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Can association sue homeowner for xeriscaping?

September 27, 2013
By SYLVIA HELDRETH - Real Estate Law , Cape Coral Daily Breeze

QUESTION: We live in Florida where water is in short supply but almost half of residential water consumption is used on landscaping. Some plants and lawns require far less water and fertilizer than others. A law was passed in 2009 encouraging Florida-friendly landscaping to save water and reduce usage of fertilizer and pesticides by "planting the right plant in the right place." I brought this up at our homeowners' association board meeting and they said that if I replaced our St. Augustine lawn with native plants or anything that requires less watering, they would follow the lead of other Florida associations and sue me. Can they?

ANSWER: Indeed, an east coast property owners association, Summerport, did file a lawsuit against a homeowner recently, asking that a judge order her to "permanently cease" violating the homeowner association's landscaping rules.

On the other hand, Florida statutes encourage Florida-friendly landscaping. According to Florida statute, "Florida-friendly landscaping" means 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, appropriated fertilization, mulching, attraction of wildlife, responsible management of yard pests, recycling yard waste, reduction of storm water runoff, and waterfront protection. Bahia grass, for example, is thinner than St. Augustine but requires much less water.

The University of Florida's Institute of Food and Agricultural Sciences is the primary promoter of Florida-friendly landscapes and the South Florida Water Management District is a champion of water conservation. Runoff from fertilized lawns is a key factor in the declining health of the state's springs, rivers and lakes.

Summerport homes, where the proponent of Florida-friendly landscaping lives, have very lush lawns and the association's rules require that "All sod must be St. Augustine grass and that will be required on all landscape portions of front, rear and side yard." The association's president has told the homeowner that no one may have Bahia grass, which has thinner, sparser blades than the St. Augustine variety. Planting this Florida-friendly lawn would be a violation of the landscaping rules.

The lawsuit warns that the new landscaping, Bahia grass and native plants, "will encourage other property owners to violate" the community's rules, Other communities have been challenged by owners who have installed native plants that do not look at all like the landscaping in the community but require little maintenance. There are a few specifics in the statute about what qualifies as a "right plant."

The law also bars homeowner associations from interfering with residents who pursue such landscapes. Still, associations retained their authority to approve or reject lawn and yard modifications, citing their condominium documents. The outcome of the Summerport case will certainly serve as a foundation for action, for or against Florida-friendly landscaping, and the enforcement or lack thereof of community association rules.

Attorney Sylvia Heldreth is a certified specialist in real estate Law. Her office is located at 1215 Miramar St., in Cape Coral.

This article is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acing upon any matter involving the law.



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