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 the lush groundcover at AT&T Stadium)
versus natural turf (examples include Bermuda, St. Augustine, and Buffalo
Grass). A mere 10 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 in 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 also 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.
About our Guest blogger: Vinay
B. Patel is a senior associate attorney at Henry Oddo Austin & Fletcher,
P.C. He has the unique
experience of both serving on HOA Boards and representing HOAs as general
counsel. This article is not a substitute for legal advice and should not
be construed as a legal opinion. If you have specific inquiries, please contact
Vinay @ vpatel@hoaf.com.