81R14501 E

By: Lucio III H.B. No. 4637

A BILL TO BE ENTITLED

AN ACT

relating to unenforceable restrictive covenants affecting residential homes.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 202, Property Code, is amended by adding Sections 202.014, 202.015, 202.016, and 202.017 to read as follows:

Sec. 202.014. FLAG DISPLAY. (a) A property owners' association may not, except as provided in this section, adopt or enforce a dedicatory instrument provision that prohibits, restricts, or has the effect of prohibiting or restricting a property owner from the display of:

(1) the flag of the United States of America;

(2) the flag of the State of Texas;

(3) an official or replica flag of the United States Army, Navy, Air Force, Marine Corps, Coast Guard, or other United States armed forces branch.

(b) A property owners' association may adopt or enforce reasonable dedicatory instrument provisions:

(1) that require:

(A) the flag of the United States be displayed in accordance with the federal flag code, 4 U.S.C. Sections 5-10, or successor laws;

(B) a flagpole attached to a dwelling or a freestanding flagpole be constructed of permanent, long-lasting materials, with a finish appropriate to the materials used in the construction of the flagpole and harmonious with the dwelling;

(C) the display of a flag, or the location and construction of the supporting flagpole, to comply with applicable zoning ordinances, easements, and setbacks of record;

(D) a displayed flag and the flagpole on which it is flown be maintained in good condition and that any deteriorated flag or deteriorated or structurally unsafe flagpole be repaired, replaced, or removed;

(2) that regulate the location of the flagpole on which a flag is displayed, but no such regulation may prevent the flag from being seen or a flagpole from being installed or erected;

(3) that govern the size of a displayed flag;

(4) that regulate the size, location, and intensity of any lights used to illuminate a displayed flag.

(c) In this section, "owner" has the meaning assigned by Section 201.003 and includes a relative or tenant of an owner.

Sec. 202.015. RADIO APPARATUS. (a) A property owners' association may not, except as provided in this section, adopt or enforce a dedicatory instrument provision that prohibits, restricts, or has the effect of prohibiting or restricting a property owner from owning, operating, installing, or maintaining any radio apparatus operated pursuant to federal authorization or with the consent of the holder of a federal license.

(b) In this section, "apparatus" means any item, equipment, component, element, or structure used or usable for carrying on radiocommunications or facilitating the carrying on of radiocommunications.

(c) A property owners' association may adopt or enforce reasonable dedicatory instrument provisions requiring radio apparatus located exterior to a structure:

(1) be constructed and installed in compliance with applicable zoning ordinances, easements, setbacks of record, and national or governmental building codes;

(2) be constructed of permanent, long-lasting materials, with a finish appropriate to the materials used in the construction of the apparatus;

(3) be maintained in good condition and that any deteriorated or structurally unsafe apparatus be repaired, replaced, or removed;

(4) other than radio apparatus made of wire, not extend closer than the front setback line from any street on which the dwelling on the lot faces;

(5) be removed if the property on which it is located is sold to a person who does not have federal authorization to operate the radio apparatus installed on the property.

(d) In this section, "owner" has the meaning assigned by Section 201.003 and includes a relative or tenant of an owner.

Sec. 202.016. SOLAR ENERGY SYSTEMS. (a) A property owners' association may not, except as provided in this section, adopt or enforce a dedicatory instrument provision that prohibits, restricts, or has the effect of prohibiting or restricting a property owner from owning, operating, installing, or maintaining a solar energy system.

(b) In this section, "solar energy system" means:

(1) equipment, accessories, structures, and fixtures that collect or convert radiant energy from the sun into thermal, mechanical, or electrical energy; and

(2) any structural design feature of a building, whose primary purpose is to provide for the collection, storage, and distribution of the radiant energy of the sun in order to generate thermal, mechanical, or electrical energy.

(c) A property owners' association may adopt or enforce reasonable dedicatory instrument provisions:

(1) that require a solar energy system to be installed and maintained in compliance with:

(A) the manufacturer's specifications; and

(B) applicable zoning ordinances, health, safety, electrical, and building codes;

(2) that regulate the location and appearance of the publicly viewable components of the solar energy system;

(3) that prohibit the location of a solar energy system by the property owner on property:

(A) owned or maintained by the property owners' association;

(B) owned in common by the members of the property owners' association.

(d) A property owners' association dedicatory instrument provision that increases the cost of a solar energy system by more than 10 percent or decreases the efficiency of the solar energy system by more than 10 percent is void and unenforceable.

(e) In this section, "owner" has the meaning assigned by Section 201.003 and includes a relative or tenant of an owner.

Sec. 202.017. STANDBY ELECTRIC GENERATORS. (a) A property owners' association may not, except as provided in this section, adopt or enforce a dedicatory instrument provision that prohibits, restricts, or has the effect of prohibiting or restricting a property owner from owning, operating, installing, or maintaining a permanently installed standby electric generator.

(b) In this section, "standby electric generator" means a device that converts mechanical energy to electrical energy and:

(1) is powered by natural gas, liquefied petroleum gas, diesel fuel, biodiesel fuel, or hydrogen;

(2) is fully enclosed in an integral manufacturer-supplied sound attenuating enclosure;

(3) is connected to the main electrical panel of a residence by a manual or automatic transfer switch; and

(4) is rated for a generating capacity of not less than seven kilowatts.

(c) A property owners' association may adopt or enforce reasonable dedicatory instrument provisions:

(1) that require:

(A) a standby electric generator to be installed and maintained in compliance with the manufacturer's specifications;

(B) a standby electric generator be installed and maintained in compliance with applicable health, safety, electrical codes, and building codes;

(C) all electrical, plumbing, and fuel line connections be installed only by licensed contractors;

(D) all electrical and fuel line connections be installed underground;

(E) nonintegral standby electric generator fuel tanks be installed and maintained to comply with applicable zoning ordinances, health, safety, electrical, and building codes;

(F) the standby electric generator, its electrical lines, and its fuel lines be maintained in good condition and that any deteriorated or unsafe components be repaired, replaced, or removed;

(2) that set reasonable times for the periodic testing of a standby electric generator;

(3) that prohibit the use of the standby electric generator to generate all or substantially all of the electrical power to a residence except when utility-generated electrical power is not available or is intermittent;

(4) that regulate the location and exterior appearance of the standby electric generator.

(d) A property owners' association dedicatory instrument provision regulating the location of a standby electrical generator that increases the cost of installing the standby electric generator by more than 10 percent or the cost of installing and connecting the electrical and fuel lines by more than 20 percent is void and unenforceable.

(e) In this section, "owner" has the meaning assigned by Section 201.003 and includes a relative or tenant of an owner.

SECTION 2. Sections 202.014, 202.015, 202.016, and 202.017, Property Code, as added by this Act, apply to a dedicatory instrument adopted before, on, or after the effective date of this Act.

SECTION 3. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.