Note The library cannot tell you what the law means for your situation.
Restrictive covenants are the rules governing various aspects of life in a property owners' association. They are also known as covenants, conditions, and restrictions, deed restrictions, and CC&Rs. According to Texas Property Code, Section 202.001(4):
(4) "Restrictive covenant" means any covenant, condition, or restriction contained in a dedicatory instrument, whether mandatory, prohibitive, permissive, or administrative.
Restrictive covenants are often found in a document called "Declaration of Covenants, Conditions, and Restrictions" or "Declaration." Section 209.002(3) states:
(3) "Declaration" means an instrument filed in the real property records of a county that includes restrictive covenants governing a residential subdivision.
A declaration, which typically contains restrictive covenants, may only be amended by a property owners' vote. 67% of property owners must agree to the amendment. If the declaration specifies a lower percentage, the lower percentage governs.
This law is in Section 209.0041 of the Property Code.
Texas law limits some restrictions that a property owners' association can impose. However, most regulations are at the discretion of the POA. This includes topics like parking, mailbox color, and nonpolitical signage. Refer to your association's governing documents for more information.
Property owners' associations cannot outright prohibit—but can regulate—the following:
In addition, a property owners' association can neither prohibit nor regulate the following:
There are exceptions for each category, so read the law carefully for complete details.
Before the owner makes changes or additions to a property, they may need approval from an architectural review committee. In many associations, this committee oversees any architectural, structural, and design changes.
If an association has an architectural committee, its powers are almost always defined in the declaration of covenants, conditions, and restrictions.
Sections 209.00505 to 209.00507 of the Property Code regulate architectural committees in associations of 40 or more lots. The rules in this section apply to such associations.
Before an election takes place, the association must inform all property owners about the opportunity to serve on the committee. This law is in Section 209.00507. If a property owner notifies the association in time, they become eligible to be elected. Exceptions are:
However, if seats remain unfilled after all eligible candidates have been elected or appointed, special rules will apply. The association may appoint otherwise ineligible candidates to fill the empty seats. This law is in Section 209.00506.
If an architectural committee denies a property owner's proposal, it must inform the owner in writing. The notice can be delivered by certified mail, in person, or electronically. The committee must say why the proposal was denied and what changes (if any) would result in an approval. This law is in Section 209.00505(d).
The property owner has a right to appeal with the board of directors. The owner must submit a request for a hearing within 30 days of when the notice of denial was first sent. Once the board receives the request, it must hold a hearing within 30 days.
A hearing gives the owner and the board an "opportunity to discuss, verify facts, and resolve the denial of the owner's application." The board "may affirm, modify, or reverse, in whole or in part, any decision of the architectural review authority as consistent with the subdivision's declaration."
These laws are in Section 209.00505.
There are several ways for a property owners' association to enforce its restrictive covenants. Whether it can exercise the nonjudicial options will depend on the powers granted in the governing documents. An association may:
Texas law does not automatically give a property owners' association the right to impose fines. These powers must be granted by the association's governing documents.
If an association is authorized to levy fines, it must develop an enforcement policy and make it available to property owners according to Section 209.0061 of the Texas Property Code.
If an association's has the authority to impose fines for restrictive covenant violations, the association must notify the property owner by mail before imposing the fine. This gives the owner an opportunity to fix the problem and dispute the charge. Notice may not be required for repeated violations.
According to Sect. 209.006, a notice to the owner must contain:
Subsections (h) and (i) provide examples of violations that are "curable" and "uncurable":
| Uncurable | Curable |
|---|---|
| Shooting fireworks | Parking violations |
| An act constituting a threat to public health or safety | Maintenance violations |
| A noise violation that is not ongoing | The failure to have construction projects comply with approved plans or specifications |
| Property damage, including the removal or alteration of landscape | Ongoing noise violations, such as a barking dog |
| Holding a garage sale or other event prohibited by a governing document |
Texas law does not automatically give a property owners' association the right to enter a private property to fix a violation of the rules. The power to exercise "self-help remedies" must be granted by the declaration of covenants, conditions, and restrictions.
Examples of an association using self-help remedies include:
An association wanting to use a self-help remedy should take great care to follow the exact procedures outlined in the declaration, including any notice requirements. Inappropriate interference with someone's property could constitute trespass under Texas law.
A property owners' association or another “representative designated by an owner” may file a lawsuit to enforce a restrictive covenant. Typically, the end result seeks “specific performance.” This means asking the court to order the property owner to do—or stop doing—a specific action thereby "curing" the violation.
In addition, a court may assess civil damages of up to $200 for each day of the violation.
Generally, this type of suit is filed in state district courts. Justice courts are limited to enforcing residential subdivision deed restrictions, except for restrictions related to structural changes of a dwelling. A justice court cannot order specific performance, unlike a district court. Instead, it can assess civil damages of up to $200 for each day of each violation.
Failing to comply with a court order can carry additional penalties such as fines and jail time.
If an association has become so lax in enforcing a particular restriction that it appears to be no longer valid, a court may find that the restriction has been “abandoned.” Property owners' associations are assumed to have waived their rights to enforce abandoned restrictions.
The “abandonment and waiver” principle can be used to defend against a fine in court. The defendant will need evidence showing that a reasonable person would assume that the association and its members no longer wish to enforce the restriction. According to the Texas Homeowners Association Law pages 532–534, the court might consider the following elements to determine whether a restrictive covenant has been abandoned:
Note The library cannot tell you what the law means for your situation.