IMPORTANT NEW LANDSCAPING LAW

If you ever tried to remove a tree from your condo or HOA community, you know how difficult, expensive and impossible it can be. There are applications to fill-out, inspections to be made, fees to be paid and promises made to put a new tree back somewhere on the property or in the municipality.  Well, thanks to a new Florida law, it’s not as difficult any longer.

Florida Statute 163.045 now states:

 

 

A local government may not require a notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property if the property owner obtains documentation from an arborist certified by the International Society of Arboriculture or a  Florida licensed landscape architect that the tree presents a danger to persons or property.

 

So, in order to remove a tree on residential property, get the letter from the arborist or landscape architect that says the tree presents a danger to persons or property and then you can proceed to remove it.

Can you still be required to put a new one back?  No.  The statute as amended now states:

A local government may not require a property owner to replant a tree that was pruned, trimmed, or removed in accordance with this section.

Sounds like a statute that makes sense.  But suppose you live in an HOA?  Also suppose that the homes are zero lot lines, meaning that the owner owns the home, but the association owns everything else, including the ground where all of the trees in the community are planted.  Are those trees now located on property that is “residential?”

Suppose the trees are located on common elements in a condominium.  Are those trees now located on “residential” property?  Some municipalities, cities or towns may say “no”  In zero lot line communities or in other common areas, the trees are not located on residential property and therefore this new law does not apply.

It seems like an absurd argument when the entire makeup of the community is residential in nature and there are no businesses present.

In fact, for HOAs – the statute states:

720.302 Purposes, scope, and application.—

(1) The purposes of this chapter are to give statutory recognition to corporations not for profit that operate residential communities in this state, to provide procedures for operating homeowners’ associations, and to protect the rights of association members without unduly impairing the ability of such associations to perform their functions.

 

It seems to me that if an HOA is governed by Florida Statute 720, it clearly is a residential community.

Florida Statute 718.103 – for condominiums state:

23) ”Residential condominium” means a condominium consisting of two or more units, any of which are intended for use as a private temporary or permanent residence, except that a condominium is not a residential condominium if the use for which the units are intended is primarily commercial or industrial and not more than three units are intended to be used for private residence, and are intended to be used as housing for maintenance, managerial, janitorial, or other operational staff of the condominium.

 

So, the condo statute makes it clear that it is a “residential” condominium if it is intended for private temporary or permanent residence and the purpose is not commercial or industrial.

So, if the Condo Act and the HOA Act make it clear that these are “residential” communities, why would any city, town or municipality interpret 163.045 not to apply in these communities because common elements are somehow not residential.  The answer should not surprise you.  The government wants control of your property and your wallet.  They want to keep collecting your permit fees.

The first association that is hassled by their town, city or municipality should march into court and get a judge to stop the nonsense.  This is one case I’m betting the associations will win.

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