As a Florida Condo Lawyer that primarily represents condo and homeowners that have disputes with their Associations, I frequently get calls from homeowners that are being threatened by their associations for violations of the Architectural Review Standards. Some owners have applied for approval prospectively while others have already made the improvements and are now seeking retroactive approval.
While the new Florida Laws for Homeowner Associations may have gotten tougher, the authority of an association or committee to review or approve plans is permitted only to the extent that it is specifically stated in the declaration or other published guidelines or standards authorized by the declaration. Section 720.3035 specifically addresses architectural control covenants and owners rights with regard to parcel improvements. This Florida law prohibits associations from restricting an owner from selecting from options provided in the declaration or authorized standards.
If the Association has a restriction on a specific type of building material or modification written into their governing documents they must uniformly restrict the prohibited use or the owner faced with a rejected request for approval may claim Selective Enforcement. This is a defense that is based upon an estoppel type argument. Essentially, an Association is prohibited from attempting to enforce a covenant or restriction against one violator, while allowing another to continue violating the same restriction. To put it another way, an Association may not arbitrarily enforce an otherwise valid restriction. The main case dealing with selective enforcement by Florida Condo and Homeowner Associations is the Florida Supreme Court case of White Egret Condominium, Inc. v. Franklin, 379 So 2d 346 (Fla 1979). This case originated in Broward County Florida, but because of its importance, made it all the way to the Florida Supreme Court. The holding, in its simplest form states that an Association may not unequally or arbitrarily enforce an otherwise valid restriction even if the restriction was reasonably related to a lawful objective.
A problem usually arises when the declaration and/or guidelines are silent as to specific options such as color choice or the types of materials to use. In a published opinion on appeal from a Brevard County Circuit Court ruling, the appellate court held that:
In absence of existing pattern or scheme of type of architecture in particular development which puts prospective purchaser on notice that only one kind of style will be allowed, either in recorded restrictions or de facto from modified building scheme built on subdivision, architecture boards do not have power or discretion to impose only one style over another, based purely on aesthetic concepts.YOUNG v. TORTOISE ISLAND HOMEOWNERS ASSOCIATION, INC., 511 So. 2d 381 (Fla 5th DCA 1987)
In the YOUNG case the homeowners desired to build a “flat roof” but the Association preferred the use of a “peaked roof” and refused to approve the owner’s request. Many other issues have come up over the years. Some owners prefer wood fences over metal, or glass block over window pane, or wood doors over glass. The bottom line here is that your association can’t refuse your request for ACC approval merely for aesthetic reasons unless there is already an existing pattern or scheme in place to support the use of one material over another.
Many Associations and ACC committee members use their position of authority to exert their will over other owners. This usually results in legal battles that can be costly for both the Association and the owners involved. Don’t try to deal with the Association on your own. If you are not sure of your rights seek out legal advice from an experienced Trial Attorney that represents condo owners and homeowners. Your Association keeps expensive Florida Law Firms on Retainer so they can fight you, and they pay these expensive Law Firms with your money. You should not be forced to deal with experienced Property Managers and Attorneys without having someone fighting for you in your corner?
The Law Offices of Herb M. Milgrim, P.A. is a Florida Law Firm that represents Condo Owners, Homeowners and Cooperative Owners that have disputes or are contemplating Litigation or a Lawsuit against their Association. Herb Milgrim is a tough trial attorney with over 20 years of experience. We provide prospective clients with a Free Case Evaluation. Once we have been retained we review all of the relevant documents and governing Florida Laws and advise our clients on the best course of action. Call us now (954) 966-3909!