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

Most people believe the opposite, and it costs them the deal

The common assumption is that a state license is red tape you want to avoid, and that an HOA can shut down any kind of care home in a residential subdivision. Both halves of that are backwards. It is the unlicensed home that the HOA can attack. The licensed home is the one Texas law protects.

Texas Human Resources Code Chapter 123 creates a category called a Community Home. Section 123.004(5) says a facility licensed under Chapter 247 of the Health and Safety Code, which is the assisted living license, qualifies as one, provided the exterior of the building stays compatible with the surrounding houses.

What Chapter 123 actually says

• —Section 123.003: the use and operation of a qualifying Community Home is a use by right that is authorized in any district zoned as residential. A city cannot zone it out.
• —Section 123.003 again: a restriction in an instrument created or amended on or after September 1, 1985 may not prohibit the use of a property as a Community Home. That is the deed restriction override.
• —Section 123.006: the cap is six persons with disabilities plus two supervisors.
• —Section 123.008: a Community Home may not be established within one half mile of an existing Community Home.
• —Section 123.002 defines a person with a disability to include Alzheimer’s disease, pre-senile dementia, heart disease, diabetes, cancer, orthopedic impairment and mental illness. That is the assisted living population.

The line that decides it: the seventh resident

Six residents is the cap, and it is a hard edge. Admit a seventh and the home no longer qualifies as a Community Home, and the deed restriction override goes away with it. The HOA gets its power back.

This creates a genuine strategic choice. A seventh resident adds revenue without adding a caregiver, because one day caregiver typically covers up to seven residents. But that seventh resident also costs you the legal shield that lets you operate in the neighborhood at all. Run the numbers on both before you buy.

What this does not protect

It does not protect an unlicensed home. A boarding home for elderly residents run by a for-profit company is not a Community Home, and it has no statutory shield in a deed-restricted subdivision.

It does not protect a home whose exterior stops looking like a house. Commercial signage or a commercial facade can forfeit the status.

And a deed restriction created before September 1, 1985 and never amended since could still apply. That is rare in a master-planned suburb, but the recorded covenants have to be read.