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Roger, Lawyer
Category: Real Estate Law
Satisfied Customers: 31782
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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I had a waterwell drilled in my property 8 years ago. Now,

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I had a waterwell drilled in my property 8 years ago. Now, the Home Owners Association has sent me a letter that I have to plug it. I live in Texas, what are my water rights in this situation?

Hi - my name is XXXXX XXXXX I'm a Real Estate litigation attorney. Thanks for your question.


Do the HOA rules prohibit a water well?


If so, were these rules in place when the well was drilled?

Customer: replied 4 years ago.
Yes, I was told that there was a rule after the well was drilled. The HOA new about it at the time and gave me a verbal OK. Eight years later they have new people running it and have decided to enforce HOA rules.

Ok. Thanks for the information.


IF you were given permission to keep the well despite the rule, then you should be able to claim your right to continue to use the well IF you can prove that this permission was granted.


Hopefully, the board put something in its minutes to reflect that you were given permission to keep the well. You should review the meeting minutes to see if there's anything in there. Also, IF you can have the board member/s who gave you permission to provide the new board with an affidavit stating that you were allowed a variance on the policy and that the well was accepted by the board, then you could argue that this is adequate authority for you to keep the well.


If there is nothing in the minutes, that's very harmful for you, and if you can't get an affidavit, etc., then that's probably fatal to your claim.


I also considered a claim that it's been there long enough to grandfather you in, but I don't think that is a legally sound argument because (1) the rule was in place when you dug the well (to be grandfathered, you would have had to dig the well BEFORE the rule was in place) and (2) because this is a continuous violation of the rules, the statute of limitation starts over every second.


So, your best bet is going to be IF you find minutes or get an affidavit from the previous board member/s. If that can't be done, and there's no proof of permission, you're likely going to be forced to cap the well, unfortunately.

Maybe you can work out some type of agreement/settlement with the HOA that will allow you to keep it. However, that's going to depend on how negotiable the HOA wants to be.


I'm sorry the news isn't better, but I'm only trying to be honest about the situation

and the law that applies.

Customer: replied 4 years ago.
Do I have any rights to capture and use ground water on my land?

You do generally. HOWEVER, if the HOA bylaws or rules prohibit wells on association property, then you are bound by those rules.

The second you buy the property, any rules, restrictive covenants, etc. attach to your ownership of the property. It's just like any other covenant, easement, etc. on property.

Thus, you are bound by those terms.

Customer: replied 4 years ago.
The water service in our subdivision is of poor quality, we have "Boil Notices" all the time and have been without water on occasion. One time we were without water and a house burned down . The fire dept. came out and didn't have water to put out the fire.

I'm looking for some legal reason to keep my water well operational.
Is there any thing you can suggest?
I understand your concern.

The only way to get this accomplished - - absent having some proof that you were given permission as we discussed above - - would be to sue the HOA and ask th ecourt to find the HOA rule improper and against public policy because of the poor water quality and other issues regarding the safety and reliability of your current system.

You may be able to convince the judge that there''s no real legitimate or valid reason to prohibit you from using your well and that the benefit to you outweighs any detriment that the HOA may suffer as a result.

Thus, your argument is really one of equity and a court may find that the provision serves no legitimate purpose and find that you can continue. There's no LAW that would give you this right. Instead, it would just be a balance of benefits and detriments to both parties.
Customer: replied 4 years ago.
Thanks for your help. I have one more question. Over the past couple of days, I have learned that there are several other property owners that have violated HOA by- laws, such as construction of buildings across easements and property lines. These violations have not been addressed in years. In your opinion, can the HOA select the by-laws they want to enforce and not enforce?
Absolutely NOT.

THe HOA cannot pick and choose what rules to enforce, or selectively enforce the rules as they please. Proving that this is going on would help your claim and also will show that they're singling you out for some reason - - which is also illegal.
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