BYLAWS - - IS IT REQUIRED TO RECORD THEM?

QUESTION:
Is it required to "record" the Bylaw Document governing an association? If so, where is this document REQUIRED to be recorded?

HISTORY:
ELPOA was established in 1986 while the area was still under the developer's domain. In 1990 we separated from the developer to be on our own. The existing Bylaw document was INCLUDED IN the Transfer Contract document as an "exhibit" along with the specific land deeds and corrected warrenty deed also included as "exhibits" in the Transfer Contract Document.

There is a debate as to the legality of the "1990 Bylaws" because this specific document(23 pages long) is not "recorded" in our County Land Records as are the specific transfer deed and the corrected warrenty deed paper.

All the DEED RESTRICTIONS are recorded in the county Land Records. They should be as they run with the land. There is nothing in the Deed Restrictions that REQUIRE a property owner to be a "Member" of the association.

To my mind, the Bylaws of any HOA should be with the association, in their office - not in the land Records.

Recording on the State level: the Secretary of State regaring corporations ONLY records items of incorporation and admendments to that specific singular document.

Where would the "HOA Bylaws" be publically recorded?

Thanks for any help in this area.

Nikki Thompson

Thank you so much for your quick response. I wish I had known about this group of people a long time ago.

I am going to show my ignorance. What is CC&R? Does this mean "community covenants and restrictions? If so, than no, we may not have this.

We DO have a document titled "Restrictive Covenants in respect to Holiday Pines
subdivision, Plat Number 1, recorded March 28, 1972, in Volume 6, page number 139 of the plat records of Smith County, Texas."

Is this what you mean? The all caps are mine - not on the document.

On the "cover" page of this document, the last paragraph states, "Now, thereof, said Holiday Camplands of Texas, Inc., as owner does hereby DECLARE that the following are the COVENANTS AND RESTRICTIONS governing the use and ownership of the sublots to be contained in the above Holiday Pines Subdivision, Plat Number 1 and no other plats in the following form: (the next three pages itemize 1-38 which deal with vehicles, septic, homes, etc.), then the last page with their signatures, notary and recording information.

There are two items in this document that would pertain to a HOA. #30 which says the Purchaser (of sublots) WILL NOT SELL, assign or convey that property to anyone NOT ACCEPTED for membership in Holiday Pines Subdivision." [this does not state that membership is REQUIRED only that the new purchaser BE SUCH AS TO BE ACCEPTED. The other item #36 states, "All covenants and restrictions contained herein may be enforced by Holiday Camplands of Texas, Inc., its successors or assigns, or the property owners association known as Holiday Pines Association, Inc, which changed name to Enchanted Lakes Association in 1986."

If Item #30 meant that upon purchase of property they automatically become a Member [with financial responsibilities] in the Association, wouldn't that limit the right of the owner of the property to dispose of his own property? I could understand that happening if the Association was selling the property, but from 1990 when the developer sold numerous lots at auction, the property is individually owned and individually disposed. There was no "qualification list" - - if you had the money to buy the property, it was sold to you. There is nothing in writing nor signed between the Association and the property owner (new or old) requiring automatic membership.

Again, thank you so much for taking an interest in helping people muddle through this area.

Nikki T.

Thanks Roger;
I can see that the Deed Restrictions could be interpreted to have "all buyers become members of the Association." The developer moved out completely in 1990 [filed bankruptcy in 1993 and deceased about that same time]. We had approx 550 "members" with nothing in writing. Of that 550 we started with 480 were active (curent in their dues) - - that was 1991 - - now we have an "active/current membership" of 114 as of 7/9/06 with the 'county tax roll' still showing over 500 property owners!

The 19998 Bylaws that the Board drew up to replace our 1990 Bylaws that were part of the transfer contract (when we pulled away from the developer) were put in place without adherrance to the specific limitations the 1990 Bylaw document regarding any change to the document. The wording of the 1990 Bylaw document was taken directly from the Texas Statues covering non-profit corporations. After the Board put the 1998 Bylaw document in place, our Association moved from being "Member Managed" to full Board dictatorship. It takes only 3 Directors (of the 5 seats) to govern the community and if there is a disagreement among the Board - - oh well, that Director is kicked out, without cause, because they have the power and the 1998 Bylaw documents says they can.

This action they have done to two Directors, not only removing them from the Board, but removing them from the Association Membership. Yes, these two former Directors were "disruptive" - - giving out information that alerted the community to a couple of questionable plans the other 3 really wanted.

The good news is that the Director appointed to fill one of the vacant seats has served on a couple of the past Boards and is agreeing with all the information and documentation I have given her. At the last meeting, she said that the only thing holding her back from reinstating our Legal 1990 Bylaws is that she could not find where the document had been recorded in Smith County Land Documents.

I spent a good part of the day in the Land Records thinking that perhaps there would be a clue with the Deed that transferred the common grounds and certain other real properties from the developer to us. There is no clue.

Since the 1990 Bylaw Document was included as Exibit C in the Transfer Contract - I do not know if it would be necessary to record it in the Land deeds, as all parties would have a copy of the contract. A copy of the Exibit A - listing real property, buildings, etc and the Exibit B - the Corrected Warrenty Deed were filed in the Land Records. I am thinking that the Bylaw Document was not REQUIRED to be filed ($$ per page and 23 pages in the bylaw document) or it would have been filed with the deed transferring the property, all deeds included in the transfer and two exhibits included in the Transfer Contract that pertained to the land had been filed.

Am I off base with my thinking? A copy of the Transfer contract with Bylaws would be given to each party involved in the transaction: developer and Association Bridge Committee, perhaps even both parties' attorneys. As Enchanted Lakes Associaton was already in existance (1986) the members would already have a copy of the Bylaws. My Dad was given a copy of the Bylaws when he later asked at the office. . . . not when our land was purchased.

I was in touch with CAI (Dallas office) today, and while I agree that while it might be nice to have such type of document recorded with the deeds, (for a title search, etc) I need to know if it is REQUIRED by the state of Texas. She did not know for sure if it is required. Where would I find out this information?

Thanks again for all your time - - and the knowledge in your head!

Sincerely,
Nikki T.

Thanks again, Roger.

Dad was not given a copy of the Transfer Agreement Contract until our neighbor (being on the Board) gave him a copy privately. The Membership was not given a copy of this document - which included all items involved in the contract.

This document, stamped with the Smith County official recording date stamp included copies of the deeds (common grounds)Exhibit A, corrected warranty deed Exhibit B, and a copy of the 1990 Bylaws, with the typed information of Exhibit C - (page of pages 1 to 23)the last page having all their signatures and date. The Exhibit C document was exactly the same as the Bylaw document the office handed to Dad when he requested. The Deeds for the common ground and stating it being transferred to Enchanted Lakes Assoc., Corrected Warranty Deed were on file in Smith County. The Transfer Contract and Bylaws were not filed.

Thank you for the wording, as well as making me think clearer to form the questions and my answers.

Roger - QUESTION. You've said that Colorado does not require this organizational documennt to be filed. Therefore, it stands to reason that nothing would be written in the State Law Statues covering this issue. Correct?

Perhaps that is the same here in Texas. The law makers would not take the time to write into law something that was not required. I could read the entire Texas State Statues governing non-profit corp and still not find a law stating it IS NOT REQUIRED. Perhaps I am looking for something that is not there because it is not necessary?

If filing this organizational document IS REQUIRED TO BE FILED, would I find a statue stating this in the Tx. State Statues for non-profit corps? Or somewhere else?

Thanks again for your time and trouble.
Sincerely,
Nikki T.