HOA Rule Enforcement and Disputes FAQ

Q: Can Texas Associations Regulate the Exterior Appearance of Homes?

A: Texas associations have considerable discretion in adopting and enforcing restrictive covenants, including restrictions relating to exterior appearances of structures and improvements, as long as the community's declaration grants authority for the type of regulation contemplated.

Restrictions could include anything from exterior color, fences, lawns and artificial turf, parking, and trash-can placement to restrictions on above-ground pools and trash receptacles.

A Texas association, or an architectural review board acting on its behalf, can implement and record written architectural review guidelines regulating exterior appearance and new improvements.

Notwithstanding the generally broad discretion afforded to HOAs to regulate exterior aesthetics, Texas law limits or prevents restrictions in a few specific areas – most notably, political signs, religious displays, roofing materials, solar panels, standby generators, and drought-resistant landscaping and water-conserving natural turf.

Associations cannot prohibit standby electrical generators that comply with applicable safety codes but can place reasonable restrictions on their placement and require generators to be screened.

An HOA can regulate the placement of solar panels but is not permitted to ban them as long as the panel does not threaten public safety or violate another law.

However, developers can limit the installation of solar panels while the community is in its development period. There is also an exception allowing restrictions on solar panels that would cause unreasonable discomfort or annoyance to persons of ordinary sensibilities.

Texas law protects roofing shingles that are weather-resistant, energy-efficient, or have solar-generation capabilities. An HOA can, though, regulate the aesthetics of shingles if the proposed shingles do not match other properties in the area or are not durable.

Texas HOAs are generally prevented from enforcing restrictions on members' display of political signs during election season. The protection extends from 90 days before an election until 10 days after.

Texas associations can limit political signs by regulating specific aesthetic and physical attributes and may limit the size of signs over four feet by six feet. HOAs can also restrict signs with content that would be offensive to an ordinary person or if a sign distracts motorists.

Religious displays on a member's door or doorframe are protected if motivated by sincere religious belief. Displays that threaten public safety, are patently offensive, are located elsewhere in the entryway to the member's dwelling, or are otherwise illegal are not protected.

Associations are authorized to remove religious displays or political signs that violate a restriction that complies with Texas law.

Discretionary enforcement actions taken by an HOA are presumed reasonable unless shown to have been arbitrary, capricious, or discriminatory.

However, the courts in Texas have approached restrictive covenants with some skepticism, resolving ambiguities in favor of homeowners' property rights. Thus, Texas courts will not broadly read a restriction to limit an owner's use of property that is not plainly prohibited by the language of the restriction.

Further, an association's right to enforce a restriction can be effectively waived if the association previously acquiesced to or failed to implement the restriction consistently.

Q: Can Texas Associations Prohibit the Display of the American Flag?

A: The federal Freedom to Display the American Flag Act of 2005 forbids homeowners associations from banning the display of the American flag. An association may limit the time, place, and manner in which the flag is displayed if the limitation promotes a substantial association's interest.

Along with the U.S. flag, Texas law also protects HOA members' right to respectfully display the Texas state flag and the flags of each branch of the U.S. armed services. Specific flagpole regulations are permissible, and associations can require that flags on display be maintained in good condition.

Q: Can a Texas Homeowners Association Impose Rental Restrictions or Screen Prospective Tenants?

A: In general, Texas law does not prohibit associations from imposing restrictions relating to occupancy or leasing, so an unambiguous restriction promoting a substantial interest of the association and enforced in a non-arbitrary manner will probably be upheld.

However, a board cannot unilaterally impose a restriction; it must be authorized by the association's declaration or by a validly adopted amendment. And all regulations must be enforced uniformly.

The Texas Supreme Court has limited HOA power to enforce short-term rental restrictions. The court held that restricting the use of properties in the HOA to single-family residences could not be construed to prevent short-term rentals.

The court held that because the restriction did not outright prohibit short-term rentals, the restriction was not violated as long as the short-term renters were using the home for residential purposes.

Texas does not permit associations to require prospective tenants to be screened or approved by the board. Likewise, associations may not require that a tenant or prospective tenant's credit report, rental application, or lease be provided to the HOA at the time of application.

Texas associations are also prohibited from enforcing a restriction preventing a property from being used as a "family home," as defined in Texas's Disabled Persons Location Act.

Q: What Actions Can a Texas Association Take to Remedy a Violation?

A: An association's remedies against non-compliant members are the penalty mechanisms provided in the declaration and by statute and/or legal proceedings instituted against the non-compliant owner.

If authorized by the governing documents, an association may levy fines for violations of a community's declaration, bylaws, or rules.

Before the fine is imposed, the association must provide notice of the violation and the opportunity to cure if the violation is curable. The member has a right to request a hearing before the board or a committee it appoints.

Suppose a violation arises from a restriction on political signs or religious displays, and the restriction complies with Texas law. An association can use "self-help" to remove the sign in that case.

HOAs are not otherwise statutorily authorized to trespass upon an owner's property without permission. A community's declaration and deeds to individual lots within a community may grant easements in favor of the association, allowing access to member properties for specific purposes, such as maintaining common elements.

Texas associations are empowered to institute legal proceedings to enforce restrictive covenants. Before filing suit, the association must provide advance written notice, including an opportunity to cure the violation if possible.

Notice is not required for suits to collect assessments or foreclose upon a lien. Even if an association neglects to pursue enforcement action, another owner can file a suit to enforce a restriction against a non-compliant member.

Texas law places a statutory cap of $200 per day on civil money damages an association can be awarded in court based upon a member's non-compliance with a restrictive covenant.

In addition to civil damages, associations may seek a court order directing members to correct non-compliance and refrain from further violations.

An HOA may collect from a non-compliant member the actual attorneys' fees and reasonable costs incurred in enforcing covenants, provided the member is given written notice of the potential for attorneys' fees and an opportunity to be heard.

Q: What Can Homeowners Do if the Board Fails to Hold Meetings and Fill Vacant Seats?

A: Vacant board positions are appointed by the remaining board members and serve until the end of the unexpired term. Tex. An association board cannot consider or vote on a board vacancy except at a board meeting open to members.

Texas's HOA laws do not provide a specific mechanism for members to address a situation where a board fails to fill vacant board positions. However, this scenario may be discussed in an association's governing documents.

If an association board fails to hold member meetings at least annually, a member can serve a demand for a meeting of members via certified mail. If the board still fails to call a meeting, at least three members can form an election committee and call a special member meeting to elect a new board.

Q: Does Texas Law Require an HOA Board to Seek Member Approval for Rate Increases and Special Assessments?

A: An association's governing documents set forth the protocol for calculating assessments. Under Texas law, an association's board may not consider or vote on assessment increases except in an open meeting of which members have been notified.

If a declaration allows an association to increase maximum regular assessments without a member vote, the association has the authority to do so annually or after years.

Associations can make special assessments to cover the costs of unexpected repairs, replacements, or reconstruction of common elements or for the maintenance and improvement of common areas.

Special assessments cannot be considered or voted upon except in an open meeting of which members have been notified.

If the declaration requires member votes for special assessments or increases in regular assessments, votes must be made in writing.

Q: What Documents Must an Association Maintain and Disclose?

A: A Texas association must maintain its books and records, including governing documents, financial records, tax and audit records, association contracts, and written meeting minutes for all board and member meetings.

Owners have the right to review the books and records of an association, including financial records, and to obtain copies of information in the records.

Documents relating to an attorney's representation of an association, another owner's personal information, or an association employee are expressly excluded from production.

A member's request for review must be made in writing via certified mail, and the documents subject to the request must be identified. The requesting owner can either elect to inspect the books or receive copies from the association, which must be made available within ten days.

Suppose copies are requested, and the association has a policy allowing charges. In that case, the association may charge the requesting member reasonable materials, labor, and overhead costs.

If a member is denied access, the member can petition the local justice of the peace – after providing the association ten days' notice of intent - for a judgment against the association ordering that the records be made available, along with an award of attorneys' fees and costs.