Deed-Restriction Tree Fight Too Costly For Homeowner

Article Courtesy of Tampa Tribune

By ELIZABETH LEE BROWN
Published February 9, 2006

LUTZ - For the past 18 months, Mike Mills has been fighting his homeowner's association over the lack of an oak tree in his front yard.

He and his family live in Lakeshore Estates, a deed-restricted community where live oaks dot the rights-of-way of many, but not all, of its homes.

But it wasn't an oak, but Mills' preference for magnolias, that got him feuding with the community's covenant watchdogs.

The tree spat started in August 2004 when Hurricane Charley ripped through and uprooted the oak next to his mailbox on Melissa Ann Drive.

The 44-year-old civil engineer tried to save the tree by righting it, but when it died a few months later, he saw that as an opportunity to upgrade his landscaping. That's when the Lakeshore Estates deed restriction forces went into action. Greenacre Properties sent a "friendly reminder" letter informing Mills and his family that they were violating deed restrictions and needed to replace the missing tree with a new one.

In December 2004, Mills replaced the oak with another Florida native plant - two Gem magnolia trees that were a Father's Day present.

That riled members of the architectural control committee even more. Mills got an unannounced visit from a committee member, who said he needed to submit a landscaping plan for the new trees.

To justify the magnolias, Mills supplied medical records documenting his 17-year-old son's asthma and allergy to live oak. But that didn't sway committee members.

The association, under property managers Communities of America, ordered Mills to uproot the magnolias and replace the oak, saying the trees didn't match the other oak trees in the right-of-way.

"The biggest thing that floors me is that nobody can tell me where this rule comes from," Mills said.

He said his wife, Lynette, read the deed restrictions and couldn't find any reference requiring homeowners to replant lost or decayed trees with oaks.

He then checked with Hillsborough County's building department, looked up the permitted plans, and could not find any development conditions that address the species of trees.

"This is not communism here. In my opinion they add value to my property," Mills said of the magnolias.

After months of bickering, rejected proposals, letters and e-mails, the escalating tree flap didn't die.

In September, the association's attorney sent a certified letter restating the tree violation and ordered the Millses remove the two magnolias "to promote harmony within the community," or face formal mediation and possible legal action.

The architectural control committee has the power to deny improvements inconsistent with the neighborhood's "aesthetic scheme," the letter said. When the trees weren't removed, attorneys sent a second letter in October notifying the Millses that the homeowners association had filed a petition for mediation with the state's Department of Business and Professional Regulation - a step before filing a lawsuit. Mills said he can't believe the tree dispute continued for this long and vows that his next home won't be in a deed-restricted community.

"The whole principle is the thing. I'm just amazed that something like this can happen and it's not against the law," he said.

Richard Pitrowski of Communities of America referred questions to the Lakeshore Estates board of directors.

Jimmy Schramm, homeowner's association president, didn't return telephone calls.

Dave Smith, the former president who led the group during most of the dispute, said the committee is very stringent on keeping oak trees planted in the right-of-way in order to keep a consistent look to the community.

"We have a very strong architectural control committee," he said. "We feel it's pretty clear what the owners can and cannot do with or without approval."

As for Mills, he decided he didn't have the time or the money to continue fighting the board.

He removed the magnolias in late January and considers the case closed. He replanted one in his back yard and one next to his driveway.

Mills figures he will relent and spend $75 to $100 for an oak tree, which is cheaper than the legal fees he would pay to fight the homeowner's association.

"Unfortunately, I'll have to put the oak in," he said. "I don't want to go to court. I don't want to get sued. They don't have to have anything to say what they are doing is right."