The calendar turning to November and cooler temperatures filling the air can only mean the holidays are around the corner. Soon, the sounds of sleigh bells will be ringing in many communities across Texas. But, before Santa comes to town, there are a few things managers and board members should be mindful of and consider when enforcing restrictions as the holiday season approaches.
O’ Christmas Tree How Lovely are Thy Branches Unless They’re Set-Up Too Early
The anticipation of the holiday season brings a lot of excitement for many people. Some neighbors spend months coordinating and planning elaborate setups. While others compete for the best decorations in the community, but when should decorations begin appearing in property owners associations (POA)?
The answer is going to vary from POA to POA, and it will all depend upon what is written in the POA’s rules and restrictions. For example, in many POAs, we see restrictions that do not allow decorations to be displayed until thirty days before the holiday and must be taken down seven to ten days after the holiday. As these dates approach, POAs may want to post friendly reminders of these dates on the POA’s website, newsletter and official social media pages to help avoid confusion and potential violations.
Unfortunately, some homeowners do not always follow the guidelines set forth in the restrictions and decorations are set up well before and left up well after the holiday. In these situations, what action, if any, can be taken by the POA?
The first step when dealing with these types of violations is to send a letter to the owner advising of the violation. Since this is the first communication the owner is receiving from the POA, it is recommended that the letter be drafted in a somewhat friendly manner. Being aggressive and threatening in the first communication with an owner is likely to put the owner on the defensive rather than inviting cooperation with the POA. As a point of clarification, if a POA has adopted and recorded a governing documents enforcement policy (or other similar instrument), the deed restriction violation notice requirements must be followed in accordance with said instrument. Before an account can be turned over to a POA’s attorney for legal action, a notice that complies with §209.006 of the Texas Property Code (“209 Letter”) must be sent to the owner.[1] The notice is required before the POA can file a suit against an owner for a deed restriction violation, or levy a fine for a violation of the governing documents. The notice must explain what the violation is, how long the homeowner has to cure the violation and avoid a potential penalty and what potential penalties the homeowner may face if the violation is not cured. Homeowners who receive a violation letter may request a hearing under Section 209.007 on or before the 30th day after the date the notice was sent by the POA. In most cases, the homeowner will quickly correct the violation, if in fact they have not already done so by the time they receive the violation letter.
In the case of homeowners setting up holiday decorations prior to the date stated in the restrictions, the violation may be classified as a curable violation and the homeowner can correct the violation by simply taking the decorations down until the date set forth by the restrictions. But, if the date holiday decorations are allowed to be displayed falls inside the period the POA gives the homeowner to cure the violation, the homeowner may choose to ignore the violation letter. With situations like this, you may be asking why would the POA send the violation letter?
Don’t End Up on the Naughty List for a Waiver of Your Provisions
POAs need to send violation letters for deed restriction violations and in some cases, for something that may be resolved by the turning of the calendar. Without the proper enforcement of the restrictions the POA potentially risks having a provision, provisions, or entire set of restrictions subject to challenge based on an allegation of waiver.
Without the violation letter, it may show a court that the POA has acquiesced to such substantial violations within the restricted area as to amount to an abandonment/waiver of the covenant. In the example of holiday lights being displayed early, if there are many homes throughout the community with their lights up early, would a reasonable, ordinary and prudent person conclude that the restrictions had been abandoned based upon the number, nature and severity of other existing violations? If you have questions about the violation letter and the circumstances that apply for sending it out, it is recommend that you contact your POA’s legal counsel.
Another risk POAs can take by not enforcing, or only sometimes enforcing their restrictions is to have their discretionary authority questioned. Sec. 202.004 of the Texas Property Code states “An exercise of discretionary authority by a property owners’ association or other representative designated by an owner of real property concerning a restrictive covenant is presumed reasonable unless the court determines by a preponderance of the evidence that the exercise of discretionary authority was arbitrary, capricious, or discriminatory.” In our example of holiday lights being displayed early, if the POA chose to ignore the restrictions for some by not sending a violation letter and applied it to others, a court may find the actions of the POA to be arbitrary, capricious, or discriminatory.
Be Reasonable, Don’t Be a Grinch
As a POA enforcing restrictions, it is important to keep in mind to be reasonable and rational. There may be a reason why the violation occurred in the first place or has not been corrected. If a homeowner chooses to have a 209 hearing, the board should hear the homeowner’s side of the situation. After hearing the homeowner’s side, a decision can then be made as to what action (if any) should be taken regarding the violation.
In the holiday season, keep in mind there are several religious holidays community members may celebrate. The dates in which these celebrations begin and end are all different. Accordingly, boards are encouraged to familiarize themselves with beginning and ending dates for these various holidays.
As a POA, you will need to think about these different factors when you are enforcing your restrictions. It is important to be consistent and equal in the enforcement of a POA’s restrictions. If a POA is inconsistent in their enforcement of restrictions, the POA may be found arbitrary, capricious, or discriminatory in their enforcement actions and in the event of a lawsuit, potentially liable for damages. If you have questions about the enforcement of restrictions in your POA, it is recommended that you contact your POA’s legal counsel. As we approach the holiday season, let RMWBH be the first to wish you and yours a very happy holidays.
[1] The notice required pursuant to §209.006 is not required to be sent if: 1) an owner has received prior 209 Letter regarding the same or substantially similar violation in the preceding 6 months, or 2) if the POA files a suit seeking a temporary restraining order or temporary injunctive relief or files a suit that includes foreclosure as a cause of action.
