landscaping | Rembaum's Association Roundup

April 6, 2026April 22, 2026

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

Legal Considerations in Association Landscaping Decisions

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.

March 19, 2025March 19, 2025

Are Changes to Association Landscaping a Material Alteration That Requires a Vote of the Owners?

If you live in a community association, especially if you serve on the board, you may already be familiar with the term “material alteration.” In Sterling Village Condominium Association, Inc., v. Breitenbach, 261 So. 2d 685, 687 (Fla. 4th DCA 1971), the Court defined the term material alteration as follows:

[T]o 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.

Generally, an association’s declaration provides the manner in which material alterations to the common elements and common areas are to be accomplished and the necessary percentage of the unit owners required to approve material alterations, if any. In a homeowners’ association such decisions are left to the discretion of the board of directors unless the governing documents provide otherwise. As to condominium associations, absent a provision in the association’s declaration providing otherwise, section 718.113(2)(a), Florida Statutes, provides in relevant part that 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced.

Appellate courts have even carved out exceptions to situations where a material alteration requires a vote of the membership when the material alteration and resulting special assessment are necessary for life safety reasons. In fact, courts often provide boards of directors great deference due to the operation of the business judgment rule. For example, in Tiffany Plaza Condominium Association, Inc. v. Spencer 455 So. 2d 454 (Fla. 2nd DCA 1982), without the required vote of the owners, when it was otherwise required, the board of directors opted to construct a rock revetment wall in the sand between the condominium’s seawall and the mean high tide line. The area in question was part of the association’s common elements since it owned the land from west to east all the way to the mean high tide line. Owners who were unhappy with the association’s unauthorized assessment sued the association. The association defended itself on the basis that the rock revetment was not an alteration or improvement of a common element but rather was part of the maintenance, repair, and replacement of a common element that the association had responsibility for under several provisions of the declaration, its bylaws, and statutes. While the trial court agreed with the plaintiff owners, the Second District Court of Appeal reversed the trial court decisions and held that:

If in the good business judgment of the association, alteration or improvement of the beachfront by addition of a rock revetment would protect the beach from damage and the necessity of subsequent repair or replacement then that cost should also be borne equally by all unit owners.

With the foregoing in mind, let’s examine landscaping alterations and whether making landscaping changes to a condominium’s common elements constitutes a material alteration requiring a vote of the unit owners. The Florida Division of Condominiums, Timeshares & Mobile Homes (the “Division”) has published arbitration decisions from which we can glean an answer. (It is important to note that these arbitration decisions only provide limited guidance. Such decisions do not create precedent in any way, not even for the Division and certainly not for any appellate court. But, they do provide guidance. It is also important to note that when examining issues of community association law, when there is not a developed law on a particular issue, both condominium associations and homeowners’ associations tend to rely on each other’s body of law.)

In Girsch v. Whisper Walk Section E Association, Inc. (Arb. Case No. 97-0305), an owner challenged the board’s decision to replace a hibiscus hedge with a ficus hedge on the basis that a material alteration resulted. The arbitrator ruled that the foregoing was not a material alteration and stated, in pertinent part, that:

Board decisions regarding what shrubbery to plant or how to replace existing shrubs particularly implicate the business judgment decision of the board and rarely grow to the dimensions necessary to implicate the provisions of the documents or statute regarding material alterations to the common element… Moreover, changes apparent in a garden setting are not interchangeable with the types of decisions typically regarded as requiring compliance with section 718.113(2), Florida Statutes…Changes to foliage may appear dramatic to the observer, but rarely would the function and use of that portion of the common elements be appreciably altered to an extent deemed material. These considerations, combined with the realization that there is less of a legitimate expectation of the status quo in the area of landscaping, which may be transient in a given case, suggests that this area is one particularly ill-suited for material alteration analysis.

As another example, in Katchen V. Braemer Isle Condominium Association, Inc. (Arb. Case No. 98-5485), an owner challenged the board’s decision to make certain landscaping changes which affected the owner’s patio and view. The arbitrator stated, in pertinent part, that:

[I]t is not shown that the contemplated landscaping changes constitute an alteration or betterment within the meaning of the documents…The area in question will not change in function or essential nature; it will still be a landscaped garden area with flowers, bushes, and trees, similar in function to the parcel when petitioners first purchased their unit.

In yet another example, Tilney v. Association of the Fountains, Inc. (ARB. Case No. 02-5651), the owner alleged that the board materially altered the common elements without a vote of the owners as required by the documents and statute due to the addition of trees, landscaping rocks, an irrigation system, and parking spaces upon a previously undeveloped parcel of the property. Again the arbitrator ruled that the foregoing were not material alterations and stated, in pertinent part, that:

The essential character of the property has not changed in a material sense. Some change in appearance is inevitable where landscaping details are altered…but does not compel the conclusion that all changes are material…Even if a material change existed, the degree of maintenance chosen by the board is entitled to a presumption of correctness through operation of the business judgment rule.

Based upon the foregoing arbitration decisions, landscaping decisions such as what shrubbery to plant or how to replace existing shrubs are left to the reasonable business judgment of the board and do not rise to the level of being a material alteration subject to a vote of the unit owners. However, does that mean that all changes to landscaping do not rise to the level of being a material alteration? That answer, like many legal answers: it depends. Sometimes landscaping may be so dramatically changed, or there may be landscaping that is so significant, that changing such landscaping may rise to the level of being considered a material alteration to the common elements (or common areas as to homeowners’ associations).

Such was the situation in Trio Englewood, Inc. v. Fantasy Island Condominium Association, Inc. (ARB. Case No. 98-4670). Here, an owner challenged the board’s decision to remove two trees. However, the two trees in controversy were Norfolk Island pine trees, and the arbitrator was unwilling to rule without the benefit of additional fact finding that removal of such trees could not be considered a material alteration. The arbitrator concluded, in pertinent part, that:

[T]wo very tall, conical trees, [that] are, in setting and type, distinct from the other landscaping, and thus may be sufficiently significant features of the landscape that their removal would constitute a material alteration of the common elements.

However, because the arbitrator requested additional fact-finding, we do not know how the situation fully resolved itself. But, this decision indicates that not all landscape changes are exempt from being considered a material alteration.

Accordingly, the next time your association is contemplating changes to its landscaping, and although many changes to landscaping are left to the reasonable business judgment of the board and do not rise to the level of a material alteration requiring a vote of the unit owners, the board would be wise to consult with the association’s legal counsel to weigh in prior to making such changes.

February 14, 2020January 22, 2021

HOW TO REMOVE TROUBLESOME TREES

A great many streets in Florida’s residential communities are lined with oak trees. While they can look so appealing as a canopy, many of these trees can raise sidewalks and driveways. Their massive roots can grow into plumbing lines, cause various trip hazards and kill the grass, too.

Until recently, it was very problematic to remove these trees for a variety reasons. Moreover, it was also expensive to deal with all of the governmental red tape caused, in many instances, by over zealous city officials, such as the city forester, who requires strict compliance with the community’s original landscaping plans, etc. Well, the Florida legislature listened to stories of local government unreasonableness and did something about it to the great satisfaction of association members everywhere.

But, there is still a problem because many local governments refuse to accept that House Bill 1159 was passed into law in 2019. This new law prohibits a local government from requiring a notice, application, approval, permit, fee or mitigation for the pruning, trimming, or removal of a tree on residential property when an arborist or landscape architect documents that the tree presents a danger to persons or property. As an important FYI, mangroves are exempt and all existing requirements for mangrove trimming, etc., remain steadfastly in place.

Apparently, the problem of local government personnel ignoring this new law is so pervasive that on January 7, 2020, the Speaker of the Florida House of Representatives, Jose Oliva, sent a memo to all Local Government Officials alerting them that they need to follow this new law and that the House of Representatives will be “diligent in executing its oversight responsibilities in order to protect the rights of property owners and to prevent illegal governmental actions that interfere with these rights. WOW!!!

If your community has a problem with tree removal caused by local government officials perhaps showing them a copy of the memo might help. Also, be sure to alert your association’s attorney to the problem so that they can intercede on the association’s behalf.

This new law is codified in s. 163.045, Florida Statutes and provides as follows:

s. 163.045 Tree pruning, trimming, or removal on residential property.—

(1) A local government may not require a notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property if the property owner obtains documentation from an arborist certified by the International Society of Arboriculture or a Florida licensed landscape architect that the tree presents a danger to persons or property.

(2) A local government may not require a property owner to replant a tree that was pruned, trimmed, or removed in accordance with this section.

(3) This section does not apply to the exercise of specifically delegated authority for mangrove protection pursuant to ss. 403.9321–403.9333.