If you live in a townhome or similar property in a community development, it might have come with a plot of land around it. That area was probably landscaped to some degree when the development was first constructed, perhaps with trees and flowers. But what if you want to alter the landscaping; for instance, pull out plants and turn the area into a rock garden or a vegetable patch?
You might soon find your homeowners' association (HOA) insisting that you can't. Let's take a closer look at whether an HOA can really stop you from doing what you want with your yard.
The first issue here is whether or not you actually own your yard, legally speaking. Your community's governing documents (typically including a Declaration of Covenants, Conditions, Restrictions, and Easements or CC&Rs, articles of incorporation, and bylaws), plus any separate HOA rules and regulations, along with property maps and plats, will likely designate certain portions of the development's property as common areas.
Common areas are legally owned jointly, by all the development's homeowners, and are for the use of all the owners.
In a townhome development, the yard surrounding the townhome might be a common area, or more likely, a limited common area. Limited common areas are intended to benefit fewer than all the owners. For example, your yard might be a limited common area for the benefit of only the owners of your townhome (rather than all the owners in the development). By examining the plat or map for your property, you should be able to determine whether or not your yard is a common area.
Most development's governing documents contain rules and restrictions governing use of common areas and limited common areas. Your development's CC&Rs, for example, might contain a regulation prohibiting any owner from altering a limited common area.
Even if your yard is not a common area, and you own it outright, the governing documents might contain a rule or regulation prohibiting your plans for the garden. To ensure uniformity and maintain standards within a development, it's not uncommon to find rules that regulate everything from how often owners must cut their grass to what they can plant on the property.
What if you discover that you can't use your yard the way you want due to a rule you didn't know about, or that didn't exist when you bought your townhome? In short: "Tough luck!" When you buy a home in a planned development, you normally agree to the terms of all the development's governing documents whether you've read them or not, as well as all subsequent amendments. The HOA is entitled to refuse your request, with the possible exception of an amendment that "grandfathered" in violations by existing owners.
If in doubt, your safest bet is to check in with your HOA before making any major changes to your garden. If it says you can't proceed, ask what rule or regulation it is relying on. The HOA should be able to provide you with a copy of the applicable restrictions.
If you disagree with the HOA's interpretation of the rules, request a meeting and explain your position. Attend the meeting prepared with a copy of the restriction and a design of your plans. Then carefully explain (in a civil manner) why your use should be allowed.
If the use is still denied, realize that the HOA has enforcement powers on its side. It can potentially fine you for violations, undo your changes, hold you responsible for attorney fees and other costs, and ultimately foreclose on your property if you fail to pay the fines.
If the HOA rule leaves no room for interpretation, and making changes to your garden is important to you, consider trying to amend the rule. The document containing the rule will probably set forth the procedures necessary for an amendment.
Sometimes, rules and regulations that are not in the CC&Rs can be amended with the vote of all the members of the HOA's board of directors. If you can get the HOA on your side, this might not be too difficult.
If amending the rule requires a vote of all the members (that is, all the owners in the development), getting an amendment passed is likely to be more difficult. It will probably involve a lot of time and effort (and possibly expense) on your part to convince everyone to go along with you. You'll have to decide whether it's worth it.