Board fines owner for not wa­ter­ing lawn amid drought

Los Angeles Times - - WORK LIFE - By Donie Van­itzian

Ques­tion: My home­owner as­so­ci­a­tion board won’t let me plant drought-re­sis­tant veg­e­ta­tion, say­ing it’s not in keep­ing with a “theme of luxury homes” and is con­trary to ar­chi­tec­tural and land­scape rules. Be­cause of Cal­i­for­nia’s se­vere drought I stopped wa­ter­ing my front lawn and re­moved all flow­ers. Once my grass turned brown the board or­dered me to re­plant flow­ers and­wa­ter the lawn.

Man­age­ment sent me a let­ter say­ing that I vi­o­lated the covenants, con­di­tions and re­stric­tions and that I will con­tinue to be fined un­til the flow­ers are re­planted and the lawn turns green through suf­fi­cient wa­ter­ing.

To­day I got a let­ter and in­voice in­di­cat­ing ad­di­tional fees and in­ter­est charges for “non­com­pli­ance” of main­tain­ing my prop­erty. The board also is threat­en­ing to place a lien on my home if I don’t pay and if I dis­obey their or­ders. Is this right? An­swer: It’s not right, and the board can­not or­der you towa­ter the lawn. Un­der th­ese cir­cum­stances, ad­di­tional fees and in­ter­est charges for non­com­pli­ance of main­tain­ing your prop­erty should be re­moved.

The ex­cuse for wa­ter­ing in keep­ing with a “theme of luxury homes” is non­sense. Un­der Civil Code sec­tion 4735(a), a pro­vi­sion of the gov­ern­ing doc­u­ments or ar­chi­tec­tural or land­scap­ing guide­lines or poli­cies shall be void and un­en­force­able if it pro­hibits the use of lowwa­ter-us­ing plants or as a re­place­ment of ex­ist­ing turf.

Ana sso­ci­a­tion’s gov­ern­ing doc­u­ments can­not have the ef­fect of pro­hibit­ing or re­strict­ing com­pli­ance with a wa­ter-ef­fi­cient land­scape or­di­nance adopted or in ef­fect pursuant to Gov­ern­ment Code sec­tion 65595(c), or any reg­u­la­tion or re­stric­tion on the use ofwa­ter adopted pursuant to the Wa­ter Code sec­tions 353, 375.

As­so­ci­a­tions are not pro­hib­ited from ap­ply­ing land­scap­ing rules es­tab­lished in the gov­ern­ing doc­u­ments, as long as those rules fully con­form with Civil Code sec­tion 4735(a). The Leg­is­la­ture has rec­og­nized and af­firmed the right of an as­so­ci­a­tion to reg­u­late aes­thetics. How­ever, wa­ter con­ser­va­tion, es­pe­cially in a se­vere drought, takes prece­dence over that right.

The lawis clear: A home own­ers as­so­ci­a­tion shall not im­pose a fine or as­sess­ment against an owner for re­duc­ing or elim­i­nat­ing wa­ter­ing veg­e­ta­tion or lawns dur­ing a pe­riod for which the gover­nor or lo­cal gov­ern­ment has de­clared a lo­cal or state emer­gency be­cause of drought.

The Cal­i­for­nia Gover­nor’s Ex­ec­u­tive Or­der man­dates wa­ter use re­stric­tions. Your as­so­ci­a­tion is act­ing in di­rect con­tra­dic­tion of this edict, and the re­sult­ing fines, as­sess­ments and penal­ties are void and un­en­force­able.

Plac­ing a lien on your home for what the as­so­ci­a­tion deems as non­com­pli­ance vi­o­lates the law. Should you be forced to take legal ac­tion to ob­tain a stay or re­move a pending lien, the as­so­ci­a­tion will be sub­ject­ing mem­bers to li­a­bil­ity.

Aboard’s duty to up­hold laws and poli­cies per­tain­ing to the as­so­ci­a­tion clearly in­clude en­force­ment of gov­ern­ment-man­dated wa­ter-re­duc­tion pro­grams. The board can­not place you in a po­si­tion in which you must de­cide whether to vi­o­late the as­so­ci­a­tion’s ar­chi­tec­tural and land­scape rules, risk­ing a cloud on your ti­tle, or to vi­o­late the gov­ern­ment’s emer­gency wa­ter con­trol reg­u­la­tions and face con­se­quences im­posed by the state.

As a ti­tle­holder, it is much bet­ter for you to fol­low the lawand then pur­sue re­im­burse­ment of your costs fromthe as­so­ci­a­tion and/or the man­age­ment com­pany that un­law­fully fined you. Zachary Levine, a part­ner at Wolk & Levine, a busi­ness and in­tel­lec­tual prop­erty law­firm, 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.

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