HOA board members get a say in your paint colors, your exterior modifications, your lawn care routine, your parking, and even your choice of holiday decorations. Most homeowners understand that they do this to protect property values, so they don’t contest decisions.
And yet, the HOA’s authority isn’t unlimited. At a certain point, the association’s rules can become unenforceable and even lawsuit-worthy.
Read on to learn more about the aspects that fall outside the board’s scope. We’ll also offer some guidance on how to fight HOA rules that violate the law.
What Makes an HOA Rule Unenforceable Under Texas Law?
We don’t get to arbitrarily decide that an HOA rule is unenforceable just because it sounds unfair. But there are some grounds for contesting, including state and federal laws.
Keep in mind that just because HOAs are private entities doesn’t mean they’re exempt from Texas law.
Texas Property Code Chapters 202 and 209
At the state level, the Property Code governs what HOAs can and can’t enforce. Chapter 202, in particular, is focused on the enforcement of restrictive covenants, from solar panel restrictions to requiring permits for lemonade stands.
Meanwhile, Chapter 209, the Texas Residential Property Owners Protection Act, is concerned with topics like management certificates, notice issuing, review authorities, voting, and recordkeeping.
Federal Laws That May Override HOA Rules
Associations can’t enforce rules that go against Federal laws. Think the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), the Freedom to Display the American Flag Act, and the FCC’s Over-the-Air Reception Devices (OTARD) Rule.
When HOA Rules Conflict With State Law or Governing Documents
Finally, board members can’t enforce rules that directly contradict the association’s own governing documents. This includes the Covenants, Conditions, and Restrictions (CC&Rs), the bylaws, and the HOA rules and regulations book.
Examples of HOA Rules That May Be Unenforceable in Texas
Now that you have a general idea about what makes a rule unlawful, we can go ahead and check some specific examples.
Restricting U.S. and Texas Flag Displays
Section 202.012 of the Texas Property Code clarifies a homeowner’s right to display the U.S. flag, the state flag, and the official flag of any branch of the U.S. armed forces.
That being said, HOAs can set some rules regarding the flagpole’s construction, location, halyard system, and size. For instance, associations might require flagpoles to be no more than 20 feet in height. They might impose restrictions on particularly noisy halyard rope slaps, too.
Prohibiting Solar Panels and Solar Roof Tiles
HOAs can’t adopt blanket bans on solar technology. Otherwise, they’d be in violation of Section 202.010 of the Property Code.
HOAs can, however, ask you to remove your solar panels if they’re a threat to public safety or extend beyond your roofline (for aesthetic reasons). And obviously, they can also prohibit the installation of panels in common areas.
Restricting Religious Displays
Your HOA may adopt reasonable rules regarding the structural and public safety of religious displays on your property. But they can’t outright pr