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Subject: $125 attorney fee for trash cans
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Author Messages
MarkK18
(Texas)

Posts:22


05/31/2018 2:34 PM  
Our Deeds committee has been negligent on enforcement for many years. Now, they have an ex pres as their chairman who is going to "clean up the place". First off, his idea along with board president, is to clamp down on people who put their trash cans, bags, and recyclables out before trash day. Long story short, they (deeds) are going to send a letter to the resident for the first offense, and the second time the resident commits a trashy offence, they will have the attorney send a letter in the tune of $125. Now, I am all for people making a neighborhood look nice, and I always take care of my duties...But I think $125 is pushing it as far as liens go. I hear that it is not a fine, but an attorney fee, which makes sense.

This is in Texas. The covenants say nothing about not having trash out the night before or not. Also, I think this is a back door to fine people for grass and weeds and such.

Need any more details?
RichardP13
(California)

Posts:2897


05/31/2018 2:47 PM  
I can see an attorney doing this even if there isn't any legal justification for the letter, i.e. the violation isn't noted in either your CCRs or Rules and Regulations.
MarkK18
(Texas)

Posts:22


05/31/2018 2:52 PM  
There is no mention of 24 hours before trash day or anything. There is a statement about entering to remove trash and such, but never done before.
GeorgeS21
(Florida)

Posts:440


05/31/2018 5:44 PM  
Without a covenant to support the action by an attorney, there is no case.
LetA
(Nevada)

Posts:468


06/01/2018 9:01 AM  
I lived in a suburb, non HOS and the city law stated that you can't put your trashcans out before 6pm the day before trash pickup and they have to be
removed by 6pm the day of trash collection. And YES there are some nasty old bittties that will call the city on you and waste taxpayers money just so the
the city code enforcement officer can put a pretty please letter on your door.

Even in the HOA I live in now has nearly the same verbatim verbiage in the CC&R's, it is the same as the county Codified ordnance and well as the CLV code.

Yes there are people that scoff and the laws and that is when you need to stop being Mr nice guy and fine these people.
LetA
(Nevada)

Posts:468


06/01/2018 9:02 AM  
Posted By GeorgeS21 on 05/31/2018 5:44 PM
Without a covenant to support the action by an attorney, there is no case.





Unless there is clause in the CC&R's that says we follow all local and state laws etc etc etc. That would be the only back door to enforce it.
GenoS
(Florida)

Posts:2288


06/01/2018 1:50 PM  
Posted By LetA on 06/01/2018 9:02 AM
Unless there is clause in the CC&R's that says we follow all local and state laws etc etc etc. That would be the only back door to enforce it.

Assuming the local/state government agencies, departments, law enforcement, etc., are willing to step in and enforce. Not having to spend taxpayer dollars on those things is one of the reasons local governments and counties really like condos and homeowners associations.
MelissaP1
(Alabama)

Posts:7534


06/01/2018 3:22 PM  
Make sure this is understood how they can charge the $125 attorney fee. Yes, it is a "backdoor" way of fining. Especially if your HOA can't "fine". It falls into the "damages" category. The HOA would not have to hire the lawyer if you had followed the rules. Because they paid that money to enforce, that was "damaging" to them as it cost them the lawyer's fee. The HOA then has a right to recoup their "damages". Which is by sending the lawyer bill to the violator to pay. If not paid, this could turn into a lien unlike fines.

So no this is not a court case. No one is being sued. It is just a letter from a lawyer that the HOA paid to have drafted to enforce their rules. The lawyer involved is most likely pulling the strings in this situation and enabling this way of collection. Is it legal? Most likely. Do I agree with it? It depends on the situation.

Former HOA President
BenA2
(Texas)

Posts:525


06/01/2018 8:22 PM  
If it is not in your covenants, there is no violation and no reputable attorney would send a violation notice. If an attorney does write a letter and a member is assessed with the fee, they could take you to court and the HOA could be required to pay their attorney's fee.

Before your deeds committee does anything, they should speak to an HOA attorney.

If there were a violation, it is usual to charge the member for any associated legal fees.
SheliaH
(Indiana)

Posts:2228


06/03/2018 3:54 PM  
Not every situation in a HOA needs to be addressed by the covenants - that would make them too extensive to read and most people don't bother to read what's already there anyway. This is also why many Bylaws give Boards the authority to enact additional rules - for example, the board is supposed to ensure the community is maintained, and rules enforcement is part of that. The problem with fines is that most people don't start by checking if they can even issue them, nor do they consider how much the fines should be and what they should be used for. Are you using it strictly as a deterrent to bad behavior or to help reimburse the association for expenses it incurred in correcting the problem (printing and postage for the letters, extra crews to clean up the common areas, etc.?)

Even then, I think a fining schedule where the price goes up the longer you fail to straight up is more appropriate and you shouldn't bring in the attorney until you're certain the issue might land in court (some people are buttholes and won't behave unless a judge tells them to). And where is the appeals process - there should be one before the attorney gets involved. But that's just me.

So I agree that $125 for a second offense is overreaching things, but if you're on the board, you and the rest of your colleagues should be able to rein in these two. One more thing - generally, an advisory committee to the board makes recommendations on specific issues, like rules enforcement, but the final decision on whether to issue fines, how much they are, if/when they're waived and such should be the board's function, not the committee's. You may need to remind the chairperson and the president of that fact, depending on how the committee was set up and what it's supposed to do.
BenA2
(Texas)

Posts:525


06/03/2018 5:28 PM  
Posted By SheliaH on 06/03/2018 3:54 PM
One more thing - generally, an advisory committee to the board makes recommendations on specific issues, like rules enforcement, but the final decision on whether to issue fines, how much they are, if/when they're waived and such should be the board's function, not the committee's. You may need to remind the chairperson and the president of that fact, depending on how the committee was set up and what it's supposed to do.



It's not uncommon for the committee responsible for covenant violations to be independent of the board. Our Architectural Control Committee does not have to get board approval before taking enforcement actions.
JaredC
(Texas)

Posts:97


06/06/2018 2:28 PM  
Check out 209.006 of the Texas Property Code.

Basically they have to send you a properly formatted letter giving your a very specific time frame to cure your violation before fees can be assessed. Furthermore they must vote in an executive session of a properly called open meeting to pursue legal remedies against you. So they ask an attorney to send you a 209 letter and the attorney charges them $125? Sounds like their problem not yours; their liability not yours.
MarkK18
(Texas)

Posts:22


06/06/2018 2:58 PM  
Thanks I am not on the board, and just go to meetings and am hearing about this. The deeds people are up in arms about the residents trash bags left out and with new fines looming for some I believe there may be preferential treatment given to friends of that committee and they would never screw their friends.... I have nothing to worry about as I follow the trash bag rule.
JaredC
(Texas)

Posts:97


06/06/2018 4:51 PM  
I hear ya. I was an HOA president for more than 10 years and had to deal with the depravity of a few bad homeowners. Seriously, 5-10%. That said I also know that a bunch of little Hitler's are attracted to the power of being a board member. It's a real balancing act. At the end of the day both homeowners and board members should always strive to be reasonable and fair and not discriminate against anyone. I quit my position because I realized I have more power as a homeowner... that lesson was learned over time. Experience baby.
AugustinD


Posts:1082


06/07/2018 7:38 AM  
Posted By JaredC on 06/06/2018 4:51 PM
I hear ya. I was an HOA president for more than 10 years and had to deal with the depravity of a few bad homeowners. Seriously, 5-10%. That said I also know that a bunch of little Hitler's are attracted to the power of being a board member. It's a real balancing act. At the end of the day both homeowners and board members should always strive to be reasonable and fair and not discriminate against anyone. I quit my position because I realized I have more power as a homeowner... that lesson was learned over time. Experience baby.


I think you are the second poster this year to say he thinks he has more power as a member than as a director. I am leaning this way too. Though it may depend on the HOA. Can you elaborate on this point? How do you make things happen as a member? Why making things happen as a director more difficult?
JaredC
(Texas)

Posts:97


06/07/2018 9:53 AM  
AugustinD: As a director you have to be measured and fair all the time. You also have to be very careful of everything you say and do. So when dealing with really bad people in most cases you can never tell the average homeowner the full story. Anyway let's go into an actual case study where I'm more powerful as a homeowner than a board member. I'm actually engaged in this activity right now with my board.

As a director I always wanted to go after gross violations of our rules and regs but when you do that all the bad actors start crying discrimination. I could never violate the rules myself to prove a point because as a person charged with enforcement that would be immoral, unethical and discriminatory. As a regular homeowner I was able to literally put a bunch of signs on common area property & a toilet seat and toilet paper holder. I'm not joking they are literally hanging on fences around the property right now. If the HOA goes after one person who violates the rules and regs they must go after everyone so I made my "protest" egregious and over the top. Why? Because I want my bad actor neighbor to be forced to remove her derelict vehicle. I want another bad actor neighbor to remove cameras she attached to common area property with ACC approval to remove them. I want another neighbor who has a tree that is growing into and damaging a common area fence to remove the tree and repair the fence. So by doing something so crazy like I did if they come after me then they get to go after everyone. How can the bad guys claim discrimination when the board is also going after a good guy? I just cut the legal legs right from under the bad guys. Since I've dealt with this so much in the past I know the laws very well and how to push the issue. At the end of the day a regular homeowner will force the board into a position where they MUST enforce all the rules and regs equally.

Plus the law weighs HEAVILY in favor of homeowners. To be honest homeowners are granted way too much leeway under Texas Law. So much leeway in fact that it's about to break our HOA. I have a zillion stories, smh.
JaredC
(Texas)

Posts:97


06/07/2018 9:55 AM  
I meant ..."without ACC approval" in the previous reply.
MarkK18
(Texas)

Posts:22


06/07/2018 11:12 AM  
I was the Vice President up until our election in Feb. I lost because an 85 year old HOA meddler (who serves on 3 or 4 committees) passed out "propaganda ballots" door to door to some residents and her elderly/ retired friends and then had the nerve to stand outside the election ballot door and tell people going in, to not vote for me and vote for these other 3 people on the ballot. The board and president did nothing! So I resigned before the next meeting in protest of their inaction. People smelled the integrity issue, but like all things, it dies out.

One of those she favored who was running was our 9 year president and again (10 years) this year HOA president who is "afraid" of her and her posse (clan) in our neighborhood. I think this story should get its own post....

Long story short, I lost by a dozen votes and now chair a committee. And the board likes it because I cannot apply for the trustee vacancy left open (for 5-7 months), yeah I know.

The board has enacted a "social media policy" basically to quiet any resistance on the site Nextdoor.com by stating that people on committees and the board can not post anything related to the HOA. They cannot criticize or spread "factual news" from the board meetings or committee meetings even. Last year the board passed a "no recording any meetings" rule by a committee member. Which I abstained for voting for. Only residents who are not members of a committee can record. I did not think that was legal to pass in Texas.

Anyway, I am torn whether to stay on and keep quiet of the BS I see going on, or stand up to the board and write report/blogs. For example, the president is now pushing for pickle ball courts in our subdivision. Months ago he talked about how his son plays it and it might get him out of the house. Now, he/the HOA he hosting a pickle ball day to gauge the public interest in the sport and amenity here in our subdivision. I think the tennis committee is upset about him painting lines possibly and noone wants to spend $10-$20k on a new pickle ball court that 3-7 people will play. He also stated while making his case for Pickle ball, that he thinks that our neighborhood is a retirement community. Granted, the committees are staffed by many retirees, he is off the mark, and I wonder why and what is going on in his mind. What would you suggest? Oh, and they made the 10 yr ago "crazy ex president" head of deeds, and that explains why the sudden change is control and practices in our deeds stuff.
JaredC
(Texas)

Posts:97


06/07/2018 1:42 PM  
They can't silence you, period. Furthermore just about EVERYTHING is public data: Texas Public Information Act 552.002 and 552.0036. Furthermore open meetings are open meetings and EVERYONE has a right to talk about them, record them, etc. They can pass all the BS rules they want but that doesn't mean they are enforceable. Sounds like they're suffering from "Little Hitler" syndrome which almost always is accompanied by "I don't have a clue about the law syndrome". Just sayin.
JaredC
(Texas)

Posts:97


06/07/2018 1:42 PM  
They can't silence you, period. Furthermore just about EVERYTHING is public data: Texas Public Information Act 552.002 and 552.0036. Furthermore open meetings are open meetings and EVERYONE has a right to talk about them, record them, etc. They can pass all the BS rules they want but that doesn't mean they are enforceable. Sounds like they're suffering from "Little Hitler" syndrome which almost always is accompanied by "I don't have a clue about the law syndrome". Just sayin.
MarkK18
(Texas)

Posts:22


06/07/2018 2:04 PM  
You are correct, but they are under the assumption that if I report on social media that for example "The president called our neighborhood a retirement community" that would be construed as being against their policy. Or telling our neighborhood that they are going to fine you 125$ for a second trash violation. They are setting themselves up for stupidity. They are a non for profit corp and their attorney is advising them on things, so they assume they are in the right...
MarkK18
(Texas)

Posts:22


06/07/2018 2:05 PM  
Also, almost no one attends these board meetings except the chairs of committees....Basically not very much community interest or involvement unless something like the election thing happens...
JaredC
(Texas)

Posts:97


06/07/2018 3:20 PM  
I kinda doubt their attorney is advising them on those types of policies. At the end of the day though if you are on a committee it may be completely within their rights to remove you from it for any reason whatsoever but that all depends on your governing documents.
MarkK18
(Texas)

Posts:22


06/07/2018 3:30 PM  
He makes money very letter he sends.... Also, we have a code of ethics...2 strikes you are out. My thing is, how can a committee person know who if and when they broke the code or if it is being enforced, and were is the line drawn...
NigelB
(Texas)

Posts:230


06/07/2018 7:44 PM  
Posted By MarkK18 on 06/06/2018 2:58 PM
Thanks I am not on the board, and just go to meetings and am hearing about this. The deeds people are up in arms about the residents trash bags left out and with new fines looming for some I believe there may be preferential treatment given to friends of that committee and they would never screw their friends.... I have nothing to worry about as I follow the trash bag rule.




They might be able to do this if it is allowed in the governing documents.

The Restrictive Covenants will generally address Deed Restrictions, but might also give the HOA the right to publish more detailed regulations. We have published Architectural Control Rules and Regulations that address things like trash cans which can be out the evening prior to pick up and must be out of sight by the day after pick up.

A violation will generate a letter, and if not corrected a second letter, then a third certified letter - the cost of which is added to the individual account of the homeowner. If the third letter does not correct, the board has the option of turning it over to the association attorney for further action. This will generate a letter from the attorney, we are billed around $30 for the letter and it is also applied to the account of the homeowner. We can pass the charge on to the homeowner because the Restrictive Covenants specify that any cost associated with enforcing deed restrictions can be passed on to the homeowners account. We have no right to fine under our covenants, but it does make sense that the cost of enforcing them should be borne by the individual that violates them and not the general community.

As for the over $100 attorney fee, that would appear to be exorbitant, and if your HOA is only allowed to recover the actual cost, they cannot arbitrarily add to the cost charged by the attorney.
NigelB
(Texas)

Posts:230


06/07/2018 7:58 PM  
Posted By MarkK18 on 06/07/2018 11:12 AM
I was the Vice President up until our election in Feb. I lost because an 85 year old HOA meddler (who serves on 3 or 4 committees) passed out "propaganda ballots" door to door to some residents and her elderly/ retired friends and then had the nerve to stand outside the election ballot door and tell people going in, to not vote for me and vote for these other 3 people on the ballot. The board and president did nothing! So I resigned before the next meeting in protest of their inaction. People smelled the integrity issue, but like all things, it dies out.

One of those she favored who was running was our 9 year president and again (10 years) this year HOA president who is "afraid" of her and her posse (clan) in our neighborhood. I think this story should get its own post....

Long story short, I lost by a dozen votes and now chair a committee. And the board likes it because I cannot apply for the trustee vacancy left open (for 5-7 months), yeah I know.

The board has enacted a "social media policy" basically to quiet any resistance on the site Nextdoor.com by stating that people on committees and the board can not post anything related to the HOA. They cannot criticize or spread "factual news" from the board meetings or committee meetings even. Last year the board passed a "no recording any meetings" rule by a committee member. Which I abstained for voting for. Only residents who are not members of a committee can record. I did not think that was legal to pass in Texas.

Anyway, I am torn whether to stay on and keep quiet of the BS I see going on, or stand up to the board and write report/blogs. For example, the president is now pushing for pickle ball courts in our subdivision. Months ago he talked about how his son plays it and it might get him out of the house. Now, he/the HOA he hosting a pickle ball day to gauge the public interest in the sport and amenity here in our subdivision. I think the tennis committee is upset about him painting lines possibly and noone wants to spend $10-$20k on a new pickle ball court that 3-7 people will play. He also stated while making his case for Pickle ball, that he thinks that our neighborhood is a retirement community. Granted, the committees are staffed by many retirees, he is off the mark, and I wonder why and what is going on in his mind. What would you suggest? Oh, and they made the 10 yr ago "crazy ex president" head of deeds, and that explains why the sudden change is control and practices in our deeds stuff.




Board members and committee members are residents and have absolute right to record a meeting under the Texas Open Meetings Act (Chapter 551 of the government code)
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