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I have a question for anyone that has knowledge in this area. I am part of my architectural review board for our HOA and have encountered a problem that I'm having trouble getting an answer on. I have a homeowner that refuses to follow the rules and despite being denied a request, is going forth with it anyway. Here's the general aspects of the case.
- Homeowner wants to plant a yard that complies with the Florida friendly lawns act. The HOA did not deny this request but did restrict it.
- Placement involves the right of way (between the sidewalk and the road). This is controlled by Hillsborough County and requires a permit to do anything with it. (homeowner must upkeep the area per bylaws)
- Homeowner was told they could plant a specific type of drought resistant grass that we have been told by lawn companies that is the grass people are going to to comply with the Florida law. At no time were they told they could not have a Florida friendly landscape.
Homeowner then, after being denied, applied for a permit to landscape the right of way from Hillsborough County and was approved. This landscaping request asks to rip out all forms of grass and instead replaces it with a weedy look ground cover that is not consistant with any yard in the community.
My question to all of you, my new found friends (hopefully), is this; in a restrictive covenant and deed restricted community, even if a permit allowing the changes in the right of way was approved by the county, doesn't the homeowner still have to get approval for the changes from the HOA?
As an added note, while our HOA is not in the business of being restrictive, the ARB does have the power in the bylaws to deny any changes to the exterior of the homeowners property for any reason (this includes the simple displeasure of the board by choices made by the homeowner due to color or placement). I state this to reinforce that our HOA bylaws and restrictive covenants are well written and has the weight of the law behind it. We simply asked the homeowner to replace a dead lawn (yes, it was very dead for the last 9 months). Instead, this homeowner refuses to comply with all requests.
And if you got this far, I ask that this thread be evaluated by what is being presented. I do not want this to turn into a thread about why HOA's are evil and should all be disbanded. My community is small and all of the homeowners work together and love each other. Most would go out of their way to help a neighbor. This is an instance of one single household trying to find every loophole in the law to get their way, even if they are still wrong. Being a newer community, I would love to hear from anyone with a HOA that has worked hard to make their community strong and beautiful and what they had to do to deal with that one neighbor that insists that spending $1000 on fines, mediation and lawyers is much more efective than simply going out and pulling some weeds once a month or spending $200 to replace an entire dead lawn.
As far as Florida law, it rightfully allows for Florida Friendly landscaping - trumping all HOA laws enacted since October 2000 or 2001 - I don't have the law in front of me,so not sure of exact date. But from your description it sounds like he wasn't denied the Florida Friendly lawn.
How that applies to a right of way, I do not know.
I hear you. We read the laws on Florida friendly lawnscapes and made sure to comply with them so there would be no coming back to the HOA saying we denied anything. In fact, every letter rom the resident we have received says we have denied landscaping, however we made sure to give approved alternatives instead of denying. I found this website which reviews a program that was held to educate HOA's regarding the rules they need to abide by.
As an update, I have officially received a phone call from the county stating that they do not trump HOA rights and that a homeowner does in fact need to get approval from other involved agencies (HOA) in their approved projects. Now is the battle to get this in writing.
You are walking a very fine line here. The new Florida-friendly law states that HOA's may not restrict homeowner's choices of plants or where to plant them. Simply giving the homeowners a list of HOA approved Florida-friendly plants is not going to fly.
From the Florida Bar website:
[SIZE=2]The principles of Florida-friendly landscaping also include “planting the right plant in the right place.” A homeowners’ association that allows residents to plant only from a specified list of plants may find themselves in conflict with this principle. This conflict could come about if a Florida native, drought tolerant plant is not on the list of approved plants. It could also come about in homeowners’ association restrictions related to the percentage of lawn required and species of grass allowed. For example, the author’s own homeowners’ association requires that each area of the yard must be at least 50 percent grass. Any landscaping plan which will result in less than this amount of grass must be preapproved by the association. If an association with a similar regulation were to turn down a petition to landscape an entire yard section in a Florida-friendly manner, there is at least a possibility that this is enforcement of a bylaw having the effect of prohibiting a property owner from implementing a Florida-friendly landscape.[/SIZE]
You are correct that it states right plant, right place. However, we are acting on the fact that we have not denied Florida Friendly landscaping, only limited it. So if a homeowner wants to change their lawn, we have allowed a type that is Florida Friendly. While the laws state you cannot prevent a homeowner from planting Florida Friendly, nothing I have seen says you can't still have input and restrictions on the types of Florida Friendly plantings.
We don't have a restriction on lawn size, but we do require that the right of way (between side walk and street) remain grass only, whether it is Florida Friendly or not. The rest of the yard has no real restrictions. So we are talking about no more than 150 sq feet that remains sod grass and even that can still be Florida Friendly.
Quote:
Originally Posted by delta6echo
You are walking a very fine line here. The new Florida-friendly law states that HOA's may not restrict homeowner's choices of plants or where to plant them. Simply giving the homeowners a list of HOA approved Florida-friendly plants is not going to fly.
From the Florida Bar website:
[SIZE=2]The principles of Florida-friendly landscaping also include “planting the right plant in the right place.” A homeowners’ association that allows residents to plant only from a specified list of plants may find themselves in conflict with this principle. This conflict could come about if a Florida native, drought tolerant plant is not on the list of approved plants. It could also come about in homeowners’ association restrictions related to the percentage of lawn required and species of grass allowed. For example, the author’s own homeowners’ association requires that each area of the yard must be at least 50 percent grass. Any landscaping plan which will result in less than this amount of grass must be preapproved by the association. If an association with a similar regulation were to turn down a petition to landscape an entire yard section in a Florida-friendly manner, there is at least a possibility that this is enforcement of a bylaw having the effect of prohibiting a property owner from implementing a Florida-friendly landscape.[/SIZE]
Anyone one know how this applies to grass type. Our HOA was formed in 1998 and the builder used only St. Augustine grass in all of the 155 homes. currently we have 3 home owners who have resodded with Bahia grass and did not submit an ARB for this. Does the law permit them to use Bahia and sercomvent our bylaws on St. Augustine only?
What I have found out through consulting a different management company is a yes and no answer. The Florida law does not allow a HOA to demand St. Augustine grass, even if it is in the bylaws. The Law says you can not "prohibit" Florida friendly plants. The key work is prohibit. You are allowed as far as we can see that you can restrict and regulate what is and is not planted. So as an example, your community can state St. Augustine is recommended, but Bahia is a Florida friendly alternative to St. Augustine grass. That being said, nothing in most home owner's association bylaws state that just because a home owner has a right to do something that they don't have to submit an application to the Architectural review committee. A homeowner has a right to a mailbox for instance...but if your community allows for alternative mail box types, the homeowner still needs approval. They can't just change things without approval.
The way our community has dealt with this was to allow a second type of grass that is considered Florida Friendly. Homeowners may choose either type, but an application must still be submitted or else they may be fined. Also, we restricted the lawns in stating that the right of way areas (between the sidewalk and the street) must remain grass. These are restrictions, but not prohibitions which the law does not allow.
Lastly, the law is changing in its interpretation every time it is reviewed. So what works one day may change the next. For now all you can do it hope to ease into the changes that have already occurred. If your bylaws state St. Augustine only, then you may want to consider looking into changing the bylaws to allow a friendly type of grass, but also add in the restrictions on it as you see fit (we demanded the homeowner put up some sort of barrier between yards so the grass does not mix with the neighbor's grass type). If it does not specifically state St Augustine in the bylaws, then the Architectural review committee has the authority to approve what they would like as a standard (I would still have that in writing though). At the next meeting of the association, I would bring it up and discuss it. Once an alternative grass type is approved, demand the homeowners that put it in without approval submit a request immediately or else face the fining process if you have one.
What happens if a homeowner has already installed the Bahia grass? We do have an ARB committee, but there is nothing in our bylaws that say specifically say only St. Augustine. The developer installed this type of grass as the standard. Do we have a leg to stand on with the homeowner who installed the Bahia?
It all depends on what your ARB wants as a standard. If you want to have St Augustine as the only type, you are destined to lose. You can still fine the homeowner for not submitting an application and installing something that was not approved. I taken to a court, you might lose though because you can no longer restrict a homeowner to a non-drought resistant grass. That said, a court can't overturn your fine either. Just because you can't restrict grass types, doesn't mean the homeowner has a right to break the rules and not get permission from the ARB.
If the ARB wants to allow for a second type of grass, they can do so, but should put it in writing. All of the previous requirements of application still apply. So even if the ARB approves Bahia, you can still fine the neighbors who didn't get ARB approval for their grass they installed.
This brings up the question though....how long has the grass been planted? 6-12 months down with no action may serve to prevent the HOA from taking action. You have to make sure to take prompt action otherwise you cannot take action on anyone. In the end, if you don't allow a second type of grass or you allowed it to be down for an extended length of time without a letter telling them to rectify the situation, you will probably fail in getting them to remove it. A court will probably side with the homeowner. You need a standards in writing to back up any claim in court and they cannot prohibit a Florida friendly lawn. You can however fine for the lack of an approval. Usually there is a process of complaints to the board or better yet, the management company. File a complaint as a neighbor and request that the bylaws are followed. (site the bylaw sections in the complaint that state all homeowners must obtain an approval "prior" to any work being done to the exterior of the home. Most bylaws have this somewhere.)
This may sound like a really stupid question but, Why in the name of God would anyone give a damn about what type of grass someone puts down on his or her lawn?
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