Homeowners should understand the different restrictive covenants in Texas, especially when it comes to HOA communities. Homeowners associations are known for implementing these restrictions, and violations can result in fines or other penalties. On the other hand, the board should know how to enforce these covenants and what may be unlawful.
What are Restrictive Covenants in Texas?
Under the Texas Property Code, a restrictive covenant is any covenant, condition, or restriction found in a dedicatory instrument. These covenants can be administrative, prohibitive, mandatory, or permissive.
Homeowners will find restrictive covenants within the governing documents, particularly the CC&Rs. Short for the Declaration of Covenants, Conditions, and Restrictions, the CC&Rs govern many aspects of living in an HOA.
Are Restrictive Covenants Legally Binding?
Yes, restrictive covenants are legally binding. Restrictive covenants limit what homeowners can do. They are typically found in the CC&Rs of an HOA, but property deeds can also contain them. When homeowners first purchase a property, they agree to be bound by the restrictive covenants.
Are Restrictive Covenants Enforceable?
Yes, in general, restrictive covenants are enforceable. There are certain legal requirements that these covenants must meet. For one thing, they must be indicated in the HOA’s governing documents or property deed.
Additionally, restrictive covenants must not conflict with the law. If a law prohibits a particular restriction, then it becomes void and unenforceable. For example, if the law prohibits HOAs from banning solar panels, such a prohibition in any HOA would not be enforceable.
Unlawful HOA Restrictive Covenants in Texas
In Texas, there are some restrictions that HOAs may not legally enforce. The Texas Property Code covers these unlawful restrictions.
Texas law restricts HOAs from banning certain items or actions altogether, but it does allow for reasonable regulations. Each category has specific exceptions, so it’s important to consult the statute for full details.
Associations may regulate but not prohibit the following:
- Flying the American flag, the Texas flag, or a U.S. Armed Forces flag (Section 202.012)
- Posting political signs during election periods (Section 259.002)
- Displaying religious symbols or items (Section 202.018)
- Using rain barrels, compost bins, water-efficient irrigation, and drought-tolerant landscaping (Section 202.007)
- Installing security devices like cameras, motion sensors, and fencing (Section 202.023)
- Setting up solar panels and other solar energy equipment (Section 202.010)
- Using standby backup generators (Section 202.019)
- Building swimming pool enclosures (Section 202.022)
- Installing roofing materials that are energy-efficient or offer wind and hail protection (Section 202.011)
Meanwhile, associations cannot prohibit or regulate the following:
- Owning firearms or ammunition (Section 202.021)
- Operating lemonade stands (Section 202.020)
Texas law does not specifically address whether or not an HOA can regulate non-political signs, parking, and architectural changes. Homeowners should refer to their HOA’s governing documents for guidance and restrictions.
Understanding HOA Architectural Guidelines
Perhaps one of the most common Texas restrictive covenants homeowners will find are architectural rules. Most HOA communities have architectural standards that dictate what or how an owner can make changes to their property.
More often than not, homeowners will need approval from their HOA through the Architectural Review Committee (ARC). This committee typically handles all design, structural, and architectural modifications within the association.
Under Texas Property Code Section 209.00505, specific rules apply to Architectural Committees in HOAs with 40 or more lots. These rules do not apply to smaller associations. The HOA’s governing documents should outline the authority and responsibilities of this committee.
Who Can’t Join the ARC in Texas?
According to Texas law, those who fall under any of the categories below can’t serve on the Architectural Review Committee.
- Current board members
- Spouses of current board members
- Anyone living in the same household as a current board member
What Happens if the Committee Denies a Request?
Homeowners usually need to request approval from the ARC before making any changes or additions to their homes. If the committee rejects a proposed change, it must send the homeowner a written denial notice. The ARC must send this via certified mail, hand delivery, or email.
The notice must explain the reasons for the denial in clear and detailed language. If the committee approves the project with specific modifications, the notice must also list these changes.
Additionally, the notice must inform the homeowner that they can request a hearing with the HOA board. Homeowners must make this request within 30 days upon receiving the notice. During the hearing, the homeowner and the HOA board can review the facts, discuss the issue, and try to resolve the denial.
Following the hearing, the HOA board can then uphold, change, or overturn the ARC’s decision. Of course, the board’s decision must still align with the HOA’s governing documents.
Enforcing Restrictive Covenants in Texas
In Texas, an HOA has different methods for enforcing its restrictive covenants. Whether it can use specific options depends on what the governing documents allow. The association may take the following actions:
- Impose fines for rule violations
- Correct the issue directly and bill the property owner for the cost (this is known as a “self-help” remedy)
- File a civil lawsuit against the owner to seek enforcement through the court system
Can an HOA Fine Homeowners in Texas?
Homeowners associations don’t automatically have the authority to issue fines in Texas. The HOA’s governing documents must specifically outline this authority.
If an HOA does have the authority to fine homeowners for violations, it must have a formal enforcement policy. The HOA must share this policy with all homeowners according to Section 209.0061 of the Texas Property Code.
Can an HOA Use Self-Help in Texas?
Texas law does not automatically allow an HOA to enter private property to correct a rule violation. The HOA’s governing documents must explicitly state the authority to use self-help remedies.
It is also important for HOAs to strictly follow the procedures for self-help as the governing documents outline them. This includes meeting all notice requirements. Failure to do so can be considered trespassing under Texas law.
Can an HOA Force Compliance Through a Lawsuit?
An HOA can file a lawsuit to enforce restrictive covenants. The court can issue an order for the homeowner to comply with the HOA’s rules through a lawsuit. Courts may also impose civil damages of up to $200 per day for each violation. If property owners refuse to comply with a court order, they may face additional penalties, including fines or even jail time.
How to Remove Deed Restrictions in Texas
What is a deed restriction? Deed restrictions are the same as restrictive covenants in Texas. Most of the time, these restrictions are created and enforced by HOAs. That said, deed restrictions can also come attached to the property deed.
To remove deed restrictions, there are a few ways:
- Original Grantor. If the original grantor is still around, homeowners can ask them to remove the restriction through written consent.
- Court Order. If the original grantor can’t or will not remove the restriction, homeowners can file a lawsuit to have it removed.
- Amendment. If the HOA is responsible for the restriction, changing it will require an amendment to the governing documents. This typically mandates a vote from the membership.
Getting Help
Navigating restrictive covenants in Texas can be challenging. Still, it remains imperative, both for homeowners and board members. When in doubt, consult a legal professional or an HOA management company.
Preferred Association Management Company offers exceptional HOA management services to communities in Central Texas. Call us today at 512-918-8100 or contact us online to learn more!
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