The Drought Emergency is Over. Back to Business as Usual?

On April 7, 2017, Governor Brown issued Executive Order B-40-17, formally ending the drought emergency, which can be read in its entirety at https://www.gov.ca.gov, the Governor’s web site. The Order is not only confirmation of good news for California, but also immediately changes the applicability of two important statutes in the Davis-Stirling Common Interest Development Act.

The Declaration of Drought Emergency was issued by Governor Brown on January 17, 2014, the culmination of several water conservation orders. Shortly after that Declaration, the California Legislature swiftly passed emergency legislation, adding certain protections to the Davis-Stirling Act regarding water conservation.

Civil Code 4735

Civil Code 4735(c) prohibited associations from fining or assessing an owner who let their yard “go brown” by not watering it during a declared state of drought emergency. Now that the statewide emergency declaration is rescinded, the statewide prohibition against enforcing landscape maintenance obligations against owners who refused to water their yards also has ended. This section still may apply if a local jurisdiction (city or county) has its own declaration of drought emergency still in place, so managers and boards would be well advised to check with their local jurisdiction for any such local declaration.

Civil Code 4736

Civil Code 4736 rendered unenforceable any requirement that an owner pressure wash the exterior of their home, so long as a statewide or local declaration of drought emergency is in place. Associations which require their residents to wash their exterior walls may again enforce that requirement, unless the local jurisdiction has its own declaration of drought emergency still in place.

While these drought-related laws are no longer in force, not everything reverts back to how it was before the drought. Associations still are not allowed to penalize the installation of drought-tolerant landscaping, under Civil 4735(a)(1). Under Civil 4735(a)(2) associations may not ban artificial turf, even after the drought emergency has ended.

Many association boards and managers may be misled by the end of the drought emergency, believing incorrectly that associations can now direct homeowners to remove the modifications made to landscaping in order to conserve water. However, per Civil Code 4735(e), owners who have installed water efficient landscaping measures cannot be required to remove them, even after the drought emergency. So, for example, associations may not force residents to remove artificial turf installed during the drought emergency. Furthermore, the right to install xeriscapes (low water-using plants) or artificial turf still is in place under Civil Code 4735(a).

As Governor Brown urged in his Executive Order, California residents should continue “maintaining conservation as a way of life.” Much of California is not naturally rich in fresh water resources, and wise property owners and associations will continue to be conservative with the use of water.

Common interest development associations (aka “HOAs”) should have architectural rules in place already to make sure that xeriscapes or artificial turf yards are presentable and an asset to the community. Keeping the yards well-maintained and attractive is still a proper priority for boards and their managers – and that priority is not inconsistent with “water-wise” measures.

The emergency-related provisions of Civil Code Sections 4735 and 4736 were not removed from the law. Instead, they are presently inactive. The next time a state drought emergency is declared, the laws will again apply to California homeowners associations.

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.