In this edition of the e-Lawyer, we continue to summarize the many  recent Legislative changes that affect community associations.
 
 I. HOA ARCHITECTURAL REVIEW
 
     Architectural review of proposed changes to the external appearance  of a lot has been a major area of contention between HOA Boards,  Architectural Review Committees (ARC) and Lot Owners for decades.
 Historically, HOAs dealt with two (2) broad categories of architectural  rules. The first category consisted of guidelines that were specified in  the governing documents, such as a prohibition against chain link  fences. These were the easier to enforce. The second category involved  provisions which were not specific, but instead provided that no  exterior changes to a lot could be made without the prior, written  approval of the Board or ARC. Over the years there have been thousands  of variations in what lot owners have sought to install on their  property, and we have been guided by Florida case law as to the standard  used for accepting or rejecting. That case law provided that a Board or  ARC could not decide to accept or reject based on whether it liked or  disliked the proposed change. Instead, the Board or ARC had to identify  and rely upon an existing architectural scheme or pattern in the  community. As an example, if a lot owner wished to install a four (4)  foot statue, and there were no other statues in the community, the Board  or ARC could defend that existing architectural scheme and deny the  application.
 
     The situation with regard to HOAs is now dramatically different as a  result of the recent Legislative Session. Senate Bill 902, effective  July 1, 2007, creates Section 720.3035, Florida Statutes, which states:

       The authority of an association or any architectural,  construction improvement, or other such similar committee of an  association to review and approve plans and specifications for the  location, size, type, or appearance of any structure or other  improvement on a parcel, or to enforce standards for the external
 appearance of any structure or improvement located on a parcel, shall be  permitted only to the extent that the authority is specifically stated  or reasonably inferred as to such location, size, type, or appearance in
 the declaration of covenants or other published guidelines and standards  authorized by the declaration of covenants.

     While it is too early to determine how the courts will apply this  statute, it is our opinion that any homeowners' association which  exercises architectural review powers over lots should either have  detailed architectural standards and guidelines contained in its  governing documents, or should adopt detailed architectural standards  where authorized by its governing documents. The intent of this new  Legislation appears to be to permit a particular exterior change if it  is not specifically prohibited.
 
     In order to adopt architectural standards, all homeowners'  associations must have the authority to promulgate such rules. If the  association's governing documents do not permit the association to adopt
 such rules, the association will need to amend the governing documents.  Such rules and guidelines should contain detailed architectural  standards for the location, size, type and appearance of any structures,
 improvements, or alterations.
 
     In addition to creating the need for specific guidelines, Section  720.3035, Florida Statutes, imposes several restrictions on the  standards that may be imposed. These limitations include:

 *     Where the declaration of covenants or any published standards  provide options for the use of material, the size, design, or location  of the structure or improvement; neither the association nor any  committee may restrict the right of an owner to select from the options  provided.
 *     Unless otherwise specifically stated in the declaration of  covenants or other published standards, each lot shall be deemed to have  only one "front" for purposes of determining the required front setback,
 even if the parcel is bounded by a roadway or other easement on more  than one side, such as a corner lot.
 *     Where the declaration or other published standards do not  provide for specific setback limitations, the applicable county or  municipal setback limitations shall apply, and neither the association  nor any architectural, construction improvement, or other such similar  committee of the association shall enforce or attempt to enforce any  setback limitation that is inconsistent with the applicable county or  municipal standards. 
*     All published standards must be consistent with the rights and  privileges set forth in the declaration of covenants.

     Section 720.3035, Florida Statutes, further provides that each lot  owner is entitled to the rights and privileges set forth in the declaration of covenants or other published standards concerning the  architectural use of the parcel. The construction of permitted  structures and improvements on the parcel and such rights and privileges  shall not be unreasonably infringed upon or impaired. Any action by a  homeowner's association which unreasonably, knowingly, and willfully  infringes upon or impairs homeowners' rights and privileges as set forth  in the statute, creates a cause of action against the association by the  adversely affected lot owner. They may recover damages caused by such  infringement or impairment, including any costs and reasonable  attorney's fees.
 
     The new provisions of Section 720.3035, Florida Statutes, would  apply to any pending ARC requests which were not addressed by a  homeowners' association prior to July 1, 2007 and all requests received
 after that date.
 
     Based upon these changes, we recommend the following inquiry:

 1.    Does the Declaration specifically authorize the Board  (preferred) or ARC to promulgate architectural rules or standards?
 2.    Does the Declaration contain specific and adequately detailed  architectural standards?
 3.    Do the rules (or guidelines/standards/criteria) contain specific  and adequately detailed architectural standards?
 4.    Are the specific architectural standards contained in the rules  consistent with the Declaration?

     Most homeowner's associations will need to develop additional  standards for several areas of architectural review. These would  include, but not be limited to, paint colors, lawn and landscape  maintenance and improvements, standards for fence installation, lawn  ornaments and statues, and any other standards for exterior  modifications to the lot. With regard to some items, you may wish to  consider specifying what is permitted, and prohibiting anything else.
 
 II. PRE-SUIT MEDIATION REQUIREMENTS
 
     Senate Bill 902 also amends Section 720.311, Florida Statutes, which  governs the legal process for enforcing violations of a homeowners'  association's covenants. The changes to Section 720.311, Florida
 Statutes, should simplify the process of enforcing covenant violations  in homeowners' associations. Instead of being required to file petitions  with the Department of Business and Professional Regulation, a
 homeowners' association is now required to send a written demand for  pre-suit mediation prior to filing its claim in court. If the homeowner  fails to respond or indicates that he or she will not agree to  participate in the mediation process within 20 days from the date of the  letter, then the association may proceed with a lawsuit. The amendment  to Section 720.311, Florida Statutes, contains a lengthy model  "Statutory Offer to Participate in Presuit Mediation" that sets forth  the terms that must be included in pre-suit mediation demand letters.
 
     The new covenant enforcement system requires the following pre-suit  mediation demand process:

 *     Service of the statutory demand letter to participate in  pre-suit mediation is initiated by sending the required statutory demand  to the offending homeowner's address as it last appears in the records
 of the association. It must be sent by certified mail, return receipt  requested, which an additional copy being sent by regular first-class  mail.
 *     The homeowner has 20 days from the date of the mailing of the  statutory demand to serve a response to the association in writing. The  response shall be served by certified mail, return receipt requested,
 with an additional copy being sent by regular first-class mail, to the  address shown on the statutory demand.
 *     Once the parties have agreed on a mediator, the mediator will  schedule the mediation for a date and time mutually convenient to the  parties. However, the pre-suit mediation session must be scheduled and
 conducted within 90 days, unless agreed to by the parties, or an impasse  will be deemed to have occurred.

     The failure of any party to timely respond to a statutory demand for  pre-suit mediation, to agree upon a mediator, to make payment of fees  and costs within the time established by the mediator, or to appear for
 a scheduled mediation session without the approval of the mediator;  shall constitute the failure or refusal to participate in the mediation  process and shall operate as an impasse in the pre-suit mediation by
 such party. The other party may then proceed to court.  
     In the event any issue or dispute is not resolved at pre-suit  mediation, or is settled at pre-suit mediation but is thereafter subject  to an action seeking enforcement of the mediation settlement, the  prevailing party in any subsequent arbitration or litigation proceeding  is entitled to recover all costs and attorney's fees incurred in the  pre-suit mediation process.
 
     If a party fails or refuses to participate in the entire mediation  process, they cannot recover attorneys' fees or costs in any subsequent  litigation relating to the dispute, even if they are the prevailing
 party.
 
 The firm of Taylor & Carls, P.A., with offices located in Maitland,
 Melbourne, Tampa and Palm Coast, Florida, was founded in 1981 and has
 practiced in the area of community association law since that date. This
 edition was prepared by Harry W. Carls and Richard M. Coln of Taylor &
 Carls, P.A. The information contained in The Association e-Lawyer should
 not be acted upon without professional legal advice. The opinions
 expressed herein are as of the date hereof, and this law firm undertakes
 no obligation to advise the Association of subsequent changes in the
 law.
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