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Roger, Attorney
Category: Legal
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Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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I live on a small lake in East Texas. The HOA has a rule that

Resolved Question:

I live on a small lake in East Texas. The HOA has a rule that homeowners who want to sell their home may not use the services of a realtor. In other words, all property must be "for sale by owner". It has become almost impossible to sell. Is this restriction legal?
Submitted: 6 years ago.
Category: Legal
Expert:  Roger replied 6 years ago.

HOA bylaws are a contract that you make with the community when you purchase the property. You've already contractually agreed not to use a realtor, and the terms of the agreement are generally going to stand.


The argument of the HOA that the court usually buys into is that the owner had the choice whether to sign the HOA agreement, and because he/she did sign, they've already agreed no to use a realtor - in writing - and they can't breach their agreement.


You could always sue the HOA to have the bylaw removed from its books, but it would be difficult and you'd virtually have to prove that this provision is unconstitutional - it would be difficult to overcome such a burden.

Edited by Adam Kirk on 2/5/2010 at 3:54 PM EST
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Customer: replied 6 years ago.

HOA laws are superceded by state and federal law. HOA's sometimes pass laws that are illegal, regardless of whether an HOA agreement has been signed. For example, in Texas some HOA's had a law that stated you had to have a wood shingle roof on your house. However Texas property code states that an HOA cannot force a homeowner to have a wood shingle roof. HOA's had to change their law when someone showed them Texas Property Code. Another example is that an HOA in Tennessee made a law that homeowners couldn't own a gun. This was over-ridden by the 2nd Amendment of the US Constitution.

I need for someone who is familiar with Texas Code to advise if prohibiting a homeowner from using a realtor violates Texas Code/law or federal law. There are laws in Texas that protect homeowners from HOA laws. There are also laws in Texas about free enterprise and restriction of free trade. I am asking if this law of my HOA violates a state or federal law.

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