By Roberto C. Blanch / Published December 2022
A 2019 Florida law is sometimes a source of confusion for board members and owners in HOA communities over whether their associations can restrict or ban yard vegetable gardens in their communities.
The uncertainty stems from §604.71, Florida Statutes, which states that no county, municipality, or other political subdivision in Florida can regulate vegetable gardens on residential properties. However, HOAs, condominium associations, and cooperatives do not fall under the category of “political subdivisions,” which are typically separate legal entities of a state that usually have specific governmental functions. Examples include a county, city, town, village, school district, and other subdivisions with a governmental legal status. Community associations are private not-for-profit corporations, and while they may govern over their communities, they are nongovernmental entities with powers that are codified by state law.
So, while counties and municipalities in Florida cannot regulate or ban front-yard vegetable gardens, HOAs can and often do restrict them.
Proponents of vegetable gardens in HOAs reference many benefits associated with permitting vegetable gardening within the boundaries of private lots within HOAs, including the promotion of sustainable food production, improved health, and cost savings. However, those opposed to the activity within HOAs may reference some concerns, such as a potential for the attraction of pests and vermin, the creation of a mismatched aesthetic community landscape, and the possibility of overgrowth, which may diminish visibility required for safe pedestrian and vehicular traffic.
In light of the competing interests related to such gardens within HOAs, the best approach for associations and their directors is to evaluate whether the activity must be banned altogether, or whether it may be permitted under certain conditions that may enable the residents of the community to coexist with such activities while preserving the best interests of the community as a whole.
One other option may include the addition of such a garden as a matter for the association’s architectural review process. In such a case, the association’s architectural review committee could work with counsel and management to craft detailed criteria governing the location of gardens, the type of materials which may be grown, maintenance standards for such gardens, and the consequences for violations of such criteria. The architectural review committee, which should be independent from the association’s board of directors, would take up all submissions for consideration by their community’s residents for vegetable gardens and determine whether proposals are to be permitted or denied.
Carefully evaluating possibilities for the existence and maintenance of vegetable gardens within the lots of a community governed by an HOA rather than arbitrarily prohibiting them may be one of the first steps in preserving the harmony and values of a community. To do so, HOA boards are encouraged to work with their property managers and attorneys to ensure a well-balanced and legally enforceable approach.
Roberto C. Blanch
Partner, Siegfried Rivera
Roberto C. Blanch is a partner with the Siegfried Rivera law firm and one of the most prolific contributors to its community association law blog at www.FloridaHOALawyerBlog.com. He is board certified as an expert in community association law by the Florida Bar. The firm maintains offices in Miami-Dade, Broward, and Palm Beach Counties, and its attorneys focus on community association, real estate, construction, and insurance law. Roberto can be reached at 1-800-737-1390 or via email at email@example.com or www.siegfriedrivera.com.