ARB Controls Planting of Palm Tree Species in Community
Although one of the draws to community association living for many owners is the uniform aesthetic of homes and the ability to control fairly tightly changes that could be unsightly, sometimes homeowners want to make changes. Even if the architectural review board has approved certain changes, an owner might be tempted to stray from this if she thinks that the substitution for what has been approved is only slightly different. But don’t fall into the trap of thinking that a small variation would preclude the association from taking action. A recent Alabama appeals court determined that a homeowner in a planned community had to stick to exactly what had been approved by the ARB.
There, the restrictive covenants and bylaws for a homeowners association set out that no homeowner should “decorate, change or otherwise alter the appearance of any portion of the exterior of a dwelling or the landscaping, grounds or other improvements within a lot” unless approved by the association’s architectural review board (ARB), to “preserve the architectural and aesthetic appearance of the development.”
In order to apply for a change, a homeowner was required to submit two copies of the proposed plans and specifications to the ARB, which then had to approve the plans in writing. But, in the event the ARB determined that the plans and specifications had not been approved, and the homeowner went ahead with them nonetheless, the association was entitled to require the removal of the work. The association was also entitled to remove any changes that didn’t comply with approved plans and specifications. This included landscaping.
A homeowner wanted to change the landscaping of his property. He got approval for the changes, including a certain type of palm tree, but planted a different type instead, which deviated from the plan that had been submitted to the ARB.
The association asserted that the type of palm tree the homeowner planted didn’t fit the aesthetic of the community. When he refused to remove the unapproved palm tree, the association sued him. He asked a trial court for a judgment in his favor without a trial. The trial court ruled in the association’s favor, and the homeowner appealed.
An Alabama appeals court affirmed. The homeowner claimed that the ARB hadn’t warned him that the type of palm tree he ultimately planted wasn’t permitted. He asserted that because a type of palm tree had been approved, he felt that a different type would be permissible because it also was a palm tree and not another type of tree or plant. He claimed that the ARB should’ve spelled out the types of palm trees that were and weren’t allowed.
The appeals court sided with the ARB and association, stating that, “the law does not place the onus on the enforcer of restrictive covenants to warn violators thereof that they may not be in compliance, particularly in circumstances such as those in the present case, where restrictive covenants require homeowners to gain preapproval of any improvements.” The appeals court pointed out that, “had the homeowner obtained such preapproval [for the specific type of palm tree he intended to plant], any resulting damages could have been avoided.” It ordered that the homeowner remove the palm tree at issue [Esfahani v. Steelwood Prop. Owners’ Ass’n, August 2018].