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How best to resolve higher water bills for all because of some owners’ personal gardens?

May 8, 2016

Question: Because of recent laws allowing owners to plant vegetable gardens, many owners at our homeowners association are now growing vegetables in their yards. The board has encouraged this activity and it does seem to bring our community closer together. The board has also allowed a generous portion of otherwise useless greenbelt grass to be plowed under and replanted with beautiful and fragrant fruit trees along with small plots for planting vegetables, but dissenters abound. Our development does not have separate water meters for each unit or town home, so this means the association pays for everyone’s water usage, the watering of each owner’s personal vegetable gardens and the watering of the communal gardens. Our local water authority has raised the water rates and association invoices show an increase in our water usage as well, which has resulted in higher monthly dues for everyone. The situation is causing a huge problem among nongardeners and frugal water users. In hopes of finding a peaceful resolution, what is the best way to approach this problem?

Answer: Given the water crisis in California and recent rationing and conservation requirements, associations should seriously consider installing individual water meters on units and homes.

If each titleholder is not separately accountable, it is difficult for the association to gauge the effect of conservation efforts and to identify those owners not doing their part. It will also be difficult to determine which areas in the development are using the most water, and what method of conservation is best suited to the association’s needs. Specific information about water usage would help determine the cost of the common community gardens.

Civil Code section 4750 allows backyard “personal agriculture” in common interest developments and any provision of an association’s governing documents shall be void and unenforceable if it prohibits or unreasonably restricts the use of a homeowner’s backyard for such use. Restricting the watering of one’s backyard personal agriculture appears to conflict with this law, whereas front and side yard gardening appear to be prohibited.

While you are correct that this law allows for certain types of personal gardening, it does not extend to the use of common areas and greenbelts. It should be noted that granting the use of small plots of land to only some owners is an improper reclassification of the development’s common area. If the association decides to allow for community gardening it needs to ensure the gardening sites are available for all owners and that they remain truly community amenities. The association’s governing documents may also require additional votes and procedures to obtain titleholder approval for changed use of common areas.

The board will have to follow proper procedures in its determination to undertake installation of individual water meters. This decision should take into account the views of titleholders and a discussion of the costs and benefits conducted at an open meeting of the board. Although there is merit to installing separate meters outside of the context of communal gardens, meetings to discuss meters can be an excellent opportunity for the board (and participating gardeners) to expound on the advantages of putting association greenbelts to good use.

If owners are still unable to reach a consensus, it is in the best interest of the association’s board to engage in group mediation. The Los Angeles city attorney’s Dispute Resolution Program offers group mediation and informal resolution assistance. The process is voluntary and all sides are encouraged to participate. There is no cost for this service and neither side needs to hire an attorney for representation. This highly effective process strives for conciliation and mutual resolution. Contact (213) 978-1880.

When boards take early measures to stem the onslaught of discontent among owners there is less chance that simple disputes will devolve into litigation.

Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com

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