Flag violates deed restrictions

(Georgetown Texas)

Visitor Question: We live in a development that has deed restrictions and community standards. Isn't that their job to enforce the restrictions and standards?

The director of community standards is stating that he and his inspectors can only ask the homeowner to remove a Gadsden flag. They claim they do not have the authority to demand its removal or to remove.

However, in the design guidelines there are rules to follow about flying flags, as well as submitting an application for modification. This individual who is flying the Gadsden flag has not submitted an application and will not take this flag down.

What can I do... It is is very upsetting considering the times we now live in.

Editors Reply: We can relate to your frustration.

The answer to your first question is that the actual content of the deed restrictions determines how much power the HOA has to enforce the restrictions.

Our experience is that documents called community standards sometimes are part of the deed restrictions, and sometimes they are more like rules that the HOA makes, and therefore can ignore if they choose to. This might be what is happening to you.

Just as police might choose to ignore someone driving 36 miles per hour in a 30 mile an hour zone, inspectors may ignore what they see as minor infractions. However, we agree with you that this doesn't seem like a minor matter, considering that it is willful and ongoing, and also that the person flying the flag refuses to follow the procedure to seek permission for the flag.

One would think that a development large or sophisticated enough to have someone called a director of community standards would actually have some work for that individual to do. Usually that person would be hired not just to be a gadfly running around telling people to sweep their sidewalks, but rather a person with power to represent the HOA in enforcing deed restrictions, and the rules that the restrictions empower the HOA to make.

As we say repeatedly on this website, deed restrictions are private matters and cannot be enforced by governments. However, we see that you are in Texas, where there is now some legal leeway for local governments to get involved in enforcing deed restrictions. You might try that avenue, if you haven't.

By all means, talk to the highest official of your HOA. If they have out-sourced the management of your development to a private company, they at least deserve to know about under-performance of their contractor is this case. Also this conversation could give you insight into how much power the director of community standards really has. Another possibility is that the HOA has been advised not to try to force removal of this particular flag (the "don't tread on me" flag for readers who may not know), which has taken on an overtone of political speech right now, as did the American flag itself during the Vietnam War, for instance. These are the kinds of things you would learn by talking directly with your HOA president or board member.

Lastly, if all else fails, you are left with talking with an attorney about the range of possible outcomes if you file a civil suit. It's not a good answer, but unfortunately, when we leave design guideline enforcement in private hands, courts are where the ultimate authority for enforcement lies.

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