How Can the Association Force You To Comply With Your Community's Rules?
It's simple. You GAVE the Association that right when you signed the contract for deed on your humble abode. Under Texas statutory law, as well as the Declarations on file for a community, Homeowner Associations typically have the right to restrict use of lands that fall under their scrutiny and assess penalties and other curative measures to ensure that deed restrictions are enforced. So what is the procedure for enforcing deed restriction violations in the community, you ask? Follow me.
(1) Notice, Notice, Notice! Whether the Association is self-managed or operates under the guidance of a property management company (PM), alleged deed restriction violators must: (a) receive notice that there is a violation on their lot, and (b) be allowed the opportunity to cure the alleged violation in a reasonable time. It's called Due Process and nobody, not even criminals, are spared this luxury. It's one of the fringe benefits of being American.
The Association or PM must send notice (or multiple notices) to the violator that action must be taken to remedy the situation. The violator can respond in kind and request a hearing to dispute the violation, or s/he can give notice that the violation has been cured. This process can sometimes involve numerous iterations of notice and response, with each instance requiring a minimum number of days (usually 10 days from date of notice) for a proper reply. In accordance with Texas law though, the violator typically has up to 30 days within which to request a hearing to dispute and/or resolve the alleged violation. Yes, it's a time-consuming process, but it's meant to protect the rights of property owners - a fundamental right and principal motivation for landowners since before Texas was a republic.
(2) Notices Don't scare Me, Bring On the Lawyers. As the caption opines, some folks are simply too darn stubborn for their own good. Or maybe they have a really good reason that the Maytag is in the front yard and the weeds are taller than Yao Ming in platform shoes. For these obstinate types, the Association or PM has to involve the services of your friendly neighborhood attorney. The attorney will then send a deed restriction violation letter to the offending party with a time-specific window within which to respond. The violator will then either (a) cure the violation and report such, (b) dispute the violation, or (c) ignore it (my favorite.)
This letter is followed up with an inquiry to the Association/PM to determine if the violation has been cured, or to report that the homeowner is disputing the claim. No more violation, no more attorney intervention. If the violation continues, the attorney will send a final deed restriction demand letter, including a notice that further inaction will result in the filing of a lawsuit and temporary injunction against the homeowner. Again, the violator has the option of ending the fun by curing the violation and "calling off hounds", so to speak. The homeowner always controls his level of discomfort in this process.
(3) Congratulations, You've Just Won a Brand New LAWSUIT. For those violators who choose to ignore/avoid fixing the violation, they get to experience that great American past-time known as the lawsuit. The attorney prepares a petition, gathers affidavits of fact from the Association or PM, then files suit at the local courthouse. At the Association's request, the attorney will then prepare a statement of legal fees to be forwarded to the homeowner for collections. Hint: mow your yard before things escalate to this stage, because it's much cheaper to keep your mower in fine cutting shape than paying for the lawyer's bills.
Note: for special situations, like when the neighbor is building that 500-ft spire dedicated to the moon god Luna, and time is of the essence, the attorney can send a cease-and-desist letter coupled with an immediate filing with the court seeking an injunctive-type remedy.
As you can see, the entire deed restriction enforcement process can be cumbersome and long (except for "repeat offenders" who don't enjoy the same notice privileges that other would - see Chapter 209.007 below) -- however, it ensures that no one is unfairly prosecuted for a violation that is alleged in error and/or that the violator is given adequate time to remedy the condition.
Relevant Code Sections from Chapter 209, Texas Property Code:
§ 209.006. Notice Required Before Enforcement Action
(a) Before a property owners' association 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, return receipt requested.
(b) The notice must:
(1) describe the violation or property damage that is the basis for the suspension action, charge, or fine and state any amount due the association from the owner; and
(2) inform the owner that the owner:
(A) is entitled to a reasonable period to cure the violation and avoid the fine or suspension unless the owner was given notice and a reasonable opportunity to cure a similar violation within the preceding six months; and
(B) may request a hearing under Section 209.007 on or before the 30th day after the date the owner receives the notice.
§ 209.007. Hearing Before Board; Alternative Dispute Resolution
(a) If the owner is entitled to an opportunity to cure the violation, the owner has the right to submit a written request for a hearing to discuss and verify facts and resolve the matter in issue before a committee appointed by the board of the property owners' association or before the board if the board does not appoint a committee.
(b) If a hearing is to be held before a committee, the notice prescribed by Section 209.006 must state that the owner has the right to appeal the committee's decision to the board by written notice to the board.
(c) The association shall hold a hearing under this section not later than the 30th day after the date the board receives the owner's request for a hearing and shall notify the owner of the date, time, and place of the hearing not later than the 10th day before the date of the hearing. The board or the owner may request a postponement, and, if requested, a postponement shall be granted for a period of not more than 10 days. Additional postponements may be granted by agreement of the parties. The owner or the association may make an audio recording of the meeting.
(d) The notice and hearing provisions of Section 209.006 and this section do not apply if the association files a suit seeking a temporary restraining order or temporary injunctive relief or files a suit that includes foreclosure as a cause of action. If a suit is filed relating to a matter to which those sections apply, a party to the suit may file a motion to compel mediation. The notice and hearing provisions of Section 209.006 and this section do not apply to a temporary suspension of a person's right to use common areas if the temporary suspension is the result of 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 is effective until the board makes a final determination on the suspension action after following the procedures prescribed by this section.
(e) An owner or property owners' association may use alternative dispute resolution services.
(1) Notice, Notice, Notice! Whether the Association is self-managed or operates under the guidance of a property management company (PM), alleged deed restriction violators must: (a) receive notice that there is a violation on their lot, and (b) be allowed the opportunity to cure the alleged violation in a reasonable time. It's called Due Process and nobody, not even criminals, are spared this luxury. It's one of the fringe benefits of being American.
The Association or PM must send notice (or multiple notices) to the violator that action must be taken to remedy the situation. The violator can respond in kind and request a hearing to dispute the violation, or s/he can give notice that the violation has been cured. This process can sometimes involve numerous iterations of notice and response, with each instance requiring a minimum number of days (usually 10 days from date of notice) for a proper reply. In accordance with Texas law though, the violator typically has up to 30 days within which to request a hearing to dispute and/or resolve the alleged violation. Yes, it's a time-consuming process, but it's meant to protect the rights of property owners - a fundamental right and principal motivation for landowners since before Texas was a republic.
(2) Notices Don't scare Me, Bring On the Lawyers. As the caption opines, some folks are simply too darn stubborn for their own good. Or maybe they have a really good reason that the Maytag is in the front yard and the weeds are taller than Yao Ming in platform shoes. For these obstinate types, the Association or PM has to involve the services of your friendly neighborhood attorney. The attorney will then send a deed restriction violation letter to the offending party with a time-specific window within which to respond. The violator will then either (a) cure the violation and report such, (b) dispute the violation, or (c) ignore it (my favorite.)
This letter is followed up with an inquiry to the Association/PM to determine if the violation has been cured, or to report that the homeowner is disputing the claim. No more violation, no more attorney intervention. If the violation continues, the attorney will send a final deed restriction demand letter, including a notice that further inaction will result in the filing of a lawsuit and temporary injunction against the homeowner. Again, the violator has the option of ending the fun by curing the violation and "calling off hounds", so to speak. The homeowner always controls his level of discomfort in this process.
(3) Congratulations, You've Just Won a Brand New LAWSUIT. For those violators who choose to ignore/avoid fixing the violation, they get to experience that great American past-time known as the lawsuit. The attorney prepares a petition, gathers affidavits of fact from the Association or PM, then files suit at the local courthouse. At the Association's request, the attorney will then prepare a statement of legal fees to be forwarded to the homeowner for collections. Hint: mow your yard before things escalate to this stage, because it's much cheaper to keep your mower in fine cutting shape than paying for the lawyer's bills.
Note: for special situations, like when the neighbor is building that 500-ft spire dedicated to the moon god Luna, and time is of the essence, the attorney can send a cease-and-desist letter coupled with an immediate filing with the court seeking an injunctive-type remedy.
As you can see, the entire deed restriction enforcement process can be cumbersome and long (except for "repeat offenders" who don't enjoy the same notice privileges that other would - see Chapter 209.007 below) -- however, it ensures that no one is unfairly prosecuted for a violation that is alleged in error and/or that the violator is given adequate time to remedy the condition.
Relevant Code Sections from Chapter 209, Texas Property Code:
§ 209.006. Notice Required Before Enforcement Action
(a) Before a property owners' association 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, return receipt requested.
(b) The notice must:
(1) describe the violation or property damage that is the basis for the suspension action, charge, or fine and state any amount due the association from the owner; and
(2) inform the owner that the owner:
(A) is entitled to a reasonable period to cure the violation and avoid the fine or suspension unless the owner was given notice and a reasonable opportunity to cure a similar violation within the preceding six months; and
(B) may request a hearing under Section 209.007 on or before the 30th day after the date the owner receives the notice.
§ 209.007. Hearing Before Board; Alternative Dispute Resolution
(a) If the owner is entitled to an opportunity to cure the violation, the owner has the right to submit a written request for a hearing to discuss and verify facts and resolve the matter in issue before a committee appointed by the board of the property owners' association or before the board if the board does not appoint a committee.
(b) If a hearing is to be held before a committee, the notice prescribed by Section 209.006 must state that the owner has the right to appeal the committee's decision to the board by written notice to the board.
(c) The association shall hold a hearing under this section not later than the 30th day after the date the board receives the owner's request for a hearing and shall notify the owner of the date, time, and place of the hearing not later than the 10th day before the date of the hearing. The board or the owner may request a postponement, and, if requested, a postponement shall be granted for a period of not more than 10 days. Additional postponements may be granted by agreement of the parties. The owner or the association may make an audio recording of the meeting.
(d) The notice and hearing provisions of Section 209.006 and this section do not apply if the association files a suit seeking a temporary restraining order or temporary injunctive relief or files a suit that includes foreclosure as a cause of action. If a suit is filed relating to a matter to which those sections apply, a party to the suit may file a motion to compel mediation. The notice and hearing provisions of Section 209.006 and this section do not apply to a temporary suspension of a person's right to use common areas if the temporary suspension is the result of 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 is effective until the board makes a final determination on the suspension action after following the procedures prescribed by this section.
(e) An owner or property owners' association may use alternative dispute resolution services.
posted by William G. Gammon at 12:40 PM
William G. Gammon
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