6th Mar 2015
But soft! What light through yonder window breaks?
It is… my neighbor’s landscape lighting and it’s driving me crazy. That may or may not be a made up quote (OK, it is), but in the case Leamer v. White, LLC, No. 1D13–4573, January 27, 2015, it’s what I imagine Mr. Leamer’s neighbor might have said on repeated occasions after Mr. Leamer installed what White claimed was an “ostentatious” landscape feature in violation of the Declaration.
No, I don’t know how lighting can be “ostentatious” unless it’s something like this:
The Declaration set a somewhat unusual standard when it came to permissible landscape features. Section 3.17(b) states, in relevant part:
(b) Ostentatious Site Features. The construction of ostentatious site features such as topiary, sculpture, free standing fountains in the foreground of townhouses or lighting systems which may be offensive to adjacent neighbors is unacceptable.
The Board interpreted that language to mean that the adjoining neighbors of the townhome effectively had veto power over Mr. Leamer’s choices in landscape accoutrement. The Association essentially told Mr. Learner that unless Mr. White agrees, we’re not going to approve your landscape lighting. In fact, the Board told Mr. Leamer in writing that his landscape lighting was acceptable but for the continued objection of his neighbor, Mr. White.
Remarkably, the trial court agreed and entered summary judgment for the Association and Mr. White.
The First District reversed, finding that it was unreasonable to interpret the covenants to allow one property owner a veto power over the property of his neighbor. Rather, the Court found that the language quoted above merely made the neighbor’s feelings on the matter a factor that could be considered by the Board but that the final say was the Board’s and the Board’s alone.
The First District did not delve very far into the definition of what constitutes “reasonable” restrictions, which is probably for the best, as Florida courts have not consistently defined the term. The most recent attempt was in Klinow v. Island Court at Boca West Property Owners Association, Inc., 64 So.3d 177 (Fla. 4th DCA 2011), which stated,
“In determining the enforceability of an amendment to restrictive covenants, the test is one of reasonableness.” Holiday Pines Prop. Owners Ass’n v. Wetherington, 596 So.2d 84, 87 (Fla. 4th DCA 1992). This court defined “reasonable” as “not arbitrary, capricious, or in bad faith.” Hollywood Towers Condo. Ass’n v. Hampton, 40 So.3d 784, 787 (Fla. 4th DCA 2010). In other words, as we stated in Holiday Pines, the modification of restrictions cannot “destroy the general plan of development.” Holiday Pines, 596 So.2d at 87 (citing Nelle v. Loch Haven Homeowners Ass’n, 413 So.2d 28 (Fla. 1982)). Amendments which cause “the relationship of lot owners to each other and the right of individual control over one’s own property” to be altered are unenforceable. Id. at 88. Such an alteration is considered a “radical change of plans.” Id.
That said, however, this case is probably best understood on the basis that the First District in Leamer decided it more on the basis that the Association abdicated its responsibility to enforce the governing documents by giving the neighbor, Mr. White, veto power over what it itself would find reasonable. While community living requires some sacrifice of one’s say over one’s property, surely it cannot be stretched to give one property owner say over the other’s property.