disclosure fees

I n May this year I sent out an E-newsletter titled An Interesting Water Dichotomy in California.

That E-news is in the archives here if you want to look it up. It was about the earlier laws passed that prohibited HOAs from fining owners for NOT watering lawns and the law allowed owners to have gardens in their back yards (seemingly encouraging watering).

I received an email today about another drought bill (fake grass) signed into law from the California Legislative Action Committee - more commonly known as CLAC - which is the legislative arm of Community Associations Institute - more commonly known as CAI. If you want to get updates on the status of all legislation affecting homeowner associations in California, you can sign up at www.caiclac.com. CLAC operates on donations and is very good about keeping track of legislation and providing the legislators with valuable information and insight.

You can also go to the state government website at www.ca.gov, navigate to legislation, and sign up for updates on particular bills.

So, it is good to be tuned in. At least I think it is. I like to know what's happening so I can keep my readers informed. Even though I have served in various capacities in various industry groups in California over the past 30 years, I don't really like to take sides on the issues because in the homeowner association arena, there are already enough advocates claiming to fight for homeowner rights and advocates claiming to fight for homeowner association rights. I want to be known as the resource person striving for some kind of harmonious balance between the two very important groups, meaning the associations as one, and the individuals who live in them as the other.

This blog is about reckoning with fake grass, Astroturf, synthetic turf, or any material product that is green which is meant to replace real grass. There is a very good reason for encouraging fake grass. California is a desert state that has been greened up artificially, not by mother nature, and the water shortage is going to affect each and every Californian. Everyone has to give a little.

AB 349 - FAKE GRASS BILL. Here is the scoop on the new bill specifically for homeowner associations that becomes effective immediately addressing synthetic grass in HOAs:

California Assembly Bill No. 349/ CHAPTER 266/ An act to amend Section 4735 of the Civil Code, relating to common interest developments, and declaring the urgency thereof, to take effect immediately. [Approved by Governor, September 4, 2015. Filed with Secretary of State September 4, 2015.] The LEGISLATIVE COUNSEL'S DIGEST says, in pertinent part:

"Existing law provides that, unless otherwise provided in the common interest development declaration, the association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to that interest. Existing law makes void and unenforceable any provision of the governing documents or architectural or landscaping guidelines or policies that prohibits use of low water-using plants, or prohibits or restricts compliance with water-efficient landscape ordinances or regulations on the use of water, as specified.

Existing law also prohibits an association, except an association that uses recycled water for landscape irrigation, from imposing a fine or assessment on separate interest owners for reducing or eliminating watering of vegetation or lawns during any period for which the Governor has declared a state of emergency or the local government has declared a local emergency due to drought.

This bill would make void and unenforceable any provision of the governing documents or architectural or landscaping guidelines or policies that prohibits use of artificial turf or any other synthetic surface that resembles grass.

This bill would also prohibit a requirement that an owner of a separate interest remove or reverse water-efficient landscaping measures, installed in response to a declaration of a state of emergency, upon the conclusion of the state of emergency.

This bill would declare that it is to take effect immediately as an urgency statute."

Note my emphasis on the last two paragraphs because this is new this year.

The bill contains further declarations discussing factoids and statements about the drought in California. There are 6 statements listed culminating in this one:

Subsection (f) The vast majority of Californians may today elect to install artificial turf or synthetic grass in their single-family residential landscapes. Homeowners within common interest developments should also be afforded a similar opportunity within appropriate design, aesthetic, and drainage standards defined by their homeowners' association."

Section 4735 of the Civil Code (I include only with some meaningful commentary - you can go to CLAC's or the State's website and look up the full bill.)

Any provision of the governing documents or architectural or landscaping guidelines or policies is void and unenforceable if it does any of the following: 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, the use of artificial turf or any other synthetic surface that resembles grass.

Has the effect of prohibiting or restricting compliance with a water-efficient landscape in an ordinance imposed by law, as specified, in the Government or Water Codes.

Now, drumroll ............. an association is not prohibited from applying landscaping rules established in the governing documents, to the extent the rules fully conform with subdivision (a).

What does that mean??? .......................Good question!

DEFINITION OF SYNTHETIC GRASS?? There is one bill (SB47 active this year but not signed into law) that would provide for a study on "synthetic turf" defined as "any composition material that contains recycled crumb rubber from waste tires and is used to cover or surface a field or playground". Obviously, that is not the definition you would want to adopt as an HOA. AB 349-signed into law focuses on homeowner associations specifically and relates to synthetic turf which is not defined, so there is absolutely no guidance on what is acceptable and what is not.

There are lots of landscape and turf companies on the web that advertise turf containing the product made from recycled tires as well as other materials even including (as mentioned in SB47) old shoes. The research I did suggests that there are several forms of "artificial turf or any other synthetic surface that resembles grass" out there. People with too many choices are likely to go in very diverse directions.

RECOMMENDATION: Because of this, my advice is that HOAs should be PROACTIVE get some research done on what form of synthetic grass is acceptable, and start formulating policy - NOW, RIGHT AWAY before owners start talking to vendors who have something specific to sell and don't have an interest in protecting the association.

Off the top of my head, based on research and the fact that SB47 proposed a study to investigate the health hazards of synthetic turf used in athletic fields, it seems obvious that the type turf used in athletic fields be prohibited. But I am no expert and if I were formulating policy, I would be doing research to identify some form or forms of acceptable synthetic turf. Get it into a policy so owners can have a choice.

This is much like the federal satellite mandates years ago. My advice was the same back then- if an HOA adopts and circulates a policy to owners, owners are more likely to use the guidelines when looking at satellite dish installations (and now, turf), and that is to the association's advantage. If you leave it up to chance, and an owner gets locked into a landscape or Astroturf provider's recommendation of choice, the owner will more likely be poised to fight for their choice, because it is THEIR choice. People like suggestions when considering something where there are too many choices. A good way to set policy to guide owners in the right direction is provide an acceptable solution and state that it would receive expedited approval and require that any deviation from the association's recommendation requires more in depth review.

The new law also encompasses the provision added last year that prohibits an association from fining an owner for NOT watering the lawn, unless the association uses reclaimed water.

The legislature includes even more support for the above new law and the urgency making the bill effective immediately (instead of the first of the year which is usually when new law takes effect), by adding a multitude of "facts constituting the necessity", which are in general chide [unspecific] HOAs across the state for resisting synthetic turf requests from owners.

These are some of the very pointed derogatory quotes that came out of stories of HOA resistance:

"There have been numerous stories across the state regarding discrimination against homeowners by a homeowner's association when the homeowners attempt to replace their water-intensive lawns with artificial grass." ...

"Throughout California, homeowners are subject to stricter water conservation regulations. While in the middle of a water shortage crisis, homeowner associations are not allowing homeowners to make voluntary sacrifices by installing artificial grass, and are fining them if they are out of compliance. This act ensures that all homeowners have the right to better conserve water by voluntarily replacing grass with artificial grass. Property owners who pursue water conservation by installing artificial grass should be encouraged, not sued or fined. Thus, this act is necessary for the immediate preservation of the public peace, health, and safety."

The above is part of the legislative history and my take is that HOAs must be reasonable as would be judged by the lawmakers who made these strong statements who already hold a negative bias and not as would be judged by a board that is not at all in favor of synthetic grass.

Boards, you will need to open your eyes to this, and then your minds. When decision makers like judges who hear any cases read these strong statements they, too, may adopt a bias.

The 2015 Davis-Stirling Act is available now along with the Primers in the Webstore, in PDF or snail mail format. Don't be confused about the law! webstore

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Lots of resources are available including articles, blogs, E-news archives, Primers and Guides, and other publication like books, on all subjects at webstore.

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Check out the SPECIAL link to the 2014 Reorganized Davis Stirling Act at www.californiacondoguru.com/mainpage.html. You will find lots of resources when you click on it.

And perhaps best of all - at least for small associations - look forward to my book coming out sometime this year-The Ultimate Small HOA Survival Guide.

Be sure also to visit the website and sign up for the next free E-News now! It's never too late. And watch the blogs for the hottest topics! If you want to unsubscribe, please do so when you get the newsletter. Sending an email doesn't always work because I don't keep the list, Constant Contact does.

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I am an attorney who serves homeowner associations and homeowners alike (not inthe same association of course). I am a frequent contributor to the Echo Journal and other similar publications in the State of California and also contribute articles on a national level. There are several publications written in plain English onmy website written specifically to help people who need information about California law as it relates to homeowner associations. There is a wealth of information here on the website. I like to do service and have been lucky enough to be named Author of the Year by CAI after my first book, and was named 2011 Volunteer of the Year by the Executive Council of Homeowners.

Check out the Main and Resource Pages at www.californiacondoguru.com

Check out the popular book called "THE CONDO OWNER'S ANSWER BOOK" and both blogs developed, one for everyone and one especially for homeowner questions: www.Condolawguru.com

Check out the webstore for helpful and affordable publications on various topics, including 3 books, 28 primers and 2 guides. Most popular subjects are THE DAVIS STIRLING ACT IN PLAIN ENGLISH (book), ENFORCEMENT, BOARD BASICS, ARCHITECTURAL AND LEASE LIMITATIONS series (primers) and the RECALL and INSPECTORS OF ELECTION guides.

I have a private law practice in Pleasant Hill, but serve homeowners association and homeowners throughout the State of California. My practice is in large part now web based and telephone consultations are available. I have clients all over the state and am a real "road warrior".

Copyright Beth A. Grimm, All Rights Reserved


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