Supporting the rights of homeowners to plant xeriscaped yards and install solar panels on their rooftops may seem like an easy win for lawmakers, who arrive at the Capitol each session to stories about unruly homeowners associations that take away Texans' rights to do what they want on their own property.
It is not easy to pass laws reining in the powers of homeowners associations because the issue includes deeply held Lone Star values on both sides—property, community, family, home, privacy, independence, freedom, local control.
"It's a really difficult issue," said Gregory Cagle, an Austin attorney and author of the book, "Texas Homeowners Association Law." "The Legislature has to decide who they're going to protect. The rights of one individual homeowner, or the rights of all of them?"
A handful of bills this session would affect the powers and duties of homeowners associations, which by some estimates number 30,000 in Texas.
Some bills are cosmetic: One bill would prohibit homeowners associations from banning flags in front yards; another would push associations to accept certain kinds of xeriscaped yards; a third would back a homeowner's right to use solar panels.
Others are more substantial—including a bill that has yet to get a hearing that would give the HOAs more powers of accelerated foreclosure—and have raised the ire of homeowners advocacy groups.
Still new at reducing the powers of HOAs, the Republican-dominated Legislature seems unwilling to do too much on the issue this session, after passing some reforms in 2011 and focusing its attention this year on more pressing issues such as water and transportation.
Reining in HOAs
Some lawmakers say that HOAs, which have increased exponentially across the nation in recent decades with to the rise of the suburbs and the absence of zoning laws in some areas, need to be reined in—but that their lobbying power at the Capitol is too strong for legislators to make much headway.
Others argue that the bad incidents are the exception, not the rule. They point out that HOAs are made up of the very homeowners they are governing, and without them Texans' largest investment, their home, could plummet in value because of thoughtless neighbors.
The earliest major HOA battle at the Capitol was just 12 years ago, when a Houston senator tried to pass a bill outlawing what happened to 82-year-old Wenonah Blevins.
Her fully paid-off $150,000 home in northern Harris County, near the Montgomery County line, was foreclosed on by a homeowners association and auctioned for $5,000 because the widow owed $814.50 in HOA dues and late fees.
The outpouring of support and sympathy for the widow's plight did little to help pass major reforms, and even though Blevins eventually won her home back, the bill that reached the governor's desk in 2001 was criticized as weak.
"The need arises through the interim where you see there's been problems that need to be addressed," said Rep. Larry Gonzales, R-Round Rock. "The authority they have, what they can and cannot do in issuing liens What is the enforcement of tall grass? What is the enforcement of Christmas lights in July? Those are the kinds of smaller things that you hear about with HOAs, but quite frankly they yield significant power when it comes to liens. And so we looked at it last session and there were some things done, but the big questions, the big legislation, historically dies here."
One bill that seems to be getting traction in the Legislature this session is a proposal by Rep. Dawnna Dukes and Sen. Kirk Watson, both Austin Democrats, who have found bipartisan support for a bill requiring HOAs to allow some form of xeriscaping in front yards.
The bill still allows HOAs to define "xeriscaped yards" and enact limits to protect the look and feel of the neighborhood, part of the reason it has support in both chambers.
But the argument that resonates with lawmakers on this legislation is that xeriscaping—which features native plants and landscaping that does not need as much watering—is a way to conserve water, and the Legislature is focused on water plans and conservation this session.
"The Water Development Board stated that in order for us to be able to meet our needs for the next 20 years, we have to have at least 30 percent conservation, and xeriscaping plays into that conservation," Dukes said. "We do know that some HOAs, quite a few of them, have been somewhat onerous in their regulations in neighborhoods. Not just with xeriscaping but with other issues. But requiring them to allow for some xeriscaping will allow individuals who want to reduce their water and do conservation to have that option."
The argument has won the attention of some pro-HOA Republican lawmakers in the Houston area, which has no planning and zoning commission to regulate the placement of businesses and protect property values and, as a result, relies heavily on HOAs.
"I think local control is always the best, and so the HOAs have been empowered by their property owners in those associations, and those are known conditions when you buy property there, so I really think those are an important part of truly local government," said Rep. Jim Murphy, R–Houston. "The issue for Texas is water. The potable water people use to irrigate landscaping is really a large water use, so in times we're going through a drought and talking about billions of dollars to expend for new reservoirs and resources, this is a way to reduce our demand. So it's something we really need to consider."