Give them an inch, they'll take a yard?
One couple have that view of the Pebble Creek association,
which replaced their lawn by force and billed them.
Article Courtesy of the St. Petersburg Times

 
By MICHAEL VAN SICKLER
Published April 27, 2003

PEBBLE CREEK - Ada Phillips stands in the front yard of her rented Pebble Creek home and sees a lawn much like the ones surrounding it.

Green St. Augustine grass covers much of it. Yellow and bare patches pock the rest.

But beyond this suburban facade festers a two-year turf war that tests how far an association can go to enforce the community rules known as deed restrictions.

If an association is unhappy with the condition of a property, can it send workers to make repairs and bill the owners without their consent or a court order?

It's a question that pits the Pebble Creek Homeowners Association against the owners of the house, Edward and Billye Simmons.

The association, in a lawsuit filed in Hillsborough Circuit Court, alleges that the couple had not properly tended the lawn at their Fox Hollow Road house. Phillips, a 49-year-old weight loss technician with four foster children, has rented the house from them for the last three years. She said the association was targeting her, not the lawn.

"The lawn was maybe like this one," she said, pointing across the street to a yard streaked with small divots. "My lawn wasn't the only one that was getting brown.

"I don't know why they singled it out," she said. As she is black, she suggests, "it could have been a racial thing. I also rent here, and they don't like that. There had to have been a reason, because it's not the lawn."

Court records show that in January 2002, 16 months after it first warned the Simmonses that the lawn didn't meet community standards, the association went in and replaced the sod. It then billed the couple $2,212 for work performed by Michael Meggison Services, a lawn repair company owned by a man Florida corporate records identify as an officer of the association, Michael Meggison. The association put a lien on the house and sued in July when the couple refused to pay.

In a countersuit filed this month, the couple allege that the association overreached its authority and trespassed to replace the lawn. The association never took bids for the job before awarding the work to Meggison, and the work was sloppy, the suit alleges. Meggison and association president Michael Carricato, who was on vacation, referred any questions to the association's attorney, Ricky Thacker.

Thacker would not comment.

An April 23, 2001, letter from Thacker warned the Simmonses that their lawn didn't meet "community standards of a green, relatively weed free lawn." Thacker argues in his lawsuit that because they didn't comply, the association had the power to repair the lawn and bill the couple.

A Pebble Creek deed covenant does allow the association to enter a property and fix a problem without owner consent. That supports the association's case, said Ellen de Haan, a Largo attorney who represents more than 350 homeowner associations throughout Florida.

"Time and time again, you see cases like this where the owners just don't read the language of the deed restrictions," de Haan said. "If the documents had that language in it, then the association can do it."

The Pebble Creek Homeowners Association has earned a reputation for tough lawn enforcement. In August 2000, amid a drought and imposed watering restrictions, the association sent out about 150 warning letters to homeowners with lackluster lawns, about 15 percent of the community.

George Faugl, the former head of the New Tampa Community Council, received one of those letters. He bitterly objected then, and said he still worries about how the association enforces standards.

"I don't know if selective enforcement is a problem now, but that's what I complained about then," Faugl said. "The thing I worry about is that the process is so subjective. There needs to be a consistency."

Billye Simmons referred all questions to her attorney, Burton Williams, who said the restrictions were amended in 1990. The new enforcement covenant made no mention that the association could fix a problem on a property without permission, Williams said.

"The later version overrides the original covenants," Williams said.

He said the association took unprecedented action when it replaced the lawn without a court order.

"This is the first time this association has fixed a problem on a property over the objections of a landowner," Williams said. "And I can't find one case where an association went and changed something like the sod without getting permission by a court."

He said the association didn't help its case by awarding the job of replacing the lawn to its vice president.

According to testimony given by Carricato, Williams said, the association hired Meggison's company after other companies refused to do the job because of the circumstances. Meeting minutes were not available. But testimony by Pebble Creek officials, contained in the court file, said that Meggison recused himself from the vote that gave his company the $2,212 job.

The association never took photos of the property, which means the court won't have any evidence that the lawn was in worse shape than other lawns, Williams said.

"What they did was a judgment call, and that's not what the restrictions are all about," Williams said. "This type of enforcement poses risks for homeowners. What if Betty is on the board, and Betty just had a fight with your wife? Do you now have to worry about selective enforcement? It's uncivilized ugliness."

Faugl says that despite his misgivings about how Pebble Creek has enforced lawn restrictions, he said yards look better than they did before the crackdown. Drastic steps to enforce the rules sometimes are necessary, he said.

"If you're a paper tiger, then people know that," Faugl said. "Then the whole subdivision goes downhill. They have to be tough."

Faugl said the association dropped his case after he spruced up his yard, which he still argues was in okay shape. He said Carricato even told him that his yard wasn't in bad condition shortly after he received the warning letter.

Count Ada Phillips as unimpressed with Pebble Creek. As she sees it, her lawn looked like the others in the neighborhood before workers came to rip it up and put in new sod.

"There was nothing wrong with it," Phillips said. "Why is it that they can come on to your property and do this? It doesn't seem right."