IN THE COUNTY COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR HERNANDO COUNTY, FLORIDA

EAST LINDEN ESTATES HOA, INC., Plaintiff,

                     Case No.H-27-SP-2007-149

v.

LISA MINER, Defendant.

I

Final Judgment

         THIS MATTER having come before the Court for Final Hearing and the Court having reviewed the file, the pleadings, heard the arguments and evidence of the parties and the Court being otherwise fully advised in the premises, this Court’s ruling is set out below.

1.        Defendant co-owns a home located at 455 Cressida Circle, Spring Hill. The home is located in the East Linden Estates subdivision and subject to the deed restrictions and regulations of the Plaintiff.

2.        In January 2006, the Defendant contracted to have a fence erected in her yard prior to receiving approval from the Plaintiff's Architectural Control Committee ("ACC") as required by the regulations.

3 .       The pertinent regulation with regard to fences states: ". . Fences and hedges shall not exceed six (6)feet in height as measured from the ground and may be installed or placed so as to enclose only the rear yard of a Unit, defined as the area between the rear of the residence and the rear property line ... "

4.         The ACC has the authority to provide qualified or conditional approvals for fences, although the regulations do not define what is meant by the terms qualified or conditional approval.

5.        On January 29, 2006, the ACC approved a plan for the Defendant's fence which differed from what the Defendant wished to install. The plan approved did not comply with the ACC's interpretation of the fence requirement quoted in paragraph three above.

6.        Between January 29 and February 1, 2006, the installation of the fence was completed contrary to the approval letter the Defendant had received on January 29.

7.         On February 2, 2006, the Defendant's fence, as built, passed final inspection by the Hernando-County Code Enforcement Department. It would ultimately be determined that the rear section of the fence exceeded Hernando County Code for height and opacity. However, Hernando County took no action because it determined that the Defendant had reasonably relied on the final approval from the code officer and that she would not be required to later correct the non-conforming fence. Hernando County closed its file on this matter on July 14, 2006.

8.         On February 13; 2006, the Defendant received a second approval letter that was different than the first. The Defendant's fence, as installed, did not comply with this second approval. The plan of the second approval did not comply with the ACC's interpretation of the fence requirement quoted in paragraph three above. 

9.         On March 11, 2006, the ACC revised the approval letter from February 13, 2006. The Defendant's fence, as installed, did not comply with the revised approval. The plan of the third approval did not comply with the ACC's interpretation of the fence requirement quoted in paragraph three above. 

10.      On April 6, 2006, the ACC generated the fourth approval letter relating to the Defendant's fence. This approval was for a greatly reduced fence from the prior approvals. The testimony at the final hearing from the Plaintiff's representatives was that this approval represents exactly what would be allowed under the ACC's interpretation of the fence requirement quoted in paragraph three above. 

11.      On November 13, 2006, the Defendant received a letter from the Plaintiff approving her fence on the terms and conditions of the March 11, 2006 approval, along with several other conditions. This constituted the fifth approval the Defendant had received. The plan of the fifth approval did not comply with the ACC's interpretation of the fence requirement quoted in paragraph three above.

12.      The Defendant provided photographs and approval letters from the ACC for fourteen properties in the subdivision. 

13.      None of the fourteen approved fences viewed by the court would have complied with the ACC's interpretation of the fence requirement quoted in paragraph three above. 

14.      There was no testimony explaining the particular reasons behind the various approvals other than an attempt to reach a compromise with the Defendant.  

15.      The Statement of Claim filed by the Plaintiff merely sought to recover monetary damages from the Defendant related to the Plaintiff's efforts to get the Defendant to erect her fence according to the approval letters that had been provided. The Statement of Claim did not seek removal of the fence nor did it seek enforcement of deed restrictions. Plaintiff bore the burden of proving entitlement to damages by a preponderance of the evidence.

16.      The court was unable to discern any pattern or standard with regard to fence approvals. The approvals appear to be made on an ad hoc basis. 

17.      A homeowners' association may not enforce deed restrictions that it does not enforce equally. White Egret Condominium. Inc. v. Franklin, 379 So.2d 346 (Fla. 1979). 

18.      In this matter, the court has not been asked to enforce the deed restrictions, but rather to award damages to the Plaintiff for costs incurred in its efforts to enforce the deed restrictions. 

19.      The court finds that the Plaintiff was clearly attempting to have the Defendant install her fence in a manner other than she desired. However, the Plaintiff was also clearly not attempting to enforce its fence regulation as written, nor does it appear that the Plaintiff has even attempted to enforce its fence regulation as written. 

20.      Ultimately, the Plaintiff was not attempting to have the Defendant comply with the regulations, but rather attempts to have her comply with. a variable fence standard. The Plaintiff has failed to show that it is legally entitled to recover damages for such efforts.

             Therefore, it is ORDERED AND ADJUDGED that the Plaintiff shall recover nothing from the Defendant, and the Defendant shall go hence forth without pay. 

DONE AND ORDERED, in Chambers, at Brooksville, Hernando County, Florida on the 18th day of September, 2007.

CERTIFICATE OF SERVICE

             I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by United States Mail to: East Linden Estates HOA, c/o Thomas Lyons, 14624 Linden Drive, Spring Hill, FL 34609; and Lisa Miner, 455 Cressida Circle, Spring Hill, FL 34609, this 18th day of September, 2007.