.jpg)
If you ever receive a notice that you are violating a deed restriction, your first course of action is to pull the recorded documents to determine the exact wording of the applicable provision. Next, match the violation notice with the recorded copy of the restriction to determine which exact covenant has been violated. Answer the letter in writing, and include a copy of your compliance.
Deed restriction enforcement typically begins with a notice of violation based on recorded subdivision restrictions and association documents. Check your county records to locate the recorded deed restriction. Identify the specific provision cited by the association for the violation. In your response, request photos of the property in question. Calendar the deadline by which you must respond or cure the violation. If you have a pending closing, provide your title company and buyer's agent with a written plan of cure, an association letter of approval, a waiver, or a buydown of the violation at settlement.
Deed restrictions are recorded rules that are attached to land. They may control everything from exterior property changes to the use of property for rental purposes, the number and size of vehicles allowed on a lot, landscaping requirements, allowable signs and wall colors, the presence of animals or hunting, and the use of the property for business. Deed restriction violations may take months or years to resolve. A lack of progress may prompt the association to impose penalties, including fines, liens on your property, suits for an injunction requiring compliance, claims for attorney fees, and title objections to the purchase of your home. Failing to comply with deed restrictions may also lead to demands from a prospective home buyer.
Locating the Deed Restrictions
Start with your county records, not rumor. Subdivision deed restrictions, amendments to subdivision deed restrictions, subdivision plats, plats of an amendment to a subdivision plat, a Certificate of Formation of a Property Owners Association, and subdivision association bylaws all have different jobs. Only the recorded covenant establishes the limit on the use of your property.
Texas recognizes many subdivision restrictions as covenants that run with the land. Your practical file should include a copy of the recorded subdivision declaration, any amendments, documented architectural approvals, violation letters, notices of any hearing, meeting minutes, photograph evidence, invoices for any fines, and a payment ledger. Officially, your information comes from Texas Property Code Chapter 201, which discusses extension, modification, and creation of covenants; Chapter 204, which discusses the powers of associations; and Chapter 209, which discusses the protection of owners.
Legal Authority: Who Is Qualified to Enforce Deed Restrictions?
If you are served with a demand to comply with deed restrictions, you must be suspicious of any party claiming the power. Authority to enforce typically resides either with the HOA, an architectural control committee, or a developer who has the right to enforce restrictions as the "declarant" of the subdivision. Under some circumstances, a developer or another lot owner may step into enforcement where there is no functional association. In any event, the first legal checkpoint is called standing. The party seeking enforcement action must have some real connection with the restricted property or actual authority or power to enforce restrictions granted by another party in a recorded document or covenant. If you get a demand letter or list of alleged violations that does not come from one of the above-mentioned enforcers, ask the party to show the page of its recorded governing documents that grants it authority to act.
Legal Framework
Three chapters of the Texas Property Code contain the mix of recorded and unrecorded controlling restrictions and governing associations. For residential associations, Chapter 209 often serves as the starting point. Section 209.006 mandates that associations serve owners with written notice of any violation, a description of the nature of the violation, the amount of any monetary liability owed by the owner, and the owner's right to cure the violation and request a hearing. A variety of other sections enumerate the powers an association may exercise in enforcing restrictions. Section 204.010 is frequently used to establish the extent of these powers. Section 201.013 addresses procedures for the extension, renewal, or modification of a recorded division restriction.
Determining Who Has the Authority
Just as the remedies also depend on jurisdictional principles, so does the legal authority to take enforcement action. Begin first by identifying the full chain of governing documents that created and supports current restrictions. This document chain typically begins with the original declaration of the subdivision and includes subsequent amendments and approvals, assignments of the developer's rights, management-company contracts, board resolutions vesting enforcement authority in the committee, architectural guidelines, and fine schedules. If confronted with a notice letter, request that the party who is trying to compel action pin a copy of the offending conduct in the specific section of one of these documents that applies to this type of misconduct. Ask for a certified copy, which will afford the best protection, or at least a page from a recording of a "plat of survey, declaration, or other instrument" identifying the document that creates the restriction being enforced. Not all documents are available at the county recorder's office. Also, demand that the party show why it has standing as the authority seeking enforcement. One party may have the power to enforce a restriction against one lot, but not another. Standing limits the ability of an outsider to use a private restriction against the owner of a residence. Typically, the enforcing party will be the association named in the documents or the owner subject to the same recorded scheme of restrictions. If you are not one of these parties, respond immediately to request the source of the party's authority.
Overview of the Enforcement Process
Most deed restriction enforcement disputes move through the following sequence: Inspection/complaint, Written notice, Cure period, Hearing or board review of response, Enforcing authority institutes action to collect fines, enforce restrictions, mediate, or litigate. Most associations will serve notice before beginning this five-step process and emphasize in each notice a date by which the owner must respond. If you do not appear for a hearing, the authority may not give you a chance to explain your position. The first notice should, at a minimum, identify the property, the nature of the alleged violation or restriction relied upon, the remedy requested (cure or payment), a deadline by which the owner must respond, the amount sought, and the procedure for contesting the alleged violation or requesting a hearing. Be polite but remind the party that it should furnish the requested items. If the notice came from a private contractor, remind it that its right to enforce is not necessarily supported by law. Many people have mistakenly thought that the copy a city inspector showed them of the subdivision deed restrictions creates private, exclusive enforcement rights in the city, contractor, or insurance company. Respond quickly, and if you can, by e-mail, and in writing by certified mail (unless you feel confidence in your relationship with the party, which is probably unwise in a dispute). Request all the documents and information it has promised you, and don't allow the dispute to move along without clarification. The timelines can be quite different for different issues. If it's just a matter of keeping your lawn and trash picked up, the cure period may be a few days. If the matter involves a roof, painting, or fence, it may be a few weeks. In many cases, the party will give you a request for information and settlement, or a letter of default, and ask you for a check. Delay is detrimental to your cause. If you are able to demonstrate good faith repairs or cooperation, request a dated extension tied to specific work steps.
Probably the most important aspect of enforcement and potential litigation is that it must be done in strict accordance with due process. Chapter 209 includes several protections for the owner. Some are tied to the notices and hearing procedures just discussed, and some require the association to maintain certain records. Governing documents and agreements can impose additional requirements on the board's review of alleged violations, including requirements that the person object and an opportunity to appeal that objection. The homeowner should try to make good use of each of these steps. Be sure to bring specific factual information along at each step of the process.
Any violations that routinely pop up include those visible from the street: fence height, materials used, staining, location, fence committee approval, extremely overgrown grass, weeds, broken fencing, peeling paint, mildew on siding or bricks, roof condition, large quantities of loose, stored materials or vehicles, other property picked up for recycling. Photos, dates showing time interval, repair bids, prior approvals, and comparison lots where the enforcer seems to overlook the same violations are helpful. Often, disputes involve architectural issues such as carports, patio covers, or additions, deck materials, swim spas, garages converted for use as rooms, fence replacement, sheds, landscape walls, or building or replacing pools, or painting or replacing roofing, windows, or replacing roofing. Homeowner associations sometimes challenge work that was done before written approval was received, such as adding a room, a deck, a garage conversion, a fence, a shed, a pool, exterior paint, roofing, windows, landscape walls, or fencing. Parking and storage notices involve commercial vehicles or trailers, boats, RVs, inoperable cars, parking in the lawn where it's prohibited, and parking on the street. Save dated photos showing the location of the vehicle and the specific rule supposedly violated.
Property use and nuisance: Restrictions typically include provisions about property use; these may be complicated, particularly if they are vague or if they conflict with zoning.
In addition to the initial citation or citation and fine, associations may attempt to charge additional expenses, including: recurring or daily fines, inspection fees, certified-mail postage costs, administrative fees (processing time, legal and clerical time), interest, and, in some cases, attorney fees and court costs. They may also want to recover the cost of removing objects or materials or correcting the violation. Ask the association if it will provide you with an itemized ledger. Be sure to ask for a clear statement of what is claimed against the property. Any authorized lien should reflect exactly what the association is doing. Often, associations will have a written policy on fines. It is not uncommon to charge a minimum fee (sometimes several hundred dollars) for minor violations to put the owner on notice that the association is tracking the matters and will not tolerate willful or repeated violations. Keep in mind that Chapter 209 imposes numerous protections on such issues as notice and hearing procedures, preservation of records, payment plans, collection procedures, and protections against erroneous demands and wrongful foreclosure. It also imposes limits on certain enforcement practices. What the association seeks to claim against the property will depend entirely on the association's governing documents and their agreements with the lender and the language of the recorded lien. Attorney fees can make a significant difference in the economics of any dispute. A relatively small fine can thereby become something quite significant. Compare the cost of taking care of the problem at hand with the cost of any delay. The possibility of a settlement or a request for a waiver is reasonable if the matter is at risk of escalating to litigation, mediation, or arbitration.
The bottom line is that deed restrictions are covenants that run with the land. Future owners will be subject to their terms as well and will also be subject to any liens or judgments entered against the current owner as a result of alleged violations.
For many unit owners, the HOA is the day-to-day enforcer of deed restrictions. Although many associations will engage outside counsel to handle enforcement matters, most HOAs rely primarily on their management company. Often, the legal authority for enforcement comes down to the board, which receives complaints, does inspections, sends notices, schedules hearings, approves applications for relief, adopts a fine policy, and authorizes the association attorney to file suit. All HOA enforcement powers must find their source in the governing declaration or bylaws, the board's authority to adopt reasonable rules and regulations, or the protective-statute provisions contained in Chapter 209 of the Texas Property Code. The board should be careful to use only its legal authority in enforcing deed restrictions. Consistency is important. HOAs are often challenged if the board ignores repeated, similar violations by one or more owners for many years. In defending against such claims of selective enforcement, it is important for the board to present a record that demonstrates that no one was deprived of protection under the association rules. In addition to the specific complaint at issue, the responding association should address allegations with regard to specific events, dates, photos, comments at meetings, approvals, correspondence, and notices. What the board does is also important. To minimize risk and to avoid later challenges or bad publicity, enforcements should go through a proper procedure, including: a properly called meeting, proper notice sent to the owner, proper vote taken and recorded, and proper record-keeping. If the matter is at issue, homeowners should request a copy of these records, including (but not limited to) photographs or sketches of the alleged violation, inspection notes, written and oral complaints, the association's fine schedule, a written summary of the hearing before the board, copies of the architectural file (particularly if the owner is seeking to change use, appearance, or habitability), the association ledger on the account or violation, and a copy of the board decision.
Limitations on HOA Authority
Review all legal authority for enforcement. Most enforcement power rests in the HOA's board. Otherwise, the HOA has no power to enforce deed restrictions. Review the governing document requirements to ensure that the board acted properly.
How to Challenge or Modify an Association's Enforcement Actions
There are many ways to challenge an association's enforcement action. The response must be tailored to the nature and circumstances of the particular challenge. Generally speaking, the challenge could focus on the text of the deed restriction, the facts relating to the alleged violation, the association's procedural steps in enforcing the restriction, the association's legal authority to enforce the restriction, or the nature or amount of the remedy imposed. In deciding whether there is a violation, the challenge would begin with a simple question: Does the covenant prohibit the alleged activity? Then it is necessary to determine whether a material or substantial condition exists. Common defenses include: lack of standing; expiration of limitations; waiver; abandonment; estoppel; laches; selective enforcement; prior written approval; changed conditions; conflict with a statute; and failure to follow association procedures. In order to raise a defense, the responding owner must rely on a specific date and document to demonstrate a reason why the deed restriction should not be enforced against the respondent. These defenses are different than a challenge to individual procedural steps taken by the board in enforcing the restriction. Where a challenge is made to the enforcement action itself, the response should begin with a detailed review of the association documents and the proceedings leading to the action to be challenged. As described above, the fundamental issues in defending against an enforcement action include whether the deed restriction prohibits the conduct and whether the condition exists. Modification is different from defending the association's notice or fine. Deed restrictions may generally be extended, created, added to, or modified by the association by the proper methods. Section 201.013 describes the procedures an association must follow to do so. See Chapter 15 of Texas Deed Restrictions: Understanding and Enforcing Future Restrictions in Multifamily Residential Properties. Please consult a qualified real estate attorney for representation with respect to the appropriate action, if any, that should be taken with regard to a specific enforcement action. Many declarations will require a stated owner-vote threshold.
Litigation Options
As a practical matter, it is usually in a homeowner's best interest to attempt to resolve disputes outside of a courtroom. Before spending money for an attorney to pursue litigation, a homeowner should consider the likelihood and potential damage of a judgment being taken against her. He should consider her chances for success on a merits trial, and she should consider the emotional toll that a trial would take on her and her family. The beginning of Chapter 14 of Texas Deed Restrictions: Understanding and Enforcing Future Restrictions in Multifamily Residential Properties discusses appropriate methods and considerations for dealing with enforcement of deed restrictions.
Limitations Periods on Enforcement of Deed Restrictions
It is important to understand the limitations period that may apply to enforcement of the deed restriction in which the association is attempting to assert authority. The time period for suing based on an alleged deed restriction violation may be only a matter of months. Limitations periods vary depending on the nature of the violation, such as an injury or damage to the association. For purposes of a deed restriction enforcement action, the limitation period may be analyzed as follows: The Texas Civil Practice and Remedies Code provides a residual four-year statute of limitations period in Section 16.051 for actions for which a statute does not otherwise provide the statute of limitations period. Most private enforcement claims concerning deed restrictions are analyzed through this lens. However, it is important to keep in mind that the accrual date for enforcement claims can be contested under the facts and circumstances specific to each case. The date of installation of an open, visible fence is obviously different from the date of a concealed structural change where it was not disclosed. It is important to maintain proper documentation of all relevant dates and circumstances. This includes photos of the fence from different angles, building permits and approvals, letters from the association giving approval for fence height, work orders, contractor invoices or construction contracts, real estate listing photos, and resale disclosure documents from prior sales. Continuing conditions can create harder questions. Having an unapproved structure on the property for many years is a different fact pattern from regular rental or use of the property in a manner inconsistent with the deed restriction. Having one violation a week for several months is not the same as having one violation. While limitations periods should not be treated as permission to ignore notices sent by the association, these dates and facts should be addressed and documented thoroughly in defense of enforcement actions. See Chapter 12 of Texas Deed Restrictions: Understanding and Enforcing Future Restrictions in Multifamily Residential Properties, Section "Limitations on Enforcement."
Application of the Time Limits
Building a Timeline: In order to calculate when the limitations period has expired, it is necessary to understand the basis for the accrual date and to build a timeline and/or chronology of events affecting and related to the alleged violation.
Implications of Limitations Periods in Sale: If the association is considering initiating enforcement action, it is important to consider the impact of the limitations periods on a pending sale. A buyer could raise this as a basis to rescind the contract or reduce the purchase price. If a limitation is about to expire and a sale is pending, the association should consider whether it is appropriate to accelerate the process.
Preventative Measures
The following are a few of the preventative measures homeowners might consider to reduce the risk of violating deed restrictions:
The easiest and most effective way to avoid unintentionally violating a deed restriction is to check the restriction before spending any time and money on a project. Whether installing a fence, replacing your kitchen countertop, or remodeling the living room, it's usually a good idea to read the declaration of restriction, the architectural guidelines, and the amendment history of the restrictions in your community before you finish the blueprint or sign the contractor.
For exterior work, submit a building permit application with the association at least two weeks before starting the work. Be sure to include drawings, architectural plans, survey markup, photos or samples of colors and materials, product data sheets, contractor scope of work, landscaping plan or notes about drainage (where appropriate), and schedule of work. Submit all work applications in writing. It is sometimes helpful to ask the association in writing if there are any conditions or requirements imposed by the declaration or adopted rules governing the scope of the project. Save all letters approving or denying applications and correspondence received from the association regarding the application in the property files or records. Keep copies of any notices sent to the association about the project and any photos or videos of the finished project.
Homeowners in active associations should develop some "habits" to reduce the risk of inadvertently violating deed restrictions:
- Email the manager the day before undertaking any visible exterior work; this can give the association time to ask for changes or adjustments.
- Keep in one folder approvals, denials, notices received or sent, photos of the finished project, and ledgers concerning the project for your records.
- Attend community meetings, especially those where the agenda includes enforcement or architecture issues.
- Request a written clarification of any subjective language or conditions contained in the declaration and the rules of the association.
- If a buyer is going under contract, make sure to update the buyer of any open notices that could impact the sale and keep the buyer informed as proceedings develop. It's often appropriate to make the written disclosure about notices that may become actionable during the buyer's option period and request that the buyer acknowledge receipt before the option period expires.
Good record keeping is an essential element to minimizing the risk of restriction-related disputes. A review of the deed restriction documents early in the process can go a long way to avoiding expensive enforcement disputes and unanticipated consequences.
Texas deed restriction enforcement mostly is a documents-and-deadlines problem: Know where you can find the recorded covenant and confirm who has authority to enforce it, find and answer every notice sent from the association or manager in a timely fashion, exercise your right to a hearing if one is offered, keep good proof of any structure or materials installed, and if liens or other enforcement actions are outstanding when you sell the property, resolve those liens or obtain required approvals before the sale. If curing the issue turns out to cost more time or money than the sale can absorb, compare the effects of attempting to sell the property "as is" versus making repairs or negotiating, or prepare a legal response and challenge the enforcement. If you'd like, GetHomeCash will review homes with unresolved repair or compliance issues and help you explore your options, including a cash offer without the repairs.