Homeowners’ Association Architectural Controls
A homeowners’ association may adopt written standards to control the external aesthetics of the property within its purview. To be enforceable, the architectural controls must be set forth in the declaration or other published guidelines authorized by the declaration. The board of directors, or any architectural committee, derives its authority to review and approve parcel improvement plans and specifications from these published standards. If set forth in the declaration or other publication, the board or other review committee may review and approve plans and specifications for the location, size, type, or external appearance of any structure or other improvement on an owner’s parcel.1
The declaration of covenants or other published guidelines may also provide options for materials that may be used in planned improvements, the size and design of the improvement, and the location of the improvement on the parcel. If the declaration or published guidelines provide such options, the association may not restrict the right of a parcel owner to select from the available options.2 The declaration or published guidelines and standards may also provide for specific setback limitations. If they do not, the county or municipal setback limitations apply, and the association may not enforce any setback limitation that is inconsistent with the applicable county or municipal standards.3
Chapter 720 provides that the parcel owners are entitled to the rights and privileges set forth in the architectural controls of the declaration or other published guidelines. A homeowners’ association may not unreasonably infringe or impair owners’ right to improve their property in accordance with the written standards. If the association or any architectural committee “unreasonably, knowingly, and willfully” infringes on an owner’s right to improve his or her property in accordance with the written architectural controls, the owner has a statutory cause of action for damages, costs, and reasonable attorney’s fees.4
Chapter 720 prohibits certain types of aesthetic controls. For instance, parcel owners may not be prevented from displaying a reasonably sized sign showing that the owner has contracted for security services within 10 feet of the entrance to the home.5 The owner may also display one removable United States flag or official flag of the State of Florida in a respectful manner. Parcels owners can also display, in a respectful manner, one removable official flag, not larger than 4 1/2 feet by 6 feet, which represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a POW-MIA flag.6 Homeowners are also allowed to erect a freestanding flagpole up to 20 feet high on any portion of their property, so long as the flagpole does not obstruct sightlines at intersections and is not erected within or upon an easement. This is subject to all building codes, zoning setbacks, and other governmental regulations. The homeowner may display from the flagpole one official United States flag, not larger than 4 1/2 feet by 6 feet, and one additional official flag of the State of Florida or the United States Army, Navy, Air Force, Marines, or Coast Guard, or a POW-MIA flag. The additional flag must be equal in size or smaller than the United States flag.7 Owners have a statutory cause of action to file suit to enjoin the enforcement of any covenant or rule that operates to deprive the owner of these rights.8
A homeowners’ association is also prohibited from enforcing any covenant or rule that infringes an owner’s right to install “Florida-friendly landscaping.”9 This includes “landscapes that conserve water, protect the environment, are adaptable to local conditions, and are drought tolerant.” Florida-friendly landscaping employs methods aimed at “efficient watering, appropriate fertilization, mulching, attraction of wildlife, responsible management of yard pests, recycling yard waste, reduction of stormwater runoff, and waterfront protection.”10
In addition, any parcel owner may construct an access ramp to accommodate an occupant with a medical necessity or disability that requires a ramp for egress and ingress. This is subject to certain guidelines: 1) the ramp must be as unobtrusive as possible; 2) the ramp must blend with the existing aesthetics of the parcel; 3) the ramp must be reasonably sized for the intended use; 4) the plans for the ramp must be submitted to the homeowners’ association in advance; and 5) the association may request reasonable modifications to achieve architectural consistency with the surroundings. The parcel owner must submit an affidavit from a physician attesting to the medical necessity of the access ramp. The certification of disability required for issuance of disabled parking permits pursuant to Fla. Stat. § 320.0848 will satisfy this requirement.11
Condominium Association Aesthetic Controls
In condominiums, the owners typically have no options for improving the common elements or other condominium property outside the walls of their units. They are also typically free from the burden of having to maintain the external elements of the condominium building, landscaping, common elements, and condominium property. The Condominium Association controls the external aesthetics of the condominium building and the surrounding property.
Certain decorations, however, are permitted by statute. Condominium associations may not prevent unit owners from displaying, in a respectful manner, one portable, removable United States flag. On Armed Forces Day, Memorial Day, Flag Day, Independence Day, and Veterans Day, condominium associations may not prevent owners from displaying, in a respectful manner, portable, removable official flags, not larger than 4 1/2 feet by 6 feet that represent the United States Army, Navy, Air Force, Marine Corps, or Coast Guard.12 Additionally, condominium associations may not prevent unit owners from attaching a religious object not to exceed 3 inches wide, 6 inches high, and 1.5 inches deep on the owner’s door frame or mantel.13
1 Fla. Stat. § 720.3035 (1) (2012).
2 Fla. Stat. § 720.3035 (2) (2012).
3 Fla. Stat. § 720.3035 (3) (2012).
4 Fla. Stat. § 720.3035 (4) (2012).
5 Fla. Stat. § 720.304 (6) (2012).
6 Fla. Stat. § 720.304 (2)(a) (2012).
7 Fla. Stat. § 720.304 (2)(b) (2012).
8 Fla. Stat. § 720.304 (3) (2012).
9 Fla. Stat. § 720.3075 (4) (2012).
10 Fla. Stat. § 373.185 (1)(b) (2012).
11 Fla. Stat. § 720.304 (5) (2012).
12 Fla. Stat. § 718.113 (4) (2012).
13 Fla. Stat. § 718.113 (6) (2012).
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Katie M. Merwin is a partner at the firm’s West Palm Beach Offices. Ms. Merwin practices in the areas of Labor and Employment Law, Civil Rights Law, Housing and Commercial Litigation, ERISA Litigation, Directors and[...] Read more