed in section 712.03, Florida Statutes (1977)....

...ugh eminent domain; otherwise, legal estoppel is applicable and bars the Trustees' claim of ownership, subject to rights specifically reserved in such conveyances. (Footnotes omitted). After Odom v. Deltona Corp., supra , subsection (7) was added to section 712.03, Florida Statutes (1977), so that state title to land beneath navigable waters acquired by virtue of sovereignty was excepted from the provisions of the MRTA....

...a notice of claim to the property during the thirty-year period, then all conflicting claims based upon any *15 title transaction prior to such thirty-year period are extinguished. The only exceptions to the MRTA not extinguished are those found in section 712.03 and 712.04, Florida Statutes (1977)....

...To so interpret the act would defeat its purpose and deprive the state of funds for the benefit and support of its school system. The portion of MRTA principally relied on by this Court's majority for its decision is section 712.04, Florida Statutes (1977), which reads as follows: Subject to the matters stated in s. 712.03, such marketable record title shall be free and clear of all estates, interests, claims or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title....

...ratory judgment action. The Marketable Record Titles to Real Property Act (act) is intended to simplify and facilitate land title transactions "by allowing persons to rely on a record title ... subject only to such limitations as appear in [section] 712.03[, Florida Statutes (1989)]." § 712.10, Fla. Stat. (1989). The act provides that a person "vested with any estate in land of record for 30 years or more" has "a marketable record title ... free and clear of all claims" except claims preserved by section 712.03....

...Townsend and Caruana argue that the act extinguishes the setback restriction because it is not specifically identified in the muniments of title beginning with the root of title. Homeowners argue that the muniments make the specific identification that section 712.03 requires and thus the restriction is preserved. The trial court granted and the district court affirmed summary judgment in favor of Townsend and Caruana. We quash the result below and answer the question in the negative. Section 712.03 provides: Exceptions to marketability....

...orded plat that imposed the restriction. The use restriction at issue here thus is preserved by these muniments. We therefore disagree with the courts below that the setback restriction is extinguished by the act. To so hold effectively reads out of section 712.03(1) the words: "unless specific identification by reference to ......

...er with his predecessors in title, has been vested with any estate in land of record for 30 years or more." § 712.02, Fla. Stat. Such a person shall have marketable record title clear of any claims other than seven exceptions expressly set forth in Section 712.03....

...1977). The Supreme Court in Marshall v. Hollywood, 236 So.2d 114, 119 (Fla. 1970), said: "The chief purpose of the (MRTA) is to extinguish stale claims and ancient defects against the title to real property." Subject to the exceptions contained in Section 712.03, the act clears all estates, interests, claims or changes, the existence of which depended upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title....

...The legislature adopted MRTA in 1963. Section 712.02, Florida Statutes (1963) provides that any person whose chain of title extends from any title transaction recorded over thirty years has a marketable record title free and clear of all claims except those in 712.03....

...Modrall, 286 So.2d 610 (Fla. 4th DCA 1973), cert. denied, 297 So.2d 562 (Fla. 1974). See also Odom, 341 So.2d at 989. Accord Starnes v. Marcon Investment Group, 571 F.2d 1369 (5th Cir.1978). After the supreme court decided Odom, the 1978 legislature amended section 712.03, Florida Statutes, to exempt state title to lands beneath navigable waters acquired by virtue of sovereignty. See § 712.03(7), effective June 15, 1978....

...ot sovereign in nature. Even assuming, arguendo, the lands were sovereignty lands, we cannot agree with the Trustees. Rather, we align ourselves with the view recently expressed by the Fifth District Court of Appeal. There our sister court held that section 712.03(7) does not apply retroactively even where the Trustees themselves wrongfully issued a deed at the "root of title" prior to the initial passage of MRTA in 1963....

...rded plat in each of two prior law actions (an action in 1964 or 1966), (2) that in the action in 1978 which became the case of Acopian v. Haley, supra , the then owners of lots in this subdivision were parties, and (3) that this is sufficient under section 712.03(1) to preserve the restrictions from being cleared and eliminated by section 712.02(1), Florida Statutes....

...Section 712.02(1), Florida Statutes, in effect provides that when any person and his predecessors in title have had an estate in land of record for thirty years or more, that person has a marketable record title free and clear of all claims except matters set forth in the exceptions in section 712.03. In this case, this means that section 712.02(1) clears the title of appellants of the land use restrictions unless those restrictions are preserved by section 712.03, which, in relevant part, provides as follows: Such marketable record title shall not affect or extinguish the following rights: (1) Estates or interests, easements and use restrictions disclosed by and defects inherent in the muniment...

...by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such easement, use restrictions or other interests; subject, however, to the provisions of subsection (5). (emphasis supplied) In effect section 712.03 provides that as to use restrictions created prior to appellants' respective roots of title the restrictions are extinguished by section 712.02(1), Florida Statutes, unless the use restrictions are disclosed and specifically identified...

...proceedings sufficiently identified appellants' lots as to give them or their predecessors in title actual notice that the restrictions were valid and binding. Appellees' argument misses the point of the Marketable Record Title Act and misconstrues section 712.03(1), Florida Statutes....

...tue of being parties in prior litigation relating to the validity of the restrictions in 1978 as to lots 24-27. This case does not remotely involve the effect of "notice" (actual or constructive) of facts on the title of good faith purchasers. Under section 712.03(1), Florida Statutes, actual notice does not suffice to protect use restrictions created prior to a root of title from being extinguished by section 712.02(1), Florida Statutes. The material question is: Do muniments in the chain of title since the root of title disclose the use restrictions by specific reference so as to meet the provisions of *652 section 712.03(1) and thereby preserve the restrictions from being extinguished by section 712.02(1)? When applicable, section 712.02(1), Florida Statutes, simply clears basic titles of all adverse, limiting, or competing claims, estates, interests,...

...ook and page of record or name of recorded plat) a recorded title transaction which imposed, transferred, or continued such easement or use restrictions. The two law actions referred to by appellees do not fall within the proviso in the exception in section 712.03(1) for two reasons....

...Second, assuming each of the two law actions constitutes a "title transaction" within the definition in section 712.01(3), and "affected" the lots owned by appellants and "imposed, transferred or continued" the use restrictions, nevertheless, the two law actions are not effectual to comply with section 712.03(1) because they are not specifically identified (by reference to book and page of record or otherwise) in any muniment of title in the chain of title to appellants' lots since the root of title in those chains of title, as is required by the words "be made therein" contained in section 712.03(1), Florida Statutes....

...serving and protecting claims, rights, and interests adverse to the one record title made marketable by the act. See § 712.05(1), Fla. Stat. See also Holland v. Hattaway, 438 So.2d 456 (Fla. 5th DCA 1983). It is the intent of sections 712.02(1) and 712.03(1), that easements and use restrictions *653 and other estates, interests, and claims created prior to the root of title be extinguished by section 712.03(1), Florida Statutes, unless those matters are filed under section 712.05(1) or unless, as provided in section 712.03(1), after the date of the root of title, some muniment of title refers specifically (which specific reference must be by book and page of record or by name of a recorded plat [if the easements and use restrictions, etc., are shown on t...

...ains of title since the date of the roots of title in each chain of title. Therefore the restrictive covenants in this case do not fall within the proviso as to restrictions predating the root of title contained in the Exceptions to Marketability in section 712.03(1), Florida Statutes, and were extinguished by section 712.02(1), Florida Statutes, thirty years from the date of recording of the root of title in the chain of title of each of the lots owned by appellants....

...[5] At the conclusion of a non-jury trial, Judge Carlisle found that FDOT's claim to the eleven foot strip was "extinguished by virtue of the operation of Florida Statutes Chapter 712." He also found that FDOT's claim did "not fall within any exceptions to marketability provided for in F.S. 712.03." Judge Fine had earlier noted, when he heard and denied FDOT's motion for summary judgment, that subsections (1), (2), and (4) of section 712.03 all included the term "estates," but, by contrast, subsection (5) did not include that term....

...ssors, "... has been vested with any estate in land of record for 30 years or more, shall have a marketable title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03." Section 712.03 lists the rights that the MRTA "shall not affect or extinguish." Subsection (5), in pertinent part, provides: Recorded or unrecorded easements or rights, interest or servitude in the nature of easements, rights-of-way and terminal faci...

...rnmental agency, so long as the same are used and the use of any part thereof shall except from the operation hereof the right to the entire use thereof.... *123 Because the County did not have an easement or right-of-way over the fifty foot parcel, section 712.03(5) would not apply....

...ANSTEAD, J., dissents with opinion. ANSTEAD, Judge, dissenting. I respectfully disagree with both of the conclusions in the majority opinion. In my view, the government claim to the property is protected by the exception to the Marketable Record Title Act set out in section 712.03(5), and the law and the proof will not support an "estoppel" to divest the government of the property....

...In 1963, the legislature adopted the Marketable Record Title Act, section 712.02, Florida Statutes (1963), which provides that any person whose chain of title extends from any title transaction recorded over thirty years has a marketable record title free and clear of all claims, with the exception of those set forth in section 712.03....

...rporting to create or transfer the estate claimed by appellee which was the last title transaction recorded at least thirty years prior to the time of the inquiry, and (2) whether the rights asserted by appellant were within one of the exceptions in section 712.03, Florida Statutes. The 1906 deed from appellant to appellee's remote grantor constitutes appellee's root of title and satisfies the first issue. As to the second issue, from 1963 until it was amended effective June 15, 1978 (Ch. 78-288 § 1, Laws of Florida), section 712.03 contained no exception as to sovereignty lands. Appellant argues that the 1978 amendment, § 712.03(7), Fla....

...[2] Appellant also presented and argued that certain consent decrees in unrelated litigation constituted a claim in favor of the State recorded subsequent to the effective date of appellee's root of title and, therefore, constituted an exception under section 712.03(4)....

...See Fla.R.App.P. 9.330(d). ADKINS, Acting C.J., and BOYD, McDONALD and EHRLICH, JJ., concur. OVERTON, J., dissents with an opinion. OVERTON, Justice, dissenting. I dissent. I find that this Court has mandatory jurisdiction because the district court declared section 712.03(7), Florida Statutes (1979), to be unconstitutional in its retroactive application....

...The record below does not indicate such notice was filed. AFFIRMED. GRIMES, C.J., and CAMPBELL, J., concur. NOTES [1] See Commentary, The Public Trust Doctrine and Ownership of Florida's Navigable Lakes, 29 U.Fla.L.Rev. 730 (1977). These lands were in 1978 excepted from the operation of MRTA by statute. Section 712.03(7), Florida Statutes (1979). [2] We note that none of the exceptions set forth in Section 712.03 were claimed by appellants.

...in land of record for a period of thirty years or more, he or she shall have the marketable record title to that estate. § 712.02. The statute then goes on to provide that the act would not extinguish competing rights under certain exceptions. See § 712.03....

...It can, under the marketable title acts, form a root of title which may eventually cut off the interest of a person who might otherwise' have a claim.” (quoting Wilson v. Kelley, 226. So.2d 123, 127 (Fla. 2d DCA 1969))). The next step in applying MRTA is to determine whether any of the exceptions stated in section 712.03 apply to preclude the statute’s application....

...ate of the root of title — July 9, 1952— but within the thirty-year period — which would have expired July 9, 1982. 8 Accordingly, the Lehmanns argued below *294 that both of these recordations met the requirement of the exception specified in section 712.03(4) and that therefore MRTA did not transform the 1952 Boyd/ CBA deed into evidence of marketable title....

...The final judgment, however, does not consider the 1958 recor-dation of the Thomas/Thomas deed. This was an oversight by the trial court. Because the Thomas/Thomas deed was recorded after the 1952 recording of CBA’s “root of title,” the exception to MRTA in section 712.03(4) is triggered....

...This recording date was not thirty years prior to the filing of the quiet title action on August 15, 2012, and by statutory definition could not serve as a root of title under MRTA. . It does not go without notice that the July 8, 1982, Lehmann/Lehmann deed was recorded on the last day of the thirty-year period. . Section 712.03(4) states that marketable record title does not affect “[e]states, interests, claims, or charges arising out of a title transaction which has been recorded subsequent to the effective date of the root of title.” . Because the application of MRTA is precluded by the exception in section 712.03(4) implicated by the 1953 Thomas/Thomas deed, we need not determine the efficacy of the 1982 Lehmann/Lehmann deed.

...ontained in Sunshine Vistas' plat. We disagree. The express purpose of the Act is to simplify and facilitate "land title transactions by allowing persons to rely on record title as described in s. 712.02 subject only to such limitations as appear in s. 712.03." Section 712.10, Fla....

...Section 712.02, Florida Statutes (1989), "in effect provides that when any person and his predecessors in title have had an estate in land of record for thirty years or more, that person has a marketable record title free and clear of all claims except matters set forth in the exceptions in section 712.03." Cunningham v. Haley, 501 So.2d 649, 651 (Fla. 5th DCA 1986). Section 712.03, Florida Statutes (1989), provides in pertinent part as follows: Exceptions to marketability....

...nce to book and page of record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such easement, use restrictions or other interests; ... Section 712.02, Fla. Stat. (1989). Pursuant to Section 712.03, use restrictions which were created prior to the root of title are not preserved unless a muniment of title in the chain of title specifically discloses the restriction or a general reference to the restriction is identified "by reference to book and page of record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such ... use restriction." Section 712.03, Fla....

...In the instant case, two of the muniments of title in Townsend's chain of title were made subject to restrictions of record. This general reference to restrictions of record failed to identify the restrictions by the record title transaction which imposed, transferred or continued the use restrictions, as required by Section 712.03....

...has been vested with any estate in land of record for thirty years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in § 712.03....

...vesting of some estate or interest in a person claiming the benefit of the act." Thus, by virtue of the Florida Marketable Title Act, the defendants' claims have been extinguished, unless their interests are among those protected from extinction by Section 712.03 of the Act. *943 Section 712.03 delineates specifically the interests which are not subject to extinction by the Act, and the statutory interest of homestead beneficiaries which vested prior to the root of title is not among them....

...ept therefrom such interests of persons claiming under the homestead statute (now F.S.A. § 731.27). See Marshall v. Hollywood, Inc., Fla.App.1969, 224 So.2d 743, 750, where the Court said: ". . . The specific enumeration of exceptions to the act in Section 712.03 and the specific provision in Section 712.05 for the protection of valid claims indicates a legislative intent to exclude no other claims from extinction by the operation of Sections 712.02 and 712.04." To adopt the defendants' content...

...Florida Supreme Court in Marshall v. Hollywood, Inc., ". . . to simplify and facilitate land title transactions by allowing persons to rely on a record title as described by F.S. § 712.02, F.S.A., subject only to such limitations as appear in F.S. § 712.03, F.S.A." The defendants rely on the case of Reid v....

...notice that it was in violation of potential homestead rights. Thus, the root of title was considered to have had inherent defects which, of course, are items not extinguished by the Act when they appear in the root of title or deeds thereafter. See Section 712.03....

...record title to such estate in said land of record for thirty years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in § 712.03....

...appeal, the Matisseks argue the circuit court misapplied the MRTA because the 1977 amended restrictions could not stand alone and the original 1971 restrictions could only be preserved through specific identification in the muniments of title under section 712.03(1) or by recording a proper notice under sections 712.03(2), 712.05, and 712.06, which was never done....

...City of Pinellas Park, 887 So.2d 1224, 1227 (Fla. 2004). To effectuate this legislative purpose, section 712.10 requires the MRTA "be liberally construed . . . by allowing persons to rely on a record title as described in [section] 712.02 subject only to such limitations as appear in [section] 712.03." Section 712.02, titled "Marketable record title; suspension of applicability," provides: Any person having the legal capacity to own land in this state, who, alone or together with her or his predecessors in title, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in [section] 712.03. Similarly, section 712.04, titled "Interests extinguished by marketable record title," provides: Subject to the matters stated in [section] 712.03, such marketable record title shall be free and clear of all estates, interests, claims, or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title. Subsection (1) of the exceptions listed under section 712.03 states: Such marketable record title shall not affect or extinguish the following rights: (1) Estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is base...

...The circuit court also found that the 1971 restrictions, which predated the 1974 root of title, were extinguished by the MRTA in accordance with section 712.04. We agree with the circuit court's determination because there is nothing in the record which would provide an exception to the marketability under section 712.03....

...Standing alone, the 1974 indenture was insufficient to preserve the 1971 restrictions because the indenture's vague provision that the conveyance was "[s]ubject to easements and restrictions of record" did not comply with the "specific identification" language of section 712.03(1)....

...c records where the title transaction that imposed the restriction can be found, or (2) by reference to the name of a recorded plat that imposed the restriction." Sunshine Vistas Homeowners Ass'n v. Caruana, 623 So.2d 490, 491-92 (Fla.1993) (quoting § 712.03(1), Fla....

...or been found simply inapplicable to their property pursuant to Berger v. Riverwind Parking, LLP, 842 So.2d 918 (Fla. 5th DCA 2003). We agree that the 1977 amended restrictions, just like the 1971 restrictions, *630 do not provide an exception under section 712.03 that would prevent HLEI's interest in the property from being extinguished under section 712.04. The 1977 amendments address revisions to the 1971 restrictions and do not concern a chain of title to any property, let alone the Matisseks' property. Thus, the amendments are not considered to be "muniments of title," and subsection 712.03(1) is inapplicable. [7] Similarly, the 1977 amendments do not apply under subsection 712.03(4) because the amendments are not "title transactions" as defined in section 712.01(3), [8] and the legislature did not intend that a covenant or restriction be considered an estate, interest, claim, or charge affecting title. See Berger, 842 So.2d at 922 (noting the legislature's purposeful distinction between "estates, interests, claims or charges" and "covenants or restrictions" in subsection 712.03(2))....

...The Fifth District determined in Berger that the MRTA extinguished all limitations imposed by the initial restrictions recorded in September 1957 as to lots 7 and 8 (and as to some of the other lots) because the limitations were over thirty years old, predated the root of title, and did not fall under any exception in section 712.03....

...Likewise, it is hard to see in this case how the Matisseks would have known of the masonry restriction under provision (9) because the 1974 root of title and the subsequent title transactions to Mr. Covert, RDC, the Cowards, and Ms. Rice fail to comply with the "specific identification" language of subsection 712.03(1)....

...[5] The circuit court did not differentiate between Amendments 1 and 2 in its findings. [6] Though the circuit court did not address the Matisseks' other argument concerning the failure of any interested party to file a proper notice under sections 712.03(2), 712.05, and 712.06 to preserve the original 1971 restrictions, we observe that there was no evidence in the record indicating any recorded notice that would have satisfied the requirements of these sections....

...Whether MRTA Applies To Extinguish The Easement “Section 712.02 of MRTA expressly provides that any person vested with any estate in land of record for thirty years or more shall have a marketable record title free and clear of all claims of an interest in land except those preserved by section 712.03 ....” H & F Land, Inc....

...ce or devise of realty, when given or reserved for the purpose of mining, drilling, exploring, or developing for oil, gas, minerals, or fissionable materials, unless those rights of entry or easement are excepted or not affected by the provisions of s. 712.03 or s....

...It is important to emphasize that the trial court’s order granting partial summary judgment only holds that the easement is extinguished by MRTA, not the actual oil and mineral rights owned by Noblin. The exceptions to MRTA that may be pertinent to the instant case are found' in section 712.03(1), Florida Statutes, relating to easements disclosed in the muniments of title and section 712.03(5), Florida Statutes, relating to prior use of the easement by Noblin and her predecessors in title. We must next determine whether these exceptions apply. The exception under section 712.03(1) preserves “[ejstates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which an estate is based beginning with the root of title .... ” § 712.03(1), Fla....

...The partial summary judgment shows the trial court did not resolve this particular issue. Because this issue raises questions of law and fact that need to be resolved by the trial court, the partial summary judgment rendered in favor of Harbor Hills and Schell must be reversed. Noblin argues that the use exception found in section 712.03(5), Florida Statutes (2002), applies to salvage her easement....

...TA are “[r]ecorded or unrecorded easements or rights, interests or servitude in the nature of easements ... so long as the same are used and the use of any part thereof shall except from the operation hereof the right to the entire use thereof.” § 712.03(5), Fla....

...property’s use. Rather, Owner argues that, while the restrictive zoning covenant might have been contemplated by the zoning 7 The provisions of MRTA particularly relevant to this appeal are: (i) section 712.01, which provides definitions; (ii) section 712.03, which delineates nine sets of rights that are exempt from extinguishment by MRTA; and (iii) section 712.04, which supplies the operative language nullifying certain stale interests and claims in property....

...process, the subject covenant is neither a zoning regulation nor a development order. Owner argues that the covenant, irrespective of its genesis, is a use restriction that plainly falls within MRTA’s embrace. Chapter 712 mentions “use restrictions” only in section 712.03(1), which provides an exception to extinguishment if a use restriction is in the muniments of title beginning with the root of title. Because the subject use restriction was recorded in 1968, prior to the root of title, Owner asserts that the covenant must be extinguished, for it was not identified in a post-root muniment of title and it was not preserved. § 712.03(1), Fla....

...l restrictive covenant constitutes a “claim” under section 712.02, or whether the 12  Reversed and remanded. restrictive zoning covenant in this case is delineated as an exception to MRTA under section 712.03. 12 We do not quarrel with the trial court’s implicit determination that, given the County’s unbending construction of the subject restrictive covenant, it would have been futile to require Owner to exhaust administrative remedies before filing the instant lawsuit....

...Euro-Holland Vastgoed, 404 *328 So.2d 410 (Fla. 4th DCA 1981), we nevertheless cannot agree with appellant that its claim is to be treated differently than any other claim of an interest in land which does not fall within one of the enumerated exceptions to MRTA, see section 712.03; and which has not been timely asserted under MRTA....

...Clipper Bay asserts the trial court erred in extinguishing only a portion of Florida Department of Transportation’s (FDOT) pre-root claim of a fee estate in the land pursuant to the Marketable Record Title Act (MRTA). FDOT asserts that the exception contained in section 712.03(5), Florida Statutes (2008), which preserves easements and rights-of-way, precluded Clipper Bay from extinguishing any portion of FDOT’s interest in the land....

...the land which was conveyed; (2) MRTA did not extinguish FDOT’s fee estate because a post-root mu-niment of title in Clipper Bay’s chain of title specifically confirmed FDOT’s estate; and (3) the exception for easements and rights-of-way under section 712.03(5) precluded any portion of FDOT’s estate from being extinguished under MRTA. We find no merit in the first two points raised by FDOT in the cross-appeal and affirm without further discussion. In order to resolve the issue on appeal and the third issue on cross-appeal, it is necessary *9 for us to determine whether section 712.03(5) applies to FDOT’s fee estate....

...FDOT also alleged that it had used a portion of the contested seven acres during the last thirty years by leasing a portion of it to Santa Rosa County for the purpose of constructing a county road. Therefore, FDOT argued, the entire parcel of land was exempt from MRTA under the right-of-way exception in section 712.03(5)....

...ted land, which lies north of the Interstate 10 fence line. After trial, the court issued an order and final judgment finding Clipper Bay established a valid root of title; however, a portion of the land was excepted from the operation of MRTA under section 712.03(5)....

...Both Clipper Bay and FDOT argue the trial court erred in using the unrecorded map as the determining factor as to what, if any, title was extinguished under MRTA. The parties also agreed at oral argument that the heart of the dispute is whether the exception to MRTA contained in section 712.03(5) can be applied to the disputed property....

...except the seven acres from MRTA. Specifically, Clipper Bay argues the trial court erred by (1) failing .to apply the interpretive principles that guide the construction and application of MRTA; (2) failing to acknowledge that the plain language of section 712.03(5) does not apply to fee estates; (3) misconstruing FDOT v....

...tle, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s.712.03....

...Further, MRTA states that its provisions should be liberally construed: This law shall be liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record title as described in s.712.02 subject only to such limitations as appear in s.712.03....

...“Creating judicial exceptions to this comprehensive legislative scheme would undermine the core purpose of MRTA of providing stability to property law by requiring that all claims to an interest in property be recorded.” Id. at 1172-73. 2. Exceptions to Marketability Under section 712.03(5), Florida Statutes Clipper Bay argues the trial court correctly found it established a valid root of title, entitling it to a marketable title under MRTA. However, Clipper Bay argues the trial court erred in finding a portion of FDOT’s fee estate was excepted from MRTA under section 712.03(5), which preserves pre-root easements and rights-of-way. Section 712.03(5) states: 712.03....

...hts-of-way, and terminal facilities. However, nothing herein shall be construed as preserving to the mortgagee or grantee of any such mortgage or deed of trust or any supplement thereto any greater rights than the rights of the mortgagor or grantor. § 712.03, Fla. Stat. (emphasis added). Clipper Bay argues that the plain language of subsection (5) pertains to easements and rights-of-way, not fee estates. Clipper Bay notes that “easement” and “right-of-way” are not defined by section 712.03....

...2003) (citations and quotation marks omitted). (Emphasis added). FDOT argues that if any other statute had defined the term at issue, the supreme court would have deferred to that definition rather than consulting the dictionary. FDOT also argues that interpreting section 712.03(5) to protect only easements and rights-of-way rather than the larger possessory interests in land owned in fee is unreasonable and conflicts with the statement from this court that “[t]he statute should be broadly construed, accordi...

..., as intended to protect public rights to the extent permissible under our organic law.” City of Jacksonville v. Horn, 496 So.2d 204, 208 (Fla. 1st DCA 1986). 3. Dardashti, Davidson, and Horn Two cases discuss the issue of whether the exception in section 712.03(5) can apply to land held in fee title: Florida Department of Transportation v....

...rough a deed recorded in 1917. 605 So.2d at 121 . Palm Beach County later deeded its interest in the land to FDOT. Id. Dardashti subsequently claimed an eleven-foot strip of this land by operation of MRTA. Id. at 122 . However, FDOT claimed that the section 712.03(5) exception applied to defeat the MRTA claim....

...r a determinable fee interest, we hold that the County received fee title to the fifty foot parcel. Dardashti, 605 So.2d at 122 . Thus, the court concluded, “[b]ecause the County did not have an easement or right-of-way over the fifty foot parcel, section 712.03(5) would not apply.” Id....

....’ ” Id. at 526 . Another parcel did not contain a reservation of the District’s interests in the root of title; however, a pre-root document did contain a “reservation for the canal easements in favor of the District.” Id. The court found section 712.03(5) excludes from MRTA “ ‘[Recorded or unrecorded easements or ......

...d. at 526 (emphasis added). Thus, the court concluded: Since the District is a political subdivision of the State of Florida, the District’s rights-of-way have not been extinguished under Florida law if at least part of the easement has been used. § 712.03(5), Fla....

...Hence, the rights-of-way have not been extinguished under MRTA. See Fla. Dep’t of Transp. v. Dardashti Props., 605 So.2d 120 (Fla. 4th DCA 1992), rev. denied, 617 So.2d 318 (Fla. 1993).” Id. at 526-27. Dardashti directly stands for the proposition that the exception in section 712.03(5) cannot apply to land held in fee by the government. Davidson , on the other hand, is confusing because it applies the section 712.03(5) exception to land held in fee by a governmental entity; however, the court also appears to rely on reservation language contained in deeds to the private property owners. It is also unclear why Davidson cites to Dardashti in upholding the governmental interest where the Dardashti case denied the government’s claim that the 712.03(5) exception applied to land held in fee title....

...In the instant case, it is undisputed that FDOT claimed fee title and utilized a portion of the original land conveyance for right-of-way purposes. Horn , however, does confront the problem facing this court, which is to reconcile the language in section 712.10 mandating the liberal construction of MRTA with the section 712.03(5) exception, along with the public policy “that rights or easements once acquired for the use and benefit of the public are not easily lost or surrendered.” 496 So.2d at 208 . A Application of Section 712.03(5), Florida Statutes We determine that section 712.03(5) is ambiguous as to whether it can be applied to protect the public rights of land held in fee. This ambiguity is evidenced by the apparently conflicting decisions of the Fourth District in Dardashti and the Fifth District in Davidson . It is, therefore, necessary for us to construe the statutory exception. The clear impart of section 712.03(5) is to protect land utilized for easements or rights-of-way....

...subject to total forfeiture pursuant to MRTA. For instance, the original conveyance to FDOT of the fee title in the instant case included the land presently lying beneath Interstate 10. While appellant is not claiming this land, if the exception in section 712.03(5) did not apply to land held in fee, then this land would be potentially subject to forfeiture pursuant to MRTA....

...ns: (1) it is legislative recognition that land utilized for right-of-way by the government may be held in fee title; (2) it indicates that many governmental rights-of-way may be held in fee title; and (3) it provides a definition that is lacking in section 712.03(5)....

...not have import for issues related to the subject of the transportation code. The effect of other statutory provisions on the ability of FDOT to maintain title to its rights-of-way is just such a situation. We, therefore, reject the proposition that section 712.03(5) cannot be applied to rights-of-way held by FDOT in fee. 5. The Extent of FDOT’s Right-of-way Having determined that section 712.03(5) can apply to protect rights-of-way held in fee, we must consider whether FDOT demonstrated the land at issue was a part of its Interstate 10 right-of-way. As discussed above, section 334.03(22) limits the definition of right-of-way to land “devoted to or required for use as a transportation facility.” Further, section 712.03(5) states “the use of any part” of a right-of-way “shall except from the operation hereof the right to the entire use thereof.” However, upon review of the record, we find FDOT failed to present competent, substantial evidence...

...reme Court that “a core concern of MRTA was that there be no hidden interests in property that could be asserted without limitation against a record property owner.” H & F Land, 736 So.2d at 1172 . We agree. Conclusion In conclusion, we hold section 712.03(5) applies to land held in fee for the purpose of right-of-way....

...a. Stat. § 712.01, et seq. ("MRTA"). The MRTA provides that any person vested with any estate in land of record for thirty years or more shall have a marketable record title free and clear of all claims of an interest in land. Fla. Stat. § 712.02. Section 712.03 of the Act contains several exceptions to this provision, including "estates, interests, claims, or charges, or any covenant or restriction, preserved by the filing of a proper notice in accordance with the provisions hereof." Fla. Stat. § 712.03(2)....

...Section 627.7845(1) of the Florida Statutes merely requires a title insurer to perform a “reasonable title search” before issuing a title *110 insurance “commitment, endorsement, or policy.” Section 712.04 of the MRTA states that “[sjubject to s. 712.03, 3 a marketable record title is free and clear of all estates, interests, claims, or charges, the existence of which depends upon any act, title transaction, event, or omission that occurred before the effective date of the root of title.” § 712.04, Fla....

...Any defect in or lien or encumbrance on such title; 3. Lack of a right of access to and from the land; or 4. Unmarketability of such title, (emphasis added) Village Carver argues that coverage exists under the second and fourth bolded coverage clauses. . Section 712.03 exempts from the provisions of the MRTA estates, interests, easements and use restrictions filed after the date of the root of title, renewals of previously filed deeds or muniments of title; public utility easements and rights of way...

...has been vested with any estate in land of record for thirty years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claim except the matters set forth as exceptions to marketability in Section 712.03." Section 712.02. Section 712.03 lists the rights that are not extinguishable by the marketable record title. Among the rights that are not extinguished are estates or interests "... arising out of a title transaction which has been recorded subsequent to the effective date of the root of title." Section 712.03(4)....

...Appellee Blocker contends that the probate of R.S. Hall's estate in 1919 was a court proceeding affecting title to the subject phosphate, mineral and oil interest which occurred subsequent to the date of the root of title, and therefore the interest is preserved pursuant to Section 712.03(4)....

...inventory of real estate be filed in estate proceedings. Since the probate of R.S. Hall's estate was a title transaction recorded subsequent to Kittrell's root of title, the phosphate, minerals and oils interest was preserved from extinguishment by Section 712.03(4). Appellant suggests that we construe "title transaction" to require the description of the land it purports to affect and that this would be consistent with the provisions of Sections 712.03(1) and 712.06(1)(c) which require an accurate description of the land or interest involved. This is a persuasive and appealing argument but we may not supply that which the legislature did not choose to include in Sections 712.01(3) and 712.03(4)....

BARKETT, Justice. We have for review Board of Trustees of the Internal Improvement Trust Fund v. Stevens, 472 So.2d 1287 (Fla. 2d DCA 1985). The Second District certified the following question as being of great public importance: Can section 712.03(7) [Florida Statutes (Supp.1978) ] be applied retroactively? Id....

...In July 1983, respondents filed a quiet title action alleging that the Marketable Record Title Act (MRTA) extinguished the state’s title in the lands in question. The state maintained the lands were sovereignty lands exempt from MRTA by virtue of section 712.03(7)....

...Our recent decision in Coastal Petroleum Co. v. American Cyanamid Co., 492 So.2d 339 (Fla.1986), moots the question certified in this case. In Coastal Petroleum, we held that the Marketable Record Title Act, chapter 712, Florida Statutes, as originally enacted and subsequently amended by section 712.03(7) in 1978, is not applicable to sovereignty lands. Thus, we need not decide whether section 712.03(7) can be applied retroactively....

...The court properly, although not necessarily for the reasons expressed, found that White Sands was entitled to access to its property and that the fifteen foot easement had not been extinguished by the Marketable Record Title Act (MRTA), chapter 712, Florida Statutes (1987). Section 712.03(5) excepts recorded or unrecorded easements from ex-tinguishment if they are used....

estate claimed. § 712.02, Fla.Stat. (1975). Section 712.03 lists the interests that are not extinguishable

...The clear Leg *120 islative intention behind the Act, as expressed in F.S. § 712.10, F.S.A., was to simplify and facilitate land title transactions by allowing persons to rely on a record title as described by F.S. § 712.02, F.S.A., subject only to such limitations as appea'r in F.S. § 712.03, F.S.A....

...This instrument does not by its terms impose any new restrictions and it is insufficient to reimpose the original restrictions by reference for the same reason that the earlier amended restrictions did not do so. It does not meet the requirement of section 712.03(1) to refer by book and page number to the instrument “which imposed, transferred or continued such ......

...restrictions are extinguished by MRTA, the amended restrictions do not affect these lots. Finally, the landowners contend that an exception exists which prevents MRTA from applying to the restrictions *922 recorded after the root of title. They cite section 712.03(4) Fla....

...ctions and the amendment to restrictions meet this definition, MRTA does not extinguish them. First, we do not believe the legislature intended that a covenant or restriction be considered an estate, interest, claim, or charge affecting title. In subsection 712.03(2), the legislature distinguished between “estates, interests, claims or charges” and “covenants or restrictions.” Further, even if restrictions fall within subsection 712.03(4), we believe that to be a “title transaction,” the instrument must not only affect title but must also be within the chain of title of the property involved....

...[A]ctual notice does not suffice to protect use restrictions created prior to a root of title from being extinguished by section 712.02(1), Florida Statutes. The material question is: Do muniments in the chain of title since the root of title disclose the use restrictions by specific reference so as to meet the provisions of section 712.03(1) and thereby preserve the restrictions from being extinguished by section 712.02(1)? ....

...We find that the amendment to the restrictions does not reimpose the initial restrictions because, even though it refers to the original replat by book and page number, it does not so refer to the instrument creating the original restrictions. The replat imposed no restrictions. See section 712.03(1), Fla....

...Santa Rosa County under the Marketable Record Title Act (MRTA). The Florida Department of Transportation (DOT) claimed a fee estate for the purpose of establishing a right-of-way, and argued that, as such, the property was exempt from the MRTA under section 712.03, Florida Statutes (2008)....

...The First District Court of Appeal found that DOT failed to present competent, substantial evidence that it maintained a right-of-way and reversed the trial court’s final judgment. Before this Court, the parties now agree that the exceptions provided in section 712.03 may apply to rights-of-way held in fee....

...Clipper Bay asserts the trial court erred in extinguishing only a portion of Florida Department of Transportation’s (FDOT) pre-root claim of a fee estate in the land pursuant to the Marketable Record Title Act (MRTA). FDOT asserts that the exception contained in section 712.03(5), Florida Statutes (2008), which preserves easements and rights-of-way, precluded Clipper Bay from extinguishing any portion of FDOT’s interest in the land....

...the land which was conveyed; (2) MRTA did not extinguish FDOT’s fee estate because a post-root muniment of title in Clipper Bay’s chain of title specifically confirmed FDOT’s estate; and (S) the exception for easements and rights-of-way under section 712.03(5) precluded any portion of FDOT’s estate from being extinguished under MRTA....

...FDOT also alleged that it had used • a portion of the contested seven acres during the last thirty years by leasing a portion of it to Santa Rosa County for the purpose of constructing a county road. Therefore, FDOT argued, the entire parcel of land was exempt from MRTA under the right-of-way exception in section 712.03(5)....

...ted land, which lies north of the Interstate 10 fence line. After trial, the court issued an order and final judgment finding Clipper Bay established a valid root of title; however, a portion of the land was excepted from the operation of MRTA under section 712.03(5)....

...The First District reversed, holding: *862 We find no merit in the first two points raised by FDOT in the cross-appeal and affirm without further discussion. In order to resolve the issue on appeal and the third issue on cross-appeal, it is necessary for us to determine whether section 712.03(5) applies to FDOT’s fee estate....

...the land claimed by Clipper Bay. Id. at 8-9 . DISCUSSION The issue in this case is whether the Circuit Court of the First Judicial Circuit in and for Santa Rosa County and the First District Court of Appeal properly applied the exception provided in section 712.03, Florida Statutes, to the land held in fee by DOT....

...idence that the land at issue was ever devoted to or required for part of its Interstate 10 right-of-way.” Id. at 15 . We agree with the First District that the form of title is not dispositive, but also find that the plain language of subsections 712.03(1) and (5) requires finding DOT’s entire fee estate excepted from the MRTA because the undisputed facts demonstrate that DOT used part of its estate for a lease to Santa Rosa County to maintain a county road....

...tle, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03....

...e attempted acts which would be otherwise ineffective for the purpose the parties intended. They operate to complete a transaction which the parties intended to accomplish but carried out imperfectly- St. Joe Paper Co., 364 So.2d at 442 . Subject to section 712.03, a marketable record title is free and clear of all estates, interests, claims, or charges, the existence of which depends upon any act, title transaction, event, or omission that occurred before the effective date of the root of title. § 712.03, Fla....

...Clipper Bay claims as its root of title 1 a warranty deed from Julio and Sue DeJoris to Escambia Shores, Inc., recorded March 17, 1970. Clipper Bay’s root of title provides it with marketability unless DOT can demonstrate an exception. Exceptions to the MRTA The only exceptions to the MRTA are provided in section 712.03....

...terminal facilities. However, nothing herein shall be construed as preserving to the mortgagee or grantee of any such mortgage or deed of trust or any supplement thereto any greater rights than the rights of the mortgagor or grantor. [[Image here]] § 712.03, Fla....

...Schaefer then conveyed his land to Dar-dashti in 1979, and Dardashti paid property taxes on the land. In 1989, Palm Beach County conveyed the entire fifty-foot parcel to DOT who constructed improvements over the eleven-foot strip. At the conclusion of a non-jury trial, the trial judge found that section 712.03(5) did not extend an exception to an “estate” and thus did not apply to a right-of-way in fee....

...through a single recorded deed from Julio DeJoris and others in 1965.” Id. at 9 . Applying the definition of “right-of-way” contained in section 334.03(22), Florida Statutes (2008), the First District rejected Clipper Bay’s assertion that “section 712.03(5) cannot be applied to rights-of-way held by FDOT in fee.” Clipper Bay, 117 So.3d at 15 ....

...the title is actually held.” Clipper Bay, 117 So.3d at 14 . We consequently turn to the question of whether DOT’s fee estate qualifies for exception from the MRTA. Application of the Exceptions A marketable record title that is established under section 712.03, Florida Statutes, does not affect or extinguish: (1) Estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title; prov...

...to book and page of record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such easement, use restrictions or other interests; subject, however, to the provisions of subsection (5). § 712.03, Fla....

...Citing the Act, we stated that “a thirty-one-year-old restriction is preserved if the root of title or a subsequent muniment contains a ‘specific identification’ to a recorded title transaction that imposed, transferred, or continued the restriction.” Sunshine Vistas, 623 So.2d at 491 (citing § 712.03(1), Fla....

...ecember 7, 1987, at Book 920, Page 06 of the Santa Rosa County Records, and specifically references DOT’s property interest sufficiently to provide notice to Clipper Bay. 3 Accordingly, we find that DOT’s interest is preserved and excepted under section 712.03(1)....

...se that (for road purposes) it must be inconsistent with the owner’s use and enjoyment of his own lands, and not a permissive use”). Therefore, in accordance with existing caselaw, DOT has established its entitlement to the exception provided in section 712.03(5) for its entire fee estate....

...Section 712.02, Florida Statutes (2015), 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....

...f all estates, interests, claims, or charges, the existence of which depends upon any act, title transaction, event, or omission that occurred before the effective date of the root of title" unless it comes within one of the exceptions set out in section 712.03.3 Otherwise, the statute declares the interest to be "null and void." § 712.04; see also Matissek, 51 So....

... It is undisputed that the restrictions applicable to the Lydays' lot in Unit II predate the Lydays' root of title and that they are more than thirty years old. Thus, they are "null and void" unless they fall within one of the exceptions contained in section 712.03. See §§ 712.02, .04; Matissek, 51 So. 3d at 629; Berger v. Riverwind Parking, LLP, 842 So. 2d 918, 922 (Fla. 5th DCA 2003). The Association acknowledges that the exception provided for in section 712.03(1), which exempts interests created prior to the root of title if they are specifically identified in subsequent muniments of title, is inapplicable to the Lydays' lot. Instead, the Association relies on section 712.03(2), which exempts "[e]states, interests, claims, or charges, or any covenant or restriction, preserved by the filing of a proper notice in accordance with the provisions hereof." Section 712.05(1) sets forth the method for preserving a claim pursuant to section 712.03(2): A person claiming an interest in land or a homeowners' association desiring to preserve a covenant or restriction may preserve and protect the same from extinguishment by the...

...Matissek, 51 So. 3d at 629 n.6. We reject the Association's contention that its untimely preservation notice can breathe life back into its restrictions after they are extinguished by MTRA. To come within the exception set forth in section 712.03(2), a party must file a "proper notice in accordance with the provisions hereof." A notice that is not filed within the thirty-year period is not in accordance with section 712.05(1)....

so long as such person is in such possession." § 712.03(3), Florida Statutes (2011). Based on the foregoing

so long as such person is in such possession." § 712.03(3), Florida Statutes (2011). Based on the foregoing

...We, therefore, reverse the order of the trial court with instructions for the trial court to quiet title in the appellant. ZEHMER and BARFIELD, JJ., concur. . Neither party alleged that the Marketable Record Title Act (MRTA) was applicable in the instant case. Even if it had been raised, it would have be inapplicable. Section 712.03(4), Florida Statutes, would act to preclude the appellant from relying on the MRTA because of subsequent deeds in the appellee’s chain. Section 712.03(6) acts to preclude the appellee from relying on the MRTA because the appellant has paid taxes on the property within the last three years, and his name is on the tax roll....

...ere claimed by the defendant/appellant, namely half of the oil, gas and mineral rights; section 712, Florida Statutes (1985) does not permit a reservation of rights (such as appears in the 1947 deed) to be a root of title as defined in the MRTA; and section 712.03(2) requires that for an interest in land to be preserved by being referred to in a root of title, the land must be specifically identified by reference to book and page of the record, or by name of the recorded plat. The last stated point above refers to the following: 712.03 Exceptions to marketability....

...to book and page of record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such easement, use restrictions or other interests; subject, however, to the provisions of subsection (5). § 712.03(1)....

...ly unless the reservation of interest is supposed to have been created prior to the root of title. Here the 1947 grantor was creating the reservation at the time of the 1947 transfer. Thus, if the 1947 deed is a proper root of title, we do not think section 712.03(1) is a barrier to the reservation of interests by appellant....

...d that because the 1947 deed is the most recent transaction meeting the definition of root of title, it has extinguished all conflicting interests not deraigned from the 1947 deed or not specifically referenced as estates or interests as required in section 712.03(2)....

...The 1947 seller or its successor or assign who sold the property in 1978 continued to reserve those rights, as it legally could do. There was no way for anyone having an interest by a different chain of title to preserve that interest under the MRTA unless it fell into a section 712.03 exception....

...Mid-Peninsula eventually obtained title and thereafter brought a declaratory judgment and quiet title action pursuant to the Marketable Record Title to Real Property Act (MRTA), ultimately succeeding below. We agree with the trial court that the exception to MRTA set forth in section 712.03(3), Florida Statutes (2003), does not apply to this case. However, we reverse because the trial court erred in finding that the exception set forth in section 712.03(5) does not apply to rights-of-way held in fee, as explained in the Florida Supreme Court's recent decision in Florida Department of Transportation v. Clipper Bay Investments, 160 So....

...It is undisputed that the 1974 conveyance was a "wild deed" and that it qualified as a root of title for purposes of MRTA.3 During the pendency of Mid-Peninsula's action below, DOT moved for partial summary judgment arguing that the exception to root title status as set forth in section 712.03(5) applied....

...predecessors in title, has been vested with any estate in land of record for [thirty] years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03." -3- Mid-Peninsula filed a cross-motion for partial summary judgment arguing that the subsection (5) exception did not apply to a right-of-way held in fee simple....

...In doing so, the trial court rejected DOT's argument that Clipper Bay Investments, LLC v. State, Department of Transportation, 117 So. 3d 7 (Fla. 1st DCA 2013), should control the issue.4 The case then proceeded to trial on DOT's alternative argument that section 712.03(3) prohibits marketable record title from extinguishing the "[r]ights of any person in possession of the lands, so long as such person is in such possession." The evidence presented at trial established that parcel 338 actually lies...

...title in the parcel to Mid- Peninsula. II. ANALYSIS We review the trial court's construction of the statute de novo. See Clipper Bay, 160 So. 3d at 862. a. The exception to MRTA set forth in section 712.03(5) is applicable to rights-of- way held in fee, but the trial court must determine whether it applies to this case. MRTA was created in order to simplify property transfers, clear titles, and establish certainty of ownership....

...the title has been recorded for at least thirty years and for which no statutory exception applies. The thirty-year period for establishing root of title in this case expired on February 5, 2004. However, the exception set forth in section 712.03(5) for "[r]ecorded or unrecorded easements or rights, interest or servitude in the nature of easements, [and] rights-of-way" applies here....

...2d at 122-23. -5-  Subsequent to the denial of motion for partial summary judgment, the Florida Supreme Court accepted review of the Clipper Bay case. In its opinion, the court noted that the parties agreed that "the exceptions provided in section 712.03 may apply to rights-of-way held in fee." 160 So....

...udgment for the trial court to make a determination as to whether DOT used the property in question for purposes of applying the subsection (5) exception, we acknowledge that the trial court made a separate finding that the exception set forth in section 712.03(3) was also inapplicable. Because the trial court could conclude on remand that the subsection (5) exception is still inapplicable, we must address the trial court's finding regarding the subsection (3) exception. b. DOT failed to establish possession for purposes of section 712.03(3). Section 712.03(3) prohibits the extinguishment of "[r]ights of any person in possession of the lands, so long as such person is in such possession." We agree with -7- the trial court that because poss...

...DOT also asserts that its fee simple ownership is the equivalent of possession. However, "the polestar of statutory construction [is the] plain meaning of the statute at issue." Acosta v. Richter, 671 So. 2d 149, 153 (Fla. 1996). And section 712.03(3) does not reference constructive possession....

...Rose, 44 So. 69 (Fla. 1907), for the proposition that an owner in fee simple has constructive possession of the property does not require a different result. That case was decided many years before MRTA was enacted, and yet the legislature has not amended section 712.03(3) to include constructive possession. Accordingly, we agree with the trial court that the exception set forth in section 712.03(3) does not apply to this case. III....

...939, 99 S.Ct. 2153, 60 L.Ed.2d 1040 (1979); Odom v. Deltona Corp., 341 So.2d 977 (Fla. 1976); Marshall v. Hollywood, Inc., 236 So.2d 114 (Fla. 1970), cert. denied, 400 U.S. 964, 91 S.Ct. 366, 27 L.Ed. 384 (1970). The Trustees' second point is that section 712.03(7), Florida Statutes (Supp. 1978), of the MRTA must be applied retroactively, vesting title to the lands at issue in the state. We also find no merit to this contention. Section 712.03(7) provides that marketable record title shall not affect "[s]tate title to lands beneath navigable waters acquired by virtue of sovereignty." Our supreme court has not directly addressed the application of MRTA to sovereignty lands since the enactment of the 1978 amendment....

...Id. We affirm the trial court's order granting final summary judgment in favor of the *1290 Stevenses. However, consistent with our actions in Coastal Petroleum, we certify to the Supreme Court of Florida as a question of great public importance: Can section 712.03(7) be applied retroactively? SCHEB, A.C.J., and SCHOONOVER, J., concur....

...documents required by section 720.406. 1The units for which the declaration of covenants and restrictions are no longer governing are those in which the "muniments of title," the deeds, do not reference the declaration of covenants and restrictions. See § 712.03(1) (providing that MRTA does not extinguish "easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title")....

...result because it would leave the Association without recourse to prevent or cure the extinguishing effects of MRTA. The Association overstates its plight. There is a way to prevent the extinguishment: referencing the declaration of covenants in the condominium deeds. See § 712.03(1) (stating that MRTA shall not extinguish "easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title"); Gary A....

...e root of title” unless such estates, interests, claims, or charges fall within one or more statutory exceptions. § 712.02, Fla. Stat. (2014). The Association, on the other hand, asserts Amendment One falls within the statutory exception found in section 712.03(1), Florida Statutes (2014). The exception found in section 712.03, Florida Statutes (2014), provides in relevant part: Such marketable record title shall not affect or extinguish the following rights: (1) Estates or interests, easements and use restrictions disclosed by and defects inherent in the mu...

...ge of record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such easement, use restrictions or other interests;.... We agree that the respective deeds fall within the first part of section 712.03, Florida Statutes (2014). Appellants, on the other hand, discount the first part of section 712.03(1), asserting the language set forth in their respective deeds are mere “general references” insufficient to save, it appears, any restrictive covenant of Silver Lakes Acres from being extinguished by MRTA....

...Mid-Peninsula eventually obtained title and thereafter brought a declaratory judgment and quiet title action pursuant to the Marketable Record Title to Real Property Act (MRTA), ultimately succeeding below. Because we agree with the trial court that the exception to MRTA set forth in section 712.03(5), Florida Statutes (2003), does not apply to rights of way held in fee and that DOT did not prove it possessed the property as set forth in section 712.03(3), we affirm. I....

...It is undisputed that the 1974 conveyance was a "wild deed" and that it qualified as a root of title for purposes of MRTA.3 During the pendency of Mid-Peninsula's action below, DOT moved for partial summary judgment arguing that the exception to root title status as set forth in section 712.03(5) applied....

...predecessors in title, has been vested with any estate in land of record for [thirty] years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03." -3- court agreed with Mid-Peninsula and entered summary judgment in its favor, relying on Florida Department of Transportation v....

...In doing so, the trial court rejected DOT's argument that Clipper Bay Investments, LLC v. State, Department of Transportation, 117 So. 3d 7 (Fla. 1st DCA 2013), should control the issue.4 The case then proceeded to trial on DOT's alternative argument that section 712.03(3) prohibits marketable record title from extinguishing the "[r]ights of any person in possession of the lands, so long as such person is in such possession." The evidence presented at trial established that parcel 338 actually lies...

... II. ANALYSIS We review the trial court's construction of the statute de novo. See Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034, 1039 (Fla. 2d DCA 2013). a. The exception to MRTA set forth in section 712.03(5) does not apply. MRTA was created in order to simplify property transfers, clear titles, and establish certainty of ownership....

...he title has been recorded for at least thirty years and for which no statutory exception applies. Because the thirty-year period for establishing root of title in this case expired on February 5, 2004, DOT acknowledges that if no exception under section 712.03 applies, MRTA extinguishes its interest in parcel 338. DOT argues that the exception set forth in section 712.03(5) for "[r]ecorded or unrecorded easements or rights, interest or servitude in the nature of easements, [and] rights-of-way" applies here....

...But nowhere in that section does it state that rights in fee ownership or other estates are excepted from MRTA. The omission of such an exception within subsection (5) is particularly notable because exceptions applicable to estates and other fee ownership interests are provided in other subsections. See, e.g., § 712.03(1), (2), & (4)....

...in one section of the statute but omits it in another section of the same statute, [this court] will -5- not imply it where it has been excluded." Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So. 2d 911, 914 (Fla. 1995). In concluding that the section 712.03(5) exception did not apply here, the trial court relied on Dardashti Properties wherein the Fourth District held that this statutory exception did not apply to property held in fee irrespective of whether it was used as a right-of-way....

...Instead, section 712.10 provides that MRTA "shall be liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record title as described in [section] 712.02 subject only to such limitations as appear in [section] 712.03." (Emphasis added.) -6- We do not construe MRTA as entitling governmental agencies to employ a broader construction of the term "rights-of-way" for purposes of utilizing the exception set forth in section 712.03(5)....

...set forth in Dardashti Properties that the exception set forth in subsection (5) does not apply to rights-of-way held in fee. We therefore certify conflict with Clipper Bay and Davidson on this issue. b. DOT failed to establish possession for purposes of section 712.03(3). Section 712.03(3) prohibits the extinguishment of "[r]ights of any person in possession of the lands, so long as such person is in such possession." We agree with the trial court that because possession is not defined within MRTA, that term must be...

...DOT also asserts that its fee simple ownership is the equivalent of possession. However, "the polestar of statutory construction [is the] plain meaning of the statute at issue." Acosta v. Richter, 671 So. 2d 149, 153 (Fla. 1996). And section 712.03(3) does not reference constructive possession....

...Rose, 44 So. 69 (Fla. 1907), for the proposition that an owner in fee simple has constructive possession of the property does not require a different result. That case was decided many years before MRTA was enacted, and yet the legislature has not amended section 712.03(3) to include constructive possession. Accordingly, we agree with the trial court that the exception set forth in section 712.03(3) does not apply to this case. III....

exception to Chapter 712 as set out in F.S.A. Section 712.03(4). This Court is of the opinion that said

...§ 712.04. The MRTA will not extinguish claims to property if the claimant files notice of a claim before the expiration of the thirty year limitation period, see id. § 712.05, or if the claimant falls within one of the statutory exceptions. See id. § 712.03....

...The rule urged by Harrell — that a deed obtained by fraud cannot be an effective root of title under the MRTA, at least when the rights of third persons are not involved —simply finds no support in the Act. Although the Florida Legislature created a number of exceptions to the MRTA’s operation, see Fla.Stat. § 712.03, it did not create an exception for deeds obtained through fraud and it is not for us to apply such an exception in this case. Because the tax deeds Pencie Wester obtained between 1943 and 1946 are effective roots of title under the MRTA, Harrell’s interest in the property is extinguished absent the applicability of one of the exceptions listed in section 712.03. In the district court Harrell argued that his interest in the property was preserved because he fell within the exception listed in section 712.03(3). The district court did not address this issue in light of its finding that the tax deeds were not effective roots of title under the MRTA. Section 712.03(3) provides that marketable record title under the Act does not extinguish the “[rjights of any person in possession of the lands, so long as such person is in such possession.” Harrell argued that although he and his predecessors...

...moving party, had the initial burden of showing an absence of proof supporting Perrin’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). FDOT met its burden through the plat documents, deeds, and other recorded 4 Perrin argued that either (i) section 712.03(1) of the Florida Statutes provided a MRTA exception because the subdivision plat expressly created the easement in favor of lot owners, or (ii) section 712.03(5) provided a MRTA exception because of a continuous use of an easement (whether recorded or unrecorded). 5 We review de novo a trial court’s summary judgment....

...Appellants claimed they are fee simple owners, whereas Appellees contended that they have at most a possessory interest. Appellees stipulated that Eddie Dorsey, Audrey Dorsey, Lorenzo McCray, Dolors McCray, Johnnie Mae Dorsey, and Jocelyn Hightower satisfy the possession exception of section 712.03(3), Florida Statutes, to the Marketable Record Title Act (“MRTA”) and, thus, have a right of possession with regard to the property they currently possess. Following a non-jury trial, the trial court entered a final judgment, finding that the evidence supported Appellees’ concession that the six Appellants meet the possession exception of section 712.03(3), as well as their claim that Lillie Dorsey and James Dorsey do not meet that exception as to the eighteen acres. The court further found that Appellants have no legal interest of record and did not demonstrate that they have a fee s...

...2 ownership interest in the land. The court concluded that the 1985 deed is a valid root of title under the MRTA and that except for the Appellants who are in possession of certain areas of the eighteen acres pursuant to section 712.03(3), the rest of the Appellants have no rights to ownership or possession in the eighteen acres. Accordingly, the court quieted all rights, title, and interest to the eighteen acres in Appellees, except for the Appellants who have a possessory interest under section 712.03(3)....

...in title, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03....

...transactions, such estate has passed to the person claiming such estate, with nothing appearing of record, in either case, purporting to divest such claimant of the estate claimed. 3 § 712.02, Fla. Stat. (2016). Subject to section 712.03, “a marketable record title is free and clear of all estates, interests, claims, or charges, the existence of which depends upon any act, title transaction, event, or omission that occurred before the effective date of the root of title”; except as provided in section 712.03, “all such estates, interests, claims, or charges ....

...state which predate the root of title.’” Id.; see also § 712.10, Fla. Stat. (stating that the MRTA accomplishes its purpose “by allowing persons to rely on a record title as described in s. 712.02 subject only to such limitations as appear in s. 712.03”)....

...f title and Appellees have had an unbroken chain of title for at least thirty years since the deed was recorded. The question is whether some of the Appellants meet an exception to marketability. There are nine exceptions to marketability under section 712.03, which provides in part: 4  Such marketable record title shall not affect or extinguish the following rights: .... (3) Rights of any person in possession of the lands, so long as such person is in such possession. (4) Estates, interests, claims, or charges arising out of a title transaction which has been recorded subsequent to the effective date of the root of title. § 712.03, Fla. Stat. (2016). The parties disagree on what constitutes “possession” under section 712.03(3), which is the only exception at issue....

...lawful ownership; holding or occupancy as distinct from ownership”); see also Dep't of Transp. v. Mid-Peninsula Realty Inv. Grp., LLC, 171 So. 3d 771, 772 (Fla. 2d DCA 2015) (finding that the trial court properly resorted to the dictionaries to define “possession” under section 712.03(3) as “visible power or control over something, as distinct from lawful ownership; holding or occupancy; control or occupancy,” and concluding that the evidence of the appellant’s employees periodically traversing the land to acc...

...e sheds 5 and vehicles from the land was insufficient to satisfy the definition of possession). Appellants argue that the trial court erred by finding that they failed to establish possession for purposes of section 712.03(3) as to James and Lillie Dorsey....

...He testified that he has absolute control over the mobile home and would not need Appellees’ permission to lease it. As such, it is undisputed that James does not occupy the property, and the question becomes whether he has sufficient control to satisfy section 712.03(3). While James has control over the mobile home, we conclude that the evidence is insufficient to establish his control of the lands to prove the applicability of the exception. See § 712.03(3), Fla....

...acres, not on her two acres as found by the trial court, but there is no competent, substantial evidence in the record to support that assertion. Therefore, we agree with the trial court’s conclusion that James and Lillie Dorsey do not satisfy the section 712.03(3) exception to marketability and, thus, have no interest in the eighteen acres at issue. Appellants further argue that the trial court erred by reducing the inherited fee simple interests of Johnnie Mae and Eddie Dorsey to possessory interests....

or post-root documents by specific reference. § 712.03, Fla.Stat. (1991); Gregory M. Cook, The Marketable

...“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 ......