With consumers demanding more sustainability in their living environments, homeowners association covenants should be drafted in a way that supports their efforts.

Weissman_1_351Over the past 25 years, the homeowners association (HOA) in America has become the great enforcer of suburban values and aesthetics. In community after community with covenants, the HOA has the final say on everything from whether owners can change the paint color on their houses to the number and types of pets they can own, to even the type, color, and amount of mulch they can place on planting beds. 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).

The required adherence to common standards generally gives communities strong powers, including assessing monetary fines and filing liens, to deal with nuisances that can harm property values. Few communities with covenants will be found with cars up on blocks in frontyards or houses in visibly deteriorated condition. 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. New covenants may help shape the next generation of communities that are developed.

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.

Covenants are prepared and filed of record by the developer before the first lot is sold. The focus of most covenants is how to create communities in which there is minimal conflict, owners obey reasonable rules, and objectionable uses are prohibited. So, for example, in typical covenants, owners are not permitted to use their residences for business purposes, keep dogs that have a propensity to bite, or play loud music or drink alcohol at the community pool.

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. Covenants, by their nature, tend to be restrictive, telling owners the things they cannot do. 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.

Weissman_2_351The 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. As U.S. Supreme Court Justice George Sutherland wrote, “A nuisance may merely be the right thing in the wrong place, like a pig in the parlor, rather than a barnyard.” 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. If vegetable gardens simply do not visually make sense because of limited lot sizes, the covenants can ensure that a designated portion of a common area is always used for community gardens.

Sustainable activities can affect neighbors, and covenants must balance the rights and interests of all owners. For example, compost piles can smell bad and attract rodents. Allowing owners to place them as far away from their homes as possible and thus close to a neighbor is inconsiderate toward the neighbor. However, drafting covenants in which compost piles are permitted only in sealed containers a certain distance from a common side-yard property line reasonably balances the interests of the owner and the neighbor.

Some sustainable activities can also be community-building events. For example, if gardeners are allowed to sell or give away their excess produce to neighbors on weekend mornings at a designated place in the community, it encourages people to come together and share in the joy of an outdoor market. Similarly, the HOA can help organize activities to donate excess food to charitable organizations.

It may be more challenging to make other sustainable activities work regardless of how well the covenants are written. Erecting windmills, raising chickens in backyard coops, or keeping pigs and other livestock may require a greater change in the mindset of most buyers than is possible—or changed lot sizes. Of course, given the rate at which consumer sentiment is changing, it may well be that sustainability—even when it is messy—is someday viewed as creating the same beauty and harmony as the neat lawns and landscaping of most present-day suburban subdivisions.

Similarly, debate could emerge someday over covenants that limit owners’ ability to plant trees where they will eventually shade neighbors’ roofs and limit solar power generation. The notion that owners can be required to give up a certain amount of freedom for the benefit of the community as a whole is widely accepted by U.S. courts. Nevertheless, it may still make owners angry when they are told that they cannot plant a tree where they wish.

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.