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The firm’s latest Miami Herald “Real Estate Counselor” column was authored by shareholder Laura Manning-Hudson, who is the managing partner of the firm’s West Palm Beach office, and it appeared in this week’s edition of the newspaper. The article, which is titled “Dispute Over Replacing Home’s 36-Year-Old Fence Shines Negative Light on This HOA,” focuses on a recent dispute over a fence at a South Florida community that illustrates the importance of reasonable and sensible enforcement decisions by association directors. Her column reads:
. . . Actions that may appear to stand on questionable merits should be considered with a great deal of circumspection, as they could easily lead to needless disputes. Such appears to be the result from a clash over a 36-year-old wood fence surrounding the yard of a home at the L’Etoile at Emerald Pointe community in Hollywood, Fla., that was the subject of a recent report by 7News.
The fence in question was installed at a home by the community’s original developer in 1989. When the owner and her husband decided in 2023 that the fence needed to be replaced, they apparently sought approval from their HOA.
As the owner explained to the South Florida Fox affiliate, the property survey subsequently revealed that the fence had been installed at the wrong spot and was encroaching on association property by two and a half feet. The developer had also planted seven palm trees in her yard in close proximity to the fence that are now quite large and mature, and any relocation of the fence to the correct property line would require all of the trees to be cut down and removed.
Nonetheless, the HOA for the community initially responded by indicating the new fence would need to be moved back, so the palms would have to go.
The owner responded by asking the association to reconsider its decision, but it declined. She then made another quite reasonable request to be allowed to purchase the additional space surrounding her yard in order to install the new fence at the same location, but again the board of directors refused.
“I think they’re just trying to be a bully,” she tells the station’s reporter. “I mean, it’s just really ridiculous.”
The owner then retained an attorney who says he was able to negotiate a resolution with the HOA in which she would pay for the installation of a new fence exactly where the old one stood for decades, thereby enabling her to avoid having to cut down and remove the palm trees. However, he indicates the directors later reneged and changed the terms.
The attorney tells the station that the board then decided she would need to pay $1,500 for the legal fees the association had incurred in the matter. He also points out that he found stipulations in the HOA’s governing declaration indicating it was the association’s responsibility to repair or replace the fence where it is currently situated.
The HOA retained a new attorney who disagreed with this interpretation and concluded it should be the owner’s responsibility to replace the fence and move it to her property line.
The station turned to Howard Finkelstein, its longtime legal expert, for his assessment:
“After reading the association’s documents, I think Tanya wins. If the board doesn’t agree, they have to go mediation. If nothing can be worked out there, a court trial could be expensive, and if Tanya wins, the homeowners association has to pay their lawyer and Tanya’s legal fees as well. So they need to work this out,” he concluded.
Finkelstein is absolutely correct that this matter could now go to mediation and possibly litigation if a settlement cannot be reached, and the expenses for the association could become quite substantial.
“I wish I could tell you they would be reasonable, but I really don’t have any high hopes for that,” the owner tells the station in her exasperation over the board’s decisions.
For her and all the community’s other owners, we can only hope the board reconsiders its prior decisions and is able to reach a settlement with the owner, who appears to have been very reasonable in her willingness to pay for the replacement of the fence and the acquisition of the additional two and a half feet surrounding her yard. The directors should take into account that the fence was installed at its current location by the community’s developer, and the discrepancy was uncovered more than three decades later as a result of the owner’s plans to replace it with a new fence that meets with HOA’s approval and will presumably therefore be more aesthetically pleasing than the old one it is replacing. . .
Laura concludes her article by noting that community associations already suffer from a negative image in the minds of many Americans for their overzealous and unreasonable rules and enforcement, so board of directors and committee members should strive to avoid creating conflicts and adding fuel to the fire by carrying out their directives in a reasonable manner. She writes that cases such as this, which often make local media headlines, only serve to reinforce such damaging perceptions and exacerbate the harm they cause to all communities with associations.
Our firm salutes Laura for sharing her insights on the takeaways from this recent HOA dispute with the readers of the Miami Herald. She and the firm’s other South Florida community association attorneys write about important matters for associations in this blog and our Herald column, which appears every two weeks on Sundays, and we encourage association directors, members and property managers to click here and subscribe to our newsletter to receive our future articles.