Saturday, June 15, 2013

Florida Friendly Landscaping & Your HOA

In 2009 the Florida Legislature enacted revisions to Fla. Stat. 720.3075(4), which prohibits homeowner associations from enforcing deed restrictions as to prohibit the implementation of Florida Friendly Landscaping.  This language is recited again in Fla. Stat. 373.185, which is the initiative for Florida Friendly Landscaping as a means to reduce water consumption and prevent further pollution of the environment with pesticides, herbicides and fertilizers.

Prior to the enactment of the 2009 revisions, the same statute prohibited such conduct if the association's documents were recorded after October 1, 2001, but with increasing water shortages and the State of Florida considering importing water from other states, the Florida Legislature found greater protections were necessary as a matter of public policy.

Seems clear, right?  It is if your a homeowner, but associations and their attorneys have a different idea.  The right of the association to require an application to the architectural review board or committee (ARB or ARC) still exists, although many homeowners do not realize this.  Why? Because it doesn't make sense. Technically, the association cannot deny your application unless it does not comply to Florida Friendly principles and I have yet to meet a board of directors with the qualifications to make such a determination. But rules and rules and owners need to submit applications.

What happens next though defies all reason.  Of course, I have never heard anyone brag about their board members being reasonable.

The owner implements FFL with or without an application and the association starts sending those nasty violation letters.  Don't get me started on those.  Do they really need to be so nasty?  Do the associations really think the tone of the letter is going to result in the homeowner responding with an apology and a promise to follow the dictatorship of the association?

What reasons do the associations give for violating the FFL yards?  I have heard everything from the association has the right to regulate FFL to the declarations require St. Augustine and state law cannot invalidate the Declarations.  I was recently told a client could maintain a nice St. Augustine or Zoysiagrass lawn if the client would just pay a lawn service a monthly fee.  Really?  Apply chemicals monthly?  Isn't this not the exact thing FFL tries to avoid?  MORE CHEMICALS????

I have heard over and over St. Augustine is FFL.  That is true in some areas of Florida, mostly coastal regions, but FFL is not about any one plant, grass, shrub, tree or groundcover being FFL no matter where the lot is located in Florida.

FFL is about the right plant in the right place for the site conditions.  It is about soil composition, soil pH, drainage, light, temperature, pests and even residual chemicals in the soil.  To argue my point, I have two plants which are exactly the same and were purchased at the same time from the same store. One plant was installed on one side of my backyard and the other on the other side.  One plant is now about 25' high and the other is still the same size as it was when I bought it 15 years ago.  The site conditions are obviously different on the same lot 60 feet or so apart.

To recap, we have a law with a clear initiative to reduce water consumption and the application of chemicals to our environment.  We have a clear law allowing homeowners the right to protect the environment by implementing FFL without interference from homeowner associations.  We have volumes of material available online educating the citizens of Florida regarding FFL and the nine principles. It's obvious from the materials it takes a lot of work and money to implement FFL and a good understanding of horticultural principles to obtain a fair understanding of FFL.  It is clear board members, who are unpaid volunteers giving up their time to help manage the community, are not generally knowledgeable enough to make a determination of what is or is not FFL.  Anyone besides me see the problem here?

What Florida homeowners need are some elected officials to push for an agency to provide a neutral party to certify yards as FFL.  Until we have this the associations will continue to violate homeowners and even impose fines, which can result in liens and foreclosure if unpaid.  The associations have an unfair advantage in  litigating these disputes because homeowners have no agency regulating homeowner associations and cannot afford the costly litigation.  The associations see this and engage in disputes they would normally lose because they know they will win purely as a matter of economics. They have a license to be the bully of the neighborhood.

I encourage those associations who support FFL, or do not approve of the bully mentality as a way to rule the neighborhood, to step up and adopt FFL guidelines, obtain and understand the materials, and let your members know you support FFL.  Don't end up being labeled a "bad" HOA.

Thursday, June 6, 2013

Dealing with Unruly Homeowners at Board Meetings

What a touchy topic!!  I have been on both sides of this issue -- as the homeowner and as the attorney representing the association.  Maybe I have too much leftover pixie dust, but I believe these situations can be resolved amicably.  A question posted on prompted me to write on this issue.

A board member posted a question on how to deal with a member who was using objectionable language and voicing what the board thinks is incorrect information about a female board member they believe is being targeted by this member.

Here's my advice:

There are several ways to approach this -- both legal and non-legal.

One of the problems board members face is dealing with homeowners who may have been terribly wronged in the past and watch everything their board does under a microscope.  They also have a tendency to tell everyone their story.  This has evolved into a legitimate mental health diagnosis called HOA Syndrome, which is a form of post traumatic stress disorder.   Understanding the other person's position is part of solving the problem, from a non-legal standpoint. which may be key in keeping the association from becoming involve in costly legal proceedings.

The association needs to adopt Robert's Rules of Order and establish when members may speak at board meetings.  You can limit speech to 3 minutes at the end of the meeting, but you need to enforce any policies in a uniform manner.  You cannot adopt a policy designed to silence anyone, just to maintain order.

I would suggest having a sit-down meeting with this homeowner and outline you concerns about the nature of his speech and allow him to voice his complaints formally.  Keep and open mind and see if you can come up with a creative, out of the box solution.

While you feel it is incorrect information, the homeowner feels he has the correct information, so be prepared to present proof of why he is incorrect or ask for proof of why he feels he is correct and work through the issues.  Just dismissing his claims as incorrect often leads to lots of trouble for associations and not just legal trouble.  All out civil wars erupt because this is a dispute between neighbors, not just the association versus the owner.

If the owner cannot talk to the board without using rough, offensive language, then ask him to put his concerns in writing and you will reply in writing.

While I have seen associations trespass owners to keep them out of meetings, if you do this and the homeowner has the financial means to sue, the association is in big trouble. State law requires all meetings to be open to all members. The Fair Housing Act has weighed in on this issue as well. A HUD complaint could be difficult to deal with.

The association does not have the authority to lien and foreclose on anyone's property just because they feel the person is someone they don't want in their community and to even go that route in against the manifest best interest of justice.  Everyone has a First Amendment Constitutional right to free speech -- even in an association and there have been associations that have taken a big hit on this in litigation trying to silence the homeowners.

If you can resolve this amicably, I recommend you ask the owner to participate in mediation.  While pre-suit mediation is required by statute, I don't recommend calling it pre-suit mediation unless you intend to sue.  Submitting a statutory offer of pre-suit mediation will definitely set a bad tone.

I know being a board member is a thankless, unpaid job and can be frustrating, but the owners entrusted the board to look out for everyone's best interest.  Dispute resolution is part of that job and it can be handled diplomatically and effectively.  Often associations realize they have an unfair advantage and more power, so they bully the owners instead.  Shame on them.

Good luck and I hope you get this worked out.