What does this mean for HOAs?

As California continues to experience drought conditions, water districts across the state are implementing water restrictions in an attempt to mitigate the dry conditions. According to the U.S. Drought Monitor, which uses a five-category system from abnormally dry to exceptional drought, 97.5% of the state is rated at severe, extreme, or exceptional drought.

In response to the current drought emergency, following direction from Governor Newsom to increase conservation efforts, the Metropolitan Water District is among those water districts imposing restrictions. These restrictions limit outdoor watering for approximately six million people throughout Ventura, Los Angeles, and San Bernardino Counties. In addition, the Metropolitan Water District has asked all Southern California residents and businesses to cut water usage by an estimated 35% to help offset the effects of the current drought. Similar restrictions are in place in over 41 counties across the state including San Diego, Sonoma, Mendocino, Sacramento and more. Water suppliers throughout the state have implemented varying versions of water restrictions, including limiting irrigation to one or two days per week, assigning specific days watering is allowed, limiting the amount of minutes per cycle/day, and addressing run off or watering of hard surface areas like sidewalks and concrete. Additional limits are imposed for things like car or power washing.

The California State Water Board has also implemented another round of emergency regulations which went into effect on June 10, 2022. These regulations state that individually owned property (think your homeowner maintained front yard) is residential, even within an HOA; but any property owned and maintained by the association is considered commercial or institutional, confirming that these restrictions apply to association common area. These regulations prohibit the use of potable water for watering “non-functional turf.” Non-functional turf is mowed grass that is purely for aesthetics – these regulations do not apply to sports fields, or areas used for recreation or events.

There are several issues that homeowners’ associations will face in the wake of these restrictions and the key is to prepare now. First, associations should investigate water usage in association maintained common areas. Management and the board should identify whether the association uses potable water or recycled water, often identified by “purple pipes”. If the Association uses recycled water, normal watering operations can continue, as there are currently no restrictions on the use of recycled water. Associations should also determine whether their turf areas are functional, or non-functional. Determining whether an area is functional or non-functional may be clear in some cases, and less clear in others. If an area is unclear, we recommend the Board conduct a reasonable investigation, which may include consulting your landscaper and legal counsel, and documenting in the minutes which areas are determined to be functional versus non-functional. Keep in mind that while water suppliers may defer to the association, they do have the authority to enforce the irrigation ban if they determine there has been a violation.

If the association is using potable water, there are other considerations. Current water restrictions affecting certain portions of Southern California limit watering to one day per week during specific hours, prohibit over spray and water runoff onto hardscape, limit irrigation 48 hours after a rainfall, and require inspection and prompt repair of irrigation leaks. Limiting water usage can have several effects on the common area landscape – the most obvious being dead or dying turf and plants, particularly as we move into the hot summer months. Landscape can be a key focal point of a community, and residents may be very passionate about this issue. It is important to communicate the association’s action plan for modified watering and the reasons for such modifications, so residents are aware that changes to the greenspace are a result of compliance with state local water restrictions, and not a lack of maintenance. Associations should be cognizant that watering restrictions may not just impact the appearance of the greenspace within the community but may also cause damage to irrigation systems due to lack of use, which may result in long term replacement costs. Impacts of reducing water on association-maintained slopes should also be considered in consultation with the association’s geotechnical engineer.

California’s drought condition seems to be more permanent than temporary, and associations may consider alternatives to turf and high water use plants to limit water use now and into the future. Most Water Districts offers rebates for turf removal, irrigation upgrades, and turf replacement with native plants, mulch, or other qualifying materials. Associations should consult their landscape and irrigation professionals and determine if making drought tolerant changes at this time is advisable. Moreover, associations should determine which rebates the association may be eligible to receive. In addition to complying with watering ordinances and improving the appearance of the community, these changes conserve water in the long run. Drought-friendly landscaping may also present long-term savings for associations, as the cost of water continues to increase. Associations should consult management and legal counsel on the appropriate funds to use for these projects.

In addition to common area landscaping, associations will likely face concerns regarding homeowners’ separate interest property. Civil Code § 4735 prohibits associations from imposing fines or assessments against homeowners for lack of routine watering during a state of emergency due to drought. Section 4735 also restricts the association from prohibiting the use of low water use plants, or artificial or synthetic turf as a replacement for grass. It is important to note, however, that an association can adopt reasonable restrictions on the installation and nature of such items, such as specifying the quality of turf and plantings, or specifying the extent of use.

Associations should consider proactively amending architectural rules and guidelines to allow for native plant palettes, adopt reasonable restrictions as described above, and consider expediting the architectural approval process to allow owners to do their part to be drought friendly.  When amending architectural rules to conform to these requirements, we recommend consulting legal counsel to determine what is considered “reasonable” under the circumstances. In addition to the above, Civil Code § 4735 also states that if an owner installs water efficient landscaping, an association cannot require its removal at the conclusion of the drought related state of emergency, so the association should consider the long-term effects of guidelines adopted in response to such states of emergency.

California is experiencing unprecedented drought conditions, and it is important that associations take steps to comply with implemented restrictions, as well as evaluate what is best for the environment, and the long-term financial and aesthetic health of the association.

For assistance with revising architectural guidelines, adopting reasonable restrictions, synthetic turf policies, and other guidance, please do not hesitate to contact us. Our office has summarized the above information in a PDF which can be found below or downloaded here.