Water Shortage Restrictions Override Deed Restrictions

Johnson_Monica

Monica Johnson

Homeowners associations may not require lot owners to pressure wash their homes, or to water or replace their lawns while there are water shortage restrictions in effect.

The Southwest Florida Water Management District (“SWFWMD”), the agency responsible for managing and protecting water resources of southwest Florida, has declared that Modified Phase III water shortage restrictions are in effect from June 5, 2017 through August 1, 2017 in several counties, including Citrus, DeSoto, Hardee, Hernando, Hillsborough, Manatee, Pasco, Pinellas and Sarasota, and portions of surrounding counties within SWFWMD’s jurisdiction.

Chapter 40D-21, Florida Administrative Code (also known as the “Water Shortage Plan”), provides, in pertinent part, the following with regard to washing or cleaning of buildings, structures, and outdoor surfaces during a Phase III, or extreme, water shortage:

  1. Pressure Washing of buildings or other structures in preparation for painting, sealing or other necessary maintenance and as a construction practice is allowed. Compliance with homeowner association or other aesthetic standards does not constitute necessary maintenance.
  1. Pressure Washing of driveways, sidewalks and other impervious surfaces is allowed for necessary maintenance, such as to either maintain a warranty or remove mold, mildew and other potentially hazardous material that cannot be removed by mechanical means (such as a broom or leaf blower), and as a construction practice (such as cleaning a concrete surface prior to painting or sealing). Compliance with homeowner association or other aesthetic standards does not constitute necessary maintenance.
  • 40D-21.641(7)(e), F.A.C. (emphasis added). Moreover, the Water Shortage Plan provides as follows:

No person or entity, for example, a homeowner association or property manager, shall enforce any deed restrictions or other community standards which are inconsistent with the Water Shortage declaration.  This specifically includes that the person or entity responsible for enforcement will suspend any requirement to replace plant material to meet aesthetic standards.

  • 40D-21.641(7)(g), F.A.C. This is reiterated under the Modified Phase III water shortage restrictions on SWFWMD’s web site[1]:

Homeowners associations and other entities must suspend any requirement to replace lawns, pressure wash, or engage in other activity which increases water use during this water shortage declaration.

The Modified Phase III water shortage restrictions are in place until August 1, 2017.  In light of the foregoing, homeowners associations should suspend enforcement (violations and fining) pertaining to pressure washing and lawn replacement until the water shortage is over.  If your association violates the Water Shortage Plan, it may be subject to civil, monetary penalties pursuant to your county’s local ordinances.

If you have any questions regarding your association’s ability to enforce its covenants while the water shortage restrictions are in place, please do not hesitate to contact us 813.229.7600.

[1] For a complete list of the modified Phase III water shortage restrictions, visit http://www.swfwmd.state.fl.us/conservation/restrictions/swfwmd.php.

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