IS YOUR HOA PREPARED FOR A TURF WAR?
In 2003, Texas law protected the use of "water conserving turf" but it failed to define what constituted water conserving turf. Naturally, arguments ensued over the right to install synthetic turf (think of lush groundcover at AT&T Stadium) versus natural turf (examples include Bermuda, St Augustine, an Buffalo Grass). A mere10 years later, SB 198 or Texas Property Code Section 202.007 clarifies, protects, and gives owners the right to install water conserving or drought-resistant landscaping. This law received broad support from many advocacy groups as an important way to address the water crisis in our State.
For owners, the days of a property owners association's (POA) absolute right to deny drought-resistant landscaping are a thing of the past. Subject to POA approval (see below), owners can install water-efficient landscapes. This option is very attractive and earth-friendly, not just economical. A xeriscape is the smart thing to do if you live where water is scarce or are subject to water restrictions. Owners are no longer limited to installing the "Arizona look" but rather have many options to achieve a lush and beautiful landscape.
Not only do xeriscape materials save water, if maintained, they become a self-sustaining, low-maintenance natural landscape for your home. As part of the architectural application process, owners should be prepared to submit a detailed description or plan for the installation. Owners are encouraged to provide a to-scale drawing of the plan, along with photos and descriptions of the various plant materials, groundcover, etc
For POAs, Section 202.007 provided needed guidance on what constitutes turf and whether the POA could promulgate guidelines relating to drought resistant landscaping. As background to the "turf" issue, an owner fought to tweak the bill to protect his expensive synthetic lawn. Ironically and much to the owner's dismay, the new law lists "natural" turf, confirming that artificial, synthetic, fake grass doesn't qualify as xeriscaping in the POA context.
The law allows POAs to establish drought resistant landscaping guidelines. The POAs standard of review for the application is to ensure "maximum aesthetic compatibility" with other landscaping in the community and, such determination cannot be "unreasonably withheld." POAs are encouraged to work with its management company, landscape vendor, and legal counsel to establish the community's standards for installation of drought-resistant landscaping to include, among other things, the types of plants, rocks, gravel, border, maintenance requirements, and what percentage of the visible lot must contain sodded grass.
If guidelines are not established, including a requirement to obtain prior approval, then the POA may not be able to restrict xeriscaping. Once approved, the guidelines must be filed in the county's real property records.
As my wife frequently reminds me, communication is key. The POA must effectively communicate its requirements to the owners via established guidelines. The owners must effectively communicate their drought-resistant landscaping plans via review of the guidelines and presentation of detailed plans.
Best of luck in avoiding a turf war in your POA.
-Contributed by Vinay B. Patel as a Guest Blogger for CMA
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