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.
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization