Although a man’s home may be 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 restrictive covenants in their dedicatory instruments in a systematic, uniform, and unbiased manner or run the risk of waiving them or having to defend their right to enforce them. This paper will discuss the deed restriction enforcement requirements for Texas POA’s and will seek to provide practical tools and tips to ensure proper enforcement.
ii. Deed Restriction Enforcement for Property Owners Associations under Texas Property Code Section 209
1. Notice under Texas Property Code Section 209.006 – the “209 Letter”
Under the Texas Residential Property Owners Protection Act, codified at Chapter 209 of the Texas Property Code, before a POA may suspend an owner’s right to use a common area, file a suit against an owner other than a suit to collect a regular or special assessment or foreclose under an association’s lien, charge an owner for property damage, or levy a fine for a violation of the restrictions or bylaws or rules of the association, the association or its agent must give written notice to the owner by certified mail (i.e., the “209 Letter”). The notice letter must be sent by verified mail to the owner at the owner’s last known address as shown on the association records.
The 209 Letter must describe the violation or property damage that is the basis for the suspension action, charge, or fine and state any amount due to the association from the owner and inform the owner that he/she:
(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.
209 Letters are typically sent via certified mail-return receipt requested which will satisfy the “verified mail” requirement set forth in Tex. Prop. Code §209.006(b)(4).
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. 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.
The POA’s requirement under Tex. Prop. Code §209.006(b)(2)(C) to inform owners that they may have special rights under federal law in regard to the enforcement action including rights under the Servicemembers Civil Relief Act, may be fulfilled by including the following sample language to their 209 Letters:
Important Notice of Your Rights
Per Section 209.007 of the Texas Property Code, you have a right to a hearing before the Board of Directors. If you desire a hearing, written notice of your request must be received at our office within thirty (30) days of the postmark date of this letter. Upon receipt of your written request, you will be furnished with notice of the date, time and place of the hearing.
If you are serving on active military duty, you may have special rights or relief related to this enforcement action under federal law, including the Servicemembers Civil Relief Act (50 U.S.C. App. Section 501 et seq.).
In addition to the above, there is a distinction made in §209.006 that delineates enforcement procedures for “curable” and “uncurable” deed restriction violations.
a. Curable Deed Restriction Violations
- Definition. Texas Property Code Section 209.006 was amended during the 2015 Texas Legislative Session to address notices for two different types of deed restriction violations – “curable” and “uncurable” violations. A curable violation is one that is ongoing and capable of being remedied by affirmative action. Examples of curable deed restriction violations include maintenance violations, parking violations, noise violations such as a barking dog, and failure to construct improvements or modifications in accordance with approved plans and specifications.
- Additional Notice Requirements. In addition to the requirements above, the 209 Letter for a curable violation which does not pose a threat to public health or safety must also specify the date by which the owner must cure the violation and this timeframe must be reasonable.
- Fines. If the owner cures the violation before the expiration of this time for cure, a fine may not be assessed for the violation.
b. Uncurable Deed Restriction Violations
- Definition. For purposes of 209.006, a violation is considered “uncurable” if the violation is a one-time violation that is NOT ongoing, continuous, or capable of being remedied by affirmative action. (In other words, any violation which does not continue so that a cure date makes no sense.) Simply not repeating the uncurable violation is not considered an adequate remedy. Examples of uncurable deed restriction violations are an act constituting a threat to health or safety, shooting fireworks, a noise violation that is not ongoing, or property damage including the removal or alteration of landscape, or holding a garage sale or other event prohibited by a dedicatory instrument.
- Notice Requirements. For uncurable violations or violations that do pose a threat to public health or safety, the Association does NOT need to give reasonable period of time or a date by which to cure the violation. As such, the POA may suspend common area privileges or assess fines (if appropriate) prior to the 209 hearing.
2. Hearings under Texas Property Code Section 209.007 – the “209 Hearing”
a. Deadlines to request and hold the 209 Hearing.
- Owners may request a 209 Hearing on or before the 30th day after the date the POA mails the 209 Letter. If hearings are before a committee, the 209 Letter must state that owners have the right of appeal to the Board.
- The POA must hold the hearing within 30 days of the owner’s request and must notify the owner of the date, time, and place of the hearing at least 10 days before the hearing. Either party may request one postponement for a maximum of 10 days or additional postponements may be granted by mutual agreement of the parties. Audio recordings of the meeting are allowed.
- The 209 Hearing should enable the parties to “to discuss and verify facts and resolve the matter in issue.” The Association should have procedures firmly in place ahead of time for such hearings in order to foster an open and respectful atmosphere for all parties involved. Homeowners should be given ample opportunity to be heard to present their position on the issue and the Board should be prepared to ask questions and obtain necessary facts to come to a fair and equitable conclusion. After the homeowner leaves, the Board should discuss/vote on the matter and communicate the final decision to the homeowner in writing.
Again, the 30-day period for the homeowner to request a hearing runs from the date the notice is mailed as opposed to when the owner receives it. The POA does not need to provide notice or a hearing to an owner for the SAME violation for which the owner has previously been given notice and the opportunity to cure within the preceding six (6) months.
b. Circumstances under which 209 Hearings are Inapplicable.
- The notice and hearing provisions of Section 209.006 and 209.007 do not apply if the association files a suit for a temporary restraining order or temporary injunctive relief or before filing suit to collect assessments or foreclose a lien due to unpaid assessments. In those instances, either party may file a motion to compel mediation instead.
- The notice and hearing provisions of Section 209.006 and 209.007 also do not apply to a temporary suspension of a person’s right to use common areas IF the suspension is due to a violation that occurred in a common area and involved a significant and immediate risk of harm to others in the subdivision. The temporary suspension shall be effective until the board makes a final determination on the suspension action after following the procedures prescribed by this section.
- Either party may use alternative dispute resolution services.
3. Consequences of Failure to Provide Notice under Section 209.006
In Park v. Escalera Ranch Owners’ Assn., the Third District Court of Appeals in Austin held that a POA’s failure to timely provide the notice required under Texas Property Code Section 209.006 was subject to waiver and was not jurisdictional. In Park, the trial court granted a judgment in favor of the POA to enforce restrictive covenants prohibiting installation of unapproved windows. Dr. Park appealed and asserted that the Association failed to provide him with the required pre-suit notice under Section 209.006 informing him of his right to request a hearing and because of this, the trial court was deprived of jurisdiction and not entitled to hear the case. The Association countered that that the notice requirement of Section 209.006 was not jurisdictional and that Dr. Park had waived this requirement by failing to timely object to not receiving a 209 Letter. The court acknowledged that while pre-suit notice is mandatory under Section 209.006(a), that provision was not jurisdictional and the proper response for a homeowner who is sued without notice would be to file a plea in abatement. The court stated in part that “[n]othing in the plain language of Chapter 209 indicates that the Legislature intended the notice requirement to be jurisdictional.” The court noted that to extent filing suit against a homeowner without notice may cause negative effects like “expense to the defendant in filing an answer, requesting abatement, and otherwise responding to the litigation” or may otherwise thwart the notice requirement of Chapter 209, “the trial court is empowered to remedy [those negative effects] by appropriate sanctions.” Further, 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 or to provide notice before significant litigation costs have been incurred, it risks forfeiting all or a substantial portion of its attorneys’ fees.” Thus, appropriate sanctions for failure to timely send notice under 209.006 include abatement and potentially limiting the recovery of attorney’s fees under Texas Property Code Section 209.008.
1. Requirements under Texas Property Code Section 209.008.
- Notice Required. Clear written notice must be given in the POA’s 209 Letter that attorney’s fees will be charged to an owner’s account if a deed restriction violation continues after a certain date. A POA may be reimbursed for “reasonable attorney’s fees and other reasonable costs incurred by the association…for enforcing restrictions…or rules of the association only if the owner is provided a written notice that attorney’s fees and costs will be charged to the owner if the…violation continues after a date certain.” Thus, the 209 Letter should clearly state the date by which the violation must be cured or attorney’s fees will be incurred.
- No Attorney’s Fees before 209 Hearing. If attorney’s fees are incurred BEFORE the conclusion of the 209 Hearing or before the date by which the owner must request a hearing if none is requested, then the owner would not be liable for those attorney’s fees.
- Section 209.008 Not Applicable to Assessments. Texas Property Code Section 209.008(a) does not apply when a lawsuit is “merely to collect delinquent assessments or to enforce a lien due to nonpayment of assessments.”
- Invoices for Attorney’s Fees. If an owner makes a written request for copies of invoices for attorney’s fees and other costs relating only to the matter for which the association seeks reimbursement of fees and costs, the Association must provide it.
2. Statutory Authority for Attorney’s Fees.
Authority for recovery of attorney’s fees may be found in the statutes below:
- Texas Property Code Section 5.006. This statute provides for a mandatory award of reasonable attorney’s fees and costs to the prevailing party who asserted the action (i.e., typically a POA plaintiff) in a lawsuit based on breach of a restrictive covenant. The statute also sets forth the factors the court considers in determining the reasonableness of fees. The full statute provides as follows: “(a) In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney’s fees in addition to the party’s costs and claim. (b) To determine reasonable attorney’s fees, the court shall consider: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the expertise, reputation, and ability of the attorney; and (4) any other factor.”  The amount of attorney fees awarded is discretionary with the court.
- Texas Civil Practices and Remedies Code Section 38.00 This statute provides that “[a] person may recover reasonable attorney’s fees…in addition to the amount of a valid claim and costs, if the claim is for:…an oral or written contract.” Since the Declaration is considered a contract between the POA and the owner, attorney’s fees may also be recovered under this statute.
- Texas Property Code Section 204.010(a)(11). This statute provides that “if notice and an opportunity to be heard are given, [the POA may] collect reimbursement of actual attorney’s fees and other reasonable costs incurred by the property owners’ association relating to violations of the subdivision’s restrictions or the property owners’ association’s bylaws and rules” unless otherwise provided in the association’s governing documents.
3. Contractual Authority.
Most Declarations contain language authorizing the POA to recover attorney’s fees expended in enforcement of restrictive covenants, but others do not, so review your Declaration carefully.
The most commonly used method used by POA’s to enforce restrictive covenants is to file a civil deed restriction violation lawsuit against the offending homeowner.
- County or District Court. If a POA wishes to obtain remedial injunctive relief such as a mandatory injunction ordering an owner to be permanently enjoined from restrictive covenant violation such as unauthorized structural changes to a dwelling, filing a lawsuit in County or District Court is typically proper. Injunctive relief is available upon proof of a substantial violation and proof of particular damages/irreparable injury is not required.
- Justice Court. If a deed restriction violation “does not concern a structural change to a dwelling” and injunctive relief is not desired, then filing suit in Justice Court may be proper since justice courts do not have authority to grant a writ of injunction. Justice Courts do have jurisdiction in such cases “regardless of the amount in controversy” such as attorney’s fees and civil damages.
2. Evaluating the Violation.
Violations of the POA’s Deed Restrictions will come in all shapes and sizes. Some, or rather most, will center on the Owner’s failure to maintain their property in one form or another; where others may turn on a violation of the POA’s various policies or the POA’s ACC Guidelines. Regardless of what the violation is, the attorney should first evaluate the alleged violation and consider a number of factors as a matter of practice prior to filing suit. First, it is not uncommon for a POA to want the violation cured as quickly as possible, with some clients advocating for the attorney to obtain an immediate injunction for what may in the grand scheme of things, be considered a relatively minor violation. While there are certainly instances where new construction or modifications to an existing structure may justify an injunction, filing a Temporary Restraining Order and getting one granted for a deed restriction violation are two very different propositions. Though, as mentioned above, there are statutory notice requirements for the enforcement of the POA’s deed restrictions which are not necessary if the POA files for a Temporary Restraining Order, it is also important to ensure that the POA has complied with its own governing documents prior to filing suit. Some POA’s will have adopted a “Deed Restriction Enforcement Policy,” “Fine Policy” or a similar document which sets forth the procedural requirements the POA must follow when enforcing the POA’s deed restrictions. The attorney should review these documents prior to filing suit in order to ensure that the POA has not only complied with the statutory prerequisites, but also any self-imposed regulatory procedures. If a Temporary Restraining Order is ultimately filed, in the realm of POA deed restriction enforcement, the POA is not required to show irreparable injury as an element of injunctive relief. In a suit concerning enforcement of restrictive covenants, a POA need only prove that the defendant intended to do an act that would breach the restrictive covenant. Though While in general, generally the POA’s are is afforded a number of enforcement options upon a violation of the POA’s deed restrictions, there is are no shortage of scenarios where both the POA’s chosen enforcement and enforcement method have has been heavily scrutinized by the media after the fact. In certain instances, some POA’s actions examples such as prohibiting an Owner homeowner from flying ’s ability to fly the U.S. flag Where certain has have resulted in legislative action, O other violations have been sufficiently addressed by the Texas judiciary such so that the POA’s deed restrictions may simply be outdated and therefore, unenforceable.
3. Evidentiary Requirements.
Generally, litigation over deed restriction violations will primarily concern structural modifications to the defendant’s home without obtaining proper POA approval or will be primarily related to the defendant’s failure to maintain their property in accordance with the POA’s Deed Restrictions. Given the simple nature of litigation of these types of violations, it is common for Defendants to represent themselves pro se as opposed to paying additional fees to obtain obtaining an attorney. Even when a defendant obtains an attorney, the cases themselves are rarely complicated enough that the case either does not either settle or get disposed of on summary judgment. Assuming the proper safeguards were in place prior to filing suit, a POA should be successful on a deed restriction violation claim by establishing the following: 1) Defendant’s title to the property; 2) Properly filed Deed Restrictions/rules and regulations/policies; 3) Photographic evidence illustrating the violation; 4) Copies of any statutory/courtesy notices send to the defendant; 5) POA testimony/affidavit regarding the violation and any associated costs/charges; and 6) Testimony/affidavit regarding the reasonable and necessary attorney fees incurred in enforcing the Deed Restrictions. Most POA management companies include photographing photograph the alleged violations as part of their property inspections; however, it is important to ensure that deed restriction violations are documented throughout the entire enforcement process for evidentiary purposes (i.e., before, during and after suit). Since many cases may turn on timeline of events which will center on when the defendant cured the violation, it is important to have time and date-stamped photographic evidence Therefore, in order to defeat the defendant’s argument that the violation was cured prior to suit. that is may be required as a effectively become a procedural prerequisite.
4. Civil Damages.
In addition to any requested relief, a POA may request and the “court may assess civil damages for the violation of a restrictive covenant in an amount not to exceed $200 for each day of the violation. Many POAs choose to plead a 5-10 days of civil damages in their deed restriction violation judgments or even more depending on the facts and circumstances of each case. Typically, civil damages are considered to be punitive in nature since they are unrelated to the injury/harm caused by the deed restriction violation. Further, there is no statutory requirement to plead actual damages when requesting civil damages per Tex. Prop. Code §202.004(c). However, please be aware that in 2015 a Texas appeals court held that civil damages were not recoverable unless accompanied by economic damages. It is also important to note that although homeowners ’s may also sue the a POA in regard to enforcement issues, for deed restriction violations, an individual homeowner filing suit on their own behalf (and not as a designated representative of another owner) may not request civil damages as a part of such suit maintain suit under Texas Property Code §202.004(c). and request civil damages related thereto.
5. 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 requesting 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 court other than a justice court or municipal court 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.” Thus, a homeowner who violates a court order to cure a deed restriction violation may be held in contempt of court and incur fines or even jail time (although award of the latter is quite rare).
6. Collecting Attorney’s Fees in a Deed Restriction Violation Judgment.
If a judgment obtained in a lawsuit to enforce restrictive covenant includes attorney’s fees, the judgment may be abstracted in the real property records in the counties where the defendant owns property, just as with any other money judgment. This personal judgment lien attaches to the defendant’s non-exempt property but may not be foreclosed upon properties with homestead protection since the lien did not exist prior to the homestead exemption. However, if the Owner has other properties the POA may pursue collection of that judgment on those properties without homestead protection under a Writ of Execution.
1. Explicit Authority Required.
If there is explicit authority in the Declaration, a POA may have the right to “self-help” to cure certain deed restriction violations and charge the costs to an owner’s account. There is no inherent right to self-help, so there must be clear authority in the Declaration to take such action. Texas Property Code §209.012(b) provides further support for this and states that a POA is not prohibited “from adopting or enforcing a restriction in a dedicatory instrument that allows the property owners’ association to access an owner’s lot to remedy a violation of the dedicatory instrument.”
2. No Trespass.
If there is explicit authority in the Declaration for self-help, the POA’s act of entering onto a homeowner’s property to cure a violation will not be considered trespass since violation of the restrictive covenant violation activates the POA’s right to enter the property to cure.
If self-help is a viable option, it is imperative that all notices and conditions precedent have been fulfilled.
4. Utilization for Only Certain Types of Violations Recommended.
In most cases, it is generally recommended that self-help be limited to curing items which do not touch a structural dwelling such as force-mowing grass, etc. Further, as indicated above, if it is debatable whether there is a clear violation, the POA may consider other forms of deed restriction enforcement.
5. Sample self-help provision with lien language.
A typical Declaration self-help provision with lien language is as follows:
“In the event of default on the part of the Owner or Occupant of any Lot in observing the above requirements or any other maintenance requirement imposed by this Declaration, such default continuing after the Association has served ten (10) days written notice thereof, which notice shall be placed in the U.S. Mail without the requirement of certification, then the Association, by and through its duly authorized agent may, without liability to the Owner or Occupant in trespass or otherwise, enter upon said Lot and cut the weeds and grass, edge the lawn around the curb, cause to be removed garbage, trash, and rubbish or do any other thing necessary to secure compliance with this Declaration so as to place said lot in a neat, attractive, healthful and sanitary conditions. The Association may charge the Owner or Occupant of such Lot and the cost of such work shall become a part of the assessment payable by said Owners and payment thereof shall be secured by the lien herein retained.”
In short, if deed restriction violations (such as unmowed grass, etc.) remain uncured after proper notice has been given, then the Association may, with extreme caution, go in and cure the violation and charge the owner for the cost. Depending on the language set forth in the Declaration, the cost for such work may become part of the assessment lien retained by the Association.
1. Due Process.
If a fine policy is implemented, it is very important that all due process notice and hearing provisions under Texas Property Code Section 209.006 and 209.007 be satisfied. (Please see above.) The fine policy should also address the following: a) the amount of the fine should be reasonable in light of the violation (i.e., sizeable enough to be significant to the violator but not so large as to be egregiously punitive); b) owners should be notified periodically of the amount of unpaid fines; and c) fines should not be allowed to accumulate indefinitely.
Even though many POAs are empowered to impose fines, many have also found that they are not generally as effective a tool for deed restriction enforcement as they hoped and may often serve to compound the problem. As a practical matter, those recalcitrant homeowners who choose not to follow the deed restrictions may also generally refuse to pay the fines, which can result in a collection problem as well as an enforcement problem. If the fines are not being paid and are not working, the Association should look at other options including filing suit for enforcement. Further, as is the case with any policy, it must be filed of record and enforced in an even-handed and non-discriminatory manner.
3. Foreclosure for Fines Prohibited.
Please note that fines are not secured by the Association’s lien unless the Declaration explicitly provides for such or expressly considers them to be assessments secured by the lien. However, even so, a POA may not foreclose an assessment lien if the debt securing the lien consists solely of fines or attorney’s fees incurred solely associated with fines.
III. Affirmative Defenses.
POA’s should be reasonable in enforcing restrictive covenants and there is a statutory presumption of reasonableness when a POA exercises its discretionary authority in doing so. The Association is under no duty to enforce each and every minor violation but must consistently enforce violations with common sense considering the severity of each violation as well as the potential cost to enforce it. That being said, if a POA files suit to enforce a restrictive covenant, a homeowner may challenge a POA’s claim of breach by asserting one or more affirmative defenses and the association should be prepared to respond accordingly.
The statute of limitations for violations of a restrictive covenant has been established to be four years, so a POA must file suit to enforce a restrictive covenant within four (4) years of the date the breach occurred or the violation will be barred from suit. In certain situations, a POA may counter a statute of limitation defense with the “discovery rule” so the statute may not begin to run until the violation is discovered or reasonably should have been discovered. This rule operates to defer accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known the facts giving rise to a cause of action. For the discovery rule to apply, the nature of the injury must be inherently undiscoverable and the injury itself must be objectively verifiable. If the POA failed to timely discover a violation due to fraud, it may potentially counter a statute of limitations defense with a claim of fraudulent concealment if certain conditions exist. Please note that filing a notice of noncompliance which places subsequent purchasers on notice of an existing violation does NOT toll the statute of limitations.
If a POA has allowed too many homeowners to violate a certain restrictive covenant, POA could potentially be deemed to have abandoned or waived it. In 1958, the Texas Supreme Court held that a court may refuse to enforce a restrictive covenant if the Association has not regularly enforced it in the past and this non-enforcement amounts to “an abandonment of the covenant or a waiver of the right to enforce it.”  In order to establish waiver as an affirmative defense, a homeowner has the burden of proof to show that other homeowners’ violations were so extensive and material as to lead an “average person” to conclude that the covenant had been abandoned. Among the factors to be considered by the “average person” are the number, nature, and severity of the then-existing violations, any prior acts of enforcement of the restrictive covenants, and whether it is still possible to realize a substantial degree of the benefits intended through the restrictive covenant. The general rule according to most cases seems to be that if more than 20% of owners have violated a restriction and it has not been enforced, then it may have been waived or abandoned. If less than 10% have violate the restriction, then there may be no waiver. Between 10% and 20% may depend on the exact facts of the case. In short, Texas courts appear to have been reluctant to find abandonment or waiver exists when the ratio of a particular unenforced deed restriction violation vs. the number of homes subject to the restrictive covenant is less than 10%. Even if a Declaration contains a “non-waiver” provision which states that a POA’s failure to enforce a Declaration provision will not constitute a waiver it its rights to enforce it thereafter, courts have still held that a restrictive covenant may be waived.
If a plaintiff, either through action or inaction, misleads a defendant who in turn acts to his/her own detriment, a claim for estoppel may arise. If a plaintiff is at least partially responsible for a defendant’s actions, the plaintiff may be prevented from disavowing conduct that “induced another to act detrimentally in reliance upon it”and the court may refuse to grant plaintiff’s claim. The essential elements of estoppel are as follows: “(1) a misrepresentation (2) upon which there was reliance (3) to the party’s detriment.” If a defendant has relied in good faith on a POA’s action or inaction and detrimentally changed their position based on that, the POA may then be precluded from enforcing that restriction. A defendant must be careful to court with “clean hands” or they may barred from pursuing this form equitable relief. For deed restriction cases, unclean hands applies “when the plaintiff is guilty of the same actions of which the defendant is accused.” 
Laches may be applicable if the extended delay of a plaintiff POA results in injury to the defendant. In order to invoke the defense of laches, a defendant has the burden to prove the following: (1) the plaintiff unreasonably delayed asserting legal or equitable rights and (2) the defendant made a “good faith change of position” to the defendant’s detriment because of the delay. Delay alone is not sufficient to give rise to laches so a defendant must also be injured or prejudiced by the plaintiff’s delay to pursue this affirmative defense. However, if a homeowner receives “actual or actual or constructive notice of a deed restriction prohibiting construction,” laches may not apply. As with estoppel, a defendant must come to court with “clean hands” to successfully assert this equitable defense.
If a covenant is ambiguous, it may be rendered unenforceable. Texas favors the free use of real property, but it also favors enforcement of contractual rights. In balancing these rights, Texas Courts historically held that restrictive covenants restricting the free use of real property may be enforced if they are confined to a lawful purpose, within reasonable bounds, and are clear and unambiguous. This common law standard provided that if the restrictive covenant was ambiguous and subject to more than one interpretation, it would be “strictly construed” against the party seeking to enforce it and interpreted in the least restrictive reasonable manner. In 1987, Texas Property Code Section 202.003(a) was enacted which provides that “[a] restrictive covenant shall be liberally construed to give effect to its purposes and intent.” Since then, case law has been somewhat mixed and the Texas Supreme Court has yet to definitively rule in favor of ether the “strict-construction” vs. “liberal-construction” position. Some parties believe that while restrictive covenants should be liberally construed to determine the drafter’s intent, if there is any ambiguity regarding intent of the drafter, then the restrictive covenant may be strictly construed in favor of the free and unrestricted use of the land. In such a situation, case, an ambiguous covenant may potentially be rendered unenforceable.
IV. Additional Statutes Pertaining to Deed Restriction Violation Enforcement
A POA “is not required to release or allow inspection of any books or records that identify the dedicatory instrument violation history of an individual owner.”  The deed restriction violation history of an individual owner is not considered part of the books and records of the association. Thus, they would not be obtainable in a records request by an owner. However, information released in summarized manner which would not identify an individual property owner is fine.
A POA Board may NOT, “unless done in an open meeting for which prior notice was given to owners under Subsection (e), consider or vote on: …(1) fines, …[and] (4) initiation of enforcement actions, excluding temporary restraining orders or violations involving a threat to health or safety.” Thus, POA Boards must consider and vote on matters involving fines and the initiation of enforcement actions in an open meeting for which prior notice has been given to owners.
Upon request for subdivision information to an owner, a POA must provide a description of any deed restriction violations on the owner’s property as well as any health or housing code violations that the POA is aware of on the date the certificate is prepared. Texas Property Code Section 207.003 provides that the POA must provide “a description of any conditions on the owner’s property that the property owners’ association board has actual knowledge are in violation of the restrictions applying to the subdivision or the bylaws or rules of the property owners’ association; [and] a summary or copy of notices received by the property owners’ association from any governmental authority regarding health or housing code violations existing on the preparation date of the certificate relating to the owner’s property or any common areas or common facilities owned or leased by the property owners’ association.”
V. Deed Restriction Enforcement for Condominium Associations under Texas Property Code Section 82 (the “Texas Uniform Condominium Act” or “TUCA.”
All condominium declarations MUST contain “restrictions on use, occupancy, or alienation of the units.” Issues associated with enforcement of those restrictions for condominium associations are discussed below.
While a condominium declaration may expressly provide for fines, TUCA Section 82.102(d) provides for fines by statute and states that “…if notice and an opportunity to be heard are given in accordance with Subsection (d),” the condo association may impose “reasonable fines for violations of the declaration, bylaws, and rules of the association.” Thus, all Texas condominium associations may impose fines whether express authority for fines is in their Declaration or not.
In Texas, there are fewer procedural due process requirements in to enforce restrictive covenants for condominium associations as opposed to subdivision associations, but they still must be followed carefully. Please see as follows.
1. Notice and an Opportunity to be Heard.
For condominium associations, a 209 Letter does not need to be sent to an owner who received notice regarding a similar violation within the last twelve (12) months. (For subdivision associations, a 209 Letter is not necessary for an owner who received notice regarding a similar violation within the last six (6) months.)
a. “209 Letter” for Condos.
Before a condo association may charge the unit owner for property damage for which the unit owner is liable or levy a fine for violation of the declaration, bylaws, or rules, the association shall give to the unit owner a written notice that:
(1) describes the violation or property damage AND states the amount of the proposed fine or damage charge;
(2) states that not later than the 30th day after the date of the notice, the unit owner may request a hearing before the board to contest the fine or damage charge; and
(3) allows the unit owner a reasonable time, by a specified date, to cure the violation and avoid the fine unless the unit owner was given notice and a reasonable opportunity to cure a similar violation within the preceding 12 months.
b. Delivery of Notice.
The association may mail this 209 Letter to the owner OR they may simply give a copy of it to an occupant of the unit. The association must give notice of a levied fine or damage charge to the unit owner not later than the 30th day after the date of levy.
c. When Notice Not Required.
Interestingly, unlike subdivision associations condominium associations are not required to provide written notice and the opportunity to request a hearing before suspending a condo owner’s right to use the common amenities or before filing a lawsuit to enforce compliance with the restrictive covenants (although this would be recommended). TUCA also does not impose due process notice requirements before a condo association may impose attorney’s fees incurred when enforcing a restrictive covenants against an owner. Further, please note that unlike subdivision associations, TUCA does NOT specify requirements for condo associations regarding when a hearing must be conducted or whether postponement of a scheduled hearing is required if requested by a condo owner.
d. Notice for Property Damage or Fines.
As stated above, TUCA does require notice and an opportunity to be heard before imposing fines or charge an owner for property damage. In addition, condo associations must give written notice to condo owners of a levied fine or charge for damages no later than the 30th day AFTER the date such fine or charge is levied against the owner.
2. Lien for Fines and Attorney’s Fees.
Notably, per statute, fines and attorney’s fees fall within the definition of assessments along with late fees, collection costs, and any other amount due to the association unless otherwise dictated in the Declaration. TUCA provides that “[a]n assessment levied by the association against a unit or unit owner…is secured by a continuing lien on the unit….In this section, “assessments” means regular and special assessments, dues, fees, charges, interest, late fees, fines, collection costs, attorney’s fees, and any other amount due to the association by the unit owner or levied against the unit by the association, all of which are enforceable as assessments under this section unless the declaration provides otherwise.”  Therefore, fines and attorney’s fees are secured by its assessment lien; however, a condo association may not foreclose for amounts due “consisting solely of fines.”
3. Attorney’s Fees.
The following statutes address recovery of attorney’s fees for condominium associations when enforcing restrictive covenants under TUCA:
- A condominium unit owner is liable to the association for violations of the declaration, bylaws, or rules of the association…and for costs incurred by the association to obtain compliance, including attorney’s fees whether or not suit is filed.” Thus, a condominium association is statutorily authorized to charge attorney’s fees to an owner’s account when incurred in the enforcement of restrictive covenants regardless of whether suit is filed.
- In a lawsuit to enforce a provision of the condominium declaration, bylaws, or rules, the prevailing party is entitled to reasonable attorney’s fees and costs of litigation from the nonprevailing party.” This provision is quite similar to Section 5.006 of the Texas Property Code which requires for a mandatory award of attorney’s fees to the prevailing party. However, it does not require that the prevailing party be the party that asserted the action. Thus, in a condominium lawsuit regarding restrictive covenants enforcement, any prevailing party (either the plaintiff OR defendant) may be awarded attorney’s fees.
4. Arbitrary or Capricious.
To be enforceable, a condo association bylaw or rule of the association must not be arbitrary or capricious.
5. Open Meetings.
If a condominium association board will vote on a fine, they must meet in person to discuss this and may not meet electronically, by phone, or by unanimous written consent, unless otherwise provided in the association’s governing documents. Section 82.108(c)(1)(C) provides that “[u]nless the declaration, bylaws, or articles of incorporation of the association provide otherwise:(1) a meeting of the board may be held by any method of communication, including electronic and telephonic, if…(C) the meeting does NOT involve voting on a fine, damage assessment, appeal from a denial of architectural control approval, or suspension of a right of a particular association member before the member has an opportunity to attend a board meeting to present the member’s position, including any defense, on the issue.”
In conclusion, it is vitally important that POA’s vigilantly and fairly enforce their restrictive covenants 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 promulgated by the courts. If you have any questions regarding any of the above, please do not hesitate to contact us.
Author’s Note – The term “POA” or “property owners association” includes both condominium associations and non-condominium associations; information which applies to condominiums are identified as such in the latter parts of the article below.
 A “restrictive covenant” is defined as “any covenant, condition, or restriction contained in a dedicatory instrument, whether mandatory, prohibitive, permissive, or administrative.” Tex. Prop. Code §202.001(a)(4).
 A “dedicatory instrument” is as “each document governing the establishment, maintenance, or operation of a residential subdivision, planned unit development, condominium or townhouse regime, or any similar planned development. The term includes a declaration or similar instrument subjecting real property to: (A) restrictive covenants, bylaws, or similar instruments governing the administration or operation of a property owners’ association; (B) properly adopted rules and regulations of the property owners’ association; or (C) all lawful amendments to the covenants, bylaws, instruments, rules, or regulations. Tex. Prop. Code §202.001(a)(1).
 Tex. Prop. Code §209.006(a).
 Tex. Prop. Code §209.006(b)(4).
 Tex. Prop. Code §209.006(b)(1-2).
 Tex. Prop. Code §209.002(13) defines “verified mail” as “any method of mailing for which evidence of mailing is provided by the United States Postal Service or a common carrier.”
 Tex. Prop. Code §209.006(d).
 Tex. Prop. Code §209.007 and Tex. Prop. Code §209.006(b)(2)(C).
 Tex. Prop. Code §209.006(i).
 Tex. Prop. Code §209.006(b)(3) and (c). Per Tex. Prop. Code §209.006(f), a violation is considered a threat to public health or safety if the violation could “materially affect the physical health or safety of an ordinary resident.” 209.006(b)(3) and (c).
 Tex. Prop. Code §209.006(e).
 Tex. Prop. Code §209.006(g).
 Tex. Prop. Code §209.006(h).
 Tex. Prop. Code §209.007(a),(b).
 Tex. Prop. Code §209.007(c).
 Tex. Prop. Code §209.007(a).
 Tex. Prop. Code §209.006(d).
 Tex. Prop. Code §209.007(d). See also Haas v. Ashford Hollow Cmty. Improvement Ass’n, 209 S.W.3d 875, 2006 Tex. App. LEXIS 10734 (Tex. App. Houston 14th Dist. Dec. 14, 2006, no pet.) and Tees v. E. Lake Woods Homeowners Ass’n, No. 12-04-00020-CV, 2006 Tex. App. LEXIS 427 (App. Jan. 18, 2006).
 Tex. Prop. Code §209.007(d).
 Tex. Prop. Code §209.007(e).
 Park v. Escalera Ranch Owners’ Assn., 457 S.W.3d 571, 590; 2015 Tex. App. LEXIS 1486.
 Id. at 577.
 Id. at 588-589.
 Id. at 591. See Hines v. Hash, 843 S.W.2d 464 at 469.
 Id at 604. See Tex. Prop. Code § 209.008.
 Tex. Prop. Code §209.008(a).
 Tex. Prop. Ann. §209.008(b).
 Haas v. Ashford Hollow Commty. Improvement Ass’n, Inc., 209 S.W.3d 875 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
 Tex. Prop. Code §209.008(d).
 Tex. Prop. Code. §5.006(a). See also Nelson v. Jordan, 663 S.W.2d (Tex. App.—Austin 1983, writ ref’d n.r.e.); Anderson v. New Prop. Owners’ Ass’n of Newport, Inc., 122 S.W.3d 387 (Tex. App.—Texarkana 2003, pet. denied).
 Fonmeadow Property Owners’ Association, Inc. v. Franklin, 817 S.W.2d 104 (Tex. App.—Houston [1st Dist.] 19991, no writ).
 Tex. Civ. Prac. Rem. Code §38.001(8).
 Boudreaux Civic Assoc. v. Cox, 882 S.W.2d.
 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).
 Stergious v. Forrest Place Homeowners’ Association, Inc., 651 S.W.2d 396 (Tex. App.—Dallas 1983, writ ref’d n.r.e.).
 Tex. Gov’t. Code §27.034(a) and (j).
 Tex. Gov’t. Code §27.034(e).
 Jim Rutherford Invs. V. Terramar Beach Cmty. Ass’n, 25 S.W.3d 845, 849 (Tex.App.—Houston [14th Dist.] 2000, pet. denied); Marcus v. Whispering Springs Homeowners Ass’n, 153 S.W.3d 702, 707 (Tex.App.—Dallas 2005, no pet.)
 Id. At 849.
 Tex. Prop. Code §202.004(c).
 See Uptegraph v. Sandalwood Civic Club, 312 S.W.3d 918,937 (Tex. App.—Houston [1st Dist.] 2010, no pet), where the appeals court held that civil damages in a deed restriction violation case were not limited to compensation for actual harm or injury due to the violation. See also Sanchez v. Southampton Civic Club, Inc., 367 S.W.3d 439, 436 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
 See KBG Investments, LLC v. Greenspoint Property Owners’ Association, Inc., 478 S.W.3d. 111 (Tex. App.—Houston [124th Dist.] 2015) where the court held that in order to recover civil damages under Texas Property Code Section 202.004(c), an association also had to plead and prove actual damages. The Court of Appeals relied on Tex. Civ. Prac. & Rem. Code §41.004(a) which requires a claimant to prove actual damages in more than a nominal amount in order to recover exemplary damages. Since the court considered civil damages to be punitive in nature, they concluded Chapter 41 would apply.
 Tanglewood Homes Ass’n, Inc. v. Feldman, 436 S.W.3d 48, 75 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) where the court held Section 202.004(b) confers a statutory right to sue for enforcement of a restrictive covenant only on a property owner’s association or other representative designated by an owner of real property, indicating that only those parties may recover statutory damages for the violation of a covenant under subsection (c).
 Tex. Gov’t. Code § 21.002(b).
 See Tex. Prop. Code. §52.001, et. seq.
 Tex. Prop. Code §209.009(1-2). See also Brooks v. Northglen, 141 S.W. 3d 158 (Tex. 2004).
 Texas Property Code § 202.004(a) provides that “[a]n exercise of discretionary authority by a property owners’ association…concerning a restrictive covenant is presumed reasonable unless the court determines by a preponderance of the evidence that the exercise of discretionary authority was arbitrary, capricious, or discriminatory.”
 An “affirmative defense” is a defense which seeks to avoid liability by establishing a reason why a plaintiff should not prevail. See In Re C.M., 996 S.W.2d 269, 270 (Tex. App.-Houston [1st Dist.] 1999, no pet.).
 See Malmgren v. Inverness Forest Residents Civic Club, Inc., 981 S.W.2d 875 (Tex. App.—Houston [1st Dist.], 1998), no pet. See also Hiden Valley Civic Club v. Brown, 702 S.W.2d 665, 668 (Tex. App.—Houston [14th Dist.] 1985, no writ). See also Tex. Civ. Prac. & Rem. Code §16.051 which provides for a residual limitations period of four years after the day the cause of action accrues for those actions with no express limitations period.
 See Park v. Baxter, 572 S.W.2d 794, 795 (Tex. Civ. App.—Tyler 1978, writ ref’d n.r.e.).
 Computer Associates International, Inc. v. Altai, Inc. 918 S.W.2d 453, 455 (Tex. 1996).
 Id. at 456. An injury is considered inherently undiscoverable if it is “by its nature, unlikely to be discovered with the prescribed limitations period despite due diligence.” Wagner & Brown, Ltd v. Horwood, 58 S.W.3d 732, 734-35 (Tex. 2001).
 See Sageglen v. Golasinski, Tex. App. LEXIS 6695. See also Shah v. Moss, 67 S.W.3d 836 at 841 which sets forth a 3-prong test for fraudulent concealment: 1) homeowner had knowledge of the violation, 2) intended to conceal it, and 3(actually did conceal it from the POA and other homeowners.
 Cowling v. Colligan, 312 S.W.2d 943, 945 (Tex. 1958).
 See Jim Rutherford Invs., Inc. vs. Terramar Beach Cmty. Ass’n, 25 S.W.3d 845, 851-852 (Tex. App. – Houston [14th Dist.] 2000, pet. denied).
 Id. at 851-852. See also New Jerusalem Baptist Church, Inc. v. City of Houston, 598 S.W.2d 666, 669 (Tex. Civ. App.–Houston [14th Dist.] 1980, writ ref’d. n.r.e.)
 See Tanglewood Homes Ass’n, Inc. v. Henke, 728 S.W.2d 39, 43 (Tex. App. — Houston [1st Dist.] 1987, writ ref’d n.r.e.).
 See Rutherford and City of Houston v. Revels, 2001 WL 699546 at 2 (Tex. App. — Houston [14th Dist.] June 21, 2001, pet. denied).
 See Straus v. Kirby Court Corp., 909 S.W.2d 105, 108 (Tex. App.—Houston 14th Dist.] 1995, writ denied) and A.G.E., Inc. v. Buford, 105 S.W.3d 667,676 (Tex. App.—Austin 2003, pet. denied). See also Simms v. Lakewood Vill. Prop. Owners Ass’n, 895 S.W.2d 779, 786 (Tex. App.—Corpus Christi 1995, no writ).
 Miller v. Sandvick, 921 S.W.2d 517, 524 (Tex. App.–Amarillo 1996, writ denied) (citing Campbell v. Pirtle, 790 S.W.2d 372, 374-75 (Tex. App.–Amarillo 1990, orig. proceeding [leave denied]).
 Kuehnhoefer v. Welch, 893 S.W.2d 689, 692 (Tex. App.–Texarkana 1995, writ denied).
 See Finkelstine v. Southampton Civic Club, 675 S.W.2d 271, 278 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.) (citing Farmer v. Thompson, 289 S.W.2d 351 (Tex. Civ. App.—Fort Worth 195, writ ref’d n.r.e.).
 Bollier v. Austin Gurdwara Sahib, Inc., 2010 Tex. App. LEXIS 5363, 2010 WL 2698765, at 7. Under the doctrine of unclean hands, a court may refuse to grant an injunction sought by “one whose conduct in connection with the same matter or transaction has been unconscientious, unjust, or marked by a want of good faith, or one who has violated the principles of equity and righteous dealing.” In re Jim Walter Homes, Inc., 207 S.W.3d 888, 889 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding); See also Lazy M Ranch, Ltd. v. TXI Operation, LP, 978 S.W.2d 678, 683 (Tex. App.—Austin 1998, pet. denied).In restrictive-covenant cases, the doctrine applies only “when the plaintiff is guilty of the same actions of which the defendant is accused.” Fox v. O’Leary, No. 03-11-00270-CV, 2012 Tex. App. LEXIS 5714, 2012 WL 2979053, at 7 (Tex. App.—Austin July 10, 2012, pet. denied) (mem. op.) (considering whether both parties violated setback restrictions).
 Dempsey v. Apache Shores Property Owners Ass’n, 737 S.W.2d 589,596 (Tex. App.—Austin 1987, no writ) (citing Culver v. Pickens, 176 S.W.2d 167, 170-171 (Tex. 1943).
 Rogers v. Ricane Enters., 772 S.W.2d 76, 80 (Tex. 1989); see City of Fort Worth v. Johnson, 388 S.W.2d 400, 403 (Tex. 1964); Miller v. Sandvick, 921 S.W.2d 517, 524 (Tex. App.–Amarillo 1996, writ denied).
 See Lawrence v. Lawrence, 911 S.W.2d 443 at 448. See also Keown v. Meriwether, 371 S.W.2d 56, 58 (Tex. Civ. App.–Beaumont 1963, writ ref’d n.r.e.).
 See Lawrence at 449. See also Murray v. Murray, 611 S.W.2d 172, 173 (Tex. Civ. App.–El Paso 1981, no writ).
Fox v. O’Leary, No. 03-11-00270-CV, 2012 Tex. App. LEXIS 5714 (App. July 10, 2012). See also Bollier v. Austin Gurdwara Sahib, Inc., Nos. 03-09-00313-CV and 03-09-00317-CV, 2010 Tex. App. LEXIS 5363, 2010 WL 2698765, at *8 (Tex. App.—Austin July 9, 2010, pet. denied) [*11] (mem. op.) (citing Jim Rutherford Invs., Inc. v. Terramar Beach Comty. Ass’n, 25 S.W.3d 845, 850 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
 Davis v. Huey, 620 S.W.2d. 561 (Tex. 1981).
 Wilmoth v. Wilcox, 734 S.W.2d 656,657 (Tex. 1987).
 In Sharp v. deVarga, the court held that all doubts were resolved “in favor of free, unrestricted use of the land.” Sharp v. deVarga, 2010 Tex. App. LEXIS 91. See Brown v. Wehner, 610 S.W.2d 168 at 170-171 (Tex. Civ. App.–Houston [1st Dist.] 1980, writ ref’d n.r.e.) and Herbert v. Polly Ranch Homeowners Association, 943 S.W.2d 906 at 908-901 (Tex. App.–Houston [1st Dist.] 1996, no writ). See also Wilmoth v. Wilcox, 734 S.W.2d 656, 657 (Tex. 1987). (when construing restrictive covenants, all doubts are to be resolved in favor of free use of land); Reagan Nat’l Adver. of Austin, Inc. v. Capital Outdoors, Inc., 96 S.W.3d 490, 493 n.2 (Tex. App.–Austin 2002, pet. granted, judgm’t vacated w.r.m.) (“if there is ambiguity or doubt as to the drafter’s intent, a covenant is to be strictly construed against the party seeking to enforce it and in favor of the free and unrestricted use of land”).
 Tex. Prop. Code §209.005(k)
 Tex. Prop. Code §209.0051(h).
 Tex. Prop. Code §207.003(b)(11)(12).
 For purposes of this paper, we will focus primarily on Tex. Prop. Code Section 82 (“TUCA”) which applies to condominium associations formed on or after January 1, 1994 per TUCA 82.002(a). Chapter 81 applies to condominium associations formed prior to January 1, 1994 per Tex. Prop. Code 81.0011(a). Please note that the following sections of TUCA are retroactive to pre-TUCA condos per TUCA 82.002(c) which provides as follows: “This section and the following sections apply to a condominium in this state for which the declaration was recorded before January 1, 1994: Sections 82.005, 82.006, 82.007, 82.053, 82.054, 82.102(a) (1)-(7), (a)(12)-(21), (f), and (g), 82.108, 82.111, 82.113, 82.114, 82.116, 82.118, 82.157, and 82.161.”
 TUCA §82.055(9).
 TUCA §82.102(a)(12). Please note that this section is one of the retroactive provisions that also applies to pre-TUCA condos as well per TUCA 82.002(c)
 TUCA §82.102(d).
 TUCA §82.102(e).
 TUCA §82.113(a).
 TUCA §82.113(e).
 TUCA §82.117(4).
 TUCA §82.161(b).
 TUCA §82.102(c).
 TUCA §82.108(c)(1)(C), §82.108(c)(2)(A).