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Subject: FL Statute 720.3035 which way is correct in reading?
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SmartS
(Florida)

Posts:3


02/07/2018 12:41 PM  
The authority of an association or any architectural, construction improvement, or other such similar committee of an association to review and approve plans and specifications for the location, size, type, or appearance of any structure or other improvement on a parcel, or to enforce standards for the external appearance of any structure or improvement located on a parcel, shall be permitted only to the extent that the authority is specifically stated or reasonably inferred as to such location, size, type, or appearance in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants.

Most older HOA's from the 1990's have similar language to this in their covenants:

".....specifications and location of the same shall have been submitted to and approved in writing by the Architectural Review Committee. All plans and specifications shall be evaluated as to harmony of external design and location in relation to surrounding structures and topography and as to conformance with the Architectural Guidelines of the Association..." AND

The architectural control functions of the Association shall be administered and performed by the Architectural Review Committee (-ARC"), which shall be appointed by and shall serve at the pleasure of the Board of Directors of the Association."

and this is their ARC Guidelines:

"to evaluate proposed improvements with emphasis upon their harmonious incorporation into the community as a whole and with specific emphasis on external design, location of the improvement in relation to the surrounding structures and landscape and/or improvements, topography, and conformity with the restrictive covenants, criteria and procedures imposed by the community.

The ARC shall, at its sole discretion, judge the adequacy of plans submitted and may reject any proposed construction or alteration or development for any reason including purely aesthetic reasons provided however that approval of plans shall not be unreasonably withheld."

The question is, do you read the statute as : the authority is specifically stated in the docs to allow the ARC sole discretion to reject any plans even on purely aesthetic reasons (aka harmonious with the community)

or

that if the ARC guidelines do not specifically say you cant have your entry tower a certain height or your garage wall a certain percentage of the front of the house that they dont have the power to deny it?

trying to keep this generic but specifics are available Thanks in advance.
KerryL1
(California)

Posts:4791


02/07/2018 3:39 PM  
This seems to be 720.3035: "The authority of an association...to enforce standards for the external appearance of any structure or improvement ... shall be permitted only to the extent that the authority is specifically stated or reasonably inferred as to such ... appearance in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants."

"Their" (your?) Guidelines state: The ARC shall, at its sole discretion, judge the adequacy of plans submitted and may reject any proposed construction or alteration or development for any reason including purely aesthetic reasons provided however that approval of plans shall not be unreasonably withheld."

So I'd say, the ARC can reject plans based on aesthetics.

SmartS
(Florida)

Posts:3


02/07/2018 6:46 PM  
Hi Kerry, thanks for answering. Good to get other to read it and give perspective on their reading.
BenA2
(Texas)

Posts:180


02/07/2018 9:19 PM  
I think this is going to depend in large part what courts in Florida have ruled. The statute seems to give associations the authority to use appearance as a criteria, if it is "specifically stated or reasonably inferred" in the covenants. I think your covenants meet that criteria but courts often change the meaning of a law by their interpretation, especially if the law is vague.

For example, in Texas the law says that "A restrictive covenant shall be liberally construed to give effect to its purposes and intent" but the courts have ruled that if a restrictive covenant is ambiguous, the court "must resolve all doubts in favor of the free and unrestricted use of the property. . ." The intent of the statute was to give HOA's a lot of latitude but appellate courts ruled the opposite, saying basically that the property owner gets the benefit of any doubt.

So, I would put this question to an attorney or at least someone familiar with court rulings in Florida.
JanetB2
(Colorado)

Posts:3767


02/08/2018 12:08 AM  
I am more in line with Ben ... You even noted “... approval of plans shall not be unreasonably withheld." Could a Court potentially consider any such approval as “unreasonable”???
SmartS
(Florida)

Posts:3


02/08/2018 8:15 AM  
Hi Ben and Janet,

Thanks for your input.

When I took this on I researched the law everywhere and even though it is written in 2007, there are no cases in my district in the appellate court rulings. The issue is, IMHO, that it is better for a lawyer to represent the HOA than the individual because most HOA's have way more funds than an individual. And the law says if you lose, even if it is a close call, you must pay all legal fees of opponent. Who can afford that? This also means the pool of better lawyers are with the HOAS so unless you get an up and coming lawyer who happens to be great, your lawyer will not be as good as theirs. And sadly it takes over a year to change a law in FL. And the committee notes do not address this at all.

The last ruling in our district was from 1969 way before this law. Voight v Harbour Heights I tried to attach the case but cite is not allowing it? I made them under the size requirement but still wont allow????

And I attach the Young v Tortoise case from the sister Court (511 So.2d 381 (1987)) which says it differentiates itself from the Voight case but the Judges in Young agree that the Voight case stands for if it isnt spelled out in the docs it cannot be enforced.

Also in the Young case is mentioned about cases decided should be construed against people asserting power and in favor of landowner. see highlighted.

Just FYI I have called about 6 lawyers from around the state who represent individuals and each quote the line from the Young case on what the Voight case says...though most of them say you need a lot of money to find out if they are right..so how much will the change cost.
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Forums > Homeowner Association > HOA Discussions > FL Statute 720.3035 which way is correct in reading?



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