Article Courtesy of The
Florida Bar
By Jeffery W. Van Treese II and
Michael T. Olexa
Published June 11, 2023
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Most homeowner and condominium associations have restrictive covenants governing
the aesthetic appearance of units within each respective association. Often
these restrictive covenants require homeowners to maintain the aesthetic
appearance of their home landscape to the satisfaction of the association or
face financial penalties for failing to do so. Many Floridians have had the
unpleasant experience of receiving a letter from their association complaining
their lawn is discolored or there are too many weeds and the problem must be
remedied within a short time frame (such as 30 days). Depending on the nature
and extent of the alleged violation, homeowners are often faced with the dilemma
of 1) re-sodding (which requires extensive irrigation and may not be
economically feasible) or 2) increased irrigation of their existing lawns.
In an effort to conserve water, the Florida Legislature enacted the
Florida-friendly landscaping statute, F.S. §373.185, which limits the ability of
homeowners associations (HOAs) to prohibit homeowners from adopting landscaping
practices that conserve water or are otherwise environmentally sustainable. The
purpose of this article is to provide a comprehensive overview of the
Florida-friendly landscaping statute for attorneys, property management
professionals, and homeowners. As caselaw on Florida-friendly landscaping is
relatively undeveloped, the authors discuss areas of clarity within the statute
and areas of ambiguity regarding application of the law in varying
circumstances. This article also includes recommendations for legislative reform
to provide greater clarity as to the law’s meaning and to better achieve the
legislative purpose behind the Florida-friendly landscaping statute.
Legislative History
While in the midst of a three-year drought in 2001, state Sen. Ginny Brown-Wait
introduced S.B. 126 (2001), which included a definition of “xeriscaping” and
prohibited HOAs from adopting or enforcing restrictive covenants that prevented
homeowners from xeriscaping their landscapes. The staff analysis and economic
impact statements for the bill stated, “in some subdivisions, developers,
homeowners’ associations, and other entities have developed deed restrictions
and covenants that impose strict requirements on homeowners in relation to the
manner and style of landscaping and other aesthetic features for the
subdivision.” F.S. §§125.568(1)(a) and 166.048(1)(a) (2001) specifically stated
that xeriscaping be an essential part of water conservation planning. Despite
the apparent finding that xeriscaping contributes to the conservation of water,
the impact statement did not expressly require HOA participation in encouraging
Florida-friendly landscaping.[1]
Restrictive Covenants Regarding Landscaping
In many instances, HOA restrictive covenants require homeowners to use St.
Augustine grass as a groundcover due to lack of knowledge/awareness that other
types of turf qualify as Florida-friendly landscaping. Any other groundcover or
landscape alternative would violate the restrictive covenants and subject the
homeowner to mandatory removal of their groundcover and forced re-sodding with
St. Augustine grass. These restrictive covenants are put in place largely
because St. Augustine grass is considered more aesthetically appealing compared
to other southern turf grasses and is often HOAs’ preferred choice for uniform
landscapes within a community. St. Augustine grass can only be installed via
sod, plugs, or sprigs, as it cannot be propagated with seeds. At a cost of
several hundred dollars per palette for delivery and installation, even a
medium-sized yard can cost a homeowner several thousands of dollars to re-sod.
In addition, the environmental cost of requiring St. Augustine grass lawns is
substantial, as it requires extensive irrigation, fertilization, and pesticide
application compared to other groundcovers.
Legislative Intent
F.S. §373.185(3)(a) provides:
The Legislature finds that the
use of Florida-friendly landscaping and other water use and pollution prevention
measures to conserve or protect the state’s water resources serves a compelling
public interest and that the participation of homeowners’ associations and local
governments is essential to the state’s efforts in water conservation and water
quality protection and restoration.
By using the phrase “compelling public interest,” and the declaration that
participation of HOAs is essential to serving this interest, the Florida
Legislature all but mandated HOA cooperation with the state in facilitating
implementation of Florida-friendly landscaping. Also, F.S. §720.3075(4)(a)
(titled, “Prohibited clauses in association documents”) recites verbatim the
“compelling public interest” language used in F.S. §373.185(3)(a), further
emphasizing the priority the Florida Legislature has placed on water
conservation and environmental protection.
Prohibition Against Deed Restrictions and Covenants that Prohibit
Implementation of Florida-Friendly Landscaping
F.S. §373.185(3)(b) states:
A deed restriction or covenant
may not prohibit or be enforced so as to prohibit any homeowner from
implementing Florida-friendly landscaping on his or her land or create any
requirement or limitation in conflict with any provision of Part II of this
chapter or a water shortage order, other order, consumptive use permit, or rule
adopted or issued pursuant to part II of this chapter.
The above language prohibits a deed restriction or covenant from prohibiting a
homeowner from implementing Florida-friendly landscaping. Any such deed
restriction or covenant is unenforceable under F.S. §373.185(3)(b). F.S.
§720.3075(4)(a) (“Prohibited clauses in association documents”) recites F.S.
§373.185(3)(b) verbatim. Therefore, a homeowner facing a fine for a deed
restriction violation for implementing Florida-friendly landscaping practices
can challenge the enforcement of certain deed restrictions by alleging violation
of the statute.
Definition of Florida-Friendly Landscaping
F.S. §373.185(1)(b) defines “Florida-friendly landscaping” as:
quality landscapes that conserve
water, protect the environment, are adaptable to local conditions, and are
drought tolerant. The principles of such landscaping include planting the right
plant in the right place, efficient watering, appropriate fertilization,
mulching, attraction of wildlife, responsible management of yard pests,
recycling yard waste, reduction of stormwater runoff, and waterfront protection.
Additional components include practices such as landscape planning and design,
soil analysis, the appropriate use of solid waste compost, minimizing the use of
irrigation and proper maintenance.
While seemingly detailed, this definition provides a great deal of potential
ambiguity in defining which plants constitute Florida-friendly landscaping. Each
sentence of the definition is analyzed in turn below:
“Quality landscapes that conserve water, protect the environment, are adaptable
to local conditions and are drought tolerant.” The first term in this
definition, “quality landscapes,” causes ambiguity and potential confusion in
determining what plants are protected. What does “quality” mean in the context
of a landscape? Does “quality” refer solely to the ecological benefit of the
landscape or is it both ecological and aesthetic? If the latter, what weight is
to be given to the aesthetic value, and who determines this? The statutory
language states that quality landscapes 1) conserve water, 2) protect the
environment, 3) adapt to local conditions, and are 4) drought tolerant,
“quality” appears to refer primarily to ecological benefits rather than
aesthetic benefits.
Choosing Plants That Conserve Water and Inputs
As stated earlier, selecting water-conserving plants over thirsty plants is
clearly contemplated and encouraged by the Florida-friendly landscaping statute.
While virtually all plants require frequent watering when first planted
(approximately three to six months for bedding plants and shrubs and six months
to one year for trees), after roots are established, they may not need recurring
irrigation, and may only require irrigation during periods of drought or
elevated temperatures. Another important aspect of Florida-friendly landscaping
is selecting plants that require less pruning and trimming, as well as less
mowing and fewer fertilizer and pesticide applications. The Florida Department
of Environmental Protection and the University of Florida published the
“Florida-Friendly Landscape Guidance Models for Ordinances, Covenants, and
Restrictions,” which provides guidance on drafting deed restrictions that
encourage appropriate plant selection and landscape practices.[2] Not only are
reducing these maintenance requirements eco-friendly, they also reduce the time
commitment, frustration, and monetary expense of the homeowner.[3]
Soil Conditions
The physical and chemical properties of soils play a major role in plants’
ability to grow and thrive. The adaptability of plants to grow in different soil
conditions varies greatly between plant taxa. Generally, native plants will have
a better tolerance of natural soil conditions. Soil pH, salinity, texture, and
structure should all be considered in plant selection. Homeowners can select
plants by consulting their local extension office or using plant identification
guides available online.
Based on the “right plant, right place” component of F.S. §373.185, one could
argue native plants are protected and an HOA cannot prohibit a homeowner from
selecting native plants for his or her landscape. However, whether a homeowner
can select any native plant remains an open question because F.S. §373.185 does
not specifically state native plants are protected. It would appear that
architectural review board guidelines would determine plant selection without
further clarification of the statute. Perhaps this issue may only be clarified
through litigation. Due to the language of the statute, HOA’s are impliedly not
authorized to prohibit homeowners from selecting native plants. At the very
least, if the homeowner can prove an allegedly prohibited plant selection is
native, such a showing should create a presumption that the plant is protected
by F.S. §373.185 (see recommendations for legislative reform below). Presently,
no plants are protected by the Florida-friendly statute.
Soil moisture is another important consideration. Sandy soils with higher
infiltration rates are more likely to require irrigation of landscape plants
compared to loamy, clayey, or muck soils that retain moisture at higher rates.
If a site is located on a sandy soil (very common in south Florida), thirsty
landscape plants should generally be avoided in favor of drought tolerant
landscaping. Notably, all plants thrive when water is abundant. While
drought-tolerant plants tolerate low soil moisture, they do not prefer it.
Ideally, the plant selection should aim to reduce the need for irrigation. This
is especially true considering much of Florida’s residential population can only
water their plants with municipally treated water, which is very expensive for
large lawns. If reclaimed water is used, economic and environmental costs of
irrigation may be reduced. However, reclaimed water also has higher salinity,
which must be considered in plant selection.[4] Water pumped from a nearby lake
and made available to residents for irrigation can also reduce environmental and
economic costs. Perhaps HOAs can argue that if cost-efficient reclaimed water or
lake water can be used for irrigation, they can require St. Augustine grass;
however, this argument has never been ruled upon by the courts and is another
open question.[5]
Light Level
Light levels should also be considered in plant selection. Structures such as
buildings and fences often block light from reaching plants. Plants situated on
the south side of buildings usually receive more light compared to the north
side of buildings. In addition, trees and other plants can form canopies that
block light from shorter plants nearer the ground. Light requirements vary with
some plants flourishing in full sun, while others prefer some degree of
shade.[6]
Disease and Pest Resistance
Selecting a landscape scheme resistant to pests is essential for maintaining a
healthy landscape. F.S. §373.185 identifies responsible management of yard pests
as a component of Florida-friendly landscaping, which demonstrates a clear
legislative intent to protect homeowner selection of disease-resistant landscape
plants. Diseases and pests include bacteria, viruses, fungi, insects, nematodes,
and even other plants that threaten the health of the intended landscape plant.
Use of pest-resistant plants reduces the need for expensive fungicides,
herbicides, insecticides, and nematicides (although the latter is relatively
unavailable due to EPA restrictions), which can eventually be leached into the
water column or be washed away by storm water runoff. The “right plant, right
place” paradigm of F.S. §373.185 would appear to contemplate allowing homeowners
to choose plants based on their resistance to pests, as doing so would reduce
maintenance and promote protection of water resources.
Mulching
F.S. §373.185(1)(b) identifies mulching as being an element of Florida-friendly
landscaping. Mulch is often spread around trees, shrubs, planted beds, and
covers bare ground in residential and commercial landscapes. Mulch provides
numerous environmental benefits including acting as a temperature buffer for
soil, preventing it from becoming too hot or too cold. Mulch also maintains soil
moisture by reducing evaporation, which in turn reduces the watering
requirements of landscape plants (thereby enhancing water efficiency, which is a
stated objective under F.S. §373.185(1)(b)). Additionally, mulch acts as a weed
barrier by preventing sunlight from reaching the soil, which would otherwise
cause seeds to germinate. In addition, mulching around trees and shrubs eases
maintenance by improving soil fertility. With respect to appearance, mulching
generally improves the aesthetics of a landscape by providing a contrast of
color and texture to complement plantings. Mulching is especially useful around
areas where plants do not grow well, such as shady areas or areas that receive a
great deal of foot traffic or where vehicles are likely to be driven, damaging
turf grass or other plants. Homeowners can also use mulch where mowing,
irrigation, or general maintenance is difficult.[7]
Ultimately, homeowners should be aware F.S. §373.185(1)(b) specifically
encourages mulching. Although mulching an entire yard may not be practical or
permitted by an architectural review board (and may not necessarily qualify as a
Florida-friendly landscaping practice), areas where it is difficult to establish
turf can potentially be mulched. If a homeowner receives a letter from an HOA
mandating the owner to re-sod dead grass, the owner may be able to mulch part of
the area or the entire area under F.S. §373.185(1)(b)). This alternative will
almost always cost less money, require less irrigation and fertilizer, and
otherwise be Florida-friendly. In keeping with the express requirement of F.S.
§373.185(3)(a) that HOAs participate in facilitating Florida-friendly
landscaping practices (see discussion below as to this provision), HOAs could
advise homeowners that mulching is appropriate in many instances.
Yard Waste Recycling
F.S. §373.185(1)(b) also identifies yard waste recycling as an element of
Florida-friendly landscaping. In addition, F.S. §373.185(3) provides that each
water management district shall work with the Department of Environmental
Protection, local governments, county agents, or offices, nursery and landscape
industry groups, and other interested stakeholders to promote, through
educational programs, solid waste compost in residential and commercial
development. This statutory language clearly indicates the legislative intent to
encourage solid waste recycling/composting. Recycling of yard waste involves
decomposition of leaves, grass clippings, tree limbs/twigs, as well as kitchen
scraps in aerobic conditions to provide a partially decomposed substance
(compost) or fully decomposed substance (humus), that can be used as an
amendment on a variety of soils (both sandy and clayey soils) as decomposed yard
waste contains nitrogen and carbon that can be absorbed by the plants. Recycled
yard waste can be applied as a mulch (see discussion of mulching above).
Recycled yard waste can also be used in conjunction with other components as a
potting mix. Grass clippings can also be left on the lawn and do not need to be
disposed of as they will decompose on the lawn surface and act as a nitrogen
source. In addition to the horticultural benefits to the landscape, yard waste
recycling is an additional environmentally sound way to reduce solid waste
disposal.[8]
Despite the economic and ecological benefits, many homeowners may not practice
composting because it requires the use of a digester mechanism such as a compost
bin or pile. HOAs may attempt to prevent homeowners from installing compost bins
because they are often considered unsightly by the property managers. To the
extent that HOAs prohibit the installation of compost units in restrictive
covenants and/or sanction homeowners for installing said units, it can be argued
that F.S. §373.185(1)(b) protects such composting practices and disallows an HOA
from sanctioning homeowners for using them. In other words, one could argue F.S.
§373.185(1)(b) is analogous to federal telecommunications regulations that
prevent an HOA from prohibiting or sanctioning a homeowner from installing a
satellite dish on his or her property.[9] However, F.S. §373.185(1)(b) only
states recycling of yard waste is an element of Florida-friendly landscaping,
but does not say whether and to what extent an HOA can restrict the use of
composting. An HOA might attempt to limit the installation of compost bins to
concealed areas of the property. However, if composting is given the same
protection afforded to satellite dishes, an HOA may be prohibited from
restricting the use of compost bins under any circumstances. To what extent HOAs
can restrict or sanction recycling of yard waste remains an open question and
may be resolved through litigation or legislatively.
Attraction of Wildlife
F.S. §373.185(1)(b) identifies attraction of wildlife as an element of
Florida-friendly landscaping. Wildlife is an integral component of environmental
health, and homeowners often enjoy viewing and hearing wildlife (with some
exceptions). Homeowners can create sanctuaries for wildlife and/or a corridor
where wildlife can migrate between spaces. Examples of landscaping practices
that attract wildlife include selecting plants with seeds, fruit, foliage, or
flowers that can be used for food. For example, homeowners can plant butterfly
gardens with flowers containing nectar that will attract butterflies, and larval
foliage can be planted as a food source for caterpillars. Plants that contain
berries, fleshy fruits, nuts, and acorns can also be used as food for many
animals in Florida, especially birds. Allowing grasses and other flowers to go
to seed is an additional technique to attract birds. This involves leaving
lawns, or parts thereof, unmowed for extended periods of time.
Another technique for attracting wildlife is supplying water, such as a fountain
or birdbath. If a water body is installed for this purpose, the water would need
to be changed regularly to prevent bacterial growth and mosquito breeding.
Additionally, leaving trunks of dead trees in place, which can be used by birds
for perching, nesting, and feeding, may also attract wildlife. Vertical layering
of a landscape can provide more cover and feeding opportunities for various
wildlife species. Also, installation of nest houses for birds and bats can
provide roosts for these important pollinators.[10]
Of course, HOAs may take issue to any or all the above techniques for attraction
of wildlife. Not mowing one’s yard is something that will often result in a
letter from an HOA, but such a practice may be protected under F.S.
§373.185(1)(b) because it provides food for wildlife. HOAs may seek to require
approval of the property manager/board of directors prior to installing nest
houses and bird baths and may reject homeowner requests for building such
structures, arguing they may appear unsightly. Leaving dead tree trunks on a
front lawn for birds to nest in may also be objected to by HOAs, as they would
likely perceive the dead tree as an eyesore. Vertical layering may create an
unsightly lawn that is not uniform with surrounding properties, and an HOA may
object to this, as well. Also, many plants that may be protected under F.S.
§373.185(1)(b) because they provide food/habitat for wildlife may be considered
weeds by HOAs and property managers.[11]
The Florida Legislature did not identify which landscaping practices that
attract wildlife are protected. To the extent landscaping that attracts wildlife
is protected, there is a question as to how liberally this protection is to be
construed. If any landscaping feature that attracts any wildlife is protected,
this may obliterate the authority of an HOA to restrict landscaping practices.
It is also not clear whether landscape practices that attract
endangered/threatened wildlife enjoy more protection compared to wildlife with a
conservation status of “least concern” by the International Union of
Conservation of Nature. Also, HOAs may consider some wildlife to be a nuisance
and may assert they have a legitimate right in prohibiting landscaping practices
that attract such taxa. For example, nesting birds become territorial and will
swoop down on pedestrians or people in neighboring driveways. The ability of an
HOA to sanction a homeowner for wildlife attraction practices and under what
circumstances it may do so is an open question and is yet another issue that may
be resolved through litigation or legislation.[12]
Florida Law Governing Deed Restrictions
F.S. §720.305 entitled, “Obligations of members; remedies at law or in equity,
levy of fines and suspension of use rights,” includes subsection (2), which
provides that an association may levy a fine of up to $100 per violation for
failure to comply with any rules established by the association and that such
fine may be imposed for each day of a continuing violation for a maximum of 10
days for a total of $1,000 (the aggregate fine may exceed $1,000 if the
governing documents provide for such a fining schedule). F.S. §720.305 also
provides that a fine of less than $1,000 may not become a lien against the
parcel. Therefore, a fine equaling $1,000 could become a lien, which may be the
case with an alleged landscape violation. F.S. §720.305 also provides that the
prevailing party is entitled to reasonable attorneys’ fees and costs from the
non-prevailing party as determined by the court. F.S. §720.305(2)(b) provides
the homeowner must be given at least 14 days’ notice of the fine and be given an
opportunity to attend a hearing before a grievance committee of at least three
members appointed by the board who are not officers, directors, or employees of
the association, or the spouse, parent, child, brother, or sister of an officer,
director, or employee.
This statutory schedule created by F.S. §720.305 for fining homeowners for
alleged deed restrictions is wholly antithetical to the compelling public policy
purpose of environmental protection created by F.S. §373.185. In fact, F.S.
§720.305 transfers virtually all of the risk associated with asserting rights to
implement Florida-friendly landscaping on the homeowner. If the homeowner
implements what he or she believes to be Florida-friendly landscaping practices,
he or she is at the mercy of the HOA deciding it no longer approves of the
practice in question and would prefer the homeowner re-sod the entire lawn at
his or her expense. The hearing process is highly flawed as deed restriction
violation letters are often amorphous and include directives, such as “remove
weeds” or “re-sod lawn,” and the appointed appeals board is not required — and
rarely possess — the expertise to determine if a landscape is Florida-friendly.
Such a determination would require a basic knowledge of the ecological niche
where the homeowner lives, basic landscaping principles, and a thorough
understanding of the statutory scheme or intent. The Florida DEP/UF model
ordinances can provide guidance as to these determinations.
If the homeowner decides to fight the HOA’s demand in court (presumably after an
unsuccessful appeal to the grievance committee), the homeowner is subject to a
$1,000 fine and a lien on the property. If the homeowner takes the HOA to court,
he or she will owe attorneys’ fees to the HOA if he or she loses (i.e., if the
judge/jury decides the landscaping practice is not Florida-friendly). In other
words, while the Florida-friendly landscaping statute provides some protection,
the guidelines for determining what is Florida-friendly is too vague to provide
any certainty that a given practice is protected. The result is the homeowner
being placed in a precarious situation, where the threat of having to pay the
HOA’s attorneys’ fees and costs may result in the homeowner simply giving in to
the HOA’s demands.
Further, the HOA has no corresponding disincentive to take the homeowner to
court as the HOA board of directors is not spending its own money; rather, it is
spending the collective contribution of members’ assessments. An HOA motivated
by spite or recalcitrance can force a homeowner to spend tens of thousands of
dollars and risk a judgment for tens of thousands of dollars more to assert
rights under a statute that is meant to conserve water and protect the
environment. In addition, F.A.C.R. 61E14-2.001, which governs the standards of
professional conduct for licensed community association managers, contains no
reference to Florida-friendly landscaping, and there is no language in that rule
establishing liability and/or disciplinary action for a community association
manager willfully disregarding the protections afforded to homeowners under F.S.
§373.185. Ultimately, there remains great risk to the homeowner asserting his or
her rights to protect the environment and conserve water, and there is little to
no personal risk to HOA board members and property managers from preventing such
conservation measures from taking place.
Need for Legislative Reform
It is the authors’ position that legislative reform is necessary to carry out
the compelling public interest of water conservation and environmental
protection set forth in F.S. §720.305 and make the following policy
recommendations:
1) Create an administrative process where statutorily appointed specialists
settle disputes as to whether a landscape practice is Florida-friendly. In other
words, an individual such as a University of Florida Institute of Food and
Agricultural Sciences (IFAS) faculty or extension agent (if allowed by their
department) or Water Management District or Department of Environmental
Protection (DEP) scientist would act as a hearing officer to settle disputes
between HOAs and homeowners as to whether a landscape is Florida-friendly and,
therefore, protected. The specialist could undergo training and receive
certification for evaluating residential landscapes and determining if they are
Florida-friendly. The homeowner and HOA should be allowed to present written
authorities. such as soil survey reports and extension documents, especially
publications from the Institute of Food and Agricultural Sciences and the
Florida DEP/UF models for ordinances, covenants, and restrictions, as support
for their respective positions. Because of his or her training with respect to
landscape ecology, the specialist would have far more knowledge in the subject
matter and would be better suited for settling disputes compared to an HOA
appeals committee, judge, or jury. Both the HOA and the homeowner could present
evidence to the specialist, who would make a binding decision on the parties,
one appealable to the courts under an abuse of discretion standard. Such a
measure would greatly reduce the burden on the homeowner and the courts and
better effectuate the statutory purpose of F.S. §720.305.
2) Eliminate the loser-pays provision associated with F.S. §720.305 as it
applies to Florida-friendly landscaping. As F.S. §720.305 contains a compelling
public policy interest of water conservation and environmental protection, a
homeowner should feel free to assert his or her rights to implement
Florida-friendly landscaping and to challenge any deed restriction or fine
imposed by an HOA that violates F.S. §720.305(2)(B). If the specialist hearing
officer described above determines the landscaping practices are not
Florida-friendly, the homeowner would be given a reasonable time to take
necessary measures to alter his or her landscape.
3) The burden of proof should be placed on the HOA to demonstrate the
landscaping practices are not Florida-friendly if it intends to fine the
homeowner. Property managers are rarely qualified to determine if a landscape is
Florida-friendly, and the authors believe it is improper for them to assess
fines when they are in no position to determine if the landscape practices are
protected under F.S. §720.305. Furthermore, if HOAs/property managers want to
impose fines on a homeowner for the related landscape’s lack of aesthetic
appeal, the burden should rest with the HOA to prove the landscaping practice is
not Florida-friendly. Such an outcome is reasonable and just as the HOA’s
interest in maintaining aesthetic appeal has been statutorily determined to be
less important than environmental protection and water conservation. Further,
the HOA should be required to prospectively obtain third-party expert opinion
that the landscaping practices are not Florida-friendly prior to assessing any
fine, and such opinion can be presented to the specialist hearing officer in (1)
above if the HOA decides to take action against the homeowner.
Conclusion
The Florida-friendly landscaping statute is an important step in promoting water
conservation and environmental protection. The Florida Legislature has
recognized water conservation is critical to the future of the state. The
statute has created a framework that appears to allow homeowners to adopt more
water-efficient and environmentally friendly landscaping measures. However,
homeowners’ rights under the statute are far from clear, and there is great need
for legislative reform to clarify the statute and to adopt institutional changes
that more effectively promote the compelling legislative purpose. Also, if the
deed restrictions require architectural review board approval prior to
installing a specific landscape practice, then approval must be sought, even if
the practice is protected. If the HOA denies the homeowner’s application or
takes enforcement action against the homeowner after adoption of the landscape
practice, the homeowner is required to fight the HOA in court, in order to
assert their rights under F.S. §373.185. Litigation is expensive and
time-consuming, and many homeowners do not have the financial means to litigate
and end up giving in to HOA demands by replacing their otherwise protected
landscape plants in order to appease the HOA. Homeowners are further discouraged
from asserting their rights under F.S. §373.185 because the “loser pays”
provision of F.S. §720.305 forces a homeowner to pay the HOA’s attorneys’ fees
in the event his or her Florida-friendly landscaping defense is unsuccessful.
Further, HOA’s are notorious for retaliation, and many attorneys will advise
homeowners to cave in to the HOA’s demands rather than assert a valid legal
defense that their landscaping practices are Florida-friendly. Homeowners may be
able to assert a claim against the HOA, property manager, or HOA attorney for
violation of the FDCPA and FCCPA under some circumstances; unfortunately, this
is likely not enough to prevent HOAs from willfully violating F.S. §373.185. The
current statutory scheme lays out a compelling state interest of environmental
protection and water conservation and provides protection to homeowners for
environmental stewardship. Regrettably, all the costs and risks associated with
asserting these rights are placed on the homeowner, with no help from the state
of Florida. By adopting the legislative reforms recommended in this article, the
state of Florida will move closer to a sustainable future.
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