Covenants, conditions, and restrictions, popularly referred to as “CC&Rs,” are the rules governing various aspects of life in a property owners' association. Texas law uses the term “restrictive covenants.” Texas Property Code, Section 202.001(4) states:
(4) "Restrictive covenant" means any covenant, condition, or restriction contained in a dedicatory instrument, whether mandatory, prohibitive, permissive, or administrative.
Restrictive covenants are generally found in a document called the "Declaration of Covenants, Conditions, and Restrictions" or "Declaration" for short.
State law does not specifically talk about whether an association can regulate non-political signage, parking, and architectural topics like paint color and mailbox decoration. If you have questions about these kinds of restrictions, you will need to refer to the governing documents for your association.
Texas law places some limits on what a property owners' association can prohibit. There are exceptions for each category, so please read the law itself for complete details. Property owners' associations cannot outright prohibit—but can regulate—the following:
In addition, a property owners' association can neither prohibit nor regulate the following:
Before the owner can make any changes or additions to a property, they may be required to get approval from an architectural review committee. The committee is generally responsible for overseeing any architectural, structural, and design changes.
Texas Property Code, Section 209.00505 regulates architectural committees in property owners' associations that have 40 or more lots. The rules we discuss in this section apply to these associations only. If an association has an architectural committee, its powers are almost always defined in the declaration of covenants, conditions, and restrictions.
The following persons may not serve on the architectural review committee:
If the architectural committee denies a property owner's proposed changes, it must provide a written notice of the denial by certified mail, hand delivery, or electronically. The notice must describe the basis for denial “in reasonable detail.” If some changes to the proposal would result in committee's approval, the changes must also be listed.
In addition, the notice must allow the owner to request a hearing with the association's board of directors on or before the 30th day from when the notice was mailed. A board hearing, according to Subsection (f), would provide the owner and the board with 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," per Subsection (i).
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 declaration of covenants, conditions, and restrictions.
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 Section 209.006 of the Texas Property Code, the notice must contain the following information:
Subsections (h) and (i) provide examples of violations that are "curable" and "uncurable":
|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: