Condos and HOA communities can be a great alternative to single-family home ownership, enabling unit owners to enjoy privacy and the comforts of their own personal space while sparing them the burden of sole responsibility for exterior maintenance and upkeep. That said, there will always be a certain amount of tension between residents’ desire to make their unit their own while adhering to the rules of the community in which they live—most of which are in place to ensure peaceful coexistence and robust property values for everyone.

To some people, a lawn or backyard might sound pretty uncontroversial but a prime site of conflict is outside space. Balconies, lawns, terraces, and backyards—these are spaces that are technically part of individual units but which abut or otherwise extend into common areas, and can thus be seen by neighbors. Gardens, pools, and decorations may be private property, but they all reflect the appearance of the entire community as well. Unit owners, property managers, and their attorneys need to navigate rules and stipulations that affect these areas with special care because of that inherent conflict of interest.

Flamingos of Doom

We’ve all seen the lengths to which some people will go to personalize their outside spaces. “In condominiums, you might see owners trying to make the most out of their balcony or terrace areas. They'll personalize them as much as possible with their own decor, furniture, fixtures, etc.,” says Roberto Blanch, a shareholder attorney at the law firm of Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, P.A. in Coral Gables. “Homeowners associations tend to be more analogous to stand-alone homes where you do have front yards, and side yards, and back yards, but the issue remains the same. You can see people installing everything from pink flamingos on the lawn to the basketball post. You name it, and people have done it.”

Especially in a place like Florida, many people buy homes with the idea in mind that their home is their castle, their safe haven. Obviously, a condo unit can act as just that, but at the same time, a condo unit is not that same as a traditional single-family home, and sometimes, buyers don’t fully appreciate the difference. There can be strict guidelines for how the community as a whole operates, and how things look on the outside can be a source of the most restrictive rules.

“It depends on how structured the community is,” says Cindy A. Hill, an attorney at the Hill Law Firm, P.A. in Osprey. “Some communities want to look like Disney World, with everything neat and trimmed and looking beautiful. In that case, you're not going to have much flexibility. As a matter of fact, I've dealt with associations where they even limit what color of rocks or what kind of mulch you can use.”

Over-ARC-ing

Contrary as it may seem to the notion of real property ownership, associations do have the right to control the use and look of outside structures like balconies, backyards, and lawns. If you live in an HOA and have a balcony, you probably own the balcony. But just because you own it doesn't mean the association can't pass rules on how you can use it. They could pass a rule that says you can't enclose the balcony, or you have to paint your railing a certain color. “It's not who owns it, it's what the documents say about who's in control,” says Leonard Wilder, an attorney at the law firm of Bakalar & Associates, P.A. in Plantation.

Architectural Review Committees or ARCs are the HOA’s long arm of the law charged with controlling a community’s aesthetics and appearance. J. Richard Alsop, AIA, NCARB, LEED AP, a partner in Charette Architects, PLLC, advises more than a dozen architectural review committees in the Carolinas and in Florida.

In a recent column in The Charlotte Observer, he writes, “The Architectural Review Committee, or ARC, is typically charged by a community’s covenants, conditions and restrictions, the CCRs, with the exclusive task of promulgating guidelines in order to maintain aesthetic standards within the community and to preserve values.”

“By design, ARC guidelines,” Alsop notes, “often leave a significant amount of room for interpretation by both an owner’s architect/designer and the ARC itself. Because the guidelines are open to interpretation, enforcement of its provisions by the ARC is sometimes perceived to be, and may in fact be, inconsistent, creating potential liability for the homeowners’ association (HOA).”

Alsop suggests that when making committee appointments, boards should fully understand the extent of the ARC’s authority and the extent of liability the ARC can create for the HOA. And persons selected for the position should have the leadership and personal skills needed to manage the process without bias, and be willing to commit a significant amount of time to this work. He also recommends engaging an architect as a consultant to make sure your community’s guidelines are reasonable and fair.

Different Strokes

Unfortunately, some homebuyers take for granted the desirable appearance of a community, and don't think about what rules and regulations might be in place to make it look so appealing. “On the flip side, if you've got a more easy-going community that's not set up to look absolutely perfect, just to look nice, then you do have more flexibility with what you can put in your yard and how you maintain it,” says Hill. “Of course, every HOA wants their yards maintained and looking good. There's no question of that, but the level of landscaping does tend to get higher the more high-end the property.”

And it doesn't stop with lawns. Even installing pools can become an issue. “Most HOAs do not allow above ground pools,” Hill says, recalling an issue she has dealt with more than once. “Residents will put in an above ground pool, and spend some amount of money doing it, too. A lot of unit owners don't even bother to consult their board beforehand, and may not even be aware that rules banning above-ground pools are even on their association’s books. It's important for property managers and boards to make rules like that crystal clear and easily accessible, so people don't waste their time and money, and cause major issues for themselves and the community.”

Different associations handle these issues differently. Some might bring down the hammer no matter what to make sure a strong precedent is set. Others might be more flexible, and willing to find creative solutions in order to accommodate certain cases.

In another pool-related example, a resident installed a pool—which was fine with the association—but their pool also included a big slide and waterfall that was easily visible to neighbors, and interrupted the visual uniformity of the property. “If you were the next-door neighbor, I don't know if you'd want to see that,” says Blanch. But rather than crack down on the miniature waterpark, he says that the association board sat down with both owners to figure out a workable solution that was acceptable to all parties. One of the ways to compromise is “asking the owner to shield the pool area with trees and landscaping, so it doesn't look so massive and it looks more like a landscaped area. Associations are free to come up with ways to also accommodate the owner that violated the provisions.”

Along with pools, fences also come up as a common issue. For whatever reason, it's one of those household features that people assume they are completely within their rights to put up themselves. “A lot of times owners won't get the approval they need—they'll just put their fence up,” says Hill. “If they’re informed that the fencing is improper in some way, they'll point and say, 'Well, so-and-so has the same fence,' but that one was put up by the developer, and the developer didn't follow the HOA’s documents. Since the developer left, the board has been enforcing the documents. And boy, people get mad.”

While the list of common restrictions is long, there are a couple of common yard items that are protected by state and federal law; the biggest one being flags. “It depends on when the association's documents were adopted, but state laws could preempt them,” says Wilder. “Associations have litigated flags to the point where the legislature had to jump in and make a law.”

Another perennial issue, Wilder notes, is “Satellite dishes—almost all covenants that you'll read prior to 1996 will forbid satellite dishes. Federal law now allows owners to install a dish for the owner's exclusive use or control. Most townhome roofs are owned by the owner. Likely you'll see them on balconies, because those are still for the exclusive use of the owner.”

50 Shades of Grey

Some situations aren’t so clear-cut. What if a tree, for instance, on one property hangs over and negatively affects another? “If it's a hedge and you have approached your neighbor and said ‘Hey, your hedge is crossing over onto my property. Would you mind if my landscaper accessed your property or reached over with their tools to trim it?' That should be step number one; is just to have good neighborly relations,” says Blanch. “If not that, if you and your neighbor can't or don't get along, you can also reach out to your association to see if there's an established procedure for such cases. If the answer is no, then perhaps the association should establish procedures, because what you plant on your side of the fence shouldn't unreasonably interfere with your neighbor's use of his property.”

How do all these decisions get made? The key to it all is how an association manages to enforce and protect such regulations and restrictions. “As with any restriction, they need to be reasonable,” Blanch continues, “and they need to be uniformly enforced. The association can't be arbitrary in its enforcement of its own rules. While some communities want to have a very sterile appearance and look the same, and owners tend to buy in the communities because of that uniform appearance and that regulated theme, the associations also need to be explicit about what is and what is not allowed.”

Nobody wants to be the bad guy, especially board members who are also neighbors of the people that they essentially have to police at times. But in the case of rules regarding outside spaces, it's better for associations to err on the side of strictness rather than laxity. “What owners try to get away with in many communities is amazing,” says Blanch, “so again, an association needs to be proactive in the enforcement of its restrictions. But those restrictions also need to be fair, and they need to be clear. And once they're fair and clear, everybody's on reasonable notice as to what is and is not allowed, and the association is in the proper position to start enforcing. Otherwise, you're creating a situation where somebody can violate, challenge the attempt to enforce, and it's really not doing you any good.”

That said, associations have to make sure their rules are reasonable, and that they don't overdo it on the rules that they do consider important. With unreasonable rules on the books, the reasonable ones have less resonance both legally and in the minds of unit owners.     

Tom Lisi is a staff writer for The South Florida Cooperator. Freelance writer Dani Braff also contributed to this article.