Deed restrictions are unique in every POA. Each community has different needs and different requirements to ensure the aesthetics of the neighborhood are maintained. The terminology surrounding deed restriction enforcement is extensive. The following “ABCs” can serve as an introductory map of the deed restriction enforcement process. This article focuses specifically on single-family property owners’ associations (“POAs”).
Acc – The Architectural Control Committee (also known as the Architectural Review Committee) is the group of volunteers tasked with reviewing applications for improvements or modifications to lots in the community. Failure to submit an application or conform to approved plans may result in a violation.
Bylaws – The document that addresses corporate governance of a POA and often gives a board the authority to issue fines.
Curable – A type of violation defined by Sec. 209.006 of the Texas Property Code. For curable violations, the POA must send notice to the owner allowing a reasonable period to “cure” the violation before fines begin to accrue, unless the owner has been sent notice for the same violation or a similar violation in the past 6 months. Please refer to Section 209.006 for additional information that must be included in the notice. Examples of curable violations include parking violations; maintenance violations; failure to construct improvements or modifications in accordance with approved plans and specifications, and ongoing noise violations such as barking dogs.
Discretionary Authority – POAs have discretionary authority to interpret their governing documents. A POA’s exercise of this discretionary authority is deemed reasonable unless a court determines that the POA acted in a manner that was arbitrary, capricious, or discriminatory.
Enforcement – The actions a POA takes to ensure compliance with its governing documents. Depending on the specific POA’s governing documents, enforcement can include imposing fines, suspending access to amenities, or filing a lawsuit.
Fine – A reasonable monetary penalty for violations of the governing documents. POA s should consult their governing documents and speak with their counsel regarding fining authority. As previously mentioned, Section 209.006 of the Texas Property Code imposes certain notice requirements. Additionally, the POA must also have a fining policy in place which contains (i) general categories of restrictive covenants for which the association may assess fines; (ii) a schedule of fines for each category of violation; and (iii) information regarding hearings described by Section 209.007 of the Texas Property Code.
Governing Documents – Each document covering the establishment, maintenance, and operation of a residential subdivision. Governing documents the plat(s), declaration (sometimes referred to as “CCRs”), certificate of formation/articles of incorporation, bylaws, architectural guidelines, and rules and regulations/policies. Governing documents are sometimes referred to as “dedicatory instruments”.
Hearing – A meeting between an owner and the board that the owner may request in response to a notice of violation sent under Section 209.006 of the Texas Property Code. The procedures for scheduling and conducting a hearing can be found in Section 209.007 of the Texas Property Code.
Improvement – Any additions to a lot, including but not limited to buildings, outbuildings, concrete work, pools, gazebos, pergolas, carports, fences, landscaping. Please note the term “Improvement” may be defined differently in a POA’s governing documents.
Joint Access and Maintenance Agreement – Agreements between a POA and a lot owner, neighboring association, or other person or entity, which can operate to shift the responsibility for maintenance of a particular piece of property or improvement.
Knowledge – Something every member of a board or ACC should have when it comes to the provisions of the governing documents. Of course, no one is expected to commit these documents to memory. Rather, boards and ACCs should be familiar with which documents exist and consult them regularly to ensure the decisions they are making align with applicable rules.
Landscaping – Grass and other plants/vegetation. Landscaping is a common source of violations. Landscaping related violations can include overgrown grass, weeds, and shrubs; unauthorized removal of trees; unapproved changes to existing landscaping; or failure to replace dead sod.
Manager – An agent of the POA acting at the direction of the board. Managers often assist with identifying violations and sending proper notice.
Notice – Letter sent to homeowners prior to issuing fines for curable violations in accordance with Section 209.006 of the Texas Property Code. The notice describes the violation that is the basis for the fine, informs the owner that they have a reasonable period to cure the violation (including the date by which the violation must be cured to avoid the fine), informs the owner of their right to a hearing, and informs the owner that they may have special rights or relief related to the enforcement action under federal law, including the Service members Civil Relief Act (50 U.S.C. App. Section 501 et seq.), if the owner is serving on active military duty. The notice must be sent via certified mail to the owner’s last known address as shown on the POA’s records. These requirements do not apply to a violation for which the owner has been previously given notice under Section 209.006 and the opportunity to exercise any rights available thereunder in the preceding 6 months
Owner – The record owner of a single-family residential lot. The owner is ultimately responsible for violations occurring on the owner’s lot, even if the lot is vacant or occupied by a tenant.
Party Walls/Fences — Walls or fences benefitting two (or more) lots. A POA’s governing documents may provide that both lot owners share maintenance responsibilities for party walls or fences, in which case, related violation notices should be sent to both owners.
Questions – What you should not be afraid to ask! Board and ACC members are encouraged to ask questions when they are unsure about issues like interpretation of the governing documents, Fair Housing issues, the enforcement process, or anything else. Managers and the POA’s attorneys are there to help.
Restrictions – The set of rules established in a POA’s governing documents which govern an owner’s use of their lot and the common areas. “Restrictions” is a term most commonly used to specifically refer to a POA’s declaration of covenants, conditions and restrictions.
Statute of limitations – A POA’s deadline to file suit for a violation of the governing documents. For deed restrictions, the statute of limitations is four years, but this can potentially be impacted by something called the “discovery rule”. POAs with questions about the statute of limitations as it relates to a specific violation should consult with an attorney.
Texas Property Code – Contains numerous statutes applicable to POAs, the most extensive of which is Chapter 209 (also known as the “Texas Residential Property Owners Protection Act”). Please note there are a number of laws impacting POAs which are not contained in the Texas Property Code. Examples include the federal Fair Housing Act, and Chapter 22 of the Texas Business Organizations Code.
Uncurable – Type of violation outlined in Sec. 209.006 of the Code. A violation is “uncurable” if it is not a continuous action or a condition capable of being remedied by affirmative action. Examples include: shooting fireworks, noise violations that are not ongoing, acts constituting a threat health and safety, property damage including the removal and alteration of landscaping, and holding a garage sale or other event prohibited by the governing documents.
Violation – An action, or a failure to act, that is not in compliance with the POA’s governing documents.
Waiver – What can occur in extreme cases when a restriction is not enforced. The concept of waiver has been developed through Texas case law. For example, in Finkelstein v. Southampton Civic Club, the court ruled that waiver could result if the number of violations is “so great as to lead the ‘average man’ to reasonably conclude that enforcement of the restriction has been waived.” Establishing waiver is an extremely high bar.
Xeriscaping – A form of drought-resistant landscaping. A POA’s ability to restrict xeriscaping and other drought-resistant landscaping has been limited by Section 202.007 of the Code.
Yard Sale – A sale of miscellaneous household or other goods, often held in the garage or front yard of someone’s house. If yard sales are prohibited by a POA’s governing documents, holding one is considered an “uncurable” violation.
Zoning – Zoning laws are typically set at the county or city level to govern how land is used. For example, zoning laws may restrict areas to residential development only or commercial development and apply to everyone in that county or city. Zoning laws are not part of the governing documents, and are properly enforced by the city or county, rather than by a POA.
