Saint Augustine, FL asked in Land Use & Zoning and Real Estate Law for Florida

Q: Can a Florida HOA issue an amended approval a month after they approved something without the homeowners requesting it?

Our Florida HOA approved and certified our application for a tan fence even though our community guidelines call for white. A month later our fence co contacted the HOA telling them they approved a tan fence, at which time the HOA issued an amended approval for white fencing. Can they do that?

1 Lawyer Answer

A: If the fence hadn’t been installed yet, yes, they can correct their error. If the color wasn’t clear from the application, the HOA might be able to amend approval even if the fence was installed. If it was clear from the application the fence was tan, you asked for a variance and you installed a tan fence, you might have a defense of detrimental reliance if you are sued, but you have to weigh the costs of defending a lawsuit to the cost of complying. There is case law (court rulings on cases) which says you can’t knowingly violate deed restrictions as well as case law which says if you look around the neighborhood and do not see the type of improvement you installed that is your notice it is probably not allowed.

As you can see the answer depends on the facts and circumstances specific to you, so you will likely need to consult an experienced HOA lawyer if you already installed the fence.

Terrence H Thorgaard agrees with this answer

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