Q&A: Law aids renters who wish to grow edible plants

Question: I rent a condo and have noticed several owners growing vegetables and herbs in planters at their front doors and balconies and those with single-family homes gardening in their backyards. Can I grow vegetables too, and how would I go about getting permission to do this?

Question: I rent a house in a homeowner association and understand that I can grow vegetables in the backyard, is this true?

Answer: Recent changes in the law have shown an increase in support for personal urban agriculture. However, it is always a good idea for any renter to ask for written consent from the property’s titleholder for any alterations, even gardening. This is especially true for property located in common interest developments subject to a homeowner association.

The titleholder of a condominium or single-family dwelling may also have to get consent from the board before starting a garden, and it is recommended that such consent be in writing.

For renters who want to garden, here’s some information that may be helpful:

Civil Code section 1940.10 pertains to “personal agriculture” and the conditions necessary for the landlord to permit you to engage in gardening.

“Personal agriculture” means a use of land where an individual cultivates edible plants for personal use or donation. “Private area” means an outdoor backyard area that is on the ground level of the rental unit. However, under Civil Code section 1940.10(g) this code applies only to residential real property that is improved with, or consisting of, a building containing not more than two units that are intended for human habitation.

Under Civil Code section 1940.10, a landlord shall permit a tenant to participate in personal agriculture in portable containers approved by the landlord in the tenant’s private area if the following conditions are met:

•Marijuana and any unlawful crops or substances are not included as crops.

•The tenant regularly removes dead plant material and weeds, with the exception of straw, mulch, compost and any organic materials intended to encourage vegetation and retention of moisture in soil, unless the landlord and tenant have a preexisting or separate agreement regarding garden maintenance where the tenant is not responsible for maintaining plants or removing weeds.

•The plant crop will not interfere with the maintenance of the rental property.

•Placement of portable containers does not interfere with any tenant’s parking spot.

•Placement and location of portable containers may be determined by the landlord. Portable containers may not create a health and safety hazard, block doorways or interfere with walkways or utility services or equipment.

•Cultivation of crops other than in portable containers shall be subject to approval from the landlord.

•Landlord may prohibit use of synthetic chemical herbicides, pesticides, fungicides, rodenticides, insecticides.

•Landlord may require the tenant to enter into a written agreement regarding the payment of any excess water and waste collection bills arising from the tenant’s personal agriculture activities.

Titleholders who own property located in a common-interest development subject to a homeowner association may not be unreasonably prohibited or restricted from engaging in personal agriculture. A governing document provision shall be void and unenforceable if it effectively prohibits or unreasonably restricts the use of a homeowner’s backyard for personal agriculture. Owners should look to Civil Code section 4750 for guidance. It should be noted that under Evidence Code section 11 the term “shall” means “mandatory.

Civil Code section 4750 applies only to yards that are designated for the exclusive use of the homeowner. Governing document provisions shall be void and unenforceable if they effectively prohibit or unreasonably restrict the use of a homeowner’s backyard for personal agriculture.

Section 4750 does not apply to governing provisions that impose reasonable restrictions on the use of a homeowner’s yard for personal agriculture. Reasonable restrictions are those that do not significantly increase the cost of engaging in personal agriculture or significantly decrease its efficiency.

The homeowner association is not prohibited from applying rules and regulations requiring that dead plant material and weeds, with the exception of straw, mulch, compost and other organic materials intended to encourage vegetation and retention of moisture in the soil, are regularly cleared from the backyard.

The state now recognizes a strong public policy interest in encouraging the cultivation of fresh fruits and vegetables for personal use and donation to others. Always remember that these statutes were meant to help owners and renters in their quest to garden, not hinder it.

Zachary Levine, partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.