Work Done Without Approval: What the Board Can Do When an Owner Builds First

Jason Hamilton Mikes, JD, MBA
Founder & Managing Shareholder

• Published September 25, 2026
• Reviewed by Jason Hamilton Mikes, JD, MBA, September 26, 2026
• Florida Statutes as of July 1, 2026
• Applies to: HOAs

An owner builds a pergola, screens a lanai, repaints the house or extends a driveway without applying. By the time the board hears about it, the work is finished and paid for. The association's options narrow with every week that passes, so the first board meeting after discovery matters more than any later one. What follows is the order in which the questions should be taken.

First question: is it actually a violation

Boards skip this step and regret it. Before a letter goes out, someone has to identify the covenant, by article and section, that the improvement violates, and confirm that the association has authority over this category of improvement at all.

Section 720.3035(1)(a) permits architectural review only to the extent the authority is specifically stated or reasonably inferred in the declaration as to location, size, type or appearance. If the declaration requires approval for structures and the owner built a structure, you have a violation of the approval requirement even if the structure itself would have been approved. If the declaration says nothing about the category, the committee's displeasure is not a violation.

Check three more things at once. Whether the documents contain a deemed-approval clause the owner triggered by submitting and hearing nothing. Whether section 720.3045 removes the item from the association's reach because it is not visible from the parcel's frontage, an adjacent parcel, an adjacent common area or a community golf course. And whether another statute protects it outright, such as section 163.04 for solar collectors or section 720.3035(6)(b) for conforming hurricane protection.

Note also what is no longer available as a ground. Since July 1, 2026, section 720.3035(1)(c) provides that the association and its architectural or construction improvement committee may not require a building permit to have been issued as a prerequisite for review. The absence of a permit at application time is not a violation of the association's rules, though building without a required governmental permit may still violate the declaration and is a matter for the county.

The three outcomes

Once a violation is established, there are three real outcomes and a board should evaluate all three on the record.

• After-the-fact approval. The owner submits the application that should have come first, the committee reviews it on the ordinary standards, and if it conforms, it is approved. This is the right answer more often than boards expect, because the alternative is litigation over something the association would have permitted.
• Modification to conforming. The improvement stays but changes: the pergola is restained to an approved color, the fence panel is cut to height, the driveway extension is removed to the approved width. This resolves most cases that are not clean approvals.
• Removal. Reserved for improvements that cannot be made to conform, that encroach on common area or an easement, or that create a safety or drainage problem. It is the most expensive path for everyone and the one most likely to end in court.

Approving after the fact is not a surrender, but it should never be silent. Approve in writing, state that approval is granted notwithstanding the owner's failure to apply, state that the failure to apply was itself a violation, and state that the approval is specific to this application and does not establish a precedent or waive the approval requirement. Without those sentences, the file looks like the board decided the approval requirement is optional.

There is a fourth thing boards do, which is nothing. Doing nothing is a decision, it is usually the worst one available, and it is the raw material of the waiver problem described below.

Proportionality

Florida associations have broad enforcement authority and courts generally will not second-guess a board's reasonable business judgment. But a remedy out of all proportion to the violation invites a judge to look for a reason to rule against the association, and judges who look usually find one.

Weigh four things and write them into the minutes. The severity of the nonconformity, measured against the standard rather than against taste. The cost of the remedy to the owner. The precedent the decision sets for the next twelve applications. And whether the violation affects other owners, the common area, drainage or safety, or only appearance.

A pergola stained two shades off the approved color is not a removal case. A structure built four feet into a drainage easement is, whatever it cost. The distinction the board draws should be visible in the minutes, because the minutes are what a court reads when the owner argues the board acted arbitrarily.

Selective enforcement and waiver

This is the defense the association will actually face. The owner's position is rarely that the covenant does not exist. It is that the association has not enforced it against anyone else, or has not enforced it against the owner for long enough that it has given up the right.

Two related doctrines are at work. Selective enforcement is about disparate treatment: the association enforced against this owner and not against others similarly situated. Waiver is about abandonment: the covenant has been so widely and so long disregarded that enforcing it now would be inequitable. Section 720.3035(1)(a)'s requirement that standards be reasonably and equitably applied and enforced gives the first doctrine a statutory anchor.

Before sending a letter, answer the question the owner will ask. How many other parcels in this community have the same nonconformity today? If the answer is more than a handful, the board is not enforcing a covenant, it is singling out an owner, and the letter should wait until the board has dealt with the category as a whole.

Note what is not a defense. That the owner did not know about the covenant, that a prior manager said it was fine, or that a single director gave verbal approval. Only the body the declaration empowers can approve, and it acts by vote at a meeting, not by conversation in a driveway.

The notice and hearing route

If the association intends to fine or suspend, section 720.305(2) sets a process that cannot be shortened.

1. The board levies the proposed fine or suspension. An association may levy reasonable fines for violations of the declaration, the bylaws or reasonable rules. A fine may not exceed $100 per violation unless the governing documents provide otherwise.
2. A fine may be levied for each day of a continuing violation with a single notice and opportunity for hearing, but may not exceed $1,000 in the aggregate unless the governing documents provide otherwise.
3. The board must give at least 14 days' written notice of the right to a hearing, to the owner at the mailing or e-mail address in the official records and, where applicable, to the occupant, licensee or invitee to be fined or suspended.
4. The hearing must be held within 90 days after the notice is issued, before a committee of at least three members appointed by the board who are not officers, directors or employees of the association, or the spouse, parent, child, brother or sister of an officer, director or employee.
5. Within 7 days after the hearing, the committee must notify the owner in writing of its findings. If the violation is not cured and the committee approves the fine or suspension, it must set a payment date at least 30 days after delivery of that notice.

Two points cause most of the trouble. The committee is not the board and cannot be the board. And under section 720.305(2)(c), if the committee does not approve the proposed fine or suspension by majority vote, it may not be imposed, and no paragraph of the statute lets the board reconsider. Our guides to the fining committee and to fines, hearings and suspensions go through the mechanics.

Remember what a fine does and does not accomplish. A $1,000 aggregate fine does not remove a pergola. Fining is a pressure mechanism, not a remedy, and on an improvement that the owner is content to keep and pay for, fining alone will not resolve the matter.

Injunctive relief, and who pays

The remedy that actually removes an improvement is an injunction. Section 720.305(1) provides that each member and the member's tenants, guests and invitees, and each association, are governed by and must comply with chapter 720, the governing documents and the rules of the association, and that the prevailing party in such litigation is entitled to recover reasonable attorney fees and costs.

That fee provision runs both directions, and it is the central fact in deciding whether to sue. An association that wins recovers its fees from the owner and can normally assess them. An association that loses pays the owner's fees, and that bill lands on every parcel in the community through the next budget. Before authorizing suit, the board should have counsel's assessment of the merits in writing, and should understand that a weak selective enforcement record converts a strong covenant into a losing case.

On who pays for removal, start with the declaration. Many Florida declarations contain a self-help clause permitting the association, after notice and an opportunity to cure, to enter the parcel, correct the violation and charge the cost to the owner as an individual assessment. Where that clause exists it is the most efficient path, and where it does not, the association generally cannot invent it. Entering a parcel without authority creates a trespass claim that is worse than the violation.

Section 720.311(2)(a) also requires presuit mediation for disputes between an association and a parcel owner regarding use of or changes to the parcel or the common areas, including covenant enforcement disputes. It expressly does not cover collection of an assessment, fine or other financial obligation, and it permits a motion for temporary injunctive relief to be filed without first mediating. So the unapproved improvement goes to mediation; the unpaid fine does not.

Getting enforcement back after years of inaction

This is the situation most boards are actually in. A covenant has gone unenforced for a decade, a new board wants to enforce it, and half the community is out of compliance. Starting with a letter to one owner is the worst available opening.

The workable sequence is prospective and community-wide.

1. Identify the covenant and confirm it is still enforceable. Old restrictions can also fail for reasons unrelated to waiver, and a review of the declaration's amendment and revitalization history belongs here.
2. Survey the community and count the nonconformities in the category. The count drives everything that follows.
3. Adopt a written enforcement policy at a noticed board meeting. State the covenant, state that the board has determined to enforce it going forward, state the date enforcement begins, and state how existing nonconformities will be treated.
4. Give real notice to the whole membership, not only to violators, with enough lead time that no one can say they were surprised. Sixty to ninety days is common.
5. Consider grandfathering existing nonconformities that meet stated criteria, or setting a compliance deadline tied to a natural replacement point such as the next roof or the next repainting. This is what makes the policy survivable.
6. From the effective date, enforce uniformly and log every instance. Uniformity from that date forward is what defeats the selective enforcement defense as to future violations.

A board that follows that sequence is in a far stronger position than one that sends a letter. It is also easier to explain at an annual meeting, which matters more to the community's temperature than the legal analysis does. Have counsel review the policy before the first letter goes out, and see our guide to covenant enforcement for the steps that follow.

Contact Hamilton Mikes

Hamilton Mikes advises Southwest Florida HOA boards on unapproved improvements, from after-the-fact approvals to injunction, and drafts the prospective enforcement policies that let a board start over. Call 239-594-7227 or visit our Covenant Enforcement page.