Texas HOA, question about CC&R's and the Board's authority

good morning. I am part of a Texas HOA Board and the board members are a bit confused on how to proceed with a variance that was requested by a homeowner.

The CC&R's clearly state that any temporary basketball hoop must be stored out of sight when not in use.

A homeowner is asking for a variance to leave theirs out all the time because the kids use it very often and its an inconvenience for them to have to keep putting it away.

We have some Board member that want to allow the hoop to stay without being put away, and other members that state we have to follow the CC&R's and it must be stored out of view when not in use.

One board member suggests that the board can just unilaterally change that to allow for this temporary hoop to stay out all the time.

Under the "Amendment" section of the CC&R's, it state that "this declaration" may only be amended by 67% affirmative vote of the entire membership.

Does this variance request for the temporary basketball hoop require 67% of the homeowners to vote on to change it, or can the Board allow it by majority vote?

Appreciate any feedback on this! thank you

If your CC&Rs do state clearly that temporary basketball hoops must be stored out of sight, then the homeowner's options appear to be putting up a permanent basketball hoop (assuming that's allowed by your CC&Rs), putting away the temporary hoop, or doing without altogether.

The other option for the HOA is amending your CC&Rs.

If some board members think that a "variance" should be allowed, then it would make sense to poll the community to see if the variance would be accepted or if it would be a source of conflict. Polling would also allow you to estimate whether an amendment would be approved.

Once you get an idea of how the community feels, you can move forward with an amendment if it has broad support.

Personal opinion: A "variance" is basically a violation that's been approved for certain people - ie., it's a form of selective enforcement. I think that variances may appropriate when an owner wants to make an improvement that's been allowed for others but his lot isn't suitable for some reason. In other words, it's somethings outside of the owner's control. Variances are also appropriate as part of a reasonable accommodation for an owner who is disabled. These situations are different from "following the rules is a nuisance and I don't want to be bothered".

Try again:

Third, the only way for the owner to get approval of this is via a proper amendment of the declaration, including a proper vote by owners.

I can see variances for things like installing ramps on a flight of stairs because someone uses a wheelchair, but who's being inconvenienced here - the homeowner or the kids? Depending on how old the kids are, it seems to me they should be able to put this away themselves. The ones I've seen usually fold up and you push it into the garage or a shed. I say nope, but if this homeowner wants the variance, let HIM or HER go around the neighborhood asking for support and go from there.

As Kerry noted, it would probably make more sense for the homeowner to ask for a permanent hoop. You can alway stipulate that it be removed if the house is ever sold or transferred - when our community tore down our basketball hoop, the main thing we has to do was tear up the concrete pad, haul it away and plant grass.

The covenant is clear - the hoop should be stored out of sight after use.


Typically, and this depends on the language within your governing documents, a Board is not required to enforce covenants.
Just as every member has a right to enforce but is not required to enforce the covenants (they are required to follow them), A Board has a right to enforce but is (typically) not required to enforce the covenants. It's an option.

The difference between the members right and the Associations right (on enforcement) is that if the Board chooses to enforce, they must enforce equally on everyone or they are committing selective enforcement.

Selective enforcement is a defense an owner would raise in court if the Board failed to enforce equally.


Sometimes, the language of the governing documents allow the Association to waive a covenant for someone.

For those Associations that have this language, the Board must consider carefully because waiving for one would require waiving for all or be committing selective enforcement.

However, to amend the governing documents to remove a covenant would require membership approval in accordance with the procedure stated in your governing documents.

Had the owner not asked, the board could simply wait until someone complained - bringing the issue to their attention requiring the board to make the decision they are faced with now (enforce or not).

However, the owner asked for a waiver so the board must now make a decision.