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Feldsott Lee Pagano & Canfield
Orange County Homeowners Association Law Firm

TURF WARS - What New Drought Legislation Means for Your HOA

Nearly six months have passed since Governor Brown signed into law urgency legislation which, effective immediately upon its execution on September 14, 2015, seriously restricted the ability of homeowner associations to restrict members' installation of artificial turf on their separate interests. Despite the passage of time, and the clear mandate set forth in the law, recent correspondence to our office suggests that some homeowners and associations are still unclear on what they can and cannot do. So, here is a recap.

Civil Code §4735 was enacted in 2014 to promote water conservation by voiding any CC&R provision which prohibited, or had the effect of prohibiting, the use of low water-using plants, and prohibiting HOA's from assessing fines against owners who reduced or eliminated watering. The law was later expanded to also apply to provisions of architectural and landscape guidelines or policies, and to clarify that low-water using plants may be used as a replacement for existing turf.

On September 14, 2015, Governor Brown signed into law an amendment which further expanded Civil Code §4735 to provide that in addition to provisions restricting low water-using plants, provisions of the governing documents which sought to prohibit, or had the effect of prohibiting, the use of artificial turf or any other synthetic surface that resembles grass are void and unenforceable.

So where do we stand today? (1) An HOA may not prohibit, or include conditions that have the effect of prohibiting, an owner's use of low watering plants or artificial grass as a replacement for existing turf or otherwise; (2) An HOA may, however, apply landscaping rules established in the governing documents to the extent the rules do not prohibit the use of water friendly plants or turf; (3) Unless your community uses recycled water, an HOA may not fine an owner for reducing or eliminating watering of vegetation or lawns so as long as the drought remains in effect; and (4) Upon the conclusion of the drought, the HOA may again require owners to water vegetation and lawns, but may not require owners to remove and replace installed water-efficient landscaping measures.

So, as long as our state remains in a drought, owners in common interest developments get to install artificial turf and low water-using plants, and the turf and plants get to stay even after the drought. Accordingly, if your association does not already have in place landscape guidelines regulating the installation or artificial turf and establishing standards requiring use of high quality turf products, it would be prudent to immediately consider adopting same. Otherwise, you may end up stuck with an owner's roll-out putting green lawn or carpet-like turf for the remainder of the foreseeable future.

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