Legislative Update: Let's Talk About Xeriscaping...

Now that the session of the 83rd Texas Legislature has come to a close, I have begun looking at the various bills that were passed effecting Texas Homeowners' Associations.  During the length of the regular session, approximately 55 bills related to HOAs were introduced.  I will look at a number of the bills that were passed, starting with a bill related to xeriscaping.

First we should discuss what, exactly, is xeriscaping.  Xeriscaping is a style of landscape design that requires little or no irrigation.  The style is frequently found in arid regions.  Xeriscaping is designed to conserve water and protect the environment.  In Texas, this usually means pebbled ground cover, drought-resistant and native plants, and other water-conserving natural turf.

The new law, which was proposed by Sen. Kirk Watson and Rep. Dawnna Dukes of Austin, mandates that Texas homeowners can now xeriscape their properties without being scrutinized by their homeowners association.  HOAs are still permitted to require preliminary plan approval of new xeriscaping plans, but the Association's ability to reject plans including xeriscaping is limited.

New Changes in Texas POA Legislation - Solar Panels

The 82nd Texas Legislature made many changes to the laws affecting property owners’ associations (“POAs” or “Associations”). One such change relates to an individual owner's right to install solar panels on their home in Texas.

Pursuant to Texas Property Code Section 202.010, Property Owners Associations cannot prohibit or restrict an owner from installing a solar energy device onto their property. If such provisions are included within an Association’s bylaws, then those provisions will be considered legally void. There are, however, exceptions to this rule. In those instances, an Association can restrict or prohibit an owner from installing solar panels onto their property if it threatens the public health or safety, violates a law, is not properly installed onto the roof, or it was installed without prior approval from the Association or an affiliated committee.

Posted by Austin Attorney Chloe Love

Texas Laws Governing Condo Associations

Although condominium associations in Texas are private entities governing developments, this does not mean that they are outside the reach of public law. Of the many rules and regulations that condominium associations must abide by, federal law is the strongest. Regardless of their status as a private entity, associations may not do anything that goes against a federal law, and as federal law changes, so must the practices of condominium associations. All condominium associations must respect laws like the Helping Families Save their Homes Act of 2009, the Fair Housing Act, and the Americans with Disabilities Act.

The next set of governing restrictions comes from Texas state law. Just as Texas associations must abide by federal law, associations cannot take any action that is outside the realm of what is allowed by Texas law. The Texas Property Code, with acts like the Uniform Condominium Act, can directly control what actions condominium associations are allowed to take. Finally, condominium associations are governed by the local ordinances, codes, and regulations of the city or county in which they are located. This means that what is legal is Austin may not be legal in Houston. Because the associations are governed by these laws, it is important that property owners boards stay familiar with the current laws and how they are changing.

Texas Condominium associations are also governed by any documents relating to the property that are properly adopted and recorded with the county real property records. The recorded documents that govern are usually created by the individual developments. These typically include the recorded declarations, CC&R’s, articles of incorporation, and bylaws – in order of superiority. The bylaws must be in line with the articles of incorporation, which must be in line with the declaration, for example. The key to this is that the document that created the development, whether that be a declaration or a CC&R, will always rule (as long as it is within the legal limits set out by public law). These documents created by the developments are recorded with the county and treated as official legal documents, and the condominium associations must give them that level of reverence.

The final, and weakest, governing power on condominium associations are the policies and practices of the condominium association board. When the board makes a rule or implements a policy, it must be respected as long as it complies with all public law and recorded documents.

***This article was prepared by Rachel Robinson and edited by Austin Lawyer Chloe Love.