One of the most iconic characters on television is Tool Time Tim’s neighbor Wilson. His sage advice usually guided Tim to make the right decision. While you never saw Wilson’s full face, he was always looking over the fence to talk to Tim.
Imagine one day Wilson looks over the fence to see that Tim, who certainly likes to build, has decided his back yard should be covered with Astroturf and changed into a miniature golf course.
While usually friendly to Tim, he certainly doesn’t like the thought of looking at a Putt Putt course when he talks to Tim.
In their neighborhood covenants, there is a prohibition on artificial grass, so Wilson complains to his board, filing a formal complaint against Tim.
Under a Florida law passed during the 2023 Legislative Session, it would appear that Tim has every right to keep the Putt Putt course.
Here’s the specific language of Florida Statute 720.3045.
Installation, display, and storage of items.—Regardless of any covenants, restrictions, bylaws, rules, or requirements of an association, and unless prohibited by general law or local ordinance, an association may not restrict parcel owners or their tenants from installing, displaying, or storing any items on a parcel which are not visible from the parcel’s frontage or an adjacent parcel, including, but not limited to, artificial turf, boats, flags, and recreational vehicles.
Sounds like an open and shut case, right? Tim gets to keep his golf course because it’s not visible without intentionally looking over the fence – like Wilson does every day.
Well, not so fast.
There are many other factors that come into play with this decision and many of them will need to be tested in court before any certainty can come for Tim and Wilson.
The Orlando Law Group has a significant focus on providing homeowner’s associations with all types of legal advice, including interpreting new statutes.
It’s in the Constitution!
While we’re sure that George Washington didn’t have an HOA contract covering Mount Vernon, Washington and the other founders did understand contracts and wrote language into the U.S. Constitution in Article 1, Section 10 that explicitly said government cannot write a law that breaks a contract – the Contracts Clause.
This is so critical to how we govern in America that similar language is in the Florida Constitution as well.
The covenants of any homeowner’s association are a binding contract. When a homeowner signs the contract, they agree to abide by the terms of the contract.
Often times, these covenants say a homeowner can’t install Astroturf instead of grass, or store items on their property as is the case with Tim’s neighborhood.
So, that makes it a slam dunk for Wilson’s case, right? The covenants say Tim can’t put in a Putt Putt course. The new law can’t interfere with contract, according to the U.S. Constitution.
Well, not so fast.
Tim may keep his Putt Putt course depending on how the contract was written.
Kaufman Language is Key
Overall, homeowner’s associations are governed by Florida Statutes 718 and 720, which really puts them at the whims of the Florida Legislature. What happens in a neighborhood across the state may have ramifications with everyone if the legislature sees a reason to change the statute.
Sure enough, the issue of Astroturf in a backyard started with a HOA in South Florida. There, a homeowner installed Astroturf as part of creating a “Florida-friendly” lawn. This term was part of a change to statutes a few years ago as the state tried to discourage the use of St. Augustine grass.
In that case, artificial grass was not stated in statute.
It is now.
In both cases, however, the key to finding out if they apply is a statement – called Kaufman language – that basically says the contract is subject to change based on actions of the Florida Legislature.
It should specifically state that “new laws and amended laws become part of that declaration automatically and do not impair it even if that new or amended statute creates a new obligation, imposes a new penalty and/or diminishes a vested right.”
If the Kaufman language is in the covenants Tim signed, the case is settled. Tim gets to play all the Putt Putt he wants in his backyard.
Well, not so fast.
Three Tests to the New Law
Unfortunately, Tim’s HOA didn’t use The Orlando Law Group to create their contract and the Kaufman language isn’t included. Now, it comes down to are three tests to determine if it is in conflict with the U.S. Constitution.
We will be publishing a full article on these, but the tests are:
- The procedural or substantive test: Does the change to law substantially change the contract or is it just a procedural test? In this case, it’s substantive. The contract says you can’t have Astroturf. The new law says you can.
- The retroactive/remedial intent test. Is the change retroactive, covering past actions. In this case, the bill did not cover retroactive, only that enforcement started on July 1, 2023
- The degree of impairment test. Frankly, almost any substantive contract is viewed as impairing the contract. In this case, one could assume the new law impaired the contract.
Based on those tests, it still looks like Wilson wins, after all, the law appears to fail all three tests.
Well, not so fast.
In Florida, the courts look at new laws under a case from 1992 called Maison Grande. Under that ruling all new laws are presumed to be valid and enforceable until the courts say otherwise.
With that case, our opinion is Tim can keep his Putt Putt course for now.
Of course, that could change too. Tim’s association could certainly file a suit and be a test case, hoping to get the new statute ruled unconstitutional. There is certainly enough doubt for any association to become the “test case” if they want to.
The attorneys at The Orlando Law Group represent clients in association management and more in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.
We would certainly work with any association who might want to test the new law and get a court ruling.
If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.
The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.
Last Updated on September 17, 2023 by The Orlando Law Group