Beauty Is in the Eye of the Beholder, or Is It?

It is often said that beauty is in the eye of the beholder, and nowhere is this more evident than in the realm of community landscaping. Among the many benefits of residing within a community association is the expectation of consistently maintained and harmonious landscaping throughout the property. But, when does a change in common area/element landscaping become a material alteration requiring a vote of the membership?

As a general rule for a Florida condominium association, pursuant to §718.113 Fla. Stat., material alterations or substantial additions to condominium common elements require approval by 75 percent of total voting interests unless the declaration of condominium dictates a different procedure. But, as applied to a Florida homeowners’ association, the outcome is diametrically opposed because material alteration decisions are left to the board unless otherwise required by the governing documents.

Before continuing, the questions as to what constitutes a material alteration must be addressed. The authoritative definition of “material alteration” originates from Sterling Village Condominium Association, Inc. v. Breitenbach, 261 So. 2d 685 (Fla. 4th DCA 1971), which explains the term as follows:

To palpably or perceptively vary or change the form, shape, elements, or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance.

Courts have generally afforded significant deference to association boards operating under the business judgment rule when performing their maintenance, repair, and replacement responsibilities. For example, in the seminal case Tiffany Plaza Condominium Association, Inc. v. Spencer, 455 So. 2d 454 (Fla. 2d DCA 1982), the court upheld the board’s decision to construct a rock revetment to protect the beachfront from erosion without owner approval when otherwise required, finding it to be a required maintenance-related action such that even if was a material alteration, the board made the correct decision. In other words, to quote John Wayne, “A man’s gotta do what a man’s gotta do.” However, a board should be reticent to rely on the “Tiffany Plaza doctrine,” as it is often referred to, without a written legal opinion from the association’s lawyer in support of the action.

As owners have become increasingly vocal and litigious regarding landscaping choices, it is prudent to examine relevant arbitration decisions of the Division of Condominiums, Timeshares & Mobile Homes. Although such decisions are not binding precedent, they provide useful guidance on when owner approval may be required both in the context of condominium and homeowners’ associations.

One of the most cited landscaping cases is Girsch v. Whisper Walk Section E Ass’n, Inc. (ARB. Case No. 970305) November 26, 1997. Here the arbitrator rejected an owner’s challenge to the board’s decision to replace a hibiscus hedge with a ficus, concluding that determinations of shrubbery type fall within the board’s business judgment. The arbitrator noted that requiring owner votes for such routine decisions would undermine the basic structure of association governance and held in pertinent part that, “to permit the arbitrator to substitute his judgment for the board in this range of business decisions would add great instability to the presumption of normalcy attending ordinary day-to-day decisions, and the arbitrator has no proper role in adjudging whether hibiscus is preferable to ficus.”

Similarly, in Belardo v. Four Sea Suns Condo., Inc. (ARB. Case No. 972186) February 24, 1998, Arbitrator Scheuerman observed that concerns over whether replacing shrubbery or a tree constitutes a material alteration are generally unfounded. In Katchen v. Braemer Isle Condo. Ass’n, Inc. (ARB. Case No. 985485) August 5, 1999, the removal of aged, poorly maintained vegetation and its replacement with alternative species was deemed part of routine maintenance and therefore not a material alteration.

In Howard Feldman v. Sunset Harbour Condominium Association, Inc. (ARB. Case No. 2015055381) March 24, 2016, an owner objected to the removal of two palm trees and the planting of three different palms elsewhere on the property, asserting loss of view, shade, and property value. The arbitrator disagreed, finding that the landscaping changes were modest, tasteful, and had no appreciable effect on the building’s aesthetics. The decision also referenced Mueller v. La Renaissance Condominium Association, Inc. (ARB. Case No. 960193) February 23, 1998, which acknowledged that radical removal or alteration of landscaping might constitute a material alteration in some circumstances.

Such a circumstance arose in Simkin v. Nine Island Avenue Condominium Association, Inc. (ARB. Case No. 2013040108) May 1, 2014. There, the board undertook a renovation that removed lush landscaping at the driveway entrance and replaced it with stone. Because the association failed to demonstrate that no reasonable alternatives existed to address the issue of petrelated damage, the arbitrator found that the radical step of removal of landscaping and replacing it with such a different item required owner approval.

Another instructive case is Trio Englewood, Inc. v. Fantasy Island Condo. Ass’n, Inc. (ARB. Case No. 984670) April 16, 1999. The arbitrator noted that the removal of two uniquely significant Norfolk Island pine trees could potentially constitute a material alteration, although the matter required further factfinding.

With all of the above in mind, given the increasing scrutiny by unit owners and the varied circumstances reflected in arbitration decisions, boards would be well advised to proceed cautiously regarding landscaping changes. Although most landscaping decisions seem to fall under the board’s routine maintenance authority, radical or highly distinctive changes likely trigger the statutory material alteration threshold, thereby possibly requiring owner approval depending on the unique facts and circumstances and the unique requirements set out in the association’s governing documents. Boards may find it beneficial—though not legally required—to periodically solicit owner input through surveys or questionnaires when contemplating notable landscaping modifications. Ultimately, before undertaking substantial changes, the board should consult association counsel to ensure compliance with statutory requirements and governing documents.