Who Actually Pays Attorney Fees in a Texas Deed Restriction Lawsuit?

In 2023, a Frisco homeowner named Marcus Tillman noticed that his next-door neighbor had started operating a short-term rental out of the house three doors down. The property sat in a subdivision with a deed restriction recorded in 2004, twenty years before Airbnb existed but unmistakably applicable to it: "No residential lot shall be used for commercial purposes or for any business operation of any kind." Marcus consulted a real estate attorney. The attorney quoted him $8,000 to $12,000 to litigate the matter through a temporary restraining order, a hearing, and likely a trial.

Marcus asked the question almost everyone asks at that moment: "If I win, do I get my attorney's fees back?"

The attorney said yes. Marcus sued. The neighbor stopped running the rental before trial and agreed to a permanent injunction. The court awarded Marcus his reasonable attorney's fees under Texas Property Code § 5.006. The violation ended. The fees came back.

Now consider a different call, from a neighbor in Collin County — one who had been sued, not one who was suing. She had built a pergola that the HOA claimed violated a height restriction. She spent $9,000 defending the case, and she won. The HOA's interpretation of the height restriction was rejected. The court found in her favor. She called her attorney expecting the same conversation Marcus had: "Now they owe me my fees, right?"

Wrong. She paid her own $9,000. The HOA paid nothing toward her defense costs.

The difference between those two outcomes is one sentence in one Texas statute, and almost every website, forum post, and general-purpose summary of Texas deed restriction law gets it wrong.

The Statute: What § 5.006(a) Actually Says

Texas Property Code § 5.006(a) reads: "In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney's fees in addition to the party's costs and claim."

The operative phrase is "a prevailing party who asserted the action." Not "a prevailing party." Not "the winning side." The fee award runs to the party who filed the lawsuit and won. The legislature used that limiting language deliberately. A defendant who defeats an enforcement claim — even convincingly, even on summary judgment, even after years of litigation — is not "a party who asserted the action." The defendant responded to an action. That is a different thing, and it carries no fee-shifting right under this statute.

Compare that to how § 5.006(a) is commonly described: "the prevailing party in a deed restriction lawsuit is entitled to attorney's fees." That version — which appears on real estate websites, in HOA newsletters, and in casual legal summaries across Texas — is simply incorrect. It describes a two-way fee-shifting regime that does not exist. The actual rule is one-directional.

Why the Asymmetry Matters When You Are Deciding Whether to Sue

Fee-shifting rules change the math on every litigation decision. Understanding the asymmetry in § 5.006(a) produces three specific insights that should shape any decision about deed restriction enforcement in Texas.

1. Suing Is Structurally Advantaged When Your Case Is Strong

If you are a homeowner or HOA with a clear, documented violation and a well-written restrictive covenant, § 5.006(a) tips the table in your favor. Win, and your attorney's fees come from the violator. The out-of-pocket cost of enforcing a legitimate restriction — which in complex litigation can exceed $20,000 — becomes the violator's problem, not yours. That changes the cost-benefit analysis of pursuing a violation even when the underlying damages are modest.

This is why well-represented plaintiffs in Texas deed restriction cases are often more willing to proceed to litigation than defendants expect. They are not being reckless with their money. They are calculating that their fees will be shifted on a win, while the violator will be responsible for their own defense costs regardless of outcome. That asymmetry makes the plaintiff's expected cost much lower than a naive reading of "both sides will spend $15,000" would suggest.

2. Defendants Face a Structural Disadvantage

The flip side is less discussed and more important for anyone on the receiving end of a deed restriction enforcement letter or lawsuit. If you are defending a deed restriction claim, you face a genuinely uneven playing field under Texas law.

Win, and you pay your own attorney's fees. The plaintiff who forced you into costly litigation pays nothing toward your defense, regardless of how frivolous their claim turns out to be. Lose, and you pay the plaintiff's attorney's fees on top of your own. The only variable that changes between winning and losing is whether the plaintiff's fees get added to your bill.

This asymmetry is one reason deed restriction disputes often settle quickly, even when the defendant believes they are in the right. A defendant who is 70 percent confident they will win a $10,000 case still faces an expected cost of $10,000 in their own fees (if they win) or $20,000-plus (if they lose and pay both sides). If the plaintiff offers to settle for $5,000 and a recorded agreement, the math on fighting sometimes loses even for a defendant who is probably correct.

3. Weak Plaintiff Claims Are Still Costly for the Defendant to Fight

Because a winning defendant recovers no fees under § 5.006(a), a plaintiff with even a marginal claim imposes significant costs on a defendant simply by filing suit. There is no equivalent deterrent running the other way. Texas does have separate mechanisms — sanctions under CPRC § 10.004 for baseless claims, or Rule 13 sanctions — but these are discretionary, rarely awarded, and far harder to obtain than a mandatory § 5.006(a) fee award. The practical result is that § 5.006(a) is a significant weapon for anyone bringing a legitimate enforcement claim and offers relatively little protection for defendants against questionable ones.

The Civil Damages That Run Alongside the Fees

Attorney fees are not the only financial exposure in a deed restriction dispute. Under Tex. Prop. Code § 202.004(c), a court may assess civil damages of up to $200 for each day a restrictive covenant violation continues after the date the plaintiff filed suit. Unlike some penalty schemes, § 202.004(c) imposes no written notice precondition before the lawsuit is filed — the clock starts at filing, not at demand. A violation that persists through a six-month litigation calendar can accumulate $36,000 in civil penalties, separate from any injunction and separate from attorney's fees.

The $200-per-day exposure is a negotiating reality in any deed restriction case. A violator who resolves the dispute quickly — removing the rental listing, taking down the non-compliant structure, repainting the house — limits the accruing civil damages. A violator who litigates for fourteen months while the violation continues is accumulating a civil penalty that the court has discretion to award in full. Many Texas deed restriction settlements include a clause acknowledging when the violation was cured, which establishes the endpoint for the civil penalty calculation.

What About Limitations? How Long Can Someone Sue?

One question that frequently arises in older subdivisions is whether a deed restriction can be enforced against a long-standing violation. Chapter 202 of the Texas Property Code — which governs residential deed restriction enforcement — contains no limitations period of its own. The applicable deadline is the residual statute of limitations in Civ. Prac. & Rem. Code § 16.051: four years from when the cause of action accrued. For a continuing violation — a commercial operation that has been running for years — the question of when the limitations period began and whether it has been continuously tolled by the ongoing nature of the violation is a fact-specific analysis. The absence of a Chapter 202 limitations provision means that the four-year residual period from CPRC § 16.051 applies, and courts have held that a continuing violation restarts the clock for each day it continues.

For homeowners concerned that a neighbor's longstanding non-compliant structure is too old to challenge, the answer is often more favorable than they expect. Enforcement actions against continuing violations are not automatically time-barred simply because the structure has existed for several years.

What This Means Before You File — or Before You Settle

The practical implications of § 5.006(a)'s asymmetry translate into a short checklist for anyone in a deed restriction dispute.

If you are considering enforcement as a plaintiff:

• Confirm that the restrictive covenant you intend to enforce is recorded, runs with the land to the current owner, and clearly covers the conduct at issue. Attorney fees are available under § 5.006(a) only if you prevail — a legally weak case is still a risk you pay for if you lose.
• Document the violation thoroughly before filing. Photographs, rental platform listings, contractor permits, or HOA correspondence create the evidentiary record that supports both the injunction and the fee petition.
• Understand that the civil damages clock under § 202.004(c) starts at filing, so there is no benefit to delaying suit once you have made the decision to proceed.
• Factor in the fee-shifting when evaluating settlement offers. A strong case where fees are likely to be awarded materially reduces your expected out-of-pocket cost relative to a case where fee-shifting is uncertain.

If you are the defendant in an enforcement action:

• Understand that winning does not make you whole on attorney's fees. Budget for the possibility that you will spend significant money on a successful defense and recover none of it under § 5.006(a).
• Evaluate early settlement against the structural disadvantage of your position. The plaintiff's fee exposure disappears if you cure the violation and settle — and the civil penalty clock stops running at the cure date.
• If the enforcement claim is baseless or brought in bad faith, consult an attorney about sanctions under CPRC § 10.004 or Rule 13, which are the only mechanisms that could shift your fees — and they require a showing of groundlessness or bad faith, not merely losing.
• A defense verdict that eliminates the violation allegation but not the underlying relationship (neighbors, HOA membership) often creates better outcomes through negotiation than through trial.

The Version That Gets It Wrong — and Why It Matters

The misstatement of § 5.006(a) as two-way fee-shifting is not a minor technical error. It changes the advice a person would receive at the most consequential decision point of a deed restriction dispute: whether to sue, whether to settle, and at what number.

A defendant told that "the prevailing party gets fees" may refuse a reasonable settlement offer, believing that winning will recover their attorney's investment. They go to trial, prevail, and discover they owe their attorney $11,000 with no offset from the plaintiff. A plaintiff told the same thing may underestimate how much their case is worth as a settlement negotiation — not realizing that the one-directional fee shift creates leverage the defendant cannot match.

In North Texas deed restriction disputes — which in Collin County, Denton County, and Tarrant County frequently involve short-term rental platforms, fence lines, home-based businesses, and multi-unit conversion of single-family lots — the difference between accurate and inaccurate understanding of § 5.006(a) can be worth tens of thousands of dollars in settlement decisions alone.

Request a Consultation

Real estate disputes in Texas — including deed restriction enforcement, property rights, and title matters — require counsel who knows how the actual statute reads, not the commonly repeated version. WG Law serves McKinney, Southlake, Frisco, Plano, Allen, and the greater DFW area from offices in McKinney and Southlake.

Call 214-250-4407 or request a consultation online to speak with our team about a deed restriction matter.

For related reading, see our guide to Texas deed restriction enforcement, our overview of WG Law's Real Estate Law practice, and our post on Texas easement disputes and property rights.

This article is general legal information, not legal advice for your specific situation. Deed restriction enforcement depends on the specific covenant language, recorded instruments, and facts of your case. The attorney's fees rule under Tex. Prop. Code § 5.006(a) is subject to judicial interpretation and the facts of each proceeding. Consult a licensed Texas real estate attorney before making any litigation or settlement decisions.