Author’s Note and Disclaimer: This article discusses Texas Property Owners Association (“POA”) Law and pertains to single family residential POA’s in Texas only.
Even though a man’s home is his castle, he is still obligated to abide by deed restrictions if that home is in a common interest development encumbered by restrictive covenants. Likewise, property owners associations (POA’s) must consistently enforce their dedicatory instruments in a systematic, uniform, and unbiased manner or run the risk losing their right to enforce them. This article will discuss deed restriction enforcement requirements for Texas POA’s and will seek to provide practical tools and tips to ensure proper enforcement.
1. Notice under Texas Property Code Section 209.006 – the “209 Letter”
The Texas Residential Property Owners Protection Act, codified at Chapter 209 of the Texas Property Code, provides that BEFORE a POA may suspend an owner’s right to use a common area, charge an owner for property damage, levy a fine, or file suit against an owner for a violation of the deed restrictions, the association MUST give written notice to the owner by certified mail (i.e., the “209 Letter”) with the requirements below. The 209 letter must describe the violation or property damage that is the basis for the action, state any amount due to the association, and inform them that he:
(A) is entitled to a reasonable period to cure the violation and avoid the fine or suspension if the violation is of a curable nature and does not pose a threat to public health or safety; and
(B) may request a hearing under Section 209.007 on or before the 30th day after the date the notice was mailed to the owner (not received by the owner); and
(C) may have special rights or relief related to the enforcement action under federal law, including the Servicemembers Civil Relief Act (50 U.S.C. 62 App. Section 501 et seq.), if the owner is serving on active military duty.[1]
If notice and an opportunity to cure or request a hearing has been given to an owner regarding the same violation within the last 6 months, another 209 Letter is NOT required to be sent.[2] However, if the owner cures the violation but repeats it 6 months AFTER the 209 Letter was sent, then another 209 letter must be sent.
2. Hearings under Texas Property Code Section 209.007 – the “209 Hearing”
Deadlines to request and hold the 209 Hearing.
POA’s may lose their right to recover attorney’s fees if a 209 Letter is not timely sent. In Park v. Escalera Ranch Owners’ Assn., the court noted that “Chapter 209 limits an association's attorneys' fees if it delays sending notice. If an association fails to provide presuit notice…it risks forfeiting all or a substantial portion of its attorneys' fees.”[6] Thus, it is imperative that a 209 Letter be sent prior to incurring attorney’s fees or they may not be recoverable.
Requirements under Texas Property Code Section 209.008.
Authority for recovery of attorney’s fees may be found in the statutes below:
The most commonly used method used by POA’s to enforce restrictive covenants is to file a civil lawsuit against the offending homeowner.
Choice of Court.
Contempt of Court.
After obtaining a judgment, if a homeowner violates a court order mandating them to cure a deed restriction violation, the POA may take the homeowner back to court to request an order compelling them to cure the violation or face serious consequences. Per Texas Government Code Section 21.002(b) “[t]he punishment for contempt of a [a District of County Court judgment] is a fine of not more than $500 or confinement in the county jail for not more than six months, or both such a fine and confinement in jail.”[2] Thus, a homeowner who violates a court order requiring them to cure a deed restriction violation may be held in contempt of court, assessed fines, or even serve jail time (although award of the latter is quite rare).
Civil Damages.
In addition to any requested relief, a POA may request that the court assess civil damages for violation of a restrictive covenant “in an amount not to exceed $200 for each day of the violation.[3] Typically, most POAs plead a 5-10 days of civil damages (i.e., $1-2,000) in their deed restriction violation judgments or even more depending on the facts and circumstances of each case.In conclusion, it is vitally important that POA’s diligently and fairly enforce their restrictive covenants in order to maintain and improve a subdivision’s appearance and property values. However, such enforcement must be done with great care and meticulous attention to the requirements set forth in the Texas Property Code and Declaration as well as case law in order to ensure a successful outcome. Should you have any questions regarding any of the above, please do not hesitate to contact us. Thank you!
Attorney at Law/ Shareholder
Daughtry & Farine, P.C.
Houston, Texas
[1] Tex. Gov’t. Code §27.034(a) and (j).
[2] Tex. Gov’t. Code § 21.002(b).
[3] Tex. Prop. Code §202.004(c).
[1] Tex. Civ. Prac. Rem. Code §38.001(8).
[2] Boudreaux Civic Assoc. v. Cox, 882 S.W.2d.
[3] Tex. Prop. Code. 204.010(a)(11). (Please note that Section 204 only applies to certain counties per Tex. Prop. Code. §204.002(a)(1-3).
[1] Tex. Civ. Prac. Rem. Code §38.001(8).
[2] Boudreaux Civic Assoc. v. Cox, 882 S.W.2d.
[3] Tex. Prop. Code. 204.010(a)(11). (Please note that Section 204 only applies to certain counties per Tex. Prop. Code. §204.002(a)(1-3).
Contempt of Court.Civil Damages.
[1] Tex. Prop. Code §209.008(a).
[2] Tex. Prop. Ann. §209.008(b).
[1] Tex. Prop. Code §209.007(a),(b).
[2] Tex. Prop. Code §209.007(c).
[3] Tex. Prop. Code §209.007(a).
[4] Tex. Prop. Code §209.007(d). See also Haas v. Ashford Hollow Cmty. Improvement Ass'n, 209 S.W.3d 875, 2006.
[5] Tex. Prop. Code §209.007(d).
[6] Park v. Escalera Ranch Owners’ Assn., 457 S.W.3d 571 at 604.
[1] See Tex. Prop. Code §209.006(a) and (b)(1-2).
[2] Tex. Prop. Code §209.006(d).