Working with deed restrictions in POA’s

Working with deed restrictions in POA’s

Deed restrictions are part of a bundle of legal obligations and entitlements that usually go along with home ownership in community interest developments. Deed restrictions place limits on what the homeowner can or cannot do to their home, and can be added on by the builder or developer, the homeowner’s association or even a previous owner.

In Texas, Property Owners Association law is a unique practice area that governs the implementation of rules and regulations for any type of common interest entity, such as HOA’s. The requirements for the enforcement of restrictive covenants are covered under Chapter 209 of the Texas Property Code.

What deed restrictions are

A deed restriction is essentially a contract that can govern what plants are allowed in the yard, the appearance of the home, the color of the paint allowed, the building materials used, as well as the proximity to other homes and if additions to the homes are allowed. Local, county or state regulations may also place limitations on pets or livestock.

While some deed restrictions have expiration dates, often they are in the HOA or community bylaws and are difficult to remove unless both parties, including the party that placed the restriction to begin with, agree to remove it. This usually requires a vote by the association, or if from a local government entity, the city council or zoning board.

Enforcement of deed restrictions

By law, there are due process requirements that a POA must follow when a homeowner has violated the community interest entity’s restrictive covenants. The POA must provide timely notice to the owner, called the 209 Letter, that informs them of the nature of the violation, amount due to the POA and what measures the homeowner may take. A POA may lose the right to recover attorney’s fees if the 209 Letter is not sent in a timely manner.

The homeowner:

  • must be allowed a reasonable period to cure the violation
  • may request a hearing
  • be entitled to special rights or relief under federal law, such as the Servicemembers Civil Relief Act.

The POA may pursue a civil suit against the homeowner if they fail to take curative action, and a judicial order will compel the homeowner to take action or face fines or imprisonment. The POA may also charge attorney’s fees to the owner’s account and seek civil damages for each day of the violation.

While it is unfortunate when a POA must start action against a neighbor to enforce restrictive deeds, having legal counsel with in-depth knowledge of POA law to keep the lines of communication open with the homeowner often leads to quick and amicable resolution.