Miami Herald Real Estate Counselor Column: “Takeaways from Boca HOA’s Suit Against Owner Over Unapproved Fence, Paint”

Siegfried Rivera
July 9, 2023

painting fence

The firm’s latest Miami Herald “Real Estate Counselor” column was authored by shareholder L. Chere Trigg and appears in today’s edition of the newspaper.  The article, which is titled “Takeaways from Boca HOA’s Suit Against Owner Over Unapproved Fence, Paint,” focuses on a recent case that illustrates the significance of pursuing violations and enforcement matters as reasonably, uniformly and transparently as possible for community associations.  Her article reads:

. . . By their very nature, violations and enforcement matters can be very contentious and therefore difficult to manage, making them a challenge for directors and property managers. The associations that do it best are typically those that make effective use of independent committees, open hearings and published guidelines.

Among the most common disputes are those involving unapproved improvements and alterations to properties in communities that require a board’s or committee’s prior review and approval in order to maintain aesthetic standards. One such example involves a lawsuit that was recently filed by the association for the Fieldbrook Estates community in Boca Raton, Florida, against one of its homeowners over the unauthorized removal and installation of a fence and the painting of their home in an unapproved color.

The association’s lawsuit, which was filed in the circuit court for Palm Beach County on May 9, states the dispute began this February when Umit Yigit, the homeowner, and his tenant Michael Trussell painted the exterior of their home a different color without first applying for approval from the community’s architectural review committee. Matters then escalated in April when the owner and tenant removed a safety fence enclosing their swimming pool, again without seeking prior approval from the association’s architectural committee nor from Palm Beach County, which requires swimming pool safety fences. As such, the unapproved removal of the fence not only violated the association’s governing documents and county regulations, but also posed a safety risk for the community.

Shortly thereafter, the owner and tenant applied for approval for the removal of the safety fence with the association’s review committee, but they then brazenly moved forward with another significant unapproved alteration during the ensuing 30-day review period and allegedly began installing a new perimeter fence comprised of unapproved posts and wire materials within the community’s 20-foot maintenance/drainage easement area.

The owner and tenant were immediately advised by the association to stop the unauthorized installation pending the submission of an application for review by the committee, but the suit states they later proceeded with the installation of the unapproved wire fencing material in direct violation of the association’s governing documents. Included with the complaint are emails between the association’s attorney and the homeowner, who writes that he is being discriminated against by the board of directors and the matter would make for an excellent local TV news story.

The lawsuit seeks a judgment against the defendants for damages to be determined by the court as well as an immediate injunction ordering them to remove the newly installed unapproved fence, replace the pool safety fence, and repaint the home to the prior color. Otherwise, the injunction would allow the association to have all of the restoration work performed at the owner’s expense.

As I indicated, disputes involving unapproved alterations and improvements are somewhat common in sprawling HOA communities with large homes such as Fieldbrook Estates. The best approach, which is often prescribed in their associations’ governing documents, is to utilize an architectural review committee of volunteer owners who are independent from the current board.

As in this case, the association’s rules will typically require the prior submission of descriptions and plans for the proposed changes to its architectural review committee for consideration and approval. The committee should meet regularly, especially when the community has numerous requests and submissions for review and approval, and its deliberations should be open to all interested owners and allow for their input, just as with the HOA board meetings. . .

Chere concludes her column by noting that assuming the association in this case and its architectural committee have acted irreproachably in administrating the community’s architectural standards, the chances are high that it will prevail in lawsuits such as this against owners who allegedly completely flouted the community’s review process.  She writes that owners and their tenants should never try to disregard and circumvent their community’s required review and approval process, and HOAs should strive to make their reviews and decisions as transparent, reasonable and unimpeachable as they possibly can.

Our firm salutes Chere for sharing her insights into the important takeaways from this case for HOAs and their boards of directors with the readers of the Miami HeraldClick here to read the complete article in the newspaper’s website.