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Prohibiting Certain Fines on Members during a Drought.

December 15, 2014 Leave a comment

A homeowners association or HOA is no longer allowed to impose fines against members who reduce or even eliminate watering their lawns during a declared state of emergency due to drought, despite any provision in the association’s governing documents to the contrary. Recent bills have amended Civil Code Section 4735 of the Davis-Stirling Common Interest Development Act, which originally prohibited an association’s regulation of low-water using plants as a group and water-efficient landscaping. The latest change is in a subsection (subsection (c)), which prohibits an association from imposing fines against members who reduce or eliminate watering of vegetation and lawns during any period for which the Governor or a local government has declared a state of emergency due to drought. Section 4735 can be found below, with the amended subsection in Bold. As this drought continues and we are under a declared state of emergency statewide, Boards of Directors and property managers should think twice before fining members who stop watering their lawns or landscaping.

Civil Code Section 4735:

(a) Notwithstanding any other law, a provision of the governing documents or architectural or landscaping guidelines or policies 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 or as a replacement of existing turf.

(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 subdivision (c) of Section 65595 of the Government Code.

(B) Any regulation or restriction on the use of water adopted pursuant to Section 353 or 375 of the Water Code.

(b) This section shall not prohibit an association from applying landscaping rules established in the governing documents, to the extent the rules fully conform with subdivision (a).

(c) Notwithstanding any other provision of this part, an association, except an association that uses recycled water, as defined in Section 13050 of the Water Code, for landscaping irrigation, shall not impose a fine or assessment against an owner of a separate interest for reducing or eliminating the watering of vegetation or lawns during any period for which either of the following have occurred:

(1) The Governor has declared a state of emergency due to drought pursuant to subdivision (b) of Section 8558 of the Government Code.

(2) A local government has declared a local emergency due to drought pursuant to subdivision (c) of Section 8558 of the Government Code.

– All Rights Reserved © 2014 by Michael L. Mau, Esq. and The Mau Law Firm

HOA’s Should Not Fine for Water Conservation!

September 26, 2014 Leave a comment

In another year of severe drought, California faces a historic water shortage and wildfire danger. Matters are expected to worsen, as California’s rainfall and water supply has been dwindling. In response Governor Brown signed an Emergency Drought Proclamation in January 2014 declaring a state of emergency and calling upon all Californians to voluntarily reduce their water usage by 20 percent. Some residents of homeowners associations (“HOAs”) began responding to the Governor’s plea by reducing their irrigation, only to find themselves subject to HOA fines for failure to maintain their yards.

In partial response, in April Governor Jerry Brown signed an Executive Order which effectively prohibits HOAs from fining, or threatening to fine, homeowners “who comply with water conservation measures.” The Order further provides that “any provision of the governing document, 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 the water-saving measures contained in this directive.” One of these water-saving measures is to limit outdoor watering to no more than twice per week. The California Legislature has also considered various bills to address the drought conditions and HOAs, and we will report on each of these bills in future law blog updates. For now, AB 2100 (Campos) would prohibit HOAs from imposing a fine or assessment against a member for reducing or eliminating watering of vegetation or lawns during a Governor-declared state of emergency, or a local government-declared emergency, due to drought.  AB 2100 was approved by the Governor on July 21, 2014 and is effective immediately, and has amended Civil Code Section 4735 accordingly.  If you are involved in an HOA and have a legal issue, please feel free to contact us for a consultation.

– All Rights Reserved © 2014 by Michael L. Mau, Esq. and The Mau Law Firm