Procedure for amending CCRs when state laws change

No.

There is a hierarchy to the CC&Rs, By-laws, and state laws. State laws supercede CC&Rs. CC&Rs supercede by-laws. This is automatic.

Thus, when the state law allows fencing when the CC&Rs state no fencing, that part of the CC&R is simply overriden and is null and void. No CC&R rewrite is needed.

If for some reason the Board desires to revise CC&Rs anyway to make them compliant, they still have to abide by the standard process for revising CC&Rs.

From a lot of reading here over the years, and a fair amount of reading about the changes the Texas legislature recently made to TPC 209, I do not think the HOA has to do anything. This is because, where a bona fide conflict exists between statutes and the CCRs, the law says the statutes prevail.

I will do some more checking, since it's possible the Board has this power and no owner's vote is required under these circumstances. If I do not post back, then I did not find anything.

Your Board might want to propose an amendment to the CCR stating that the Board has the right, without an owner's vote, to amend the CCRs when Texas statutes change. On the other hand, perhaps TPC 209 changes often enough that this is not worth the Board's effort. Instead, maybe just add a clause that says Texas statutes control in the event of a conflict (assuming no such covenant already exists in your HOA's CCRs).

I hope your Board has a HOA attorney review all proposed amendments prior to having any vote on the proposed amendment.

I think it would be prudent to proactively go a little further. To my knowledge, nobody even knows about this legal update, particularly builders and new property owners in the HOA, i.e. they won't ask about it if they don't know about it. We'll have a director's meeting in a few weeks; I'll need to bring this up then.

Depending on the state and the amendment desired, said "standard process" may allow the Board to amend without a vote of the owners. For example, in Washington, where HenryS7's HOA is, and pursuant to state statute, the board without a vote of the owners may amend the CCRs to remove covenants that discriminate on the basis of race, creed, sex et cetera. See https://app.leg.wa.gov/RCW/default.aspx?cite=64.38.028

From our attorney: You cannot change the CC&Rs without going through the proper procedure and getting the required percentage of votes, even if it is to comply with the state law. However, there is one exception. A new Texas law does allow the board to change the CC&Rs to remove illegal racial clauses.

The state law always supersedes the CC&Rs so it is not necessary to change them to comply with the law. Also, the laws are ever changing. A law passed this year can be repealed next year.

I am aware of TPC 5.0261 (effective Sep 1, 2021). In the first half or so of 2021, the Texas legislature unanimously passed the bill that created TPC 5.0261. Texas Property Code 5.0261 certainly makes it easer to remove covenants that discriminate on account of "race, color, religion, or national origin." But I am not persuaded that TPC 5.0261 may be translated to read that a Board vote is all that is needed to remove the covenant that attempts to discriminate on the basis of the aforementioned protected classes.

See
https://statutes.capitol.texas.gov/Docs/PR/htm/PR.5.htm

TPC 209 does not speak to this subject (of removing covenants discriminating against certain protected classes) via a mere board vote.

RonM19,

-- I am not sure how you could read the replies here and come to the conclusion there is any urgency here. I do not see that there is. The Board complies with the law, consulting the HOA attorney as needed, period.

-- Re fences: Did I miss something in TPC 209? The new TPC 209 has exactly one mention of fence or fencing. I guess the fence example is a hypothetical with no basis in reality? If so, can you please cite what new section of TPC 209 actually is on your mind?

-- The new TPC 209 has a kinda big section on how Architectural Committees work, but this new section concerns how the ARC is to conduct itself procedurally.

I agree with this, in the event a CCR conflicts it just becomes unenforceable. I'm sure there are thousands of CCRs in effect that still prohibit selling to people of certain races and while the old verbiage might be objectionable to many, it has no real effect.

RonM19, got it. Thank you for the thorough explanation. I checked the latest TPC 202 and confirmed what you posted because I am a stickler for getting the facts right. You got the facts right.

Now I will know better than to assume TPC 209 and the Texas nonprofit corporation act are pretty much the "be all and end all" when it comes to statutes applying to Texas HOAs.

Should the HOA send out notices to owners and developers? If people do not put up fences, then they are compliant with the statute. If they do put up fences, then the HOA simply does not enforce the (now largely illegal) covenant. The HOA can still prohibit certain fencing that is not perimeter fencing and is not for security purposes.

I kinda doubt it's the HOA's place to help builders and owners figure this out. Now that this fencing is allowed, will owners' lots having this fencing (or the option for this fencing) benefit property values? I think it's five will get a person ten. I think it's a looks thing competing against a safety thing.

I advise discussing the new statute section on fences at an open board meeting and stating that the Board will comply with the statute and so of course the HOA will not enforce the covenant to the extent the fencing is (1) perimeter fencing; and (2) for security purposes.

Subsequently owners who only learn of their new freedom re fencing through the grapevine have only themselves to blame for not reading either the new statute sections (which legally does fall on them, despite any whining to the contrary) or the HOA's' Board Meeting Minutes.

I am rooting for the Midwest in the Super Bowl this afternoon, hoping any success the Bengals have will not result in the bi-coastal hordes snapping up housing at greater than asking prices in bidding wars, shutting out the little guy and gal who grew up in Cincinnati.

Oh wait, too late.

Anyway, for Cincinnati and Midwest pride, I am routing for the Bengals.

During COVID, our governer for about a year and half prohibited HOAs from collecting late fees and interest on HOA dues payments. I definitely believe that it was not the HOA's responsibility to inform homeowners that they can not pay dues and suffer no penalties (except threat of foreclosure lawsuit, which were allowed to proceed).

I think that the fence question is similar. It is not the responsibility of the HOA to inform homeowners of new freedoms that the state has provided. Rather, it is the responsibility of the association to not enforce restrictions that they are no longer allowed to enforce.

If part of KerryL1's point above is questioning whether the HOA may even set architectural guidelines for these fences (previously prohibited by the covenants; now allowed pursuant to the new statute section), wow. Good one. First, all the veterans and even some of the newer folks realize that a board-created rule is lawful only to the extent that the covenants give the board the authority for such a rule. Second, exactly what at RonM15's HOA must be submitted to the HOA's ARC for approval? For example, is there a covenant that says something like: Nothing shall be placed in front yards without the ARC's approval? If so, then the ARC guidelines of which KerryL1 speaks above are likely needed. On the other hand, can the ARC, via the Board, even lawfully set rules for height, materials, and color for these fences? With said fences never being discussed anywhere else in the covenants on account of the now defunct covenant prohibiting front yard fences?

Depending on what the covenants say, RonM19's point about being pro-active has gained new prominence in my mind.

Agree again, "Ignorance of the law is no excuse" cuts both ways.

OK, that makes sense. I agree with getting the word out to the ACC and the community (especially if some had previously been denied their applications for security measures.

Thank you, Augustine, you are correct and I was mistaken. The board cannot even remove an illegal racially discriminatory covenant. The best one can do is get a court to take notice that it is illegal and void (that is my interpretation) and file that notice with covenant.

I think this drives the point home that a board cannot change a covenant even when it obviously contradicts the law.

A little late to the conversation, but here's my $0.02.

1. any amendment to the Governing Docs requires the proper procedure and vote to make it 'valid.' Doesn't matter if you're just editing to comply with state law or whatever.
2. Laws change frequently and often. If you do properly edit your CCR's to allow fences, then that law is later removed (happens more often then you would think), now your CCR's are stuck allowing fences and you would have to go through the process to edit again to outlaw fences (if that's even allowed, because most CCR's cannot get more restrictive than previously existed).
3. A better strategy would be to just issue a statement and official memo from the BOD that CCR #123 about fences is currently not legally enforceable, citing the specific state law. If the law changes later, your original CCR's are still in tact.


Just a point of clarification, but the law does not "allow fences" but rather blocks an HOA from restricting fences. This is a major difference.


I agree. You have a responsibility as a leader to ensure your Members are informed. Why would you want to actively try to hide and deter a legally acceptable activity? Just post an official memo acknowledging the CCR vs Statute issue and that state law controls.


i dunno...I agree that it would be beneficial to use the ACC to make 'reasonable' rules about fencing, but the state law says "[hoa] may not adopt or enforce a restrictive covenant that prevents ... a perimeter fence." ...ACC restrictions seems to not be kosher.

The Texas Lege sure does love its vaguely worded statutes, doesn't it!

Since the revised statute also says that HOAs can still regulate the type of fencing - could it be argued that "Front yard fencing" is a type of fencing? I don't know - I'm asking rhetorically.

Usually these changes come about because someone who knows a state legislator got into a tussle with their HOA and they don't consider all the possibilities.

Are you in an incorporated area? Are there any municipal building codes that might prohibit front yard fencing, and thus solve this problem for you?

Oh, and to repeat my way above and Barbara's note: Municipalities may have a lot to say about fencing. It seems likely that many would have made some requirements based on the new statute.

Re: Adam's last remark, Augustine added some crucial verbiage from the statute , which is copied below:

"(c) This section does not prohibit a property owners' association from: ...
...(2) regulating the type of fencing that a property owner may install.'

Agree with Barabar that "type" is a little vague,

The HOA can do this only to the extent the covenants allow such restrictions. Elaboration:

The new statute section does not prohibit a HOA from regulating the type of fencing an owner may install. But this is not the same as saying, "HOAs may regulate the type of fencing an owner may install."

To regulate the fencing in the front yard to a certain type of fencing, a HOA must have a basis in its covenants for doing so.