Braeswood Place Homeowners Association (BPHA) is a Civic Club comprised of seven neighborhoods within which there are nearly 40 Sections, each Section with its own deed restrictions. The deed restrictions were written by developers in the 1940s and 1950s primarily to facilitate development and restrict future changes to property use (redevelopment).
As Houston has no zoning and limited protections available to property owners, the deed restrictions are the primary tool for preventing and addressing issues that infringe on our ability to enjoy the uniquely wonderful neighborhood in which we live.
The narrow scope and inflexibility of the deed restriction documents has led to a slow build-up of issues over time and BPHA is increasingly unable to address the concerns of the constituent property owners*.
The BPHA board of directors sought legal counsel for addressing this issue and we were advised:
The Texas Legislature has passed several amendments to the property code to help groups in our situation and there have been several court rulings that have further clarified the proper course of action.
BPHA must reconstitute itself under the updated property code such that BPHA is a true property owners association (POA). There are two requirements that must be met and they must be addressed separately.
Requirement one (Phase 1) is to have the property owners of each Section needing to meet this requirement agree to form a mandatory membership POA**.
Requirement two (Phase 2) is to have the property owners of each Section needing to meet this requirement agree to form a mandatory dues paying POA.
Once complete, BPHA and its constituent members would then be able to modify the existing deed restrictions to address the various issues we face now and in the future.
Frequently Asked Questions
What are the goals of Phase 1?
The purpose of Phase 1 is to comply with current Texas property code by establishing BPHA as a mandatory membership property owners association (POA).
Property owners of the seven neighborhoods comprising BPHA will benefit from Phase 1. Completion of Phase 1 and Phase 2 will allow the property owners to modify the deed restrictions in their Section to meet the current and future issues facing the neighborhood.
Why is it necessary?
Texas law requires completion of both Phase 1 and Phase 2, otherwise it is very difficult to implement change and stop the abuse of our antiquated deed restrictions.
Does this mean mandatory dues?
Phase 1 does not result in mandatory dues. Phase 2 will require mandatory dues per Texas law. However, dues for current owners will remain voluntary until the deed is conveyed to another owner. It is important to understand that when Phase 2 is complete, the current property owner will be exempt from paying the mandatory dues. Subsequent owners will be subject to mandatory dues. Further, the board expects mandatory dues to be less than the current voluntary dues because participation will increase. It is also important to understand that current voluntary dues are about 10% of what similar neighborhoods pay for mandatory dues, which makes BPHA a tremendous value as we are self-managed and do not pay high management fees.
No recommended deed restrictions have been shared; how can I agree to something that needs to be defined?
Deed restrictions will not change in either Phase 1 or Phase 2. Only after both are completed can BPHA engage the property owners in potential deed restriction changes. Any change to deed restrictions will require a vote of the member owners.
Does this mean I am obligated to deed restrictions in other areas if I sign?
All property owners are already obligated to follow all deed restrictions for their respective Sections. Neither Phase 1 nor Phase 2 impacts the obligations.
How does agreeing to this initiative benefit me?
Agreeing to the changes provides an avenue for property owners to update the deed restrictions to meet current needs. Not agreeing means property owners will continue to have their rights eroded by courts that have consistently ruled against property owners thereby leading to loss of value.
How has this effort been funded? I didn't agree for my HOA dues to go to this effort.
No property owner dues have been or will be used to fund this effort. Funding was provided by property owners who donated funds specifically to be used to protect the long-term interests of BPHA.
Is the BPHA low on funds because money was used to pay for this initiative?
No, BPHA is low on funds because only about 30% of property owners voluntarily pay dues. If mandatory dues are not implemented, BPHA will cease to exist and all services will end including the 24/7 Constable Patrol, landscaping for common areas, office manager, dispute resolution, property owner advocacy with local and state governments, as well as the other services provided via BPHA.
How is this initiative different from other HOA's who make unreasonable demands on neighbors or institute new rules?
Deed restrictions for other POA/HOAs allow this to happen whereas BPHA deed restrictions do not. BPHA has no enforcement authority, only another property owner in the same Section can sue for enforcement. No property owner or board member is remotely interested in activities occurring in other areas and we will not advocate for such changes. Every future proposed change will require a vote and every member of BPHA will be allowed input on any proposed change.
What are the goals of Phase 2 and 3?
As stated above, Phase 2 is required by Texas property code to implement mandatory dues. Those dues are anticipated to be less than current voluntary dues as participation will increase significantly. Also remember that dues will remain voluntary for current property owners and only future owners will be subject to mandatory dues.
Phase 3 will address any deed restriction issues currently facing the property owners. Some items put forth for consideration include updating the definitions of single-family use, residential use, and detached structure; removing the prohibition of steps past the build line; replacing references to stories with specific measurements to avoid confusion caused by use of non-definable terms; addressing abandoned structures; requirements that builders maintain the property during construction; and prohibiting solicitations.
* An example is the single-family residential use restriction. While the deed restrictions plainly state this restriction, Texas courts have ruled that overnight rentals such as Air BNB do not violate this restriction even though the Texas Legislature has repeatedly indicated overnight rentals are a business and thus violate the restrictive covenants of the neighborhood. BPHA frequently receives complaints about this use due to noise, out-of-control parties, and parking issues. There is also conflict over long-term rentals to people living in the house that are not family members, such as college students and room for the night rentals. The courts have greatly expanded what constitutes a family leading to additional unresolved conflicts. A second example is the Braes Heights restriction that steps are not allowed past the build line. After Hurricane Harvey led to code changes requiring homes to be built higher, property owners were left with a choice of reducing their new home’s footprint or petitioning property owners in their respective Section in the hope that at least 75% would approve an amendment to have steps in front of their homes. This is a costly, risky, and time-consuming effort that could be made much easier if this project is successful.
**Braes Manor, Braes Oaks, Braes Terrace, Emerald Forest, Southern Oaks, Ayrshire Sections 1 and 14, and Braes Heights Section 9 already meet this requirement and are not subject to Phase 1. Ayrshire and Braes Heights Sections not listed are subject to Phase 1.