By Eric Glazer, Esq.

Published June 10, 2013

            No matter whether we live in a community association or not, we would all agree that Florida is lush with green spaces, beautiful towering palm trees, wide open fields of grass, exquisitely colored flowers and some of the most spectacular landscaping on the planet.  Just looking at all of these remarkable trees and flowers should instantly provide you with a feeling of serenity, relaxation and calm.  Don't you agree?

            Then why is it that some of the most vicious knock down drag them out fights in our community associations involve landscaping?  Is there no topic that's safe?  What landscaping issues can you possibly fight about you ask?  Here's a few…

            In Baran v. Ro-Mont   a unit owner planted their own garden outside of the unit, on the common elements.  The Board removed the garden.     The Board claimed that Baran made a material alteration to the common areas that required a vote of the owners.  Baran claimed a prior Board gave him the authority to plant the garden.  Baran sued and won.  The interesting part of the case is that the arbitrator held that even if a prior Board gave Baran permission to install his own garden, that was not a decision that resulted in a material alteration to the common areas,  because landscaping decisions simply fall within the business judgment of the Board of Directors.  

            In Mueller v. La Renaissance Condominium, the association planted 3 palm trees between the petitioner's unit and the ocean, without first obtaining a vote of the unit owners to alter the common elements. The petitioner testified that they are blocking his view of the ocean and that a board member told him in 1990 that they intentionally planted the trees at that location to harass him. The arbitrator's view of the trees from the petitioner's unit revealed that although they blocked a small portion of his view of the horizon, they did not obscure it.   The arbitrator ruled that routine maintenance of the common elements is a matter within the discretion of the board, and the board's decisions regarding maintenance of the common elements, including the planting of trees, are presumed correct absent a showing of mismanagement, fraud, or breach of trust. The arbitrator ruled that the business judgment rule provides that the arbitrator will not substitute her judgment for that of the board.   The trees get to stay.

            Fighting over landscaping.  Really?  Why not just everybody stop and smell the roses once in a while?  So…. Anybody have an interesting landscaping story to tell?