Can board block use of drought-tolerant plants?
Question: Our homeowners association has what seems to be miles of greenbelts and landscaping that is not water-efficient. Our board of directors and their friends, who constitute the majority of owners, are of the same mind-set in that they refuse to use drought-tolerant plants and do not encourage more efficient water use by association gardeners. They say they like how grass and lush vegetation make our development look rich and add to the value of our properties. They pay no attention to rising water bills. One owner told me our governing documents cannot have provisions that discourage drought-tolerant plants and curtail water usage. What if our documents don’t prohibit that, but the board does it anyway?
Answer: The code section that your neighbor is likely referring to is Civil Code section 1353.8, which states: “(a) Notwithstanding any other law, a provision of any of the governing documents of a common interest development shall be void and unenforceable if it does any of the following: (1) Prohibits, or includes conditions that have the effect of prohibiting the use of low water-using plants as a group.
“(2) Has the effect of prohibiting or restricting compliance with either of the following: (A) A water-efficient landscape ordinance adopted or in effect pursuant to Government Code Section 65595(c). (B) Any regulation or restriction on the use of water adopted pursuant to Water Code Section 353 or 375.”
Unfortunately, those code sections do not require your board to have such plants or landscaping. The choice is left to the board. That section only prohibits the governing documents from having clauses banning certain plants or landscaping.
Given the position of your board, try checking to see just how the “lush vegetation” has actually contributed to your property values. A seasoned real estate agent should be able to assist in compiling a sample of the sales in your development over the last several years. If the values have gone down, as likely they have in the current market, paying the ever-increasing price of water for inefficient landscaping that does not help units hold their value is a waste of association assets.
Ask the board to make available to all titleholders invoices showing how much money is spent on landscaping and landscaping-related items and water usage each month. Owners can also form a group and pressure the board to plant a more drought-tolerant or water-efficient landscape. Whether your board gets the message about cutting costs and reducing water waste will be up to the homeowners.
Glassman is an attorney specializing in corporate and business law. Vanitzian is an arbitrator and a mediator in the Los Angeles city attorney’s Dispute Resolution Program. Send questions to P.O. Box 10490, Marina del Rey, CA 90295 or email noexit@mindspring.com.
