What are the Laws that Govern Texas Homeowners Associations, Condominiums, Cooperatives, and Non-Profit Corporations?
In addition to laws specifically applicable to condominiums and HOAs, Texas community associations are impacted by several federal laws and other generally applicable state statutes - depending, in part, on how the association is structured. The federal and Texas statutes likely to affect Texas HOAs, condo associations, cooperatives, and non-profits include
Texas Property Code (“TPC”). Title 11 of the TPC includes numerous provisions governing the formation, management, powers, and operation of residential HOAs (usually called “Property Owners Associations” in the statute) in Texas. Chapter 202 of the TPC specifically applies to enforcement of restrictive covenants, and Chapter 204 governs powers of associations in residential communities. Chapter 209 is known as the Texas Residential Property Owners Protection Act and establishes standards applicable to records retention, member notices, voting, assessment collection, and foreclosure, among other things.
Below is a list of statutes applicable to HOAs:
|Title 2, Chapter 5||Conveyances||5.001 - 5.207|
|Title 5, Chapter 51, Subtitle B||Provisions Generally Applicable to Liens||51.0001 - 51.016|
|Title 11, Chapter 201||Restrictive Covenants Applicable to Certain Subdivisions||201.001 - 201.013|
|Title 11 ,Chapter 202||Construction and Enforcement of Restrictive Covenants||202.001 - 202.019|
|Title 11, Chapter 203||Enforcement of Land Use Restrictions in Certain Counties||203.001 - 203.005|
|Title 11, Chapter 204||Powers of Property Owners' Association Relating to Restrictive Covenants in Certain Subdivisions||204.001 - 204.011|
|Title 11, Chapter 205||Restrictive Covenants Applicable to Revised Subdivisions in Certain Counties||205.001 - 205.004|
|Title 11, Chapter 206||Extension of Restrictions Imposing Regular Assessments in Certain Subdivisions||206.001 - 206.004|
|Title 11, Chapter 207||Disclosure of Information by Property Owners' Association||207.001 - 207.006|
|Title 11, Chapter 208||Amendment and Termination of Restrictive Covenants in Historic Neighborhoods||208.001 - 208.009|
|Title 11 ,Chapter 209||Texas Residential Property Owners Protection Act||209.001 - 209.016|
|Title 11, Chapter 210||Extension or Modification of Residential Restrictive Covenants by Petition in Certain Subdivisions||210.001 - 210.009|
|Title 11, Chapter 211||Amendment and Enforcement of Restrictions in Certain Subdivisions||211.001 - 211.005|
|Title 11, Chapter 212||Extension of Restrictions by Majority Vote in Certain Subdivisions||212.001 - 212.011|
|Title 11, Chapter 213||Modification or Termination of Restrictions in Certain Real Estate Developments by Property Owners' Association or Property Owner Petition||213.001 - 213.014|
|Title 11, Chapter 215||Master Mixed-Use Property Owners' Associations||215.001 - 215.018|
Texas Condominium Act, Tex. Prop. Code, Title 7, Chapters 81, 82: The Texas Condominium Act (“TCA,” Chapter 81) and Uniform Condominium Act (Chapter 82) apply to condominium associations, rather than homeowners’ associations, and generally set forth more detailed statutory requirements for condos than what is applicable to HOAs. The two laws govern, among other things, condominium formation, management, operation, and powers; common elements, insurance, and records retention in Texas. Chapter 81 applies to most condominiums with declarations recorded prior to 1994. Chapter 82 governs condominiums with declarations recorded in 1994 or later, along with earlier condos that affirmatively elect to be subject to Chapter 82.
Texas Cooperative Association Act, Tex. Bus. Org. Code, Chapter 251: The Texas Cooperative Association Act recognizes and provides a legal framework relating to general purpose cooperative associations in Texas, including associations incorporated for the purpose of purchasing and maintaining real estate. The law sets forth an outline for the creation, administration, and termination of co-ops; limitations on co-op management; and right of owners. Texas co-ops are usually organized as non-profit corporations but are authorized to operate for profit.
OTHER LAWS REGULATING HOAs
Texas Nonprofit Corporation Act, Tex. Bus. Code, Chapter 22. Chapter 22 of the Texas Business Code governs non-profits with regard to corporate structure and procedure. Homeowners associations in Texas must be organized as non-profit corporations under the Texas Business Code. Tex. Prop. Code §204.004. Condominium associations in Texas may organize as either for-profit or nonprofit corporations. Tex. Prop. Code § 82.101.
To obtain an information report which includes the association’s corporate status, mailing address, registered agent, and list of the association’s current board members and officers, please visit the Texas Comptroller of Public Accounts and conduct a search under the name of the community or development. You may also visit the county’s county recorder’s office to obtain copies of the association’s governing documents, including the Declaration of Covenants, Conditions, and Restrictions (CC&Rs) and amendments.
Federal Fair Housing Act (“FHA”), 42 U.S.C. §3601, et. seq.: The FHA was enacted in 1968 to prevent housing discrimination based on “protected classes,” including race, color, religion, and national origin. Amendments passed in 1974 and 1988 extended the law’s scope to “sex,” “disability,” and “familial status.” 42 U.S.C. §3604. Under the FHA, an association can incur legal liability for taking an adverse action or maintaining a policy that impedes a person’s right to buy, rent, or enjoy the use of real estate based upon that individual’s membership in a protected class. An adverse action can be express discrimination, such as exclusionary covenants preventing sales or leases to anyone within a protected class, or actions which might not include discrimination on the surface, but which result in a “disparate impact” on a protected group.
Texas’s Fair Housing Act, Tex. Prop. Code §15.301, et. seq., provides state-level protections similar to the FHA and is administered by the Texas Workforce Commission. For more information on housing discrimination or to file a housing discrimination complaint, please visit the Texas Workforce Commission’s website.
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 3601-3631: The ADA prohibits discrimination against disabled persons in employment, transportation, public accommodations, communications, and access to government programs and services. An association with common elements accessible to the general public or that acts as an employer must ensure that its activities do not result in discrimination against disabled persons and must make “reasonable accommodations” necessary to allow individuals with disabilities access to facilities and/or employment.
Over-the-Air Reception Devices (“OTARD”) Rule, 47 C.F.R. §1.4000: OTARD protects consumer access to video programming by prohibiting restrictions on installation, maintenance, or use of reception devices. Under OTARD, HOAs and condo associations cannot place unreasonable restrictions on antennas intended to receive local television or wireless cable broadcasts or satellite dishes of not more than one meter in diameter.
Federal Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. §1692, et seq.: The FDCPA regulates the conduct of “debt collectors” collecting debts owed by “consumers” to third parties. HOA fees are considered “debts” under the FDCPA, and homeowners are protected “consumers.” Ladick v. Van Gemert, 146 F. 3d 1205 (10th Cir.1998); Thies v. Law Offices of William A. Wyman, 969 F. Supp. 604 (S.D. Cal. 1997). An HOA collecting its own debts does not qualify as a “debt collector” and is therefore not directly regulated by the FDCPA. However, a third party – such as a collection agency, law firm, or property management company – attempting to collect fees owed to an association may qualify as a “debt collector” under the FDCPA.
Texas’s Debt Collection Act, Tex. Fin. Code §392.001, et. seq., regulates debt collection at the state level and contains provisions similar to the FDCPA. Unlike the FDCPA, though, the Texas statute is not limited to third-party debt collectors and can therefore apply to an HOA attempting to collect delinquent assessments on its own behalf. Texas’s Debt Collection Act is administered by the state’s Dept. of Banking.