Changes to the Homeowners’ Association Act: HB 437 Expands Property Owners’ Rights to Use Their Property

“Why does the HOA care what I do in my backyard?” is an all-too-common question posed by homeowners. Responsible for maintaining the community rules, facilities, and appearance, homeowners’ associations have an important role in upholding community standards. However, a common complaint amongst owners revolves around their homeowners’ association’s (“HOA”) authority to govern what happens in the back or side yard of a home out of sight of the rest of the HOA. The Florida Legislature has answered this question, passing HB 437 and in doing so expanding homeowners’ rights to utilize their property without restriction from an HOA.

What Could a Homeowners’ Association Restrict

The restrictions that an HOA can enforce are established by the HOA’s declaration of covenants, articles of incorporation, and bylaws (collectively “Governing Documents”) as well as Chapter 720, Florida Statutes and reasonable rules and regulations established by the Board of Directors. In almost every HOA, the Governing Documents establish architectural and use guidelines for the community, including items such as approved plants and shrubbery, exterior paint colors, and approved items or structures that can be located on a property, to name a few. Essentially, the HOA can restrict the use of a property, as is permissible under the Homeowners’ Association Act, to ensure compliance with the Governing Documents. However, enforcement of these restrictions can, at times, stray from what many homeowners feel is common sense, especially where the restricted item is not visible from others’ property. Thus, leading to the question should an HOA be able to restrict the placement of an item if it cannot be seen. HB 437 appears to be the Florida Legislature’s attempt to answer this question.

Changes to a Homeowners’ Association’s Restriction Rights Under HB 437

HB 437 appears to answer the question of why an HOA should be able to restrict property use that cannot be viewed from another property with they should not. HB 437 adds Section 720.3045 to the Florida Statutes, stating that “regardless of any covenants, restrictions, bylaws, rules, or requirements of an association . . . an association may not restrict parcel owners or their tenants from installing, displaying, or storing any items which are not visible from the parcel’s frontage or an adjacent parcel, including, but not limited to, artificial turf, boats, flags, and recreational vehicles.” In other words, if it cannot be seen from another parcel, an HOA cannot restrict it. This change to the Homeowners’ Association Act provides homeowners with substantially more flexibility to use their property than they may have previously had.

However, it should be noted that Section 720.3045 is likely to give rise to litigation as it leaves room for a grey area. Though in a broad stroke, HB 437 through this statutory change, substantially increases homeowners’ property use rights, it leaves open the door to substantial litigation. The statute effectively puts the proverbial ball in the homeowner’s court to test the limits of what is or is not permissible under the statute. One key grey area is that the restricted item must not be visible from an adjacent parcel to be protected under the statute. This creates a question around what visible from an adjacent parcel operationally means. Does this mean that if the item can be seen through a neighbor’s second story window, but it cannot be viewed from the same neighbor’s yard or the front of the home, it is impermissible? Additionally, the statute does not clarify whether the adjacent parcel must be part of the same association or if visibility from an adjacent parcel that is not a part of the association would make placement of the item impermissible. These are questions that the courts or legislature will likely have to answer before the full impact of HB 437 on homeowners’ rights is known.

Conclusion

Homeowners now have broader rights to make use of their property, including storing a boat or installing artificial turf, so long as it is not visible from the frontage or an adjacent parcel. HB 437 has the potential to impose substantial limitations on a homeowners’ association’s ability to restrict property owner’s usage of their property. However, there will likely be litigation over this restriction due to vagueness around the visibility requirements of the statute. Before attempting to exercise the new rights under HB 437, homeowners should carefully consider whether an item or change to their property can be viewed from adjacent parcels.