A property owners association’s (POA) deed restrictions can be confusing to understand. It is sometimes hard to know if the actions of a homeowner that are in violation of the restrictions rise to the level of documented enforcement action. We receive requests regularly asking us to assist in the enforcement of a deed restriction violation only to find out it is an uncurable violation that the POA has no way of showing occurred. In this blog post, we will break down the differences between deed restriction violations by explaining if they are curable or uncurable, and what actions the POA can take.
Curable vs. Uncurable
The types of deed restriction violations for POAs are defined by Texas Property Code Section 209.006. Violations are broken down into two categories — those that are curable and those that are uncurable. For curable violations, the explanation is simple. It is a violation that is ongoing and can be remedied by the actions of the homeowner. For uncurable violations, the explanation is a little more complicated, but thanks to the statute we have help defining the answer. Section 209.006(g) defines an uncurable violation as a violation that has occurred but is not a continuous action or a condition capable of being remedied by affirmative action. In addition to the explanations for the types of violations, the statute goes further to provide examples of curable and uncurable violations.
Examples of Curable Violations
Section 209.006(i) provides just a few examples of the types of acts considered curable by the Property Code. Those examples include: a parking violation, a maintenance violation, the failure to construct improvements or modifications in accordance with approved plans and specifications and an ongoing noise violation such as a barking dog. These examples are what is provided by statute, other examples we commonly see include: leaving a trash can on a street or displayed past approved hours, storing a basketball goal in an unapproved location, amongst others.
Examples of Uncurable Violations
Section 209.006(j) provides a few examples of acts considered uncurable by the Property Code. Those examples include: shooting fireworks, an act constituting a threat to health or safety, a noise violation that is not ongoing, property damage, including the removal or alteration of landscape, and holding a garage sale or other event prohibited by a dedicatory instrument.
Actions the Association Can Take
First, let’s address acts constituting threats to health and public safety. While these are termed uncurable violations, the POA should be cautious in becoming immediately involved as the enforcement agent in these situations. The POA and its representatives (community managers and board members) should work with law enforcement to ensure the health and safety of all community members is protected and allow law enforcement to act as the enforcement agent.
For other curable and uncurable violations, POAs should follow the notice requirements set forth by Section 209.006. This section requires written notice to be sent to the homeowners via certified mail. The notice must:
(1) describe the violation or property damage that is the basis for the suspension of amenity access action, charge, or fine and state any amount due the association from the owner; and
(2) inform the owner that the owner:
- Is entitled to a reasonable period to cure the violation (date specific) and avoid the fine or suspension unless the fine is uncurable or poses a threat to public health or safety, or the owner was given notice and a reasonable opportunity to cure a similar violation within the preceding six months.
When issuing a notice for a deed restriction violation, it is important the POA have some type of evidence, photos, videos, audio recording, etc., to substantiate its deed restriction violation notice. In some cases of uncurable violations, the POA may be able to issue a preemptive deed restriction violation notice in the event the POA finds out about a prohibitive action that is going to take place, such as a garage sale or fireworks.
In this increased litigious era against POAs, it is more important than ever for the POA to have detailed documentation of all violations and their corresponding notices.
To learn more about the deed restriction process, join RMWBH for a webinar on May 18 at 11:30 a.m. Shareholder Noelle Hicks will guide you through the basics of deed restrictions by discussing the dedicatory instruments, enforcement procedures, state and federal law and more. Register today for this webinar by clicking here.
