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Drought State of Emergency and the Effect on Common Interest Developments

By Sandra M. Bonato, Esq. and Emily K. Clark, Esq.

In January 2014 Governor Edmund G. Brown declared a drought state of emergency for California and ordered a 20% reduction in water usage by all Californians. In the interim, water districts and water companies throughout the state have also issued requirements to help them continue to meet their water delivery responsibilities given varied amounts of water supply.

On April 25, 2014 the Governor issued Executive Orders to redouble the state's drought actions, including calling upon Californians and California businesses to comply with water-saving measures, including limiting lawn watering and car washing, limiting the use of potable water for irrigation, and serving water in restaurants upon request only. The Executive Order also impacts common interest developments and the homeowners associations that manage them and prevents an association from fining or taking other enforcement actions against property owners for complying with water-saving measures.

Executive Order #4 states in full:

Homeowners Associations (commonly known as HOAs) have reportedly fined or threatened to fine homeowners who comply with water conservation measures adopted by a public agency or private water company. To prevent this practice, pursuant to Government Code section 8567, I order that any provision of the governing document [sic], architectural or landscaping guidelines, or policies of a common interest development will be void and unenforceable to the extent it has the effect of prohibiting compliance with water-saving measures contained in this directive, or any conservation measures adopted by a public agency or private water company, any provision of Division 4, Part 5 (commencing with section 4000) of the Civil Code notwithstanding.

As a practical matter, Executive Order #4 does not prohibit association boards from maintaining architectural standards or landscaping rules and regulations. Rather, it prohibits courts from enforcing CC&Rs and rules against owners who claim that landscaping cutbacks are due to compliance with the state's emergency drought water-saving measures.

For example, an association that requires each home to maintain a front yard lawn is not obligated to deviate from its architectural standards and approve a request by an owner to permanently install tanbark or pave the yard in lieu of a lawn. In such an instance, the association can waive completion deadlines and allow the owner to postpone the work or take temporary alternative measures. An association can also require that all homes within a community with front yard lawns continue to have them and that owners keep their yards in a neat and trimmed condition, even if brown, but it cannot enforce against owners who voluntarily stop or limit watering their lawns to comply with the state's conservation measures.

Similarly, a member of a homeowner association cannot seek to compel an association to maintain landscaped common area, regardless of what its CC&Rs may require, if the association has temporarily modified its landscaping and water use in response to the Governor's emergency measures.

Existing Law

Existing law at Civil Code section 4735 overrides any governing document in a common interest development that prohibits, or effectively prohibits, the installation of low water-using plants as a group. Associations can have approved plant lists that include low water-using plants but cannot enforce landscaping standards that outlaw the installation of such plants.

Section 4735 further supersedes governing document provisions that prevent compliance with local water supplier mandates in a declared drought. Thus where a local water district or water company has called for even greater cutbacks than the Governor's 20% due to severe supply concerns, CC&R and rule provisions that prevent owners (or the association itself) from complying with even greater cutbacks cannot be enforced. Each community is charged with knowing local water efficiency and water conservation requirements.

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