The United States was founded on the principle of religious freedom. This is an aspect of our laws we learn in our earliest history class. The issue of religious freedom was so important to the Founders that the Free Exercise Clause of the First Amendment to the U.S. Constitution protects citizens’ right to freely exercise their religion, though there are limitations to this. Almost 250 years later, numerous state and federal religious freedom laws have been adopted and cases have been litigated in both state and federal courts regarding government, quasi-government and entities imposing burdens on the exercise of religious freedom. This begs the question, where do POAs fit in this discussion? Can a POA have a restrictive covenant prohibiting the use of a common area or home to practice religion?

What does the Fair Housing Act say on the use of a residence for religious use?

Both state and federal case law and statute provide the answer to this question. First, let’s look at the federal side with the Fair Housing Act (“FHA”).

POAs are considered housing providers and are therefore subject to the FHA.  If a POA were to enact a restrictive covenant that prevented a person from freely practicing their chosen religion, the POA would likely be found to be discriminating against individuals based on their religion and in violation of the FHA.,  For example, if an association does not allow a person to access their unit because they have a satanic symbol on their door, this could be considered a form of religious discrimination. But if a POA adopted a rule that is not clearly discriminatory on its face, but has the indirect result of restricting a member from practicing their chosen religion, it is less clear whether this is religious discrimination. While a POA may not ban members from practicing religion alone in their homes, under the FHA, a POA may have the ability to restrict residents from using their homes for anything other than residential purposes. This results in restricting a member from holding services in their home, especially where it opens the home to numerous guests or the general public. This must be uniformly applied to restrict any activity other than using the home for a residential purpose, including, for example, a member offering swim lessons to the public from their private pool.

Texas Case Law

Texas courts have heard two cases that addressed the issue of whether a single-family residence was being used as a place of worship in violation of an association’s restrictive covenants. First, Tien Tao Ass’n Inc. v. Kingsbridge Park Cmty Ass’n Inc is a 1997 case from southwest Houston where the Texas Appellate Court considered whether an association could enforce deed restrictions on the use of residential property owned by a nonprofit religious corporation.

A nonprofit religious corporation purchased two residential homes and began making changes to the properties that were in violation of the association rules, including erecting flagpoles in the backyard and painting shutters, as well as using the properties for worship gatherings and not as a single-family residence. These worship gatherings meant the nonprofit religious corporation was accommodating guests which led to an increase in parking and noise issues. The association filed suit to enforce the restrictions. The nonprofit religious corporation argued first that the restrictions violate the federal Religious Freedom Restoration Act (“RFRA”), which expressly states that it prohibits governments from infringing on religion and does not address other entities or agencies, but the court held that this argument was moot given the Supreme Court’s recent determination in the same year that it was unconstitutional at the state level, and Texas had not yet adopted the 1999 state version. The next argument arose out of a violation of the FHA that the purpose of the lawsuit and enforcing the deed restrictions was to restrict its members’ religious freedom; however, the court found that the religious corporation failed to show any conspiracy or intent to restrict or exclude its members, but to abate a nuisance. It enforced the restrictions and required that the properties be used as a single-family residence.

The second case is from the Dallas area. In 2013, the Collin County District Court denied an association’s request for a temporary injunction against a synagogue that operated out of a home, holding multiple services per day.  The owners of the home who had permitted it be used for religious services, and did not live in the home, argued that the single-family private dwelling restriction the association sought to enforce violated the Texas RFRA and the Religious Land Use and Institutionalized Persons Act. The court agreed. The court held that the association was a quasi-governmental entity subject to the same limitations imposed by these Acts on a government agency. It further held that enforcing the restriction would substantially burden the religious organization because it would mean that thirty families would no longer be able to worship there, and there was no compelling interest in prohibiting the congregants from meeting there.

With two different court rulings, what is the answer to the original question posed by this blog article: can a POA have a restrictive covenant prohibiting the use of a common area or home to practice religion? The answer will depend on how the POA’s restrictions are drafted and the manner the POA chooses to enforce any potential violation. It is likely that courts will uphold restrictive covenants that restrict the use of common areas provided that they are facially neutral, even if the covenant affects a homeowner’s right to practice so long as there is no discriminatory intent behind the POA’s decision to enact the rule or a disproportionate impact on specific religious groups. The POA cannot enforce a restrictive covenant that restricts an owner’s ability to practice religion in their own home, and it quite possibly cannot even enforce a restrictive covenant that a private residence be used as a single-family dwelling if it is enforced in a manner that prohibits the free practice of religion without a showing that the restrictive covenant is equally enforced against other business purposes.

If you are a POA with existing restrictions or a real estate developer with questions on how to approach this question in restrictions, please reach out to your legal counsel for further information.