Miami Herald Column: “Real Estate Counselor: Neighbors, HOA Dispute Over New Fence Becomes a Legal Saga”

Siegfried Rivera
July 16, 2023

arial view houses

The firm’s latest Miami Herald column was authored by partner Shari Wald Garrett and appears in today’s edition of the newspaper.  The article, which is titled “Real Estate Counselor: Neighbors, HOA Dispute Over New Fence Becomes a Legal Saga,” focuses on a recent ruling by Florida’s Second District Court of Appeal over a case that escalated from a minor fence dispute into a major courtroom quarrel with an appeal and reversal.  Shari writes that matter illustrates the potential ramifications of discrepancies and confusion in homeowners associations’ reviews and approvals of owners’ submissions for planned architectural changes to their properties.  Her article reads:

. . . The saga all began when homeowner Craiger Scheuer complained to the board of directors of the HOA for The Cottages at San Lorenzo, in Bradenton about his neighbors’ new fence. Neighbors Luis Antonio Beckett-Morales and Sharon Talamantes-Santiago had submitted plans for their new fence to the association and received its prior architectural review and approval as required, but unfortunately there was an issue.

The application included two conflicting plans: one called for a fence that would obstruct the view from Scheuer’s property of a stormwater retaining pond directly behind their home but not abutting his, and the other was for a fence that retained his view.  The HOA nevertheless approved the application, but it importantly provided that the approval was subject to the written condition that the fence follow all the architectural review committee guidelines for the specific lot type.

When Scheuer complained that the fence installed by Morales and Santiago obstructed his view of the pond, the association ultimately agreed and covered the cost of modifying the fence. However, the remodeled fence also obstructed Scheuer’s view, so he sued his neighbors and the association.

In support of his case before the Manatee County Circuit Court, Scheuer submitted emails from association representatives who agreed that the existing fence is inconsistent with the contractor’s sketch included with the application. In fact, a reply from the association directly admitted to his allegation that the completed fence fails to conform to the approved application.

Morales and Santiago responded by demonstrating that a fence built consistently with their contractor’s original sketch in their application would have been in violation of the community’s architectural guidelines. Instead, the revised and completed fence is the result of modifications that the association paid for to address Scheuer’s complaint, and it is in compliance with the governing architectural guidelines.

After the trial court ruled in favor of Scheuer and ordered that the fence be modified to comport with the original sketch and with the restrictions in the community’s guidelines to protect his water view, Morales and Santiago appealed the decision to Florida’s Second District Court of Appeal.

The appellate panel found that Scheuer had failed to identify a provision of the community’s governing declaration or architectural guidelines that Morales and Santiago had breached. The neighbors submitted their application and received approval from the HOA to install their fence subject to the handwritten condition that it comply with the guidelines for waterfront lots. The initially installed fence did not comply with those guidelines, but the modified one does.

While the current completed fence does not comport with the sketch in the application, the originally proposed fence actually would not have been in compliance with the guidelines.

The appellate panel unanimously concluded that, in contrast with a prior ruling cited by the lower court, in this case there is no language in the declaration or in the guidelines expressing a broad intent to guarantee water views for lots such as Scheuer’s that do not abut stormwater ponds but are adjacent to those that do. It also found that requiring Morales and Santiago to build a fence that exposes more of their property to their neighbors’ view than the declaration and guidelines require impermissibly infringes on their right to enjoy their lot. It reversed the injunctive relief ordered by the trial court and remanded the case back for further proceedings consistent with its ruling. . .

Shari concludes that the end result from this case will probably be costly appellate legal bills for the association and/or Scheuer, with no additional modifications to the completed fence.  She notes that an HOA’s architectural review and approval process is designed to ward against disputes such as this by hashing out all the details for architectural improvements during its hearings and reviews. This case illustrates that when conflicting designs are not caught during the architectural application process and neighbors’ concerns are not fully taken into account in the design and approval stage, confusion can occur and possibly lead to potentially costly litigation as well as disharmony between neighbors.

Our firm salutes Shari for sharing her insights into the takeaways from this recent litigation with the readers of the Miami HeraldClick here to read the complete article in the newspaper’s website.