Covenant Misinterpretation

Started by ChrisK9 • 7 replies • 1347 views

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ChrisK9 (Florida)
Posts: 8

Posted:

Hi all. I hope you can help. We have a board that I believe is grossly misinterpreting certain use restrictions in order to issue violations for any and all lawn/landscaping deficiencies.

Here is the exact language of the use restriction...

Section 15. Lot Upkeep. All Owners of Lots with completed Dwelling Units thereon shall, as a minimum, have the grass regularly cut and all trash and debris removed. If an Owner of a Lot fails, in Declarant's sole discretion, to maintain their Lot as required herein, Declarant, after giving such Owner at least ten (10) days written notice, is hereby authorized, but shall not be
hereby obligated, to maintain that Lot and said Owners shall reimburse Declarant for actual costs incurred therewith.

Here is an example of the language issued in our violation notice...

LOT UPKEEP: Article IX, Section 15 (Lot Upkeep) of the DCCR: Your front lawn was inspected and was found to need cutting & trim, some small bare areas lacking grass or other acceptable ground cover

When I asked about the "small bare areas lacking grass or other acceptable ground cover", the given response was...

The authority that exercises is reasonably inferable from and implied in the authority to enter an owner's property when he or she has not had "the grass regularly cut." The underlying assumptions of Section 15 are that (1) the owner has grass that is growing, but that is too tall; and (2) the expectation that there be grass. Bare spots are not grass or ground cover.

It is part 2 of the explanation that I am most concerned with. I found this link...

http://www.jimersoncobb.com/blog/2016/02/florida-condominium-and-homeowner-associations-know-your-governing-documents-and-florida-law/

However, restrictive covenants will be strictly construed in favor of free and unrestricted use of real property. Covenants should not be construed in such a manner that it would defeat the plain and obvious purpose of the restriction.
McMillan v. The Oaks of Spring Hill Homeowner’s Association, Inc., 754 So.2d 160.

Does anyone have any other experience with this situation? Thanks in advance.

PitA
Posts: 1,416

Posted:

..... the plain and obvious purpose of the restriction.

... which would be: Maintain your lawn.

When it grows you must mow it.

When it dies you must restore it.

..... in Declarant's sole discretion .....

Good luck in court.

RichardP13 (California)
Posts: 3,868

Posted:

Are you still under developer control, because that is who has authority, not the association. If you want the association to be able to act, you will need to amend your documents and eliminate the words "Declarant" and substitute Association.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Chris

Does or does your lawn have bare spots?

ChrisK9 (Florida)
Posts: 8

Posted:

Thanks for the replies.

Richard... we've been out of developer control for over 20 years.

John... yes, which we are actively working on remedying. Somewhere around 50-75% of the community is in the same situation. We have a lot of large, mature oak trees, so growing grass is going to be difficult for many of us.

I should have stated my intentions in the first place. I'm not necessarily looking for a court battle. I have no problem complying with our DCCR, if the requirements are explicitly stated.

Many of us are growing concerned with our board's attitude and strong arm tactics over the past year. We're looking to drum up support to elect new board members. I am wondering if it is safe to publicly say that we believe their interpretations of the restrictions are at least "legally questionable", and have some legal leg to stand on.

Another example they are using against homeowners is "modifications". Any significant landscaping modification must be approved by the board. I'm fine with that. The interpretation is, "permitting a lawn to contain several bare spots is a substantial modification of the expected conditions of the lawn and there was no consent by the Board of Directors".

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Chris

Are they being demanding? Maybe.

Is what they are doing legally questionable? No.

DouglasM6 (Arizona)
Posts: 724

Posted:

It sounds like you have a Board that is doing their duty. Get involved, work with them. Repair your lawn.

NigelB (Texas)
Posts: 254

Posted:

Quote:

Posted By ChrisK9 on 05/29/2017 4:28 AM
Hi all. I hope you can help. We have a board that I believe is grossly misinterpreting certain use restrictions in order to issue violations for any and all lawn/landscaping deficiencies.

Here is the exact language of the use restriction...

Section 15. Lot Upkeep. All Owners of Lots with completed Dwelling Units thereon shall, as a minimum, have the grass regularly cut and all trash and debris removed. If an Owner of a Lot fails, in Declarant's sole discretion, to maintain their Lot as required herein, Declarant, after giving such Owner at least ten (10) days written notice, is hereby authorized, but shall not be
hereby obligated, to maintain that Lot and said Owners shall reimburse Declarant for actual costs incurred therewith.

Here is an example of the language issued in our violation notice...

LOT UPKEEP: Article IX, Section 15 (Lot Upkeep) of the DCCR: Your front lawn was inspected and was found to need cutting & trim, some small bare areas lacking grass or other acceptable ground cover

When I asked about the "small bare areas lacking grass or other acceptable ground cover", the given response was...

The authority that exercises is reasonably inferable from and implied in the authority to enter an owner's property when he or she has not had "the grass regularly cut." The underlying assumptions of Section 15 are that (1) the owner has grass that is growing, but that is too tall; and (2) the expectation that there be grass. Bare spots are not grass or ground cover.

It is part 2 of the explanation that I am most concerned with. I found this link...

http://www.jimersoncobb.com/blog/2016/02/florida-condominium-and-homeowner-associations-know-your-governing-documents-and-florida-law/

However, restrictive covenants will be strictly construed in favor of free and unrestricted use of real property. Covenants should not be construed in such a manner that it would defeat the plain and obvious purpose of the restriction.
McMillan v. The Oaks of Spring Hill Homeowner’s Association, Inc., 754 So.2d 160.

Does anyone have any other experience with this situation? Thanks in advance.

If all that is in the restrict regarding the upkeep of the dwelling lot is "as a minimum, have the grass regularly cut and all trash and debris removed" then all that is required of the lot owner is the they do as the restriction requires.

The restriction does not specify what the term regularly is. If you cut one a week that is regularly, if you cut once every two weeks that is also regularly. It says nothing about bare spots.

Our restrictions say the following:

"Lawn mowing and edging on a regular basis maximum grass height for developed area is 6 inches Maintenance of lots shall include regular mowing, edging of turf areas, weeding of plant/flower beds, fertilizing, weed control and watering of the turf and landscape areas on each Lot. Trees and bushes should be pruned so as to maintain attractive condition. Owner of each lot must maintain solid sod on the front and side yards of the Lot with St. Augustine grass and shall maintain such grass in a neat, clean and attractive condition. Periodically, damaged areas of grass will need to be replaced. " Such replacement should be with the same species of grass (St. Augustine)."

As for "forced mows" - we don't do it.

They need to amend their restrictions to provide more specificity

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