#256 – We’re STILL Dealing With Drought?

By Kelly G. Richardson, Esq.


Mr. Richardson,

Regarding water cutbacks and dead lawns, can an HOA require homeowners who stopped watering to replace their dead lawns with other types of ground cover such as drought tolerant landscaping, compost, artificial turf, etc?  Or are we stuck with what we see?

L.R., Temecula


Mr. Richardson,

Thank you for your informative column. You previously pointed out that boards must enforce their CC&Rs.  However, due to alleged drought conditions in California, our management company decided not to require homeowners to maintain their front yard landscaping, in spite of the plain CC&R language requiring all front yard landscaping to be maintained in a “neat and attractive” condition. As a result, several homeowners have ripped out their lawns and reverted to bare dirt.  Other have simply let the grass die, turn brown, and become overrun with weeds.  My request that these negligent owners be required to either reinstall turf or use alternate materials such as gravel or wood chips (requiring no water) or xeriscape has been rejected.

As a homeowner, do I have the right to compel enforcement of front-yard landscaping standards as set forth in our CC&Rs?

Thanks, D.B., San Diego


Dear L.R. and D.B.:

On January 17, 2014, after years of below-average rain and snow fall, Governor Brown declared a “Drought State of Emergency.” To stave off what could have potentially been a disaster for California residents, this was followed by several conservation-oriented Executive Orders and several pieces of legislation.  One such law was Civil Code 4735, added to the Davis-Stirling Act.  Part of the statute is permanent, and part applies only during times of a Drought State of Emergency.

The permanent portions of Civil 4735 are subparts (a),(b) and (e). Subpart (a) declares unenforceable any governing document provisions which have the effect of prohibiting the replacement of turf with either low-water using plants or artificial turf. Subpart (b) clarifies that associations may have landscaping rules, so long as they do not violate subpart (a), and subpart (e) allows water saving measures taken in response to the drought emergency to remain in place even after the end of the drought emergency.

Subpart (c) prohibits associations from penalizing owners who reduce or eliminate watering their yards during a state or local declaration of drought emergency.  Subpart (d) provides an exception to this rule, and associations which supply their homeowners with reclaimed water may penalize them for not using that water on their yards.

It is important to note that while the statute allows people to let their yards “go brown”, it does not protect unkempt or otherwise unsightly yards.  Owners who stop watering still can be required to keep that brown yard neat.  If a homeowner actually removes the turf and does not replace it, that would not appear to be protected under Civil 4735, and the HOA could require the owner to install some vegetation or artificial turf.

As of early 2017, even with the heavier than normal recent rains, there are no reliable promises as to when the drought emergency will end.  California residents and associations should not be lulled into complacency by the recent rains, and should continue to be vigilant about water waste.

Thanks for your questions, Kelly.

P.S.: For more information regarding the drought, visit www.drought.ca.gov, California’s official drought information web site.

Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Managing Partner of Richardson  Ober PC, a law firm known for community association advice.  Submit questions to KRichardson@ROpc.com. Past columns at www.HOAHomefront.com.   All rights reserved®.

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