by Warren Schulin
Visitor Question: Our HOA wants to change our deed restrictions. There's a chapter in our present deed restrictions that states that it takes a majority of homeowners to make changes. State Law Chapter 209 says it takes 67 percent to make changes. Which law prevails?
Editors Respond: We are sorry to be so late in replying that the original post probably has been resolved. In case this matter is still outstanding, we decided to take on this question in the most general terms that will be widely applicable.
We also must caution that we haven't investigated Texas law on the subject; we are planners and not attorneys.
However, here is an important general principle applicable to all readers in the U.S. Deed restrictions do not supersede any level of law, whether that is local ordinance, state law, or federal law. If and when there is a conflict between the two, both provisions must be met.
In this instance, it is easy to see that this means that the more restrictive provision, that of Texas state law, prevails in this situation. Texas law has some fairly lengthy things to say about deed restrictions and declarations within subdivisions or developments, so just make sure that there isn't a contradictory provision or qualification to the chapter you are reading.
We decided to answer this question, even though we are too slow, also because we sometimes have received questions from people who say that their local zoning law says "thou shalt not" do something, while their condominium declarations say "thou shalt" do the same thing. In this example, a resident cannot follow both requirements. A good rule of thumb in this instance would be to follow the law of the highest level of government involved; local government would trump deed restrictions, and of course state law supersedes local ordinance and federal law can reverse state law.
The contradictions may come about because local or state laws are changed after the development files its master deed, declarations, or deed restrictions. Or the HOA may be following covenants that were poorly drafted by an attorney who was a friend of the developer but otherwise lacked real estate law experience.
So these situations come about in any number of ways.
Obviously the Texas legislature was acknowledging the point of view that the original deed restrictions imposed by the developer (usually) should be given considerable weight, and that current resident owners should not be able to override the original character of the development, as approved by the public sector and envisioned by the developer, in an impulsive or selfish way.
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