Does this new Senate bill nullify a CCR restriction?

O

Osmigo

New Member
Jurisdiction
Texas
In the Texas Property Code, 211.004(b), pertaining to subdivision property owners voting to change an amendment procedure, it says to pass requires that:

"...two-thirds of the voting property owners vote in favor of the procedure.."

Question: assuming that each property owner is eligible to vote, does this mean:

2/3 of the property owners, whether they voted or not

or

2/3 of the property owners that actually voted

The complete text of the citation is:

(b) An amendment procedure submitted to a vote under Subsection (a) binds all property owners in the subdivision or the unit or parcel of the subdivision to which the procedure applies if more than two-thirds of the voting property owners vote in favor of the procedure.​

Thanks!
 
Many (most) of the same people post here as post on the other forum you asked this question. As written, it would appear to mean the property owners who actually voted.
 
Zigner said:
Many (most) of the same people post here as post on the other forum you asked this question. As written, it would appear to mean the property owners who actually voted.
Click to expand...

Sorry, didn't mean to be redundant. I'm just trying to collect a much of a consensus as possible, especially since most of the repliers aren't attorneys. This isn't something you can just look up on Google. Thanks, though, I sincerely appreciate it.
 
Seems pretty clear to me that it means 2/3 of those who have voted, as opposed to 2/3 of those who were eligible to vote. However, the opinion of an anonymous stranger on the internet who may or may not be an attorney and may or may not be in Texas should be of little or no value to you if this is an important issue to you.
 
Example: If there are 100 property owners in the HOA and only 75 vote, then it takes 50 votes in favor to pass the item in question.

Here's something else for you to chew on, Osmigo.

Does a husband and wife (or any combination of joint owners) get one vote per owner or one vote per home?

That's something that you might find in your CC&Rs if not in the statute.
 
We have a section in our CCRs that states that fencing can not be installed forward of the house's front wall. There is no other language in the CCRs pertaining to security, yards or fencing, except for a couple of phrases about what fencing materials are allowable.

This is been a hot topic among some owners here, who want to put a fence around their entire lots (they're all 2 to 8 acres).

And then, kaboom...

Texas SB 1588, which went into effect last September, adds new language to TPC 202.023(b) to read, "....a property owners' association may not adopt or enforce a restrictive covenant that prevents a property owner from building or installing security measures, including but not limited to a security camera, motion detector, or perimeter fence."

Does this use of "perimeter fence" nullify the current prohibition against fencing being in front of the house, thus freeing owners to install fencing around the entire perimeters of their lots?
 
That sounds like an important questions, so it would be a great question to ask of a local attorney who can review all of the relevant matters.
 
Osmigo said:
Does this use of "perimeter fence" nullify the current prohibition against fencing being in front of the house, thus freeing owners to install fencing around the entire perimeters of their lots?
Click to expand...

If the "prohibition against fencing being in front of the house" is interpreted by your HOA to include a "perimeter fence" (a term that doesn't appear to be defined in Title 11 of the Texas Property Code), then the restriction is unenforceable by virtue of section 202.023(b) (unless your residence is of the sort excluded by section 202.023(a)).

Before paying for a lawyer, you might want to run it by the HOA president or board and see if they agree that section 202.023(b) renders the restriction unenforceable. See if you can get it in writing.
 
I notice from actually reading the law it does say this...

(c) This section does not prohibit a property owners'
association from:
(1) prohibiting the installation of a security camera
by a property owner in a place other than the property owner's
private property; or
(2) regulating the type of fencing that a property
owner may install.

Sounds like loophole where a POA could allow only a type of fence that nobody would either want OR be willing to pay for.

Here's a link to the law. Texas SB1588 | 2021-2022 | 87th Legislature
 
You'll also have to check city and county building and zoning codes as there may be a height restriction on fences around the front yard.

The HOA may also still control the uniformity of fences from house to house.
 

Share this page

Get a free case review from a lawyer
Back
Top