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HOA Can’t Prohibit Water-Efficiency Measures

In California, a Homeowner Association (HOA) cannot prohibit individual owners from replacing their existing landscaping with low-water-using plants. That limitation on an association’s rules or actions is a result of legislation (AB 2104, Gonzalez) passed last year and that was initiated in response to the state of (drought) emergency declared by Governor Brown.

But what happens when the drought is over? (We trust that someday it will be over.) Will HOAs then be able to revert to the rules they had back in the day when we all thought there was plenty of water? Will they be able, as some had done, to require green lawns and lush, well-watered landscaping?

(This is not a small issue, confined only to those occasional condominium units that may have a small yard where grass and some flowers can be grown. In California, there are more than 50,000 common interest developments [CIDs], comprising over 4.8 million housing units — all subject to recorded regulations [CC&Rs] and HOA oversight. They are not all no-yard condominiums. Many are free-standing homes, some with very large yards, within an association.)

As a result of AB 349 (Gonzalez), which was signed into law by the Governor on Sept. 4, 2015, the answer to the question above is “no”. AB 349 prohibits “…a requirement that an owner of a separate interest remove or reverse water-efficient landscaping measures, installed in response to a declaration of a state of emergency, upon the conclusion of the state of emergency.” If you pulled out your lawn and planted cactus because of the drought, then when the drought is over you can leave it that way. If you want to.

AB 349 does something else as well. It “voids or makes unenforceable, any provision of a CID governing document or architectural or landscaping guidelines or policies that prohibit the use of artificial turf or any other synthetic surface that resembles grass.”

The latter provision was the cause of some controversy, as was expressed in the opposition of ECHO (Educational Community for Homeowners). The opposition was two-fold: (1) “…environmental and public health concerns related to the installation of artificial turf, including the ‘possible unknown health impacts that could be caused by synthetic turf…”; and (2) the undermining of local control (that is, within the CID).

As the Senate Legislative Analysis pointed out, two previous Governors had vetoed similar legislation. “In 2010, the Legislature passed AB 1793 (Saldaña, 2010), a bill that would have rendered void and unenforceable any provision of the governing documents or architectural or landscaping guidelines or policies of a homeowner association that prohibited the use of artificial turf or any other synthetic surface that resembles grass.” Governor Schwarzenegger’s veto message said that such decisions should be left to the associations.

“A year later the Legislature passed SB 759 (Lieu, 2011) which was substantially similar to AB 1793 and this bill (AB 349). Governor Brown vetoed that bill on essentially the same grounds.”

Be all that as it may, this year the provision — mandating the approval of synthetic turf — received gubernatorial approval. An association may be allowed to adopt reasonable restrictions — for example, as to color — but it may not prohibit the material outright.

AB 349 was considered “an urgency statute necessary for the immediate preservation of the public peace, health, or safety…”, so it became effective immediately. It is the law.

Written by Bob Hunt for Copyright © 2015 Realty Times All Rights Reserved.