Condo questions: Do owners need a vote to have board update landscaping?

Editor’s note: Attorneys at Goede, DeBoest & Cross respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, civil litigation, estate planning and commercial transactions.

Q: The landscaping in our condominium common areas needs to be updated. Our Board is trying to keep it looking nice, but it is falling behind other communities and we want to do an overhaul. The cost is not in the budget and would require a special assessment. Do we need a vote of the owners to update landscaping?

-- H.R., Hollywood, FL

A: There are two issues here. The first question is whether the landscaping changes constitute a material alteration to the common elements and require a vote of the owners. The second is whether the Board has the authority to raise funds via special assessment to pay for the landscaping updates. The ability to raise funds for a project is different from the ability to actually spend money and do a project.

A material alteration is generally described as a palpable or perceptive change to the use, appearance or function of the common elements or association property. The Florida Statutes provides that 75% of unit owners must approve material alterations to the common elements unless your governing documents provide for a lower threshold. Most condominium documents do provide a lower threshold and many condominium documents do not require any vote at all if the cost of the alteration does not exceed a specific dollar amount. Further, certain alterations which are required by state or local authorities, or alterations which are necessary for the maintenance and preservation of the common elements can be exempt from the voting requirement.

Here, there are a number of arbitration cases which hold that general landscaping decisions fall within the Board’s business judgment, meaning general landscaping changes are considered maintenance and therefore within the Board’s jurisdiction and do not require a vote of the owners. This would also typically include extensive updates to landscaping, provided that the theme of the landscaping is not drastically changed. In other words, if the landscaping is currently a desert landscaping theme with cacti and gravel, it would likely be a material alteration to switch to a jungle landscaping theme.

The second issue here involves whether the special assessment requires a vote by the owners. This answer is likewise very document specific and requires and analysis of your condominium documents. The general rule is that the Board does not require a vote of the membership to levy a special assessment, but many condominium documents will place some limits on that authority and I recommend you have the issue reviewed by a Florida condominium attorney.

Finally, I should note that this analysis is very different in a homeowners’ association governed by Chapter 720 where the statute itself does not include the same material alteration language that is contained in the Chapter 718 Florida Condominium Act.

Q: My neighbor removed some shrubs, exposing the side of the home which is discolored and very unsightly. When I asked the neighbor what she intended to do about, her response was that she won’t do anything about it for a while because she doesn’t see it or walk past it. I have to look at it every day. What can I do?

-- T.F., Boca Raton

A: To properly answer the question, you would first need to review the governing documents to determine who is responsible to maintain the exterior of the home and who is responsible to paint the home. Next, you would want to review the appropriate maintenance provisions to determine if there is a specific minimum level of care required. Sometimes, the documents provide that the home shall be maintained “properly” or “in a first-class manner” or “in the Board’s discretion.”

If the Association is responsible to maintain the home, then I would first file a complaint with the Association. If it is bad, I would assume the Association would take immediate action to correct the issue.

If the owner is responsible, you would still file a complaint with the Association assuming the condition constitutes an actual violation of the documents. It is highly likely that the condition constitutes a violation if there is severe discoloration and rust. The Association would then likely send a letter to the neighbor and ask them to timely correct the problem. These types of violations typically demand compliance within 10-30 days depending on the circumstances.

If neither the Association nor the owner take any corrective action, remember that you and the neighbor are parties to the same contract which requires each owner or the Association to maintain the exterior of the home. At this point, you may need to take action and either bring an action for injunctive relief against the neighbor or against the Association to enforce its governing documents depending on who is responsible to maintain the exterior of the home. There are some requirements that you must follow before actually filing a lawsuit against the Association, so it is highly recommended that you work with a licensed Florida attorney to avoid a misstep.

Richard D. DeBoest, Esq., is Partner of the Law Firm Goede, DeBoest & Cross. Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: [email protected]. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

This article originally appeared on Treasure Coast Newspapers: What is involved with condominium owners updating the landscaping?