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 is a Dedicatory Instrument for a Homeowners Association?
In Texas, a “dedicatory instrument” for a Homeowners Association (HOA) is a term that encompasses a wide range of documents that govern the establishment, operation, management, and maintenance of a residential community. These instruments lay out the rules, restrictions, obligations, and rights related to the properties and the homeowners within an HOA. The Texas Property Code, which provides the legal framework for the creation and operation of HOAs in Texas, specifically refers to and defines dedicatory instruments to ensure transparency, governance, and the orderly management of communities. These dedicatory instruments are initially created by a developer prior to the creation of the subdivision and govern the use of the land. Dedicatory Instruments maybe modified, altered, or changed by the community’s members in interest with a valid vote or depending on the type may be modified, altered, or changed by the Board of Directors.
Key Components of Dedicatory Instruments
Dedicatory instruments typically include, but are not limited to, the following types of documents:
- Declaration of Covenants, Conditions, and Restrictions (CC&Rs): This is often considered the primary document of an HOA. It sets forth the covenants and restrictions that govern the use of lots within the subdivision, including architectural controls, maintenance obligations, and the use of common areas and facilities. The CC&Rs also outline the rights and obligations of the homeowners and the HOA.
- Bylaws: The bylaws of an HOA detail the structure of the association’s governance. This includes provisions for the election and duties of the board of directors, the conduct of meetings, voting rights, and the manner of determining membership dues and assessments.
- Articles of Incorporation: If the HOA is incorporated, the articles of incorporation are a part of the dedicatory instruments. These establish the HOA as a legal entity and include basic information such as the association’s name, purpose, and the initial office and registered agent.
- Rules and Regulations: These are additional guidelines established by the HOA’s board of directors concerning the details of property use, maintenance standards, and other community policies not explicitly outlined in the CC&Rs.
- Plats: Plats are detailed maps that describe the layout of the subdivision, including the location of lots, common areas, and easements.
- Policies, Procedures, and Guidelines: These can include various rules or guidelines adopted by the HOA, such as architectural guidelines, enforcement policies, fine schedules, and procedures for resolving disputes.
Legal Significance
The dedicatory instruments are binding legal documents. Homeowners are generally required to adhere to the covenants, conditions, and restrictions set forth in these documents upon purchasing a property within the HOA’s jurisdiction. These instruments are recorded in the county’s public records to provide notice to current and prospective property owners.
Transparency and Access
Under Texas law, HOAs are required to make their dedicatory instruments available to members, ensuring transparency in governance and operations. Homeowners should be provided access to these documents upon request and often through the association’s website. Pursuant to a recent update in Texas Law the HOA are required to post CC&R’s and Bylaws on the website to insure the members have access.
Understanding the scope and implications of dedicatory instruments is crucial for both current and prospective homeowners, as these documents significantly influence the rights, responsibilities, and lifestyle within the community governed by an HOA.
Julian Nacol
Nacol Law Firm P.C.
Dallas Texas HOA Attorney
(972) 690-3333
NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization