Pool or a Pond …

Pool or a Pond …

On Behalf of | Mar 8, 2021 | Commercial Law |

One of my favorite movie quotes comes from Caddyshack:

Carl: But, seriously, no b.s…if you ever want to rap or just get weird with somebody…You know…buddies.

Ty: I’ll drop by. You drop by my place any time.

Carl: What’s your address? You’re on Briar, right?

Ty: Briar, yeah. Number 2.

Carl: Do you have a pool?

Ty: A pool and a pond. A pond would be good for you. Natural spring water.

Carl: Anything would be good.

In Florida, pools are ubiquitous; the summer heat almost changes having one from a luxury to a necessity. But what if you were ready to pull the trigger only to be told by your HOA that you couldn’t have one?  Can you fight such an abridgement on you rights as a property owner?

HOA’s often have an Architectural Review Committees (ARC) that must approve various home improvements (i.e., fences, landscaping, etc.).  They are given broad, but not unfettered, discretion.

In Young v. Tortoise Island Homeowner’s Ass’n, 511 So. 2d 381 (Fla. 5th DCA 1987), the HOA restrictions dictated roof construction, but made no mention of peak vs. flat.  The homeowner wanted to build a French Provencial style roof.  The ARC denied them.  The homeowner constructed it anyway.  The HOA filed a lawsuit.

After trial, the case was appealed to the 5th DCA.  The appellate court first noted that there was no flat roof restriction in the HOA documents, therefore the denial was based on, “aesthetics, harmony and balance — admittedly very personal, and vague concepts.”

The court then recognize that in Florida, restrictive covenants are construed strictly against those who assert the power to limit an owner’s free use of his land. Orange Gardens  Civic Association v. Harris, 382 So.2d 1340 (Fla. 5th DCA 1980).  Ultimately, because there was no restriction on flat roofs, the court held:

Where an agency or board has the absolute power or discretion to approve or disapprove building plans, Florida courts take the position that such approval cannot be exercised arbitrarily or unreasonably.  In the absence of an existing pattern or scheme of type of architecture which puts a prospective purchaser on notice that only one kind of style will be allowed, either in the recorded restrictions or de facto from the unified building scheme built on the subdivision, such a board does not have the power or discretion to impose only one style over another, based purely on “aesthetic concepts.”

So, unless your HOA documents expressly prevent the building of a pool, if the ARC rules that a pond would be good for you, you can likely  tell them to go jump in a lake.