Maryland Bars HOA Turf-Grass Mandates and Xeriscape Bans

The definition in § 2-125(a)(2) does the heavy lifting. Low-impact landscaping means landscaping techniques that conserve water, lower maintenance costs, provide pollution prevention, and create habitat for wildlife, and the statute then lists four things it includes: bio-habitat gardens and other features designed to attract wildlife; pollinator gardens and other features designed to attract pollinator species; rain gardens and other features that use natural biological principles to return rainwater to the soil and to filter it of excess nutrients; and xeriscaping and other forms of landscaping or gardening that reduce or eliminate the need for supplemental water from irrigation. The rain garden entry is distinctly Maryland, matching the state's Chesapeake Bay nutrient-reduction policy, and it means a homeowner may build a bioretention feature that an aesthetics committee would otherwise call a hole in the lawn.

What the section voids is a "restriction on use," which § 2-125(a)(3) defines to include any covenant, restriction, or condition contained in a deed, a declaration, a contract, the bylaws or rules of a condominium or homeowners association, a security instrument, or any other instrument affecting the transfer or sale of real property or any other interest in real property. Because the definition names both condominium and homeowners association documents, this right reaches unit owners under the Maryland Condominium Act at Title 11 and lot owners under the Maryland Homeowners Association Act at Title 11B alike, and it also reaches a bare deed covenant in a subdivision that has no association at all. It is the same drafting pattern Maryland used for solar collector systems in § 2-119 and for portable basketball apparatus in § 2-124.

Subsection (b)(2) is the operative test, and the third prong is the one Maryland homeowners cite most. An unreasonable limitation includes a limitation that significantly increases the cost of low-impact landscaping, significantly decreases the efficiency of low-impact landscaping, or requires cultivated vegetation to consist in whole or in part of turf grass. That last clause disposes of the standard Maryland covenant requiring a sodded lawn maintained in living condition: an association may not force turf grass on a homeowner who wants a native meadow or a xeric bed. Note the phrase "in whole or in part," which also reaches a rule demanding that some fixed share of the front yard stay in grass.

The owner has to earn the protection. Subsection (b)(1) conditions it on the property owner owning or having the right to exclusive use of the property, and on maintaining and regularly tending to the low-impact landscaping. An unmaintained yard is not a pollinator garden for purposes of this section, and a Maryland association enforcing a general nuisance or maintenance standard against genuinely neglected ground is not limited by § 2-125.

Subsection (c) preserves a real zone of association control: nothing in the section prohibits a restriction on use from including reasonable design and aesthetic guidelines regarding the type, number, and location of low-impact landscaping features. So a Maryland board may adopt a plant list, cap the number of rain gardens, or steer features to side and rear yards, provided the guidelines stay reasonable and do not collapse into a turf mandate or a significant cost or efficiency penalty. Subsection (d) removes the section entirely from historic property that is listed in, or determined by the Director of the Maryland Historical Trust to be eligible for inclusion in, the Maryland Register of Historic Properties, the same carve-out Maryland attached to the clothesline right in § 14-130(b) and the solar right in § 2-119(d).

Be clear about what this section does not do, because the gap is where Maryland homeowners get caught. Section 2-125 is a right to choose water-wise and habitat plantings. It does not bar an association from enforcing a green-lawn standard against a conventional turf lawn that has browned during a dry spell, it does not suspend covenant enforcement during a declared drought or a local watering restriction, and it does not mention artificial or synthetic turf, which is neither a technique that creates wildlife habitat nor cultivated vegetation. An owner who wants relief from watering rules during a Maryland drought is relying on the county or municipal water restriction itself, not on § 2-125.

Section 2-125 works by nullification. A covenant, bylaw, rule, or deed restriction that imposes an unreasonable limitation as the section defines it may not be imposed or act to be imposed, so it cannot support an architectural violation notice, a fine, or an injunction. The owner's practical defense is to show the restriction hits one of the three prongs in subsection (b)(2), most often by pointing at a covenant that requires turf grass in whole or in part, and to show they are maintaining and regularly tending the planting as subsection (b)(1)(ii) requires.

10 governs: the board may not impose a fine, suspend voting, or infringe any other right of a lot owner until it serves a written cease-and-desist demand identifying the violation and allowing at least 15 days to abate, then written notice of the right to a hearing with at least 10 days to request one, and holds a hearing at which the owner may present evidence and cross-examine witnesses. 10(c) permits a suit for damages or injunctive relief with counsel fees to the prevailing party, and § 11B-115(c) places Title 11B violations within the enforcement duties and powers of the Division of Consumer Protection of the Office of the Attorney General under Title 13 of the Commercial Law Article.