I am not going to be very well liked when I say all of this. But, here goes. Several years ago, I had a conversation with Judge Longino, Precinct 1, about using the justice court to get the HLECC to enforce deed restrictions, especially for new residents. State law protects those who violations have passed the limitation time for enforcement. Here is my experience in that conversation:
I went to Judge Longino’s office to see if the county, through the Justice Court procedures could be used for a resident to get the Deed Restrictions enforced, and spoke to the clerk there. I found out that in the case of a POA that does not enforce deed restrictions, it could be used. If you have called the Sheriff in situations of safety concerns, that would be allowed in court as proof that you have tried to resolve the matter. But, the clerk did explain that the first step in the procedure is to send a certified letter to the resident who violated the restrictions, by the person bringing about the complaint. If the resident does not reply with a resolution, within the 10 days after signing for receipt of the certified letter, then Justice court procedures should be used.
But, here are some ‘kickers’ on all of this info. If the deed restrictions have not been enforced for others in the community, for several years, they could be considered legally ‘abandoned’. Or if you are being singled out for a violation of deed restrictions, with a written notification from a POA / HOA representative, and you can prove that there are many other residents within the boundaries of the POA / HOA, then you can most likely declare ‘discriminatory practices’ in a court of law. If you got a written notice, then everyone who is also violating that deed restriction should have received one too. Go around the neighborhood and take pics of violations like those you are being accused of violating.
Next, there is a Texas state law mandating that deed restriction violations, that have been active on your property, for years, cannot be enforced. This is referred to as ‘laches’, in the case of POAs. ” To fully understand laches, one needs to know how it interacts with the statute of limitations. The statute of limitations is a fixed statutory period in which an action must be filed or be forfeited. An action to enforce a restrictive covenant must be initiated within four years of its breach, according to the Texas Civil Practice and Remedies Code (Section 16.051). Laches, an unreasonable delay in pursuing a claim, cannot lengthen the statute of limitations but may shorten it. “
And, then, there is always the question of whether the POA is legally an active entity. Was it ever ‘abandoned’, or forfeited, in totality? Was it done through a true reactivation with the same SOS corporation number and exact name? Or was it an entirely new application, with a new number and a change of name? Under those circumstances, it would take a 100% property owner vote. There has always been some bottom line legal questions that people keep asking. Yes, the deed restrictions ‘go with the land’, but if there is a possibility that no one, other than the courts, can enforce them legally, it is something that should definitely be considered. The POA went into forfeiture in 1993 and after some legal wrangling by an attorney during a legal dispute, they reinstated in 2011. The question remains, were they aware that they were no longer a business entity? Were they filing their required tax returns during those 19 years? I was told, by an old board member, that they WERE aware of it being in forfeiture. That would mean that it was a VOLUNTARY forfeiture and there is a 3 year limit to reinstate after that type of situation.