Scope of the Association’s Architectural Review Authority Might Be Muddier Than You Think

So, if your Declaration says your Association has the right to approve exterior modifications, that includes landscaping modifications, right?

As with most legal issues, the answer is “it depends”. Florida’s 5th District Court of Appeals addressed the scope of architectural review in Bendo v Silver Woods Community Association, Inc. 159 So.3d 179 (Fla. App. 5thDCA 2015). The case involved a dispute over an application for architectural review and the Association’s denial of the owner’s requested landscaping modifications. The owner challenged the scope of the Association’s authority to review and approve exterior modifications based upon the language in the Declaration:

Section 1. Approval of ARC. No building, fence, wall or other structure shall be commenced, erected or maintained upon the Property, nor shall any exterior addition to or change or alteration therein be made, unless it is in compliance with the zoning code of Orange County, Florida, and other applicable regulations and until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Board of Directors of the Association, or by the Architectural Review Committee (ARC).”

The first sentence in the above provision was key to the Court’s ruling. Notice that it does not specifically mention “landscaping”. Yes, it does say “nor shall any exterior addition to or change or alteration be made”, but the Court focused on the fact that the sentence only mentions “building, fence, wall or other structure” in the beginning of the sentence. Because it does not specifically mention landscaping, the Court ruled that the Association’s right of architectural review is limited to “hardscape” modifications, or changes to “structures” built on the lot.

This opinion is significant because it was issued by our 5th District Court of Appeals, the Appellate Court that has jurisdiction over appeals from trial courts in Central Florida including Orange, Seminole, Osceola, Brevard and Volusia Counties. However, it is really an interpretation of the language in this particular Declaration. Most Declarations are written broadly and specifically enough to include landscaping and other “soft” modifications, but you should carefully review the language of your Declaration with legal counsel to determine the true scope of your Association’s right of architectural review and approval. Consider pursuing an amendment if the scope of review is unclear or not broad enough to include any exterior modification.