Can my HOA stop me from opening a care home in Texas?

Most people have this backwards, and that part is true

The common assumption is that a state license is red tape you want to avoid, and that an HOA can shut down any care home in a residential subdivision. The direction of that is backwards. An unlicensed home has no statutory protection from deed restrictions at all. A licensed home at least has a path to protection, through Chapter 123.

But a path is not a guarantee, and the rest of this page is about the conditions, because the conditions are where people get hurt.

What Chapter 123 actually says, in its own words

• —Section 123.003(a): the use and operation of a community home that meets the qualifications imposed under this chapter is a use by right that is authorized in any district zoned as residential.
• —Section 123.003(b): a restriction created or amended on or after September 1, 1985 that relates to the transfer, sale, lease, or use of property may not prohibit the use of the property as a community home.
• —Section 123.004: "To qualify as a community home, an entity must comply with Sections 123.005 through 123.008 and be:" ... "(2) an assisted living facility licensed under Chapter 247, Health and Safety Code," provided the exterior structure retains compatibility with the surrounding residential dwellings.
• —Section 123.005 requires the home to furnish food and shelter, personal guidance, care, HABILITATION SERVICES, and supervision, to persons with disabilities who reside in the home.
• —Section 123.006: not more than six persons with disabilities and two supervisors.
• —Section 123.008: not within one half mile of an existing community home.

The two conditions that decide whether it reaches you at all

First, the definition. Section 123.002 does not say that a diagnosis protects you. It says a person with a disability is one whose ability to care for himself or herself, perform manual tasks, learn, work, walk, see, hear, speak, or breathe is SUBSTANTIALLY LIMITED because of a listed condition. The list is exact: an orthopedic, visual, speech, or hearing impairment; Alzheimer’s disease; pre-senile dementia; cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis; cancer; heart disease; diabetes; intellectual disability; autism; mental illness. Note the statute says pre-senile dementia, not dementia generally. A resident with well-managed diabetes who walks, dresses and feeds herself is very likely not substantially limited, and therefore very likely not a person with a disability under this chapter. She is simply older.

Second, the services. Section 123.005 requires a community home to furnish habilitation services. Habilitation is a term of art from the intellectual and developmental disability world. Most assisted living homes for the elderly do not describe what they do that way and may not provide it at all.

Put together, whether a private-pay assisted living home full of frail but independent seniors qualifies as a community home is an open question, not a settled one. Anyone who tells you otherwise, including anyone selling you a service, is going past the statute.

And two limits on the protection itself, even where it does reach you. Section 123.003(b) only voids restrictions created or amended on or after September 1, 1985. A deed restriction recorded before that date and never amended can still lawfully prohibit the use, and older Houston-area subdivisions are full of them. Separately, Section 123.003(a) grants a use by right in any district zoned as residential, which does nothing inside the City of Houston, because Houston has no zoning. In Houston the fight is deed restrictions, not zoning.

The seventh resident forfeits two shields, not one

Section 123.006 caps a community home at six persons with disabilities plus two supervisors. A seventh resident puts the home outside the chapter entirely.

That does not only cost you the deed-restriction override in Section 123.003(b). It also costs you the use-by-right in Section 123.003(a). A home inside the city limits of a zoned city, even with no HOA at all, may need that use-by-right to operate in a residential district. Losing it can bring the city, not just the neighbors.

What to do about this before you buy

Pull the recorded covenants for the specific subdivision and read them for the word "boarding" and for any express prohibition on care facilities. A Texas court will enforce an express commercial-use exclusion.

Understand that an HOA can amend its covenants after you close and bind you to the amendment. A Texas appellate court so held in Chu v. Windermere Lakes in 2022. Being legal on closing day is not the end of the story.

And take this page to a Texas real estate or health care attorney and have them apply Chapter 123 to your actual residents and your actual property. That is the only way to know.