Texas : Builder getting around HOA restrictions

[CavemanLawyer]

I am the Director for an HOA in Texas and one of our restrictive covenants is that all fences must be white vinyl, specifically no wooden fences. If you could see our neighborhood you would understand why it looks this way but regardless, the neighborhood is 95% completed and so far there are no wooden fences. The residents have been very vocal that they do not want any wooden fences now.

And then a builder buys up the remaining 7 lots and is building new homes along the perimeter of the neighborhood. He wants to put up wood fences and we denied it. On the other side of his lots are another neighborhood that is not within our HOA. Builder told me he will just convince those homeowners to allow him to build a wooden fence a couple inches over the property line in their yard. They lose some real estate but get a nice new fence. Again, the residents are very upset out this.

I'm wondering if legally we are out of luck. If so this is terrible because the new resident could do anything they want. They could never maintain their side of their fence, paint it bright pink, paint a Nazi mural, whatever and we could not do anything about it. I am wondering if all the builder is effectively doing is moving his property line by agreement and thus the fence would still be within the HOA's control. It seems after 10 years that part of the property would be adversely possessed anyway.

thanks for any advice.

[adjusterjack]

I'm wondering if legally we are out of luck.

I'd say so. But you are welcome to consult an attorney.

I am wondering if all the builder is effectively doing is moving his property line by agreement and thus the fence would still be within the HOA's control.

No. The platted property line would still be the property line.

It seems after 10 years that part of the property would be adversely possessed anyway.

Maybe. But it would take a lawsuit to claim it and the lawsuit would have to be filed by whoever owns those lots 10 years hence, not the HOA. Good luck getting that kind of cooperation from 7 homeowner unless the HOA wants to pay all the attorney fees. I doubt that anyone on the board in ten years is going to care any for that idea.

Builder told me he will just convince those homeowners to allow him to build a wooden fence a couple inches over the property line in their yard. They lose some real estate but get a nice new fence.

He would have to convince 7 homeowners on the other side. That would take time. Installing fences on existing properties would be more costly than installing white vinyl fencing where it's supposed to be. Builders aren't in the business of losing money due to delays and additional costs.

I would call his bluff and tell him to do what he wants to do on the other side of the property line. Be sure to remind him that he'll need new permits for the fences on each of those properties. Faced with the delay and additional costs I don't think he'll make good on his threat. But if he does, your homeowners will survive.

By the way, what's he going to put up in between those 7 lots? He'd be limited to white vinyl side fences, right?

[AFFA]

I wish to inform you that Restrictive Covenants are interpreted liberally to give effect to their purpose and intent. Tex. Prop. Code §202.003. Texas associations have considerable discretion in adopting and enforcing restrictive covenants, including restrictions relating to exterior appearances of structures and improvements, as long as the community’s declaration grants authority for the type of regulation contemplated. Tex. Prop. Code § 202.003(a). This could potentially include anything from exterior color, fences, lawns and artificial turf, parking, and trash-can placement, to restrictions on above-ground pools and trash receptacles. A Texas association, or an architectural review board acting on its behalf, is authorized to implement and record written architectural review guidelines regulating exterior appearance and new improvements. Tex. Prop. Code § 204.010(18). Notwithstanding the generally wide discretion afforded to HOAs to regulate exterior aesthetics, Texas law limits or prevents restrictions in a few specific areas – most notably, political signs, religious displays, roofing materials, solar panels, stand-by generators, and drought-resistant landscaping and water-conserving natural turf. Tex. Prop. Code § 202.007, 009-010, 018, 019. Further, an association’s right to enforce a restriction can be effectively waived if the association previously acquiesced to or failed to consistently enforce the restriction. Cowling v. Colligan, 312 S.W.2d 943, 945 (Tex. 1958).

AFF

[adjusterjack]

All of which does not prevent the builder from gifting a wood fence to homeowners outside the HOA boundaries.

[Rexx Kall]

I am not sure if the builder could get away with this neat little trick. I would bet some judges would not allow it. And would find a way to prohibit it.
Or at least the HOA could make trouble for the builder and the new owner, or at least threaten to do so.