American society has experienced a “green” movement. This eco-friendly movement has created many new laws and measures that have been enacted to encourage more earth friendly practices.  But how do some of these laws impact your homeowners association?

One common situation that may arise is the topic of xeriscaping.  In 2005, Colorado enacted law that impacts all associations and their ability to prohibit or limit xeriscaping.  This law applies to all associations whether or not the association is subject to CCIOA.  So what is xeriscaping?

“Xeriscape” is defined as “the application of the principles of landscape planning and design, soil analysis and improvement, appropriate plan selection, limitation of turf area, use of mulches, irrigation efficiency, and appropriate maintenance that results in water use efficiency and water saving practices.”  And under Colorado law, any section of a restrictive covenant that prohibits or limits xeriscape, use of drought-tolerant vegetative landscape or requires vegetation to consist exclusively or primarily of turf grass is declared to be contrary to public policy.  Therefore, no matter how long the covenant has existed, it is no longer enforceable.  In addition, associations cannot place any additional procedural step or burden, including financial burdens, on a unit owner who seeks approval for a landscaping change.

Dead grass is not xeriscaping!  The owner is not allowed to let their grass die.  Associations can still take action against an owner who lets their landscaping die.  But be careful – you cannot take action against dead grass if a water restriction has been declared by local authorities.  Owners cannot be forced to disobey watering restrictions placed by local authorities.  During such periods, associations must suspend any enforcement action against an owner whose landscaping has died as a result of those restrictions.  Additionally, associations must allow for the owner to have a “reasonable and practical” opportunity to revive dead landscaping prior to requiring they re-sod.  An entire rock yard is also not xeriscaping and may be prohibited (this should also be included in the association’s policy.)

So what does this mean for your association and what steps can you take?  The first step is to examine your documents to determine whether or not they contain unenforceable covenants that restrict or limit xeriscaping.  If so, do not enforce the covenants.  The second step is to make sure that existing procedures for landscape approval do not place any additional requirements on owners who are seeking to xeriscape.  A good idea is to amend existing landscape approval procedures to include a statement that states no additional burdens may be imposed on xeriscaping plans.  Associations should also draft policies about what types of draught tolerant plants they will allow so that when a homeowner submits plans the association already has a policy in place as to what is allowed.  Finally, do not take or pursue enforcement action if there are watering restrictions in place.  Define “reasonable and practical” time for owners to revive dead landscaping once the restrictions of have been lifted.

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