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Article Courtesy of The Palm
Beach Post
By Mike Diamond
Published October 18, 2022
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BOYNTON BEACH — The battle over a homeowner's claim that he has the right to
mark his driveway with a large red diamond at the Equus community west of
Boynton Beach shows no signs of letting up despite a recent court ruling that
favored the HOA.
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Scott Weires, the
lawyer for the homeowner, said his client, Barry Rosenthal,
will appeal the recent decision of County Court Judge
Reginald Corlew. At issue is just who owns the driveway —
the homeowners association or the homeowner.
Corlew sided with the HOA, noting that it maintains the
pavers that are common property. Weires told The Palm Beach
Post that the technical legal issue is far from settled and
has far-reaching legal implications for HOA boards and their
homeowners.
The issue has ripped apart the community for the past four
years as Rosenthal claims he is the victim of selective
enforcement. For a period of time, he was denied access to
amenities at Equus that include tennis courts and a fitness
center.
Homeowners at Equus are responsible for that part of the
driveway that stretches from the garage to the sidewalk. At
the heart of the lawsuit is the apron that goes from the
outer part of the sidewalk to the road. The HOA maintains
aprons throughout the community, spending about $10,000 a
year. It wants the aprons to be uniform.
When Rosenthal removed apron pavers to replace damaged
pavers in the front of his driveway, the homeowners
association essentially accused him of theft and also
objected to Rosenthal's placement of a large red diamond in
the apron.
Pavers are the blocks, stones or bricks used to cover an
outdoor area, such as a driveway or a patio and are popular
in upscale South Florida communities.
Under the supervision of a sheriff's
deputy, an HOA contractor removed Rosenthal's pavers from
the driveway apron, claiming he altered its shape and design
without approval. |
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The red diamond and the pavers on the driveway apron
at a home in Equus were removed earlier this year by an HOA
contractor under the supervision of a Sheriff's deputy. A judge
recently ruled that the HOA was within its rights to remove the
pavers as it maintained they are common property owned by the HOA.
The homeowner plans to appeal the decision.
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Corlew ruled that Rosenthal must reimburse the HOA the $3,000 it spent to
remove the pavers and install new ones. Rosenthal also may have to pay its
legal expenses, which could be several thousand dollars, according to
Gregory Weiss, the attorney for the HOA.
Rosenthal claims the new pavers installed by the homeowners association are
much different from the pavers in the front part of his driveway. "They say
they want everything to be uniform, but I have a driveway now that looks
awful."
Weiss said the HOA has an obligation to enforce its rules, noting: "They
cannot just ignore someone who has violated the rules."
The homeowners association essentially accused Rosenthal of theft for taking
the pavers. But Weires said it is the HOA that is guilty of theft, not
Rosenthal.
"Here, the Rosenthals (or their builder) initially purchased and obtained
permission from the association (or developer of the community) to install
driveway pavers onto the apron in front of their home, which is common area.
The issue on appeal is who owns those items because one cannot be liable for
conversion if they own the item allegedly converted."
Weires said that should Rosenthal prevail on appeal, the Equus HOA could be
held responsible for replacing his entire driveway, a cost that could exceed
$60,000.
Realtors describe the 250-unit Equus development, off Lyons Road north of
Boynton Beach Boulevard, as “a magnificent enclave of luxury estate homes
with an equestrian flair.” Residences of 6,500 square feet often sell for
more than $1 million.
As for Rosenthal’s claim that he was the victim of selective enforcement,
Weiss noted that the judge found that Rosenthal's testimony alleging that
issue was not “credible.”
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