Article Courtesy of The
Daily Business Review
By Marc A. Smiley
Published February 14, 2018
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The approval of the colors which homeowners may use to paint the exterior of
their homes is one of the most common architectural review stipulations that
homeowners’ associations use to maintain aesthetic standards for their
communities. Many HOAs require the prior review and approval of proposed house
colors by architectural review committees, which are typically overseen by three
parcel owners who are not also members of the association’s board of directors.
However, many associations’ governing documents also include provisions to limit
the power of the association to take action against color changes and other
architectural modifications in perpetuity. Their declarations of covenants hold
that new colors and other unapproved modifications will be deemed to be approved
if they are not challenged by the association within a set period of time
(typically one year).
A recent ruling by the Appellate Division of the 13th Judicial Circuit Court in
Hillsborough County confirmed that such requirements for community associations
to act within a set timeframe will be strictly construed and applied by
Florida’s courts. In the case of Lamar v. Wheeler’s Landing Homeowners’
Association, the appellate division court reversed the trial court’s judgment
and ruled in favor of the homeowner after interpreting that the HOA’s
declaration provides for automatic approval after 12 months of the color change.
The appellate division judge’s ruling notes that “[t]he record is clear some
people did not like the yellow-brown color” used by Lamar, and she did not seek
nor obtain prior written approval for the use of the color. The defendant
contended that she received an informal verbal approval by one of the board
members prior to painting her home, and evidence suggested that the small
36-home community ran its affairs fairly informally and has had difficulty
finding and keeping board members.
In accordance with the association’s declarations, homeowners making major
changes to their homes are supposed to get prior approval from the community’s
architectural review committee by providing it with an application with detailed
plans. Painting one’s house the same or similar color is not considered a major
change that requires approval, but switching to a completely different color is
considered major.
The homeowner painted her home in July 2013 after she and her painter received
informal approval for the change from a neighbor board member who was also a
member of the architectural review committee, according to their testimony
before the trial court. Regardless of whether the board member approved the
color, which was in dispute, the color change was immediately obvious, yet it
was not until more than a year later in October 2014 when the association sued
the homeowner based on her failure to obtain the prior approval for the color
change.
The trial court agreed with the association and concluded that the owner
violated the association’s declarations by failing to obtain approval prior to
the painting of her house. It rejected her defense, which was based on the
declarations’ provision that the association’s failure to act on a violation
within a year operated as de facto approval, reasoning that this stipulation was
meant to be triggered only upon the submission of a written application.
The appellate division judge disagreed due to the language of the section in
question, which reads: “If the architectural committee does not approve or
disapprove any application or request additional information within 60 days
after receipt of an application consisting of a complete set of plans and
specifications, its approval will be deemed given. If no suit to enjoin or
remove any structure; activity; use; change; alteration or addition in violation
of any provision contained in this declaration is commenced within twelve months
following its completion, its approval also will be deemed given as to all
persons with knowledge of such violation … ”
The appellate ruling concluded that the trial court’s interpretation finding
only a written application triggers the tolling of the one year period during
which the association can take action against an unapproved change “effectively
invalidates Section 2’s earlier pronouncement that written submissions not acted
on in 60 days are considered approved.”
The judge also was not swayed by the association’s argument that the provision
in its own declarations was prohibited by the Florida law barring any contracts
from fixing the period of time within which an action arising out of the
contract may be begun at an interval that is less than the applicable statute of
limitations. She concluded that the declarations provide only that any
architectural violation will be approved if not sued on within 12 months, so the
provision may affect the success of a lawsuit brought after 12 months but does
not limit the association’s ability to sue.
Together with the appellate division’s reversal in favor of the homeowner, it
also granted her motion for appellate attorney’s fees. Such fees will almost
certainly be quite daunting, especially for a homeowners’ association comprised
of only 36 affordably priced homes with a small annual budget that is also
facing considerable fees for its own legal representation in this lawsuit.
This costly lesson for the homeowners’ association in this case comes free of
charge for all other Florida community associations with similar provisions in
their governing documents. Any lawsuits against homeowners involving
architectural review violations must be filed in a timely manner in accordance
with such provisions.
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