Building a Fence in an HOA: What, Why, and How?
We often receive calls from frustrated homeowners who have either had their request to build a fence around their property denied by their Homeowner’s Association’s Architectural Committee, or who have been fined by their Homeowner’s Association for erecting or altering a fence around their property. While there may be some limitations to the appearance of your fence, a Texas Homeowner’s Association is prohibited from restricting your right to build a fence around the perimeter of your property.
Pursuant to Section 202.023(b) of the Texas Property Code, a Homeowner’s Association may not include or enforce any provision in their governing documents that “prevents a property owner from building or installing security measures, including but not limited to a security camera, motion detector, or perimeter fence.”
However, Section 202.023 does allow Texas Homeowner’s Associations to regulate “the type of fencing that a property owner may install.” In our extensive experience examining the governing documents of Homeowner’s Associations, these provisions typically take shape as limits to the height, material, and color of the fence. If your Architectural Committee has denied your application to build a fence on these grounds, or you have been fined because your fence is not in accord with restrictions to this effect, it is likely that they have every right to enforce those restrictions.
It is worth noting that the above referenced Section 202.023 is titled “Security Measures” within the Texas Property Code. So, while the HOA can place some restrictions on a homeowner’s fence, if those restrictions reasonably interfere with the security a fence can provide, a homeowner may have a valid objection to such a provision within an Association’s restrictive covenants, however it is important to contact a qualified attorney to make an assessment to that effect. In conclusion, if your Homeowner’s Association is limiting your ability to put up a perimeter fence for reasons other than aesthetics, it would likely be beneficial to contact The Nacol Law Firm to determine any recourse you may have.
What are Special Assessments and Understanding Them
Special assessments are distinct from regular homeowner association dues in that they are not part of the annual operating budget and are typically levied to cover unforeseen expenses or projects that the association has not saved for in its reserve fund.
Steps for Levying a Special Assessment
- Review Governing Documents: The first step is always to review the HOA’s governing documents to determine the specific procedures and voting requirements for passing a special assessment. These documents dictate how much notice must be given to homeowners, the percentage of votes needed for approval, and any caps on the amount that can be assessed. The right of the HOA to request a Special Assessment are found within the CC&R’s of the association. The procedure to implement the Special Assessment are found in the Bylaws of the Association.
- Board Decision: Generally, the process begins with the HOA board determining the need for a special assessment. This usually involves identifying the specific project or expense, estimating costs, and deciding on the amount needed from each homeowner. This is not always the case, a special assessment may be authorized by a percentage of the members of the association if their call a special meeting an vote for such assessment.
- Notice to Homeowners: Homeowners should be given notice of the proposed special assessment. Texas law and the association’s governing documents will specify how much advance notice must be given before the vote. This notice period allows homeowners to review the proposal, ask questions, and express any concerns before voting takes place. There are certain exceptions that the CC&R’s may allow, such as a minor special assessment increase to maintain an annual budget, but these increases are usually quite limited to a certain percentage per Anum.
- Meeting and Vote: A special meeting of the homeowners is typically called for the purpose of discussing and voting on the proposed assessment. The governing documents will specify whether this vote can happen in person, by proxy, electronically, or by mail-in ballot.
- Voting Threshold: The necessary threshold for approval of a special assessment varies. Some associations require a simple majority of votes, while others may need a supermajority. The specific requirements will be outlined in the HOA’s governing documents.
- Collection of the Special Assessment: If the special assessment is approved, the HOA will notify homeowners of the amount they owe, the due date(s), and the method for making payments. The association must also provide information on how the funds will be used.
Legal Actions Pertaining to Special Assessment
- HOA Foreclosures: an HOA may not foreclose on a home residence solely for fines and attorney’s fees, though an HOA may foreclose on a residence for non-payment of annual or special assessments. This may be done pursuant to judicial or non judicial foreclosure depending on the dedicatory instruments of the HOA.
Challenges and Disputes
Disputes over special assessments are not uncommon. Homeowners who disagree with the assessment may challenge the process by which it was passed or the necessity of the assessment itself. Homeowners likely have to seek remedy in a District Court requesting either a temporary restraining order or a temporary injunction to stay such assessment until the Court can determine its validity. If the Management company and HOA Board held an improper meeting, tendered an improper notice, did not conduct a proper ballot for voting, or did comply with the technical requirements then all these requirements may be attacked in a District Court on behalf of the community.
Julian Nacol
Nacol Law Firm P.C.
Dallas Texas HOA Attorney
(972) 690-3333
Duties of Management Company
In Texas, homeowners associations (HOAs) and condominium associations (COAs) often hire management companies to handle the day-to-day operations and administrative tasks associated with running the community. These companies act as agents of the association, working under the direction of the association’s board of directors. Below are some of the core functions a management company might perform for an HOA or COA in Texas:
Administrative Services
- Communications: Managing communication with residents, including newsletters, announcements, Notice of fines, Deficiency notices for unpaid annual dues or special assessments.
- Record-Keeping: Maintaining the association’s records, including minutes of board meetings, financial records, contracts, and correspondence.
- Meeting Coordination: Organizing and facilitating association meetings, including preparing agendas, setting up meeting spaces, conducting annual elections, annual meetings, conducting special assessment meetings, and distributing meeting notices and materials.
- Compliance: Ensuring that members of the Association comply with the community’s governing documents and restrictive covenants.
Financial Management
- Accounting: Managing the association’s finances, including accounts payable and receivable, aiding in financial aduits, and producing financial statements and reports
- Dues Collection: Collecting monthly or annual HOA fees from homeowners, managing delinquencies, and, if necessary, initiating collection actions in accordance with the governing documents and state laws.
Property Management
- Maintenance and Repairs: Overseeing the maintenance and repair of common areas and amenities, including hiring and supervising contractors and vendors.
- Inspections: Conducting regular inspections of common areas and, in some cases, individual units (particularly in COAs) to ensure compliance with the community’s architectural standards and maintenance requirements.
- Contract Management: Negotiating and managing contracts for services such as landscaping, pool maintenance, security, and other services required for the community.
Enforcement of Rules and Regulations
- Rule Enforcement: Implementing the community’s rules and regulations, including notifying homeowners of violations and working with the board to address non-compliance.
Legal Compliance and Advisory
- Legal Liaison: Acting as a liaison between the association and legal counsel on matters requiring legal attention, including litigation, document review, and compliance issues. Move often than not, the management company will supply the legal counsel for the HOA or COA.
It’s important to note that the management company’s role is to implement the decisions of the COA or HOA board of directors, not to make those decisions, though this line becomes grey in many situations. The board retains the ultimate authority over the association’s governance. Bad Management companies will overly enforce compliance issues with the members and create contentious issues with the Board of Directors and Community members at large. It is normal to sue both the management company and the Association if litigation is necessary.
Julian Nacol
Nacol Law Firm P.C.
Dallas HOA Attorney
(972) 690-3333
Airbnb / Vrbo : Amendments to Your HOA’s Governing Documents
For those who own property within an HOA, the idea that an HOA can frequently amend its restrictions on the use of property in the community can be disconcerting, especially for those property owners seeking to list their property on Airbnb, Vrbo, or other similar short-term rental sites. With the growth of Airbnb in recent years, there has been a corresponding growth in HOAs restricting the use of property within their communities for short-term rental purposes. This leaves many property owners and potential property owners wondering if an HOA can restrict the use of their property for short-term rental purposes AFTER they have already begun short-term renting them. In short, the answer is yes, and here is why:
As this specific area of law is relatively new, there is little case law to reference to specifically as it regards to Airbnbs, however the little that exists seems to be where courts will lean in the future because of its correspondence to basic legal principles. A great summary of how courts will likely view restrictions on short-term rental property use comes from a 2022 Texas Court of Appeals case—Adlong v. Twin Shores Property Owners Association:
When buyers purchase property subject to a declaration capable of amendment if certain procedures are followed, they are “on notice that the unique form of ownership they acquired when they purchased their property was subject to change through the amendment process, and that they would be bound by properly adopted amendments.” So, property owners that purchase property that is part of a valid existing HOA “know in advance that the rules might change and that they are often subjecting themselves to the will of the majority” in the HOA.
Essentially, the court stated that homeowners should know that buying a home within an HOA could mean that the restrictions governing their property use could change, and in effect they are consenting to those changes. This makes logical sense, too—if each homeowner was only subject to the restrictions that were in place when they moved into the HOA, it would be nearly impossible for an HOA to determine who is subject to which restrictions and would render future amendments virtually meaningless. If an HOA’s restrictions were treated as such, there could exist a theoretical community where half of a community can only paint their homes purple, and another half can paint their homes any color other than purple, simply because one half moved into the community after the other half. While this is a juvenile example, this appears to be Texas courts’ logic when it comes to this issue.
In conclusion, if you are looking to use your property for short-term rental purposes or are looking to buy a property for the same reason, it may be in your interest to look at homes not controlled by an HOA.
- Adlong v. Twin Shores Prop. Owners Ass’n, 2022 Tex. App. LEXIS 1970, *23
Julian Nacol
Nacol Law Firm P.C.
Dallas HOA Attorney
(972) 690-3333
Architectural Control Committee
In Texas, like in many other states, Homeowners Associations (HOAs) commonly have an Architectural Control Committee (ACC) tasked with maintaining the aesthetic and structural standards of the community. The ACC plays a powerful, if not tedious, role in ensuring that any modifications, improvements, or construction activities within the HOA comply with the community’s governing documents, including the Declaration of Covenants, Conditions, and Restrictions (CC&Rs), bylaws, and any applicable design guidelines. Though many members of the ACC Board strive to be fair and reasonable, that is seldom the case, and the ACC power is more often than not abused. Here’s an overview of the ACC’s function, authority, and processes, particularly as they pertain to Texas:
Function and Authority
- Establishment: The ACC’s authority and function are typically established in the HOA’s CC&Rs or bylaws. These documents outline the committee’s role, powers, and the procedures it must follow when reviewing and approving or denying homeowners’ requests for architectural changes. The procedures and guidelines are normally contained with the CC&R’s that detail the exact procedure used to affirm or deny a request.
- Review Process: Homeowners wishing to make exterior changes to their property, including landscaping, additions, renovations, or new constructions, must usually submit a detailed request to the ACC for approval before commencing work. This process helps maintain visual harmony and property values within the community.
Guidelines and Standards
- Design Guidelines: Many ACCs have specific design guidelines that provide homeowners with clear expectations about the types of changes that are likely to be approved. These guidelines can cover aspects such as color schemes, materials, fencing styles, and landscaping requirements. It is common to have an structural plans developed by an architect, bids, and materials submitted to the Architectural Control Committee to obtain approval prior to beginning any alterations of the property.
Decision Making
- Timeliness: Texas law may specify timelines within which the ACC must make a decision after receiving a request. If the ACC fails to respond within the designated time frame, the request may be deemed approved, depending on the HOA’s governing documents. Though if a response is not forthcoming, the CC&R’s may stipulated that it is deemed denied, thus reading the CC&R’s are pivotal.
- Appeals: The HOA’s governing documents often outline a process for homeowners to appeal Architectural Control Committee decisions. This process allows for reconsideration of denied requests under certain conditions. If no procedures are contained within the governing documents, then Texas Property Code Sec. 209.00505 applies.
- Compliance with State Law: In Texas, the operation of ACCs and the enforcement of architectural standards must comply with state law, including any statutes that regulate the duration of deed restrictions and the powers of HOAs. Tex. Prop. Code Sec 209.00505 details qualification of board members, appeal process, and notice requirements for the ACC pursuant to Texas Law.
- Fairness and Non-Discrimination: The ACC must operate in a manner that is fair, consistent, and non-discriminatory. Decisions cannot be arbitrary and must be based on the guidelines set forth in the governing documents. Arbitrary and Capriciousness is a primary affirmative defense for a Homeowner to any alleged violation that the ACC alleges pursuant to its final decision.
Challenges and Disputes
- Dispute Resolution: Disputes between homeowners and the ACC are not uncommon. Many HOAs have dispute resolution procedures, which may include mediation or arbitration, to address conflicts arising from architectural control decisions. Though these are common in new CC&R’s, these dispute resolution procedures are lacking in older HOA Subdivisions.
- Legal Action: Homeowners who believe their requests have been unjustly denied may consider legal action. This is often the case because of the appeal Architectural Control Committee abuse and ignorance of the current procedures and police conferred by Texas Law.
The ACC is a police component of community governance within an HOA, attempting to dictate the community’s aesthetic standards and property values pursuant to the subjective beliefs of whoever is on the board of the ACC at that time.
Julian Nacol
Nacol Law Firm P.C.
Dallas HOA Attorney
(972) 690-3333
NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
Office Hours
Monday – Thursday, 8am – 5pm
Friday, 8:30am – 5pm
OUR BLOGS
SEARCH
JOIN OUR NETWORK
Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
