bylaws and covenants

this homeowners ass.has been telling us for years that the bylaws and covenants are filed down town and they are law.. well we found out it was not true so that makes them not law..they are not filed at the clerk of court or anywhere elae..so that means we can have a pool,the covenants say we can't but there not filed and are not law..

would this be right because i think it would,they will not open the pool that we do pay for so i can have my own

tinac

Tina, on bylaws & covenants, the legal/formal documents are filed by the developer, not the assn. They must be filed prior to any sale of units. Go to the source--your copy of Declaration & Bylaws. Look in the front section, you no doubt will find the date the 'declaration' was made and filed (according to the provisions of your (State) Planned Community Act)with the Recorder of Deeds within your county.

Further, it sounds like you do have an erected pool but 'they will not open the pool'. Has the pool ever been opened or maintained in the history of your community? Might the present problem be that there are not enough funds to cover the mega-expenses to run a pool? If so, this is a budget problem not a covenant problem. Check with your property mgr and also your copy of the approved budget.
PaulM

ANd just so we are all clear: CC&R's are contractual obligations. they are not, and never will be "laws" within the legal, state/federal statute system.

I only add that because i have had angry folks threaten to call the police to enforce "the laws" of our organization, because they misunderstand... they have no legal enforcement by the state in that manner.

A suggestion for you, TinaC, but a question first: Does your HOA have nonprofit status with the State? You can check this by going online to the Secretary of State's website and running a search for your association's name.
I have filed nonprofit status for a number of community organizations, both at the state level and federally, and the bylaws were a required document for each organization I filed.

I found a search utility for non-profits.

http://www.melissadata.com/lookups/np.asp

Hi again Roger,

I have spoken with an attorney versed in Texas property laws and and a person that runs a company that does Title Searchs for northeast Texas. They both agree with you: the Covenants/Restrictions and Declarations are to be filed in the county where the HOA reside, the Articles of Incorporation and any amendments to that document are to be filed with the Secretary of State (Texas), and the Bylaws are to be in the office of the HOA.

The CEO of the Title Search Co did make the observation that although it is NOT specifically stated as being required in Texas Corp Law that does not mean that some burocracy somewhere does not have a requirement buried within its rules that do require the Bylaw Document to be filed - somewhere. He said that because this 'law' may not be spelled out in the Texas Statues governing Corporations does not mean it would not be written down 'somewhere.'

Seems it could be made simpler than all this.
Thanks Roger. Sincerely, Nikki T.

I have a separate question regarding the CC&R'S. If homeowners are in breach of a "restriction", how does one proceed in getting the HOA to enforce said restriction?

My HOA does not respond to anything in writing from myself or my Atttorney. My Attorney has been sent several of the HOA's Attorney letters and we can NOT get any help from anyone.

We are being ignored and homeowners are breaking the rules left and right.

What can we do, if they won;t do their duties?

LOTS OF LUCK!
Getting rid of any Board of Direcor(s) by election is not that easy. In fact, this year the HOA I am in has announced there will be NO ELECTION! There would have been three seats to be filled and "bless their little pea-picking hearts" two of the Directors (who were to be replaced, by the way) saw in their magnamimous hearts to "voluntarily" keep their seats and gee whiz, only one resume (a friend no less) was "received" - - therefore, no election needed - - we proceed as usual.
The Bylaw document I consider the legal one and allowed our Association to be a "member managed association" was arbitrarily changed by the vote of the 1998 Board of Directors. Not only was it put in place, it was made "retroactive" two years!
The Board's Bylaws changed the section covering elections from all 5 seats being changed every year to: alternate terms (2 seats to be changed at a one year term, and 3 seats at a two year term). Can the Board be 'reasoned with?" Oh yes, they smile and listen. Then walk away as if nothing you said penetrated.
Yes, in our country, anyone can take anyone else to court. But in a HOA, who wins?
Okay, say I use my money (needed for other things - like food, gas) to hire an attorney; we go to court (I do have a lot of documentation proving the legal Bylaws are not the Board's Bylaws). Okay, so I "win" and the court orders our HOA back to the LEGAL 1990 Bylaws. It would be a very hollow victory indeed. Both Bylaw documents state for the Association to pick up ALL costs involved for the action of any Director being taken to court. So my victory incurs the wrath and ill will not only of the Directors but also of my neighbors because "their expendature comes out of the Association - Member's pockets."
Yes, I have protested, both verballly and in writting on numerous occasions since 1998, but to no avail. In disgust, people have pulled back into homes one by one and no longer come to the meetings. Why should they come? For what purpose? Yes the Board 'takes all input' but that is as far as it goes. Nothing changes: we are repeatedly told "we're broke" but this is what we have done! There is no point in trying to get the to listen to reason as their minds have already been made, so why keep beating your head against their brick wall? It is now very difficult to get even the 14 memberships required for a quorum. The Board now includes THEIR PRESENCE at the meeting not only to make a quorum but to "vote" on anything, which is a hoot! Should the "vote" at a Property Owners Meeting go against the desire of the Board, they simply disregard the membership vote!

Question: is there anything in place, other than personally taking on the financial obligation of Court arbritration? At least in criminal court when one is robbed or held at knife point we have the resource of the District Attorney. Oh well.

Good Luck to you. I am tired of being way out on the proverbal limb. Before I found this web sight, I felt even more alone. It is good to discuss problems and get a fresh opinion.

Nikki T.