KPRC 2 Investigates: Homeowner vs. HOA in fence build debate

New law gives homeowner more say about their property, limits HOA

Why can’t a homeowner build a fence if the law says it’s ok? State lawmakers passed a new law that allows homeowners anywhere in Texas to put up a perimeter fence around their property for added security.

ONALASKA, Texas – Why can’t a homeowner build a fence if the law says it’s ok? State lawmakers passed a new law that allows homeowners anywhere in Texas to put up a perimeter fence around their property for added security. The law specifically states that homeowners associations can not restrict it. But some are trying. KPRC 2 Investigates team is looking into what your HOA can and can not do.

What is the new Texas law about HOA and fences?

That law regarding HOA restrictions was passed as Senate bill 1588. As of September 1, it is now part of the Texas property code. If you have a pool, your HOA cannot tell you that you can’t have a fence around it. They can specify what type of fence but you can always put up one kind, no questions asked.

Homeowners associations across the state are doing their best to maintain control of their communities, while homeowners just want to protect their property.

Homeowner says he needs a fence on his property

HOA vs Homeowner in fence debate. KPRC 2 Investigates new law and why one man is not being allowed to build a fence. (Copyright 2021 by KPRC Click2Houston - All rights reserved.)

About two hours north of Houston in Onalaska, Marty Jamieson lives on a beautiful piece of property that has been in his family for more than 50 years.

“I have two logical reasons why I want a security fence,” said Jamieson.

The retired master gardener likes his privacy, and he’s having issues. Deer are destroying his plants and trees and a new Bed and Breakfast next door makes him feel less secure.

KPRC 2 Investigates HOA does not allow homeowner to put up a fence. Law says it's okay. (Copyright 2021 by KPRC Click2Houston - All rights reserved.)

According to Senate bill 1588, Jamieson doesn’t even need a reason. It reads, “a property owners’ association may not adopt or enforce a restrictive covenant that prevents a property owner from building or installing security measures, including.. but not limited to .. a perimeter fence.”

It does not prohibit an association from “regulating the type of fencing that a property owner may install.” When Jamieson approached Idlewild Estates HOA board about putting up an iron perimeter fence they wouldn’t have it.

“They said no. They said you can only have a four foot fence because you’re on the water. And I said, that’s not security. I can hop a 4-foot fence,” said Jamieson.

The legislature was very clear that homeowners are allowed to protect themselves and fences are one way to do that.

Fighting back against an HOA ruling

Attorney David Kahne represents homeowners against overreaching HOA’s. He believes most judges would side with Jamieson.

“Four feet just doesn’t provide protection, it provides decoration,” Kahne explains.

No one from Idlewood Estates would talk with us on camera. But HOA’s across Texas are struggling with this new law.

“This is a slippery slope it’s going down,” said Charles Goforth, Meyerland Community Improvement Association, “What’s next? Are we going to allow purple houses?

While Charles Goforth of the Meyerland Community Improvement Association doesn’t like the new law, he and other board members moved quickly to get new rules in writing ahead of September 1st.

“The law is very vague about it. It just says that HOAs are allowed to control the materials,” said Goforth.

That means your HOA can dictate color and the materials, iron versus wood for example. You may remember, earlier this year we told you about one homeowner who says her HOA denied her the use of a fence stain that was the exact stain her neighbors used.

“The law requires them to put their rules in writing,” explains Kahne. “That’s true for fences. And it’s true for all of the other rules they want to enforce.”

It leaves homeowners like Jamieson, denied what the law says is his right, in a strange place.

“So here I am. What do I do? I call Amy (laughs),” said Jamieson.

KPRC 2 Investigates HOA vs homeowner in fence debate. (Copyright 2021 by KPRC Click2Houston - All rights reserved.)

Who makes sure the HOA is following the new laws?

There are no HOA counter police that will come in and force your HOA to follow the law. What it will come down to is a lawsuit if your HOA violates the law and in some way hurts you or your property financially. Kahne says he does not recommend putting up a fence before your HOA approves it. If they take you to court and you lose you could be forced to pay the HOA’s legal fees.

We’ve put together a detailed list of the new laws and what it means for homeowners and HOA’s.

About the Author:

Passionate consumer advocate, mom of 3, addicted to coffee, hairspray and pastries.