By David Swedelson, Esq. and Cyrus Koochek, Esq., SwedelsonGottlieb, Community Association Attorneys
To summarize, the directive states that any provision of the governing documents, architectural or landscaping guidelines, or policies of an association will be void and unenforceable to the extent it has the effect of prohibiting compliance with the water saving measures contained in the directive, or any conservation measure adopted by an association’s local public agency or private water company. The directive also states that the reason for the directive is to prevent the reported practice of associations fining or threatening to fine homeowners who comply with water conservation measures adopted by a public agency or private water company.
Although this order directly applies to homeowners associations, we don’t believe it will have a major effect on a board’s ability to enforce its architectural or plant/landscape requirements. Even if an association’s local public water agency or water company has adopted measures requiring specific reductions in water use, this does not mean that a homeowner can abandon his or her duties to maintain any landscaping designated as the responsibility of the homeowner. Most governing documents require homeowners to keep their landscaping in a neat, clean and well-maintained condition, and some even specifically state that weeds and dead plants, etc. may not be permitted to exist. Such provisions are included to maintain the association’s appearance, which has a major effect on property values. These provisions also relate to fire prevention as dead grass and plants are fuel for fires. Adhering to water conservation measures does not allow homeowners the ability to ignore their landscaping and architectural responsibilities imposed by their association’s governing documents.
If a homeowner interprets this executive order to mean that he or she can let their landscaping die, the board still has the right to discipline the homeowner after a noticed hearing before the board. Before imposing discipline, the board should investigate and learn from the homeowner how his or her actions (or inactions) are in compliance with any local water measures. Unless the board believes that the homeowner has no reasonable alternative options to maintain his or her landscaping without being in violation of a locally adopted water conservation measure, we believe the board may enforce its landscaping and architectural guidelines or rules as it would normally.
Board members should also be aware that in certain cases where a homeowner has failed to comply with their landscaping maintenance obligations, the board may have to seek “self-help” i.e. exercising the association’s right to enter onto the owner’s property to perform necessary work on the owner’s behalf and levy a special assessment for reimbursement of the costs incurred by the association. Of course, the board can only do this if this power is granted in the association’s CC&Rs, and in most (non-emergency) cases, only after holding a hearing. Because entering onto the owner’s property might not be taken well by the owner, we recommend that the association obtain a court order to enter the homeowner’s property. If an association’s CC&Rs do not provide well-written provisions regarding the association’s right to enter onto the property to perform work the owner has neglected, the board should consider amending the CC&Rs, especially if it believes the association’s homeowners may begin disregarding their duties to maintain their landscaping.
Whether the board is considering disciplining an owner or performing the work for the homeowner on the association’s behalf, the board should consult with association legal counsel first to gauge whether the homeowner’s justification for a lack of maintenance is reasonable. If legal counsel and the board can reasonably determine that the board’s enforcement is not effectively prohibiting the owner’s adherence to local water measures, this will leave the association and board in a defensible position with respect to its enforcement and preserve the appearance of the association.