Top HOA Questions & Answers
How are Homeowners Associations in Texas Governed in General?
Texas associations are administered by a board of directors (or just “board”) elected by homeowners in accordance with the association’s declaration of covenants (“declaration”) and bylaws. Tex. Prop. Code §§202.001, 204.004, 209.00593. If provided in the declaration, the developer can appoint board members while the community remains in the development phase, but not longer than 120 days after 75 percent of homes in the community have been sold to an owner other than the developer or a commercial home-builder. Tex. Prop. Code § 209.00591(c).
An HOA’s board appoints officers to carry out the board’s duties and powers and to otherwise act on behalf of the association. Officers and directors have a fiduciary relationship toward members and the HOA and must therefore act reasonably within the association’s and members’ best interests and avoid self-dealing or conflicts of interest. Tex. Prop. Code § 209.0052; Tex. Prop. Code § 82.103.
Duties and powers of an HOA’s board, granted under the TPC and the community’s declaration, include enforcing covenants, adopting budgets, assessing and collecting member fees, appointing of agents to act on the association’s behalf, maintaining of commons areas, and acting on behalf of the association in legal matters. Tex. Prop. Code § 204.010. An HOA board is also empowered to adopt rules for the administration of the community. Tex. Prop. Code § 209.002(4).
An HOA’s corporate structure is governed by its articles of incorporation, a legal document prepared when the association organizes as a corporation and registers with the Texas Secretary of State. Eligibility criteria and duration of terms for officers and board-members are usually set forth in the declaration, bylaws, or articles of incorporation. Most communities provide for annual terms.
An association’s declaration is recorded with the county land records of the county in which the HOA is located. A declaration does not become technically effective until it is filed in the land records. Tex. Prop. Code § 202.006(b). Along with describing the duties and powers of the board and officers, a declaration sets forth the association’s restrictions and covenants, the manner in which HOA voting and elections occur, the process for calculating and collecting assessments, and any restrictions on the powers of the board or association. Tex. Prop. Code §§ 202.006, 204.001.
Lot owners and any occupants of homes within an association are legally bound to comply with the restrictions and covenants stated in the declaration. See generally Tex. Prop. Code § 209.006. HOA boards are empowered to impose penalties or take legal action to correct violations, and individual lot owners may also bring compliance actions against non-compliant owners. Tex. Prop. Code § 202.004.
HOA members have a right to vote on certain association matters, including election of board members and adoption or amendment of covenants. Voting generally occurs at member meetings, which must be held at least annually. Tex. Prop. Code § 209.014. Notice of member meetings must be provided to all members ten to fifty days in advance. Tex. Prop. Code § 209.0056. If a declaration allows for voting outside of member meetings (by written, electronic, or absentee ballot, for instance), notice must be provided at least twenty days in advance of the ballot-submission deadline. Id. Members must be afforded the option of voting via absentee ballot or proxy, should they so choose. Tex. Prop. Code § 209.0592(a-1).
All member votes must be recorded in writing if the vote pertains to the election or removal of a board member, an amendment to a declaration, or a regular assessment increase or special assessment. Tex. Prop. Code § 209.0058(a). Only the person responsible for counting votes may be allowed access to ballots. Tex. Prop. Code § 209.00594(c).
Board meetings must be open to all members, except that special executive meetings may be closed for the purpose of discussing litigation, negotiations, personnel matters, and confidential member information. Tex. Prop. Code § 209.0051. The board must create and retain minutes of all board meetings. Tex. Prop. Code § 209.0051(d). A board cannot consider or vote on certain important matters outside of an open board meeting, including fines, foreclosure actions, assessment increases, suspension of member rights, annual budget approval, capital improvements, and officer appointments. Tex. Prop. Code § 209.0051(h).
Where do HOAs get their Authority?
A Texas association’s authority is primarily derived from its declaration of covenants, articles of incorporation, bylaws, and the Texas Property Code. The declaration is essentially a contract between all members of a community under which homeowners agree to comply with certain covenants and restrictions and pay assessments for maintenance of commons areas. Tex. Prop. Code § 202.001(1); see also, e.g., Ski Masters of Tex., LLC v. Heinemeyer, 269 S.W.3d 662, 668 (2008). By purchasing a home within an association community, the homeowner is deemed to have accepted the terms and obligations of the declaration, if it is properly recorded. See, e.g., Village of Pheasant Run Homeowners Ass'n, Inc. v. Kastor, 47 S.W.3d 747 (Tex. App.—Houston [14th Dist.] 2001).
Practically speaking, in most cases home purchasers are provided with a copy of the association’s declaration and bylaws prior to or at closing. Because the declaration is recorded in the county land records, purchasers are also deemed to have “constructive notice” of the covenants at the time of purchase so that there is an “implied covenant” to comply with the community’s rules, even if the purchaser does not actually receive a copy of the declaration and affirmatively consent to the covenants. City of Houston v. Muse, 788 S.W.2d 419 (Tex. App.—Houston [1st Dist.] 1990).
What Restrictions does Texas Law Place on Association Powers?
In interpreting association powers, Texas courts afford substantial deference to an HOA’s declaration, bylaws, and articles of incorporation. Tex. Prop. Code § 204.010. And associations are generally empowered to exercise any powers conferred by the association’s governing documents (subject to express statutory limitations). Tex. Prop. Code § 204.010(19). Restrictive covenants are interpreted liberally to give effect to their purpose and intent. Tex. Prop. Code §202.003.
Texas law prevents associations from enforcing certain designated restrictions. Tex. Prop. Code § 202.007. Prohibited restrictions include restrictions on composting, collecting rainwater, irrigation systems, and water-conserving turf, though associations are permitted to impose reasonable requirements or standards. Texas HOAs are also limited in the extent to which they can regulate political signs and solar panels. Tex. Prop. Code § 202.009-010.
All association actions and governing documents must comply with any applicable federal laws, including the FHA and ADA. An association’s governing documents may further restrict the powers which the board may exercise.
The fiduciary duty of board members and officers requires that they act in good faith, in the best interests of the association and its members, and exercise ordinary prudence in carrying out their powers. An association cannot enter into a contract with a board member or relative of a board member unless the board accepts other bids on the contract, the board member does not discuss or vote on the bids, and the other board members approve the contract after disclosure of any material facts. Tex. Prop. Code § 209.0052.
Board members are also answerable to homeowners through elections at annual member meetings in accordance with voting procedures set forth in the declaration or bylaws. Tex. Prop. Code § 209.0056. Texas law prohibits HOAs from restricting a member’s right to vote in board elections or run for a position on the board. Tex. Prop. Code §§ 209.0059(a); 209.00591. An association’s declaration may also provide a mechanism for removal of officers and directors.
Property management companies acting as “debt collectors” are generally prohibited by the FDCPA from publicizing member information relating to assessments. Sensitive identifying information relating to members may be protected by other state and federal laws protecting confidential information. Confidential member information is expressly excluded from the records available for member review. Tex. Prop. Code § 209.005(k).
What Budgetary Requirements Does Texas Law Place on Associations?
Texas law empowers associations to adopt and amend budgets for common expenses to be funded through assessments paid by members. Tex. Prop. Code §§ 204.010(2), 82.102(2). Annual budgets and budget amendments increasing a budget by more than ten percent may only be considered and voted upon by a board at an open meeting for which notice has been provided to members. Tex. Prop. Code § 209.0051(h)(12). Specific standards and methods for adopting budgets and calculating assessments are normally set forth in an association’s declaration, bylaws, and/or articles of incorporation, and the board has a duty to comply with those requirements.
Can Members of Texas Homeowners Associations Remove Board Members?
Texas’s HOA statutes do not provide a general mechanism for removal or recall of board members, though the law acknowledges the possibility of removal. See Tex. Prop. Code § 209.0058(a). Many associations include within their declarations or bylaws procedures for removal of derelict or overbearing board members by member vote. Votes relating to the proposed removal of a board member must be taken by written ballot signed by the voting members. Tex. Prop. Code § 209.0058(a)(5).
In the specific instance that an HOA board is presented with written evidence from a law-enforcement database demonstrating that a board member was convicted of a felony or crime involving moral turpitude within the past 20 years, the board member is automatically removed by operation of law. Tex. Prop. Code § 209.00591(b).
How Does a Texas Association Amend its Governing Documents?
Texas law requires amendment of HOA declarations via member vote. Tex. Prop. Code § 204.005. A proposed amendment must be set forth in a petition circulated by the association to all members for review. Tex. Prop. Code § 204.005(e). Voting can be conducted via written ballot, at a member meeting, via circulation of a door-to-door petition, or a combination resulting in sufficient member approval. Tex. Prop. Code § 204.008(1).
Declaration amendments generally require approval by at least 67 percent of eligible property owners unless the declaration prescribes a lower percentage. Tex. Prop. Code § 209.0041(h). An amendment of a restriction requires approval of at least 75 percent of members, unless the declaration sets a lower percentage, and becomes binding on all properties upon recording. Tex. Prop. Code § 204.005(b).
A board of directors, acting on behalf of the association, is empowered to amend an HOA’s bylaws, with any such amendment to occur pursuant to the amendment procedure set forth in the association’s declaration or existing bylaws. Tex. Prop. Code § 204.010(1).
An amendment to a condo association’s declaration also requires approval by member vote, with a two-thirds majority required unless the declaration specifies a greater majority. Tex. Prop. Code §§ 81.111, 82.067.
Can Texas Associations Regulate Exterior Appearance of Homes?
Texas associations have considerable discretion in adopting and enforcing restrictive covenants, including restrictions relating to exterior appearances of structures and improvements, as long as the community’s declaration grants authority for the type of regulation contemplated. Tex. Prop. Code § 202.003(a). This could potentially include anything from exterior color, fences, lawns and artificial turf, parking, and trash-can placement, to restrictions on above-ground pools and trash receptacles. A Texas association, or an architectural review board acting on its behalf, is authorized to implement and record written architectural review guidelines regulating exterior appearance and new improvements. Tex. Prop. Code § 204.010(18).
Notwithstanding the generally wide discretion afforded to HOAs to regulate exterior aesthetics, Texas law limits or prevents restrictions in a few specific areas – most notably, political signs, religious displays, roofing materials, solar panels, stand-by generators, and drought-resistant landscaping and water-conserving natural turf. Tex. Prop. Code § 202.007, 009-010, 018, 019.
Associations cannot prohibit standby electrical generators that comply with applicable safety codes but can place reasonable restrictions on their placement and require generators to be screened. Tex. Prop. Code § 202.019.
An HOA can regulate placement of solar panels but is not permitted to ban them as long as the panel does not threaten public safety or violate another law. Tex. Prop. Code § 202.010. However, developers can limit installation of solar panels while the community is in its development period. Tex. Prop. Code § 202.010(f). There is also a very limited exception allowing restrictions on solar panels that would cause unreasonable discomfort or annoyance to persons of ordinary sensibilities. Tex. Prop. Code § 202.010(e).
Texas law protects roofing shingles which are weather-resistant, energy-efficient, or have solar-generation capabilities. Tex. Prop. Code § 202.011. An HOA can, though, regulate aesthetics of shingles if the proposed shingles do not match other properties in the area or are not durable. Id.
Texas HOAs are generally prevented from enforcing restrictions on members’ display of political signs during election season. Tex. Prop. Code § 202.009. The protection extends from 90 days prior to an election until 10 days after. Texas associations can limit political signs by regulating certain aesthetic and physical attributes and may limit the size of signs over four feet by six feet. Tex. Prop. Code § 202.009(c). HOAs can also restrict signs with content that would be offensive to an ordinary person or if a sign is distracting to motorists. Id.
Religious displays on a member’s door or doorframe are protected if motivated by sincere religious belief. Tex. Prop. Code § 202.018. Displays which threaten public safety, are patently offensive, are located somewhere other than in the entryway to the member’s dwelling, or are otherwise illegal are not protected. Tex. Prop. Code § 202.018(b). Associations are authorized to remove religious displays or political signs that violate a restriction that complies with Texas law. Tex. Prop. Code §§ 202.009(d), 202.018(d).
Discretionary enforcement actions taken by an HOA are presumed to be reasonable unless shown to have been arbitrary, capricious, or discriminatory. Tex. Prop. Code §202.004(a). However, “the courts in Texas have approached restrictive covenants with some skepticism,” resolving ambiguities in favor of homeowners’ property rights. Tarr v. Timberwood Park Owners Ass’n, 61 Tex. Sup. Ct. J. 1174 (2018), quoting David A. Johnson, One Step Forward, Two Steps Back: Construction of Restrictive Covenants After the Implementation of Section 202.003 of the Texas Property Code, 32 Tex. Tech L. Rev. 355, 358 (2001). Thus, Texas courts will not broadly read a restriction to limit an owner’s use of property that is “not plainly prohibited” by the language of the restriction. Id.
Further, an association’s right to enforce a restriction can be effectively waived if the association previously acquiesced to or failed to consistently enforce the restriction. Cowling v. Colligan, 312 S.W.2d 943, 945 (Tex. 1958).
Can Texas Associations Prohibit Display of the American Flag?
The federal Freedom to Display the American Flag Act of 2005 (Pub.L. 109–243, 120 Stat. 572, enacted July 24, 2006) forbids homeowners associations from banning display of the American flag. An association may limit the time, place, and manner in which the flag is displayed, as long as the limitation promotes a substantial interest of the association.
Along with the U.S. flag, Texas law also protects HOA members’ right to respectfully display the state flag of Texas and the flags of each branch of the U.S. armed services. Tex. Prop. Code §202.012. Certain flagpole regulations are permissible, and associations can require that flags on display be maintained in good condition.
Can a Texas Homeowners Association Impose Rental Restrictions or Screen Prospective Tenants?
In general, Texas law does not prohibit associations from imposing restrictions relating to occupancy or leasing, so an unambiguous restriction promoting a substantial interest of the association and enforced in a non-arbitrary manner will probably be upheld. However, a board cannot unilaterally impose a restriction; it must be authorized by the association’s declaration, or by a validly adopted amendment thereof. And all restrictions must be enforced uniformly.
The Texas Supreme Court recently limited HOA power to enforce short-term rental restrictions in Tarr v. Timberwood Park Owners Ass’n, 61 Tex. Sup. Ct. J. 1174 (2018). In that case, the court held that a restriction which limits use of properties in the HOA to single-family residences could not be construed so as to prevent short-term rentals. The court held that, because the restriction did not plainly prohibit short-term rentals, the restriction was not violated as long as the short-term renters were using the home for residential purposes.
Texas does not permit associations to require that prospective tenants be screened or otherwise approved by the board. Tex. Prop. Code § 209.016. Likewise, associations may not require that a tenant or prospective tenant’s credit report, rental application, or lease be provided to the HOA at the time of application. Id.
Texas associations are also prohibited from enforcing a restriction that would prevent a property from being used as a “family home,” as defined in Texas’s Disabled Persons Location Act. Tex. Prop. Code § 202.003(b).
What Actions Can a Texas Association Take to Remedy a Violation?
An association’s remedies against non-compliant members are the penalty mechanisms provided in the declaration and by statute and/or legal proceedings instituted against the non-compliant owner. If authorized by the governing documents, an association may levy fines for violations of a community’s declaration, bylaws, or rules. Tex. Prop. Code § 209.006. Before the fine is imposed, the association must provide notice of the violation and the opportunity to cure, if the violation is curable. Id. The member has a right to request a hearing before the board or a committee it appoints. Tex. Prop. Code § 209.007.
If a violation arises from a restriction on political signs or religious displays and the restriction complies with Texas law, an association is empowered to use “self-help” to remove the sign. Tex. Prop. Code § 202.009(d), 018. HOAs are not otherwise statutorily authorized to trespass upon an owner’s property without permission. A community’s declaration and deeds to individual lots within a community may grant easements in favor of the association, allowing access to member properties for specific purposes, such as to maintain common elements.
Texas associations are empowered to institute legal proceedings to enforce restrictive covenants. Tex. Prop. Code § 202.004(b). Before filing suit, the association must provide advance written notice including an opportunity to cure the violation if possible. Tex. Prop. Code § 209.006. Notice is not required for suits to collect assessments or foreclose upon a lien. Even if an association neglects to pursue enforcement action, another owner can file a suit to enforce a restriction against a non-compliant member. See, e.g., Cox v. Melson-Fulsom, 956 S.W.2d 791 (Tex. App.—Austin 1997).
Texas law places a statutory cap of $200 per day on civil money damages an association can be awarded in court based upon a member’s noncompliance with a restrictive covenant. Tex. Prop. Code § 202.004(c). In addition to civil damages, associations may also seek a court order directing members to correct noncompliance and refrain from further violations. An HOA may collect from a non-compliant member the actual attorneys’ fees and reasonable costs incurred in enforcing covenants, provided the member is given written notice of the potential for attorneys’ fees and an opportunity to be heard. Tex. Prop. Code §§ 204.010(11), 209.008.
What Can Homeowners do if the Board Fails to Hold Meetings and Fill Vacant Seats?
Vacant board positions are appointed by the remaining board members and serve until the end of the unexpired term. Tex. Prop. Code § 209.0593(a). An association board cannot consider or vote on a board vacancy except at a board meeting open to members. Tex. Prop. Code § 209.0051(h). Texas’s HOA laws do not provide a specific mechanism for members to address a situation in which a board fails to fill vacant board positions, though this scenario may be addressed in an individual association’s governing documents.
If an association board fails to hold member meetings at least annually, a member can serve a demand for a meeting of members via certified mail. Tex. Prop. Code § 209.014. If the board still fails to call a meeting, at least three members can form an election committee and call a special member meeting for the sole purpose of electing a new board. Id.
Does Texas Law Require an HOA Board to Seek Member Approval for Rate Increases and Special Assessments?
The protocol for calculating assessments is set forth in an association’s governing documents. Under Texas law, an association’s board may not consider or vote on assessment increases, except in an open meeting of which members have been provided notice. Tex. Prop. Code § 209.0051(h)(5). If a declaration allows an association to increase maximum regular assessments without a member vote, the association has the authority to do so annually or after a period of years. Tex. Prop. Code § 204.010(16).
Associations can make special assessments to cover the costs of unexpected repairs, replacements, or reconstruction of common elements; or for the maintenance and improvement of common areas. Tex. Prop. Code § 209.002(12). Special assessments cannot be considered or voted upon except in an open meeting of which members have been provided notice. Tex. Prop. Code § 209.0051(h)(6).
If the declaration requires member votes for special assessments or increases in regular assessments, votes must be made in writing. Tex. Prop. Code § 209.0058(a)(4).
What Documents Must an Association Maintain and Disclose?
A Texas association must maintain its books and records, including governing documents, financial records, tax and audit records, association contracts, and written meeting minutes for all board and member meetings. Tex. Prop. Code § 209.005(m). Owners have the right to review the books and records of an association, including financial records, and to obtain copies of information in the records. Tex. Prop. Code § 209.005(c). Documents relating to an attorney’s representation of an association, another owner’s personal information, or an association employee are expressly excluded from production. Tex. Prop. Code § 209.005(d), (k).
A member’s request for review must be made in writing via certified mail and identify the documents subject to the request. Tex. Prop. Code § 209.005(e). The requesting owner can either elect to inspect the books or to receive copies from the association, either of which must be made available within ten days. Tex. Prop. Code § 209.005(e). If copies are requested and the association has a copying policy in place that allows for charges, the association may charge to the requesting member the reasonable costs of materials, labor, and overhead. Tex. Prop. Code § 209.005(i).
If a member is denied access, the member can petition the local justice of the peace – after providing the association ten days’ notice of intent - for a judgment against the association ordering that the records be made available, along with an award of attorneys’ fees and costs. Tex. Prop. Code § 209.005(n).
What Laws Empower Texas Homeowners Associations to Collect Assessments?
Texas’s Property Code authorizes associations to collect regular and special assessments in accordance with the association’s governing documents. Tex. Prop. Code §204.001(3) and (4). Associations may also impose interest, late fees, and returned check charges for late assessment payments. Tex. Prop. Code § 204.010(10). The Texas Supreme Court has also held that, with regard to an HOA with covenants requiring members to pay assessments, the association’s "right to require that all property owners pay assessment fees is an inherent property right. That no owner has to pay more than a pro rata share is an essential characteristic of the property interest.” Inwood N. Homeowners' Ass'n, Inc. v. Harris, 736 S.W.2d 632 (Tex. 1987).
Collection costs incurred in collecting delinquent assessments may be charged if allowed by the association’s governing documents. Tex. Prop. Code § 509.0064(a). However, before adding collection costs to an owner’s account balance, the association must provide written notice by certified mail. The notice must advise the member of the delinquent amount, the member’s options for avoiding collections, and that the member may avoid collections by curing the delinquency within a cure period of at least 30 days.
Texas associations including at least 14 homes are required to adopt policies for alternate payment schedules for assessments, allowing members to pay assessments under a schedule that extends for between three and eighteen months. Tex. Prop. Code §209.0062. A member making payments on an alternate payment schedule does not incur additional monetary penalties, other than any applicable interest and costs of administering the plan. Id.
Does an Association have Authority to Attach Rent or Evict Members’ Tenants?
Texas’s HOA laws contemplate neither an association’s attaching rent owed to a member by the member’s tenant, nor eviction by an association. Under the Uniform Condominium Act, a condo association is authorized to amend its declaration to permit the board to pursue an eviction action against a tenant who violates the association’s governing documents – or if the owner of the unit refuses to pay assessments. Tex. Prop. Code § 82.067(h). A condo association may also amend its declaration to allow the board to attach rent payments from a unit owner’s tenant if the unit owner’s assessments are at least 60 days delinquent. Id. To pursue either remedy, the condo association must be expressly authorized by its declaration.
Can a Texas Association Record a Lien for Unpaid Assessments and Fines?
Declarations usually provide associations with liens on lots within the community to secure payment of assessments and other charges from homeowners. If member payments are delinquent, a Texas HOA can record a lien for unpaid assessments or other charges by recording a lien notice in the county land records. Tex. Prop. Code § 209.0094. The details of how a lien operates and when a lien notice can be filed are largely controlled by the association’s declaration.
In Texas, both HOAs and condo associations are authorized to foreclose on a lien that is properly authorized and recorded. Tex. Prop. Code § 209.009 – 0011; Tex. Prop. Code § 82.113.
What are the Limitations on HOA Collection and Foreclosure Suits in Texas?
Texas associations are empowered to institute legal proceedings to collect unpaid assessments and enforce restrictive covenants. Tex. Prop. Code § 202.004(b). The association must provide advance written notice, including an opportunity to cure a violation, before filing a suit to enforce covenants, but notice is not required for suits to collect assessments or foreclose upon a lien. Tex. Prop. Code § 209.006.
Texas law allows nonjudicial (i.e., outside of court) foreclosure, but only if the association holds a valid lien, the declaration expressly provides for a power of sale, and the association first obtains a county court order for expedited foreclosure under the Texas Supreme Court rules. Tex. Prop. Code §§ 209.008(f), 209.0092. Before foreclosing on a lien, an association must provide notice to any lien-holders of record, who must be afforded the opportunity to cure the delinquency. Tex. Prop. Code §§ 209.0091. As an alternative to the expedited foreclosure process, an association may pursue a judicial foreclosure and order of sale by sheriff or constable. Tex. Prop. Code § 209.0092(d).
Foreclosure may not be pursued by an association if the underlying debt only includes fines, attorney’s fees relating to fines, or charges relating to copying or a recount requested by the member. Tex. Prop. Code § 209.009. The amount of attorneys’ fees recovered through a foreclosure sale cannot exceed $2,500, though any excess fees owed may be pursued through a separate collection action if otherwise recoverable. Id.
Within 30 days following a foreclosure sale, the foreclosing association must provide notice of the sale via certified mail to the lot owner and all lien-holders of record. Tex. Prop. Code § 209.010. Within 180 days following the notice of sale, the owner has the right to redeem the property by paying all amounts owed at the time of the sale, with interest, foreclosure costs including attorneys’ fees, taxes and recording fees, any post-foreclosure assessments or costs incurred by the association or third-party purchaser relating to the property, and the purchase price after deducting amounts applied toward the lien. Tex. Prop. Code § 209.011.
If a foreclosed property is occupied, the association must institute a forcible entry and detainer action to recover possession. Tex. Prop. Code § 209.011
If ten percent of community members join in a petition, Texas law expressly grants members the right to call a special meeting to remove or amend an association’s foreclosure powers. Tex. Prop. Code § 209.0093. At the special meeting, amendment or restriction of foreclosure power requires approval by two-thirds of members. Id.
Texas’s homestead protection law, embodied in Article XVI of the Texas Constitution, can protect a homeowner against foreclosure of a primary residence in some situations. With regard to HOA foreclosures, the homestead law prevents foreclosure if the HOA’s lien attached to the property "simultaneously to or after the homeowners took title,” but not if the lien attached before the homeowner acquired title to the property. Inwood N. Homeowners' Ass'n, Inc. v. Harris, 736 S.W.2d 632 (Tex. 1987). Assessment liens are generally considered to attach at the time of the declaration’s filing if the lien is authorized in the declaration. Boudreaux Civic Ass'n v. Cox, 882 S.W.2d 543 (Tex. App.—Houston [1st Dist.] 1994).
Which State Officials Have Jurisdiction over HOAs, Management Companies, and Developers in Texas?
No state regulatory agency directly exercises full regulatory authority over Texas HOAs or condo associations. As incorporated entities, associations are required to register with the Texas Secretary of State and maintain a registered agent for service of official process. The Texas Secretary of State has authority over any nonprofit and for-profit corporations in the state with regard to matters of corporate governance.
Property management companies in Texas may be licensed and regulated by the Texas Real Estate Commission, if the manager is involved in selling, leasing, or listing for sale any properties. Developers and contractors in Texas are not specifically regulated at the state level, though many county and municipal governments require licensing at the local level.
What can Homeowners do if an HOA is not Responsive to Complaints?
It’s usually best to try to resolve problems with an association by talking things out or using the association’s democratic processes, as set forth in the declaration. Under Texas law, members of an HOA have a right to attend board meetings and to be heard at regular member meetings. Tex. Prop. Code § 209.0051.
It’s generally a good idea to keep records of any written communications with the association and to take and preserve contemporary notes of any verbal communications. In the event of future retaliation, thorough records can help demonstrate when an association has acted arbitrarily or capriciously.
If a board member is abusing power or acting unfairly, members can try to elect someone else for the next term. Tex. Prop. Code § 209.0056. Texas law prohibits HOAs from restricting a member’s right to run for a position on the board, so a dissatisfied member always has the option of running for the board him or herself. Tex. Prop. Code § 209.0591.
Many associations allow for removal or recall of board members – sometimes for cause and sometimes without cause. The process usually involves a member petition followed by a vote of all members, with a super-majority often required. Recall or removal votes must be held by written, signed ballot.
If an HOA board is failing to hold meetings at least annually, members can serve a demand for a meeting of members. Tex. Prop. Code § 209.014. If impropriety or malfeasance is suspected, it may be useful to review the association’s books and records, which members have a statutory right to do. Tex. Prop. Code § 209.005(c).
If non-judicial remedies are unsuccessful or don’t address complaints, it’s important to remember that an association itself is not the final arbiter of disputes between it and its members. If necessary, a homeowner can bring a civil suit against an association, or against another noncompliant member, in the county in which the development is located. Tex. Prop. Code § 202.004; see also, Cox v. Melson-Fulsom, 956 S.W.2d 791 (Tex. App.—Austin 1997). Texas courts view covenants as essentially a contract between the homeowners and the association, which both parties have the right to enforce.
An HOA is authorized to defend suits arising from its failure to meet its obligations. Tex. Prop. Code §§ 202.004(b), 204.010(4). Except in cases involving willful non-compliance, intentional torts, or fraudulent conduct, the association itself – rather than individual officers or board members – is the proper defendant. A suit against an association can seek money damages incurred by a homeowner as a result of the association’s failure to perform its duties or “injunctive relief” – a court order compelling the association to perform duties or enforce covenants.
The Texas statutes do not specifically address remedies available to HOA and condo association members when an association fails to correct a hazardous situation. Depending upon the relevant declaration language and the precise situation, a homeowner may be able to pursue an enforcement suit or a tort action against the association for its failure to properly repair and maintain common elements.
Can a Texas Homeowners Association Suspend Voting Rights and Facility Privileges of Delinquent Owners?
If authorized by the governing documents, Texas associations are legally permitted to suspend common area and facility privileges of non-compliant members. Tex. Prop. Code § 209.006. Before the suspension can become effective, the association must provide written notice to the affected member, including a description of the violation or property damage giving rise to the suspension and any amount claimed due to the association. Tex. Prop. Code § 209.006. The notice must inform the member of a right to cure the violation, if applicable, and to request a hearing. Id. An HOA board is not required to provide notice and an opportunity for a hearing if the violation upon which the suspension is based occurred in a common area and created a significant and immediate risk of harm to others. Tex. Prop. Code § 209.007(d).
Any provision that would prevent a member from voting in a board election or in matters concerning the rights and responsibilities of the member is void and unenforceable. Tex. Prop. Code § 209.0059(a). Likewise, an association cannot suspend a member’s right to run for the board. Tex. Prop. Code § 209.00591.
What Can Homeowners Do if They are Facing Discrimination or Harassment?
A member who believes he or she has been harassed or discriminated against in access to housing based upon race, color, religion, sex, familial status, national origin, or disability can file a complaint under the federal Fair Housing Act or Texas’s Fair Housing Act. FHA Complaints can be filed with the Office of Fair Housing and Equal Opportunity of the Department of Housing and Urban Development. Or, a civil complaint can be filed in federal district court. A complaint under the state statute can be filed with the Texas Workforce Commission.
A member who believes he or she has been harassed or discriminated against in access to public accommodations based upon a disability can file a complaint under the Americans with Disabilities Act. ADA complaints may be filed with the Department of Justice’s Civil Rights Division, or a civil complaint can be filed in district court.
The appropriate response to harassment will depend on the precise nature of the conduct. If the harassment rises to the level of criminal conduct, it should be reported to the sheriff, constable, or local police department. If the harassment relates to collection of debts by a debt collector, the harassed individual can bring a civil action under the federal FDCPA or Texas Debt Collection Act or report the harassment to the federal Consumer Financial Protection Bureau or Texas Department of Banking.
Texas also recognizes a civil cause of action for stalking under which an aggrieved party can recover actual and exemplary damages resulting from harassing behavior. Texas Civ. Prac. & Rem. Code § 85.002.
How Can Homeowners Amicably Resolve Disputes?
While it’s possible for litigation to be conducted amicably, in the vast majority of cases, that’s not what happens. Instead, you get hard feelings, tons of stress, and big legal fees. So, if at all possible, it’s usually best to try to resolve disputes informally.
Sometimes, simple polite communication is all it takes. Before sending a formal letter from an attorney demanding that the board enforce a certain covenant, an owner might instead just talk to a board member or raise the issue at a member meeting. Or, if there’s a disagreement over whether a planned home renovation does or does not comply with the community’s covenants, the owner and the board might try informally negotiating a compromise that satisfies all parties.
Community associations are designed to function as “little democratic sub-societies.” Hidden Harbour Estates, Inc v. Norman, 309 So. 2d 180 (Fla. Dist. Ct. App. 1975). The system works best when there are high levels of community involvement and communication. A petition signed by a substantial number of homeowners can make a big impression on an HOA board – even if the community’s governing documents do not give members formal power to petition the board.
If an HOA-related suit ends up being necessary, and the suit does not involve collection of assessments or foreclosure of a lien, either party (i.e., the member or the association) is authorized to file a motion to compel mediation. Tex. Prop. Code § 209.007(d). And, in any dispute, the parties have the option of agreeing to attend an alternate dispute resolution session. Tex. Prop. Code § 209.007(e). In many situations, having a knowledgeable, neutral third party provide an informed opinion is enough to convince an otherwise obstinate board member or homeowner to reassess a contentious position. If mediation is unsuccessful, the parties can either move forward to litigation or agree to proceed with mandatory arbitration.