Covenants, conditions, and restrictions, popularly referred to as “CC&Rs” are the rules that govern life in a property owners' association. Texas law uses the term “restrictive covenants.”
Whether or not a property owners' association can fine an owner will depend on the declaration of covenants, conditions, and restrictions (CC&Rs) for your neighborhood. State law does not specifically talk about whether an association can regulate non-political signage, parking issues, 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 CC&Rs.
However, Texas law does contain a few limits on what an association can prohibit. There are exceptions and exemptions for each category, so please read the law itself for complete details. Chapter 202 of the Property Code states that property owners' associations cannot prohibit but can regulate the following:
This chapter also states that a property owners' association can neither prohibit nor regulate the following:
Before proceeding with a lawsuit to force a resident to comply with the restrictive covenants of their property owners' association, the association may first try other tactics such as imposing fines or fixing the problem themselves (referred to in Texas Homeowners Association Law and here as a "self-help remedy").
Texas law does not automatically give a property owners' association the right to impose fines or use a self-help remedy. These powers must be granted by the declaration of covenants, conditions, and restrictions.
If an association's declaration grants it the right to impose fines for violations, it must notify the property owner in writing via certified mail before imposing the fine. According to Section 209.006 of the Property Code, the notice must contain the following information:
Subsections (h) and (i) of this section list examples of actions that are "curable" and "uncurable." They are:
|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||Ongoing noise violations, such as a barking dog|
|Holding a garage sale or other event prohibited by a governing document|
A "self-help remedy" is where the property owners association's declaration of covenants, conditions, and restrictions allows them to take certain actions to fix violations of the restrictive covenants. This may include hiring landscapers to cut the lawn of a property who has failed to do so as required by the restrictive covenants.
Important note: If this power is granted by the declaration, 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 some “other representative designated by an owner” may also file a lawsuit in court to enforce a restrictive covenant. According to Texas Homeowners Association Law, the end result most typically sought in this kind of lawsuit is something called “specific performance.” This means that one party is asking the court to order the property owner to do — or stop doing — whatever it is that is a violation of the restrictive covenant. Failure to follow the court's orders may result in a property owner being held in contempt of court.
In addition, Section 202.004(c) of the Property Code allows a court to assess civil damages of up to $200 for each day of the violation.
A common question people ask our librarians is: “If the property owners' association doesn't usually enforce a rule or restriction, can they still fine or sue me for it?”
If an association has become so lax in enforcing a particular restriction that it appears to not be a valid restriction any longer, a court may find that the restriction has been “abandoned.” Property owners' associations are assumed to have waived their rights to enforce abandoned restrictions. “Abandonment and waiver” could be used as a defense against a penalty issued by an association, but it may require evidence showing that a reasonable person would assume that the association and its members no longer wish to enforce the restriction.
According to Texas Homeowners Association Law on pages 502–503, factors the court may weigh in determining whether a restrictive covenant has been abandoned include: