Ramon C. Palacio, Esq.
February, 2024
Introduction
Declarations of Covenants and Restrictions (the “Declaration”) of homeowners’ associations commonly contain restrictions on what items residents may maintain on their lots. For example, these restrictions may prohibit recreational vehicles, boats, or trailers on any lot unless they can be fully kept out of sight within an enclosed garage.
In the 2023 Florida legislative session, however, House Bill 437 was enacted to create Section 720.3045, Florida Statutes, applicable to homeowners’ associations. It reads as follows: “Regardless of any covenants, restrictions, bylaws, rules, or requirements of an association, and unless prohibited by general law or local ordinance, an association may not restrict parcel owners or their tenants from installing, displaying, or storing any items on a parcel which are not visible from the parcel’s frontage or an adjacent parcel, including, but not limited to, artificial turf, boats, flags, and recreational vehicles.” (emphasis added).
Thus, this statutory provision, by its express language, takes precedence over provisions to the contrary that homeowners may have agreed to when purchasing their home. Notably, homeowners often choose to purchase a home in a community with such restrictions because they believe that this will better protect their property values. This expectation, however, may very well have been adversely affected by this change in law.
Moreover, while the intent of the legislature may have been to give homeowners more control over what they can store in their backyard, while also protecting homeowners whose neighbors choose to store certain items that for aesthetics or other reasons the neighbors may find objectionable, the statutory language left glaring ambiguities that do not entirely provide that result.
The Ambiguities
The statute provides that, without regard to a covenant, restriction, or rule or regulation to the contrary, a homeowner (or tenant) may install, display, or store items on the “parcel”, which, for our purposes, we’ll simply refer to as the “lot”, so long as those items are not visible from the front of the lot or from “an adjacent” lot. This suggests that so long as the items being stored are not visible from the front of the lot, or from the lots of the neighbors on either side or to the rear, the items are permissible.
However, this does not address a corner lot, for example. That is, what is adjacent to a corner lot, at least on one side, would not be another parcel but rather common areas, most likely, such as a sidewalk, swale area, and roadway. The backyard of the corner parcel would presumably be visible from all those areas, and possibly also visible from lots on the other side of the road, yet those lots are not “adjacent” and thus an association could be precluded from restricting what is stored in the backyard based on a strict reading of the statute.
As another example, a lot may be adjacent to a lake, and the items in the backyard would presumably be in full view of residents on a boat or other watercraft, as well as in view of neighbors on the other side of the lake. Here again, however, those neighbors would not be on “adjacent” lots, thus the association’s right to restrict what the resident is storing on that lot could be precluded here as well. Other examples not expressly covered by the “adjacent” parcel language would include a tot lot or park, a golf course, or perhaps an association’s clubhouse.
Does it Apply to Your Association?
The statute became effective July 1, 2023, and any homeowners’ association created after that date would be subject to the law. This is prospective application, meaning that the law is applied from its effective date forward, which is the way most laws are applied.
But what about a homeowners’ association that was already in existence when the law was passed? First, the statutory language itself does not claim to be retroactive. Further, because the law is substantive rather than procedural in nature, applying it retroactively would likely be an impermissible contractual impairment.
More specifically, an association and its members (the lot owners, for our purposes here) agreed to certain rights, terms and conditions as set forth in the Declaration and other documents governing the use and operation of the community. These documents are a contract between the association and the lot owner. A statute that substantively changes those rights, terms, and conditions would likely be in violation of the Constitution of the State of Florida and therefore impermissible. The right we’re talking about here is, of course, a homeowners’ association’s right to restrict what a homeowner or tenant can maintain on a lot, and the lot owner’s agreement that the association has and can enforce that right.
Nonetheless, the answer as to whether this change in law applies to a particular association already in existence on the date the law took effect, may depend on the association’s Declaration, which may have an automatic incorporation clause making statutory changes applicable to the association, even if that statute itself was not expressly intended to be retroactive. This incorporation clause was addressed in the context of The Condominium Act in Kaufman v. Shere, 347 So. 2d 627 (Fla. Dist. Ct. App. 1977), can be applied to homeowners’ associations as well, and is commonly referred to as Kaufman language.
Conclusion
Given the ambiguities in the statutory language itself, as well as the issues that need to be addressed in determining the law’s applicability to homeowners’ associations that were already in existence when the law took effect, boards of directors and management should consult with their association’s legal counsel before reaching a determination whether what a homeowner has chosen to install, display, or store on a lot is in violation of the governing documents.
Additionally, there are potentially other provisions in an association’s Declaration that may be applicable to a given situation. For example, while the statute claims to allow just about “any item” a homeowner or tenant may choose to keep in the backyard (so long as it’s not visible from the front or an adjacent parcel), if that “item” causes offensive odors or fumes, or creates unreasonable noise, the association could potentially address the issue not as an unlawfully stored item but rather a violation of provisions in the Declaration prohibiting nuisances, depending on the facts and circumstances and the specific nuisance clause language. These varying facts and circumstances are important to discuss with the association’s legal counsel for a more thorough analysis of the association’s rights and remedies.
This discussion is not intended as legal advice but rather solely as a foundation for a discussion with the association’s legal counsel so that the facts and circumstances of a particular situation may be thoroughly discussed and analyzed.
Ramon Palacio is a Board Certified Specialist in Condominium and Planned Development Law, and a Partner with Association Law Group. He may be reached at: ramon@algpl.com.