Application of the Florida-Friendly Landscaping Statute to Homeowner Disputes Regarding Violation of Restrictive Covenants.

• Author: Van Treese, Jeffery W., II

Most homeowner and condominium associations have restrictive covenants governing the aesthetic appearance of units within each respective association. Often these restrictive covenants require homeowners to maintain the aesthetic appearance of their home landscape to the satisfaction of the association or face financial penalties for failing to do so. Many Floridians have had the unpleasant experience of receiving a letter from their association complaining their lawn is discolored or there are too many weeds and the problem must be remedied within a short time frame (such as 30 days). Depending on the nature and extent of the alleged violation, homeowners are often faced with the dilemma of 1) re-sodding (which requires extensive irrigation and may not be economically feasible) or 2) increased irrigation of their existing lawns.

In an effort to conserve water, the Florida Legislature enacted the Florida-friendly landscaping statute, F.S. [section]373.185, which limits the ability of homeowners associations (HOAs) to prohibit homeowners from adopting landscaping practices that conserve water or are otherwise environmentally sustainable. The purpose of this article is to provide a comprehensive overview of the Florida-friendly landscaping statute for attorneys, property management professionals, and homeowners. As caselaw on Florida-friendly landscaping is relatively undeveloped, the authors discuss areas of clarity within the statute and areas of ambiguity regarding application of the law in varying circumstances. This article also includes recommendations for legislative reform to provide greater clarity as to the law's meaning and to better achieve the legislative purpose behind the Florida-friendly landscaping statute.

Legislative History

While in the midst of a three-year drought in 2001, state Sen. Ginny Brown-Wait introduced S.B. 126 (2001), which included a definition of "xeriscaping" and prohibited HOAs from adopting or enforcing restrictive covenants that prevented homeowners from xeriscaping their landscapes. The staff analysis and economic impact statements for the bill stated, "in some subdivisions, developers, homeowners' associations, and other entities have developed deed restrictions and covenants that impose strict requirements on homeowners in relation to the manner and style of landscaping and other aesthetic features for the subdivision." F.S. [section][section]125.568(1)(a) and 166.048(1)(a) (2001) specifically stated that xeriscaping be an essential part of water conservation planning. Despite the apparent finding that xeriscaping contributes to the conservation of water, the impact statement did not expressly require HOA participation in encouraging Florida-friendly landscaping. (1)

Restrictive Covenants Regarding Landscaping

In many instances, HOA restrictive covenants require homeowners to use St. Augustine grass as a groundcover due to lack of knowledge/awareness that other types of turf qualify as Florida-friendly landscaping. Any other groundcover or landscape alternative would violate the restrictive covenants and subject the homeowner to mandatory removal of their groundcover and forced re-sodding with St. Augustine grass. These restrictive covenants are put in place largely because St. Augustine grass is considered more aesthetically appealing compared to other southern turf grasses and is often HOAs' preferred choice for uniform landscapes within a community. St. Augustine grass can only be installed via sod, plugs, or sprigs, as it cannot be propagated with seeds. At a cost of several hundred dollars per palette for delivery and installation, even a medium-sized yard can cost a homeowner several thousands of dollars to re-sod. In addition, the environmental cost of requiring St. Augustine grass lawns is substantial, as it requires extensive irrigation, fertilization, and pesticide application compared to other groundcovers.

Legislative Intent

F.S. [section]373.185(3)(a) provides:

The Legislature finds that the use of Florida-friendly landscaping and other water use and pollution prevention measures to conserve or protect the state's water resources serves a compelling public interest and that the participation of homeowners' associations and local governments is essential to the state's efforts in water conservation and water quality protection and restoration. By using the phrase "compelling public interest," and the declaration that participation of HOAs is essential to serving this interest, the Florida Legislature all but mandated HOA cooperation with the state in facilitating implementation of Florida-friendly landscaping. Also, F.S. [section]720.3075(4) (a) (titled, "Prohibited clauses in association documents") recites verbatim the "compelling public interest" language used in F.S. [section]373.185(3)(a), further emphasizing the priority the Florida Legislature has placed on water conservation and environmental protection.

Prohibition Against Deed Restrictions and Covenants that Prohibit Implementation of Florida-Friendly Landscaping

F.S. [section]373.185(3)(b) states:

A deed restriction or covenant may not prohibit or be enforced so as to prohibit any homeowner from implementing Florida-friendly landscaping on his or her land or create any requirement or limitation in conflict with any provision of Part II of this chapter or a water shortage order, other order, consumptive use permit, or rule adopted or issued pursuant to part II of this chapter. The above language prohibits a deed restriction or covenant from prohibiting a homeowner from implementing Florida-friendly landscaping. Any such deed restriction or covenant is unenforceable under F.S. [section]373.185(3)(b). F.S. [section]720.3075(4)(a) ("Prohibited clauses in association documents") recites F.S. [section]373.185(3) (b) verbatim. Therefore, a homeowner facing a fine for a deed restriction violation for implementing Florida-friendly landscaping practices can challenge the enforcement of certain deed restrictions by alleging violation of the statute.

Definition of Florida-Friendly Landscaping

F.S. [section]373.185(1)(b) defines "Florida-friendly landscaping" as:

quality landscapes that conserve water, protect the environment, are adaptable to local conditions, and are drought tolerant. The principles of such landscaping include planting the right plant in the right place, efficient watering, appropriate fertilization, mulching, attraction of wildlife, responsible management of yard pests, recycling yard waste, reduction of stormwater runoff, and waterfront protection. Additional components include practices such as landscape planning and design, soil analysis, the appropriate use of solid waste compost, minimizing the use of irrigation and proper maintenance. While seemingly detailed, this definition provides a great deal of potential ambiguity in defining which plants constitute Florida-friendly landscaping. Each sentence of the definition is analyzed in turn below:

"Quality landscapes that conserve water, protect the environment, are adaptable to local conditions and are drought tolerant." The first term in this definition, "quality landscapes," causes ambiguity and potential confusion in determining what plants are protected. What does "quality" mean in the context of a landscape? Does "quality" refer solely to the ecological benefit of the landscape or...