Q: I am on the board of a 54 home HOA. One of the owners has basically all plants in his front yard. That has been that way since I moved into the community 14 years ago. I don’t believe anyone gave him permission to do that but apparently the board at the time turned a blind eye. We now have the next-door neighbor to this house I mentioned starting to move his landscaping farther out into the grass and I’m concerned he’s slowly copying his neighbor.
I have brought this to the attention of the board and someone’s response was if we send a letter to the owner who’s changing his landscaping, that we will look like we’re singling him out. Our manager says we need to adopt a resolution that states we will be enforcing our rules since we have someone who we allowed to make a change without approval.
Our documents state that no material alteration, addition or modification to a lot or home or material change in the appearance thereof, shall be made without prior written approval thereof being first had and obtained from the architectural committee.
Do we need this resolution, or do we have the right to enforce our rules as stated? (K.W., via e-mail)
A: Your board needs to obtain a legal opinion from Florida legal counsel who is conversant in the field of community association law. While the facts you present are fairly simple, the underlying legal issues are not.
The first question to answer is whether the lot which you are currently asking about is in violation of the governing documents or not. Document provisions on “material alterations” usually relate to physical alterations to the property, and not landscaping. There may be other provisions of the governing documents that come into play, such as the “nuisance” provision found in many documents.
You must also determine if your community is governed by Section 720.3075(4) of the Florida Homeowners’ Association Act, which restricts associations from prohibiting “Florida-friendly landscaping.” If so, the association needs to understand what type of landscaping qualifies for that designation, and what does not.
Generally speaking, an association may lose its right to enforce its governing documents if it does so inconsistently, unevenly, or arbitrarily. This is a concept known as “selective enforcement” and could apply to the facts you set forth. Selective enforcement is shown when there are instances of similar violations, of which the board had notice but failed to act.
In looking at your situation, your attorney will explain the statute of limitations, which is generally 5 years. One component of that analysis is whether the lot that has been in its current condition for over 14 years (assuming that lot is in fact in violation of your covenants) is committing an ongoing violation, such that legal action could be now taken in that case as well. That would blunt a selective enforcement defense by the owner of the lot which is the subject of your inquiry (and again, assuming their lot is in violation of the governing documents).
Assuming the outcome, based on advice of counsel or otherwise, is to “grandfather” these two lots, the process for “reviving” an unenforced provision of the governing documents comes from a 1985 Florida appeals court case called Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Association, Inc. That case involved an unenforced provision of the governing documents of a high-rise condominium that prohibited improving unit balconies by enclosing them in. After half the units in the building had done so, the association received a code notice from the local government that stated that these enclosures were a code violation.
The board notified all owners that no further enclosures would be tolerated and sued an owner who did so. The court rejected the owner’s selective enforcement defense based on the reasoning that the owner had been placed on notice of the association’s intent to prospectively enforce the covenant.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.