A Failure to Mend Fences

By Michael J. Gelfand, Esq. / Published September 2023

F

ence Remains: Water View Not Guaranteed By Restrictions

     What happens when an owner within a Florida community association decides to build a fence on that owner’s property which obstructs a neighbor’s water view? Can the neighbor whose view is being obstructed sue to have the fence removed? It may depend on whether the fence as built complies with the community’s declaration.

     Bringing this issue to our attention recently, a Florida appellate court ruled that a fence that blocked a neighbor’s view of a pond complied with the association’s declaration of covenants and architectural guidelines; thus, the trial court erred in ordering the removal of the fence.

     In Morales v. Scheuer, 48 Fla. L. Weekly D 889 (Fla. 2nd DCA, May 3, 2023), the facts indicate that Morales submitted a fence application to his association but included two conflicting documents. One document was a contractor’s sketch that depicted the proposed fence as it approached the pond. If the fence was built according to the sketch, his neighbor would have been able to see the pond from his backyard.

     The application also attached a survey that showed the transition between two types of fencing that would obstruct his neighbor’s view of the pond. The architectural review committee approved the application subject to the following handwritten condition: “Please ensure all ARC Guidelines are followed for ‘lot type.’”

     As it would happen, the fence was not built according to the contractor’s sketch. As built, the new fence cut off the neighbor’s view of a nearby stormwater pond that he previously could see from his backyard. After the neighbor complained, the fence was modified with the association paying the cost of the modification. Because the modification did not improve his view, the neighbor sued Morales and the association, arguing that the declaration of covenants required that Morales build the fence as set forth in the contractor’s sketch. The trial court granted summary judgment for the neighbor and ordered Morales to fix the fence so that it comported with the contractor’s sketch.

     The Florida appellate court reversed the decision of the trial court. The court pointed out that although the neighbor has the right to enforce the declaration of covenants and may sue Morales to comply with the declaration and architectural guidelines, the neighbor was not able to show that the fence violated any provision of the declaration. The contractor’s sketch did not comply with the architectural guidelines, but the fence as ultimately built did comply with the guidelines.

     “[Morales] received approval from the architectural review committee to install their fence subject to the handwritten condition that the fence comply with the guidelines for waterfront lots,” the court wrote. “And, although initially installing a fence that did not comply with those guidelines, they have now installed one that does.” The court pointed out that there was no language in the declaration that guarantees water views for lots that do not abut stormwater ponds.

     This case emphasizes the importance of following what is in a declaration of covenants. Normally courts will enforce restrictions against the drafter, the drafter frequently being the association, but not always!

     Remember, be clear as to what limitations you want to enforce. Also, over time lessons are, hopefully, learned; and written restrictions might have to be revised by amendment to be logically applied in changing times! And, of course, anything that the association says or does will be held against it in a court of law!

Construction Claim Against Developer Barred By Time

     What happens when a Florida community association discovers problems that are believed to result from initial construction? Can the association sue the developer for claims related to the construction? It may depend on how long the association waits to file its claims. Ten years may have been too long to have waited.

     Recently an appellate court ruled that a Florida community association’s claim against a developer for construction problems was barred by the ten-year statute of repose. In Westpark Preserve Homeowners Association, Inc. v. Pulte Home Corporation, 48 Fla. L. Weekly D 952 (Fla. 2nd DCA, May 10, 2023), the facts show that Pulte developed and sold townhomes in a development. The last certificate of occupancy was issued on January 9, 2009, and the last sale of a townhome was on June 12, 2009. The association sued Pulte just short of ten years later, February 12, 2019, for construction problems. The trial court granted final summary judgment for Pulte finding the ten-year statute of repose barred the claims.

     The Florida appellate court agreed with the decision of the trial court. The court noted that Section 95.11(3)(c), Fla. Stat. (2018), provides that any action founded on the design, planning, or construction of an improvement to real property: “must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy…whichever date is latest.”

     The difference between a statute of limitations and a statute of repose may be confusing. The court explained that the statute of repose “eliminates the underlying legal right; it ‘precludes a right of action after a specified time…rather than establishing a time period within which the action must be brought measured from the point in time when the cause of action accrued.’”

     Here the court determined that the statute of repose began to run to bar the claim on the date when the certificates of occupancy were issued. At that time, Pulte was the owner of the property. Therefore, the court concluded that the latest date that the statute of repose would have begun to run was the date the certificate of occupancy was issued for the townhome. Because the association failed to file its lawsuit within ten years of the issuance of the latest certificate of occupancy, the statute of repose barred the action.

     This case highlights the importance of complying with timeframes when an association wants to make a claim based on the design, planning, or construction of improvements to real property against the developer. As soon as you detect a problem, contact your association counsel so that you do not lose any rights you may have had by waiting too long.

Michael J. Gelfand, Esq.

Senior Partner, Gelfand & Arpe, P.A.

     Michael J. Gelfand, Esq., the senior partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar board-certified lawyer in condominium and planned development law and in real estate law, a certified circuit and county civil court mediator, a homeowners’ association mediator, an arbitrator, and parliamentarian. He is a past chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at ga@gelfandarpe.com or 561-655-6224.