We frequently hear about disputes with homeowners who are fighting with their association (“HOA”) over their right to Florida-Friendly Landscaping (“FFL”). For those of you who are going “what?,” several years ago Florida passed several laws to help conserve water and reduce the amount of chemicals applied to landscaping as an initiative to save our aquifers. The motto of the program is “right plant, right place.” Florida tends to go through cycles of droughts, so having a yard which is 90% St. Augustine grass is not always feasible or environmentally friendly. This grass is hard to grow in sandy soils and can require watering up to four times a week during the summer. It also is less tolerant to disease and pests than some of the other alternatives. For more information on FFL, go to www.floridayards.org.
The purpose of this blog is discuss the litigation aspect of exercising your right to FFL. Chapter 720 of the Florida Statutes provides a homeowners association may not prohibit a homeowner from implementing FFL. This does not mean the homeowner can just rip out the St. Augustine grass and proceed with new landscaping. If the Declarations of Covenants, Conditions and Restrictions (“Declarations” or “CCRs”) require approval for landscaping changes, then the homeowner must fill out the application and get approval.
The biggest obstacle to implementing FFL is there are some bad, bad associations out there who know most homeowners are not going to spend their life savings and three or more years of fighting over their grass. There is no way to estimate how much a case will cost because you never know what the other party is going to do or how aggressive they will fight. Staying in a case all the way through trial could cost $100,000 or more. If the homeowner wins, they are entitled to their reasonable attorneys’ fees (not 100%), but if they lose they are on the hook to reimburse the association its reasonable attorneys’ fees. Not many people are willing to take this risk or spend the money, especially over grass, so like so many other association disputes, the homeowner backs down. There are no state agencies to hold the associations accountable, so they get away with breaking the law.
Homeowners sometimes will start litigating, but halfway through they have a change of heart, run out of money, or worse yet, face some type of personal crisis (divorce, death, health issues). The problem is they have to decide if they can stick it out or pay the association its attorneys’ fees.
Stress is another big challenge to defending your right to FFL. Just like all litigation, it’s an emotional rollercoaster. There are wins and losses in the battle to the finish line. Sometimes the stress is overwhelming.
So what’s the solution? Better legislation. That’s no easy task! Until the Florida Legislature decides to put in a monetary penalty enforceable by a state agency into the FFL statutes, we are at the mercy of the Board of Directors of the associations. There are a number of good associations out there which embrace FFL. Your homework, if you want FFL, is to talk to your board and write your legislators! Now get out there and save the planet!