Question: I live on Social Security alone. It is a small fixed amount. After I pay my homeowner association assessments, mortgage, insurance and utilities, I have little money left for much else. After watching my neighbor, who is a renter, grow his own vegetables, I managed to remove a thick patch of useless old lawn and plant a small vegetable garden in a portion of my home’s backyard. Ever since the board saw this, they’ve made my life a misery with lawyer cease-and-desist letters, threats of fines and removal of my garden. Vegetable gardening is my only affordable enjoyment. Can I keep it?
Answer: With the passage of Assembly Bill 2561, Civil Code Section 4750 (Personal Agriculture) was added to the Common Interest Development Act effective this year.
In changing the law, California’s Legislature declared: “According to a 2011 United States Census Bureau report, California has the highest poverty rate in the United States. Giving California residents the right to grow food where they live will help reduce food costs and the overall burden of poverty for low-income Californians.” It also declared that “a significant amount of California’s food is grown hundreds or thousands of miles from where it is consumed. This results in high transportation costs, energy consumption, and lost economic opportunity for our state. Even food grown in the heart of California’s farming region is expensive to disperse to the rest of the state due to rising fuel costs.”
The Legislature recognized that lawn care is resource intensive, with lawns being the largest irrigated crop in the United States offering no nutritional gain. Finding that 30% to 60% of residential water is used for watering lawns, the Legislature believes these resources could be allocated to more productive activities, including growing food, thus increasing access to healthy options for low-income individuals.
Many homeowner associations have rules prohibiting homeowners from growing food in their yards or from selling food grown on the property. However, it is now the policy of the state to promote and remove obstacles to increase community access to fresh fruit and vegetables and encourage the practice of homeowners growing food in their private yard space for personal use or for donation to others.
New Civil Code Section 1940.10 provides some definitions:
•"Personal agriculture” means use of land where an individual cultivates edible plant crops for personal use or donation.
•"Plant crop” means any crop in its raw or natural state, which comes from a plant that will bear edible fruits or vegetables. It shall not include marijuana or any unlawful crops or substances.
In part, Civil Code section 4750 states that any provision of a governing document, as defined in Civil Code section 4150, shall be void and unenforceable if it effectively prohibits or unreasonably restricts the use of a homeowner’s backyard for personal agriculture.
This new section does not apply to provisions that impose reasonable restrictions on the use of a homeowner’s yard for personal agriculture. “Reasonable restrictions” are restrictions that do not significantly increase the cost of engaging in personal agriculture or significantly decrease its efficiency.
This statute applies only to yards that are designated for the exclusive use of the homeowner and it shall not prohibit a homeowners’ association 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.
Assembly Bill 2561 also includes provisions for tenants. Providing certain conditions are met, a landlord shall permit a tenant to participate in personal agriculture approved by the landlord in the tenant’s private area, under Civil Code section 1940.10.
As for your home-grown agricultural efforts, the Legislature supports you, but, as with any new law, don’t expect your board to change its attitude immediately or without some educational efforts on your part.
Respond, in writing, to the most recent threat by supplying a copy of the new laws (Civil Code sections 1940.10 and 4750), and ask for written confirmation that the board intends to cease its efforts to frustrate your gardening.
Be certain to follow up by attending board meetings and obtaining copies of all meeting minutes. Do what you have to do to obtain the board’s written confirmation for your files ensuring that successive boards get the message.
Share the new gardening information with your neighbors so they will be aware that they too can partake in personal agriculture.
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 firstname.lastname@example.org.