Prop. Code- Section 202

Question 1

Define “Dedicatory Instrument”

Answer 1

Every document that governs the establishment, maintenance, and operation of a residential subdivision, condominium, or townhouse regime, or similar planned development.

This includes, but it not limited to:

1) Articles of Incorporation;
2) Declaration;
3) Bylaws
4) Rules and Regulations; and
5) Amendments to the above.

Question 2

Defined “Property Owners Association”

Answer 2

An Association (residential subdivision, townhouse regime, condominium, or similar planned developtment):

1) Owned by its members; and
2) Whose members consist primarily of the owners of the property covered by the Dedicatory Instruments.

The owners, board, or declarant manages the Association.

It may be incorporated or unincorporated.

Question 3

Define “Petition”

Answer 3

One or more instruments by which one or more actions relating to restrictive covenants are sought to be accomplished.

Question 4

Define “Restrictive Covenant”

Answer 4

Any covenant, condition, or restriction contained in a Dedicatory Instruments.

It doesn’t matter whether it is mandatory, prohibitive, or permissive.

Question 5

Define “Front Yard”

Answer 5

A yard within a lot:

1) Having a front building setback of not less than 15 feet 2) Extending the full width of the lot line
3) Between the front of the lot and the front of the building

Question 6

To what Associations does Chapter 202 Apply?

Answer 6

All Property Owners Associations.

Condos, Residential Subdivisions, Townhomes.

No matter where in Texas they are located.

Question 7

Is a restrictive covenant to be liberally construed?

Answer 7

Yes. It must be liberally construed to give effect to its purpose and intent.

Question 8

May a Restrictive Covenant prevent a “Family Home” under the “Community Homes for Disabled Persons Location Act”? TPC 202.003

Answer 8

No.

A Dedicatory Instrument or Restrictive Covenant may not be prevent the use of a property as a Family Home.

However, any Restrictive Covenant that applies to property used as a family home shall be liberally construed to give effect to its purposes and intent, exept to the extent that it would restrict the use of the Family Home.

Question 9

What is the “Presumed Reasonable Standard”?

Answer 9

An exercise of discretionary authority by a Property Owners Association concerning a restrictive covenant is Presumed Reasonable, unless:

1) The court determines by a Preponderance of the Evidence that,
2) The exercise of discretionary authority was arbitrary, capricious, or disciminatory.

Question 10

May a POA initiate, defend, or intervene in litigation?

Answer 10

Yes. So long as :
1) It affects the enforcement of a restrictive covenant or 2) The protection, preservation, or operation of the property covered by the Dedicatory Instrument.

Question 11

What is the maximum fines that a court may assess for violations of a restrictive covenant?

Answer 11

$200 per day of the violation.

Question 12

May an owner file withdraw their signature from a petition to terminate restrictive covenants?

Answer 12

Yes. To do so, they must:

1) Request the signature be withdrawn;
2) Be in writing;
3) Filed with the authority with whom the petition is required to be filed
4) Must file by the petition filing deadline
5) Deliver a copy to the circulator of the petition not later than the date the request is filed.

May deliver by mail. If delivered by mail, it is considered delivered at the time of its receipt.

The filing of the withdrawal request nullifies the signature.

Question 13

Must all Dedicatory Instruments be filed?

Answer 13

Yes. They must be filed in the real property county records of each county to which the real property records relate are located.

Question 14

What if a Dedicatory Instrument is not filed?

Answer 14

It has no effect until the instrument is filed.

Question 15

A POA may not include or enforce a provision in a DI that prohibits or restricts an owner from:

Answer 15

1) Implementing measures promoting solid waste composing of vegetation. Including grass clippings, leaves, or brush, or leaving grass clippings uncollected on grass;
2) Installing rain barrells or rain harvesting systems;
3) Implementing efficient irrigation systems, including underground drip systems;
4) Using drought resistant landscaping or water conserving natural turf.

A provision in a DI that violates the above is VOID.

Question 16

May a POA restrict the turf used by an owner in the planting of new turf?

Answer 16

Yes. But it may only do so to encourage or require water-conserving turf.

Question 17

What may a POA regulate about a composting device or rain barrell?

What may a restriction not prohibit?

Answer 17

So long as the restriction does not prohibit:

1) The economic installation of the compost bin or rain barrell
2) Where there is reasonably sufficient area,

The POA may regulate:

1) Size
2) Type
3) Shielding
4) Materials
5) Location

Question 18

May an Association require ACC approval for Drought Resistant Landscaping/Turf?

Answer 18

Yes.

They may require that it be submitted to the ACC to ensure, to the extent practicable, maximum aesthetic compatibility with other landscaping in the subdivision.

Question 19

May an Association prohibit or regulate the installation of gravel, rocks, or cacti?

Answer 19

Yes.

Question 20

May an Association still regulate yard and landscape maintenance?

Answer 20

Yes. So long as the regulation does not restrict or prohibit turf or landscape design that promotes water conservation.

Question 21

Where may a POA prevent an owner from installing a composting device?

Answer 21

1) Land owned by the POA;
2) Land owned in common by the members of the POA;
3) May require owner to install the composting device in a fenced yard or patio.

Question 22

What may a POA regulate about efficient irrigation systems (drip)?

Answer 22

They may establish visibility limitations for aesthetic purposes.

Question 23

Where may a POA prevent an owner from installing a rainbarrell or rainwater harvesting system?

Answer 23

1) Land owned by the POA;
2) Land owned in common by the members of the POA;
3) Located between the front of the owners home and the street. (it can be unshielded, but cannot be in front of the home).

Question 24

What may a POA regulate about the aesthetics of a rainbarrell?

Answer 24

1) May require it to be the same color scheme as the owner’s home.
2) May regulate language on barrell. Can prevent language or content that does not ordinarrily appear on a rainbarrell.

Question 25

What is the standard by which a POA may deny approval of drought resistant landscaping or natural turf?

Answer 25

Their denial may not be “Unreasonable”

They can determine that the installation is not aesthetically compatible with other landscaping in the subdivision, however, their denial may not be unreasonable.

Question 26

What is the CRAZY carveout to the rainbarrells, composting, grass clippings, and drought resistant landscaping law?

Answer 26

It doesnt apply if POA is:

1) Located in municipality with population greater than 175,000
2) Located in a county with another municipality with a population of more than 1 million is located; and
2) POA has at least 4000 acres designated for commercial use, multifamily, or open space.

Question 27

May a POA prevent Political Signs?

Answer 27

No. However, they may regulate them.

A POA may not enace or enforce a provision in a DI that prevents an owner from displaying on the owner’s property one or more signs adverstisign a polical candidate or ballot item.

Question 28

What restrictions may a POA place upon Political Signs?

Answer 28

1) Can limit display to 90 days before election-10 days after election.
2) Can require sign to be ground mounted.
3) Can limit to one sign per candidate or ballot item
4) Can prevent:
a) Non standard materials (roofing, siding, paving, flora, balloons, lights)
b) Attachment to anything (plants, trailers, vehicles, structures, etc.)
c) Includes painting of architectural surfaces.
d) Threats to public health or safety;
e) Size larger than 4x6 ft
f) Violates law
g) Contains offensive language or graphics that would be offensive to ordinary person
h) Music, sound, or streamers, or anything else that could be distracting to motorists.

Question 29

What if a political sign is installed in violation of POA restrictive covenants?

Answer 29

It may be removed by the POA.

Question 30

Define Solar Energy Device.

Answer 30

System designed primary to:

1) Provide heating or colling; or
2) Produce electrical or mechanical power.

By collecting and transferring solar generated energy

Question 31

May a POA enforce a restrict a provision in a DI that prohibits a Solar Energy Device?

Answer 31

No. However, they may regulate the installation of the solar energy device.

Question 32

What restrictions may a POA place upon a Solar Energy Device?

Answer 32

A Solar Energy Device may be restricted that:

1) Court finds device violates public health or safety.
2) Court fines the device violates the law.
3) Located on property owned by Association.
4) Located on property owned in common by members of the Association.
5) Is not installed on the roof, patio, or in fenced yard (fence must be taller than device if installed in yard)
6) Extends higher than the roof line (peak).
7) Is located in an area other than that designated by the POA.
8) Does not conform to the slope of the roof and has a top edge that is not parallel to the roofline.
9) Has a frame, bracket, piping, or wiring that is not silver, bronze, or black tone commonly available in the marketplace.
10) As installed, voids the warranty.
11) Was installed without prior approval of Association.

Question 33

What if the POA designates an area where the solar energy device is to be located and the owner finds that installation in that area substantially decreases the devices energy production?

Answer 33

The POA may designate an area for the Devices installation, however, if installation in an alternative location increases the energy production by more than 10 percent as modeled by the National Renewable Energy Laboratory publicly available website, then the alternative location will suffice.

Question 34

If the Solar Energy Device complies with all of the above requirements, what is the one exception in which the POA may prevent its installation?

Answer 34

The POA may not withhold approval if the provisions of the Dedicatory Instruments are met or exceeded, unless-

1) The Association or a committee determines;
2) In writing;
3) Placement of the Device as proposed by the owner ‘constitutes a condition that substantially interferes with the use and enjoyment of the land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities.”

Question 35

How may an Owner rebut the “Ordinary Sensibilities” rejection by a POA of a solar energy device?

Answer 35

By providing written approval of the installation of the device by owners of all adjoining properties.

This constitutes prima facie evidence that the conditions does not exist.

Question 36

May the Declarant prohibit the installation of Solar Energy Devices?

Answer 36

Yes, however the following conditions must be met:

1) During developmental period; and
2) POA has less than 51 planned residential units.

Question 37

A POA may not enforce a provision in a DI or prevent an owner from installing shingles on the owner’s roof that have what characteristics?

Answer 37

1) Wind and hail resistant;
2) Provide heating/cooling efficiencies greater than ordinary composite shingles; or
3) Provide solar generation capabilities

Question 38

What may a POA require of shingles on an owners roof?

Answer 38

1) Resemble shingles used or authorized in Association;
2) Equal quality and durability to those shingles already in use;
3) Match aesthetics of property surrouding owner’s property.

Question 39

A POA may not adopt or enforce a provision in a DI that prohits or restricts and owner from flying what type of flag?

Answer 39

1) USA
2) Texas
3) United States Armed Forces

Question 40

What may a POA restrict about flags?

Answer 40

1) US flag be displayed in accordance with Federal Law
2) Texas flag be displayed in accordance with State Law.
3) Flagpole be constructed of permanent and long lasting material with appropriate finish and be harmonious with the dwelling.
4) Flag and flagpole be kept in good condition.
5) Display and location be in accordance with zoning ordinances, easements, and setbacks.
6) Can limit to one flagpole that is not more than 20 feet in height.
7) Size of flag
8) Size, location, and intensity of ilghts used to illuminate flag;
9) May create restrictions to abate noise caused by external halyard.
10) Can restrict owner from displaying flag on POA property.

Question 41

Where may a POA not require a flag to be installed?

Answer 41

In a back yard.

Question 42

What if a flag or flagpole deteriorates?

Answer 42

The Association may require that they be removed, repaired or replaced.

Question 43

May the POA require that an owner have a flagpole attached to his property or his land? (May the POA pick which one is allowed?)

Answer 43

No. So long as the owner complies with all of the above restrictions, the owner is permitted to install either.

Question 44

What is the law regarding restrictions upon Religious Display regulation?

Answer 44

A POA may not adopt or enforce a restriction that prohibits an owner from displaying or affixing on the entry to the owner’s residence one or more religious items.

The display must be motivated by the owner’s sincere religious belief.

POA restriction may not violate Federal or State constitution.

Question 45

What limitations may a POA place upon an owner’s display of a religious item?

Answer 45

1) Threatens public health or safety;
2) Violates a law
3) Patently offensie to passerby;
4) Located other than on door or doorframe;
5) Individually or in combination, has size greater than 25 squre inches.

Question 46

Does the regulation of religious items under Section 202 allow an owner to use material or color for an entry door or doorframe that is otherwise not allowed by the restrictive covenants?

Answer 46

No.

Question 47

What if a religious item has been displayed in violation of a POAs dedicatory instruments?

Answer 47

The POA may remove the item.

Question 48

What is the law regarding restrictions on standby electric generators?

Answer 48

A POA may not adopt or enforce a provision within a dedicatory instrument that:

1) Prohibits;
2) Restricts; or
3) has the effect of prohibiting or restricting

an owner from:

1) Operating;
2) Owning;
3) Installing; or
4) Maintaining a permanently installed

A Standy electric generator.

Question 49

What limitations may a POA place upon the owning, operation, installation, and maintenance of a Standby Electric Generator?

Answer 49

1) Installed and maintained in compliance with manufacturer specifications
2) Installed and maintained in compliance with applicable government health, safety, electrical, and building codes.
2) All lines and connections be installed by licensed contractor and in accordance with Texas law.
3) Non-integral fuel tanks be installed and maintained soas to comply with local and state law and building codes.
4) Be maintained in good condition
5) Repair, replace, or remove any deteriorated or unsafe component

6) May require owner to screen generator if it is:
a) Visible from the street facing the dwelling; or
b) Located in an unfence side yard or rear yard.
c) located in side or rear yard and is visible through a wrought iron or aluminium fence from adjoining property owned by either another owner or the POA.

7) Sets periodic times for testing of the generator consistent with manufacturer recommendations.
8) Prohibits use of generator to generate all or a substantial portion of the electricty to the residence except when utility generated electric power is not available or intermittent (*may not be unavailable due to non-payment).
9) Location of generator
10) May prohibit generator located on POA property or property owned in common with another POA member.

Question 50

When may a POA not enforce a restriction in a DI that regulates the location of a generator?

Answer 50

1) If it increases the cost of installation of the generator by more than 10%; or
2) It increases the cost of installing and connecting the fuel and electric lines by more than 20%

Question 51

What is the standard for evaluation of a request to install a standby electric generator

Answer 51

1) Restrictions must be reasonably applied and enforced.

2) Request must be approved if it meets all requirements delineated under Texas law.

Question 52

May POA require that an owner submit an ACC request to install a generator?

Answer 52

Yes. However, the information required may not be greater or more detailed than the application for any other improvement.

Question 53

Who bears the burden of proof in an action determining noncompliance with the dedicatory instruments for an installed or proposed installation of a generator?

Answer 53

The party asserting noncompliance bears the burden of proof.