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Effective July 1, 2007 the
Florida
legislature enacted a new section of FS 720 dealing with architectural
rights and privileges of owners. More
very good provisions to this paragraph were added in 2024
Hopefully,
it will stop boards from passing unreasonable rules and architectural
guidelines that reflect more the personal tastes of board members and/or
committee members than the provisions of the original deed restrictions. It's
the intent of this provision to stop boards and committees from making up
their own rules, thereby ignoring provisions that are part of the original
deed restrictions.
It clearly explains the Extent
of Authority of an association or any architectural committee as
to the limit and/or the enforcement of the standards for external
appearance, as authorized by the declaration of covenants.
If the declaration of covenants provides options for
the use of material, the size of the structure or improvement, the design
of the structure or improvement, or the location of the structure or
improvement on the parcel, an association can't
restrict the right of a parcel owner to select from the options
provided in the declaration of covenants.
If the declaration of covenants does not provide
specific Setback Limitations, often a cause of heated debates ending in
litigation, the applicable county or municipal setback limitations shall
apply.
The requirements of this provision are based upon the
original deed restrictions.
A little hint:
Don't
rely solely on any documents that are handed out by your board or
management company. These documents may have been altered without the
necessary consent of the ownership. In
order to make sure that your rights are fully protected, go to your local
court house and get a copy of your original covenants -- just to make
sure!
Even if this paragraph of
the statutes provides for Recovery
Of Damages Caused By Infringement, it is still up to the
homeowners to fight their battles in court! This
is as well a provision that requires the aggrieved party to pursue presuit
mediation, according to FS 720.311(2)(a), which
even increases the cost.
Even
if this section of the Homeowners' Act
clarifies the rights of owners in
regard to architectural guidelines and disallows enforcement that is
inconsistent with the rights and privileges of a parcel owner set forth in
the declaration of covenants, it is an issue that will be very expensive
and time-consuming to litigate, since it's another provision that lacks
easy enforcement.
720.3035 Architectural
control covenants; parcel owner improvements; rights and
privileges.
(1)(a) The
authority of an association or any
architectural, construction improvement, or
other such similar committee of an association
to review and approve plans and specifications
for the location, size, type, or appearance of
any structure or other improvement on a parcel,
or to enforce standards for the external
appearance of any structure or improvement
located on a parcel, shall be permitted only to
the extent that the authority is specifically
stated or reasonably inferred as to such
location, size, type, or appearance in the
declaration of covenants or other published
guidelines and standards authorized by the
declaration of covenants. An association or any
architectural, construction improvement, or
similar committee of an association must
reasonably and equitably apply and enforce on
all parcel owners the architectural and
construction improvement standards authorized by
the declaration of covenants or other published
guidelines and standards authorized by the
declaration of covenants.
(b) An
association or any architectural, construction
improvement, or other such similar committee of
an association may not enforce or adopt a
covenant, rule, or guideline that:
1. Limits
or places requirements on the interior of a
structure that is not visible from the
parcel's frontage or an adjacent parcel, an
adjacent common area, or a community golf
course.
2. Requires
the review and approval of plans and
specifications for a central
air-conditioning, refrigeration, heating, or
ventilating system by the association or any
architectural, construction improvement, or
other such similar committee of an
association, if such system is not visible
from the parcel's frontage, an adjacent
parcel, an adjacent common area, or a
community golf course and is substantially
similar to a system that is approved or
recommended by the association or a
committee thereof.
(2) If
the declaration of covenants or other published
guidelines and standards authorized by the
declaration of covenants provides options for the
use of material, the size of the structure or
improvement, the design of the structure or
improvement, or the location of the structure or
improvement on the parcel, neither the association
nor any architectural, construction improvement, or
other such similar committee of the association
shall restrict the right of a parcel owner to select
from the options provided in the declaration of
covenants or other published guidelines and
standards authorized by the declaration of
covenants.
(3) Unless
otherwise specifically stated in the declaration of
covenants or other published guidelines and
standards authorized by the declaration of
covenants, each parcel shall be deemed to have only
one front for purposes of determining the required
front setback even if the parcel is bounded by a
roadway or other easement on more than one side.
When the declaration of covenants or other published
guidelines and standards authorized by the
declaration of covenants do not provide for specific
setback limitations, the applicable county or
municipal setback limitations shall apply, and
neither the association nor any architectural,
construction improvement, or other such similar
committee of the association shall enforce or
attempt to enforce any setback limitation that is
inconsistent with the applicable county or municipal
standard or standards.
(4)(a) Each
parcel owner is entitled to the rights and
privileges set forth in the declaration of
covenants or other published guidelines and
standards authorized by the declaration of
covenants concerning the architectural use of
the parcel, and the construction of permitted
structures and improvements on the parcel. Such
rights and privileges may not be unreasonably
infringed upon or impaired by the association or
any architectural, construction improvement, or
other such similar committee of the association.
If the association or any architectural,
construction improvement, or other such similar
committee of the association denies a parcel
owner's request or application for the
construction of a structure or other improvement
on a parcel, the association or committee must
provide written notice to the parcel owner
stating with specificity the rule or covenant on
which the association or committee relied when
denying the request or application and the
specific aspect or part of the proposed
improvement that does not conform to such rule
or covenant.
(b) If
the association or any architectural,
construction improvement, or other such similar
committee of the association should
unreasonably, knowingly, and willfully infringe
upon or impair the rights and privileges set
forth in the declaration of covenants or other
published guidelines and standards authorized by
the declaration of covenants, the adversely
affected parcel owner is entitled to recover
damages caused by such infringement or
impairment, including any costs and reasonable
attorney fees incurred in preserving or
restoring the rights and privileges of the
parcel owner set forth in the declaration of
covenants or other published guidelines and
standards authorized by the declaration of
covenants.
(5) Neither
the association nor any architectural, construction
improvement, or other such similar committee of the
association shall enforce any policy or restriction
that is inconsistent with the rights and privileges
of a parcel owner set forth in the declaration of
covenants or other published guidelines and
standards authorized by the declaration of
covenants, whether uniformly applied or not. Neither
the association nor any architectural, construction
improvement, or other such similar committee of the
association may rely upon a policy or restriction
that is inconsistent with the declaration of
covenants or other published guidelines and
standards authorized by the declaration of
covenants, whether uniformly applied or not, in
defense of any action taken in the name of or on
behalf of the association against a parcel owner.
(6)(a) To
protect the health, safety, and welfare of the
people of the state and to ensure uniformity and
consistency in the hurricane protection
installed by parcel owners, this subsection
applies to all homeowners' associations in the
state, regardless of when the community was
created. The board or any architectural,
construction improvement, or other such similar
committee of an association must adopt hurricane
protection specifications for each structure or
other improvement on a parcel governed by the
association. The specifications may include the
color and style of hurricane protection products
and any other factor deemed relevant by the
board. All specifications adopted by the board
must comply with the applicable building code.
(b) Notwithstanding
any other provision in the governing documents
of the association, the board or any
architectural, construction improvement, or
other such similar committee may not deny an
application for the installation, enhancement,
or replacement of hurricane protection by a
parcel owner which conforms to the
specifications adopted by the board or
committee. The board or committee may require a
parcel owner to adhere to an existing unified
building scheme regarding the external
appearance of the structure or other improvement
on the parcel.
(c) For
purposes of this subsection, the term "hurricane
protection" includes, but is not limited to,
roof systems recognized by the Florida Building
Code which meet ASCE 7-22 standards, permanent
fixed storm shutters, roll-down track storm
shutters, impact-resistant windows and doors,
polycarbonate panels, reinforced garage doors,
erosion controls, exterior fixed generators,
fuel storage tanks, and other hurricane
protection products used to preserve and protect
the structures or improvements on a parcel
governed by the association.
History.
s.
11, ch. 2007-173; s. 1, ch. 2024-205; s. 5, ch.
2024-221.
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