HOA Covenants for Sustainability

Over the past 25 years, the homeowners association (HOA) in America has become the great enforcer of suburban values and aesthetics. Not only do HOAs now dominate the suburban landscape, but also the controls on how properties must look and how they may be used have grown more pervasive through increasingly elaborate declarations of covenants, conditions, and restrictions (CC&Rs). However, while owners can seek permission to make exterior changes, the tendency of most associations is to preserve the status quo and disallow change. With consumers demanding more sustainable living environments, it is time for builders and developers to rethink not only the types of dwellings they build, but also the covenants they draft in order to better accommodate owners who want to live more sustainably.

Every set of covenants drafted for a community embodies a set of values. What has always been interesting about communities with covenants is that the values reflected in those covenants are, by and large, those of the developers who create the communities­—and the lawyers they hire to draft the documents.

Architecture and landscape guidelines generally favor keeping appearances neat and consistent throughout the community. The challenge, then, for a builder or developer is how to accommodate the owner who wants to tear up the lawn and plant a vegetable garden or put solar panels on the roof while not allowing the change to strike a visually discordant note.

The first answer is to reset the underlying values reflected in the covenants by drafting versions that expressly permit sustainable activities; their benefits might even be explained in the covenants. When covenants specifically permit things like vegetable gardens, rain barrels, solar panels, cisterns, compost piles, and architectural changes that promote more sustainable living, a different set of values is articulated. These things become legitimized. Sustainability is then being accorded the same value in covenants as the preservation of order and the consistency of community appearance.

The second answer is to use the covenants to ensure that sustainable activities take place in the locations within the community where they are best suited. So, for example, if frontyard vegetable gardens may impair home sales, why not state in the covenants that the vegetable gardens are specifically permitted in the backyard? If there is a concern about vegetable gardens becoming unsightly, the covenants can require the use of raised beds enclosed by treated wood boards or require that the vegetable garden be attractively fenced. Covenants can also require gardens to be regularly weeded, for dead plants to be removed at the end of the growing season, and for dormant gardens to be covered with mulch.

Developers have a remarkable ability to sway consumer sentiment toward the acceptance of sustainable activities in suburban subdivisions by controlling the initial content of the covenants drafted in subdivisions. With more consumers asking what the developer is doing to encourage more sustainable living environments, well-drafted sustainable covenants can become part of the developer’s repertoire.

http://urbanland.uli.org/Articles/2012/Jan/WeissmanHOA