Representing Texas Homeowners Associations & those aggrieved by them

Attorney Trey Wilson handles lawsuits and pre-litigation disputes involving enforcement of restrictive covenants/deed restrictions, Homeowner Association member voting/ballot/proxy issues, HOA Board elections, collection of assessments/dues, placement and removal of liens, CCR/Declaration disputes, developer HOA control/turnover, ACC approval, HOA Board governance, Abuses by Homeowners Associations and drafting/amendment of HOA documents including By-laws.


Enforcement of Restrictive Covenants -- HOA Board Actions are PRESUMED to be Reasonable

Did you know that there is a built-in presumption in the Texas Property Code that an HOA's actions (and the actions of its Board members, attorneys, management companies and other agaents) are PRESUMED to be reasonable? Did you know that in seeking to overcome this presumption, the party challenging the HOA bears the burden of proof? It's true.

Section 202.004(a) of the TPC provides: "An exercise of discretionary authority by a property owners' association or other representative designated by an owner of real property concerning a restrictive covenant is presumed reasonable unless the court determines by a preponderance of the evidence that the exercise of discretionary authority was arbitrary, capricious, or discriminatory."

In order to grasp the import of this provision, understanding presumptions is important. A presumption is not evidence but rather a rule of procedure that is overcome when positive evidence to the contrary is introduced. See Green v. Ransor, Inc., 175 S.W.3d 513, 516 (Tex. App.–Fort Worth 2005, no pet.). The presumption “disappears” when evidence to the contrary is introduced. See Republic Nat’l Life Ins. Co. v. Heyward, 536 S.W.2d 549, 558 (Tex. 1976).

There exist many manners in which to contest the reasonableness of an HOA's actions. One of which is by allleging and proving selective enforcement. Be careful, however, as the Texas Courts have usually sided with the HOA unless their actions are, indeed, arbitrary. That means that proving an HOA's properly-authorized action is tough. However, overly-zealous HOAs and their agents do act "arbitrary, capricious, and/or discriminatory" in many circumstances. With the right facts, careful presentation of evidence, and an attorney knowledgable in HOA law (particularly Title 11 of the Texas Property Code), an owner can porevail in her claims that an HOA's actions are illegal or unsupported by law. In those instances, an owner might well obtain relief from oppressive HOA actions and even recover attorneys' fees and costs.