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Subject: Voting rights in Texas
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RaymondP1
(Texas)

Posts:7


03/29/2017 12:03 PM  
Our existing Bylaws state that only Members in good standing have the right to vote. This means that Owners that are in default in the payment of dues and assessments. Our Declaration is silent on this issue. The latest HOA law section 209.0059 state: a provision in a dedicatory instrument that would disqualify a property Owner from voting in a property Owner Association election of Board Members or any other matter concerning the rights or responsibilities of the Owner is void". Would an Amendment to the Declaration (Deed Restrictions) to conform with the Bylaws take care of this issue? We are currently revamping our Bylaws and amending our Declaration.
SheliaH
(Indiana)

Posts:2518


03/29/2017 1:30 PM  
That's a legal question and should be addressed by your association's attorney (it's never a good idea to do all this on your own because if you don't do this right, amendments won't stand up in court).

According to NOLO.com, the Declaration of CCRs establishes the general structure of the development and describing what land is subject to the governing documents, as well as what parts of the development are common areas owned by the Association.

As you know, the CCRs dictate how the common areas are used, as well as restrictions on the owner's property (e.g. exterior changes have to be pre-approved by the Board). Bylaws dictate how the community is run (number of board members, voting rights of members, etc.) So, I would think as long as your Bylaws contain the provision about delinquent homeowners being ineligible to vote, you should be ok. It's certainly one provision that I would keep.
LarryB13
(Arizona)

Posts:4099


03/29/2017 2:19 PM  
Posted By RaymondP1 on 03/29/2017 12:03 PM
Our existing Bylaws state that only Members in good standing have the right to vote. This means that Owners that are in default in the payment of dues and assessments. Our Declaration is silent on this issue. The latest HOA law section 209.0059 state: a provision in a dedicatory instrument that would disqualify a property Owner from voting in a property Owner Association election of Board Members or any other matter concerning the rights or responsibilities of the Owner is void". Would an Amendment to the Declaration (Deed Restrictions) to conform with the Bylaws take care of this issue? We are currently revamping our Bylaws and amending our Declaration.


Which part of "void" do you not understand?

The Legislature has stated in black-and-white it's intent that all HOA members be allowed to vote. Why would anyone think that they can dance around that requirement by moving a restriction on voting from one document to another?

LarryB13
(Arizona)

Posts:4099


03/29/2017 2:35 PM  
FYI:

"Dedicatory instrument" means each governing instrument covering the establishment, maintenance, and operation of a residential subdivision, planned unit development, condominium or townhouse regime, or any similar planned development. The term includes a declaration or similar instrument subjecting real property to restrictive covenants, bylaws, or similar instruments governing the administration or operation of a property owners' association, to properly adopted rules and regulations of the property owners' association, or to all lawful amendments to the covenants, bylaws, instruments, rules, or regulations.

Source: https://www.trulia.com/voices/Agent2Agent/In_E_what_is_a_dedicatory_instrument_-213453

RichardP13
(California)

Posts:3595


03/29/2017 5:13 PM  
What the legislature is saying is that if you are delinquent you can not vote at the annual meeting for directors, but are allowed to vote when it pertains to raising assessments, amending governing docs as it applies to rights and responsibilities.

Been there, Done that
NigelB
(Texas)

Posts:252


03/29/2017 6:41 PM  
Posted By RaymondP1 on 03/29/2017 12:03 PM
Our existing Bylaws state that only Members in good standing have the right to vote. This means that Owners that are in default in the payment of dues and assessments. Our Declaration is silent on this issue. The latest HOA law section 209.0059 state: a provision in a dedicatory instrument that would disqualify a property Owner from voting in a property Owner Association election of Board Members or any other matter concerning the rights or responsibilities of the Owner is void". Would an Amendment to the Declaration (Deed Restrictions) to conform with the Bylaws take care of this issue? We are currently revamping our Bylaws and amending our Declaration.




The legislature amended section 209 to specifically preclude any attempts by HOA's to disqualify people from voting because they were in default on their assessments.

An amendment to the Declaration to conform to the ByLaws would not take care of the issue because the legislation forbids any provision that would disqualify a property owner from voting. Simply put, it the property owner owns property in the HOA they can vote.

Section Twelve of SB 1168 modifies Section 209.0059 of the Texas Property Code. The prior version of Section 209.0059 rendered any provision in a dedicatory instrument that would disqualify a property owner from voting in an election or vote void. The modified version of Section of 209.0059 makes an exception for residential subdivision developments consisting of 10 or fewer lots for which the governing Declaration was recorded prior to January 1, 2015. In such a residential subdivision development, a person may not vote in a Subdivision Association election unless such person is subject to a dedicatory instrument governing such Subdivision Association through which it exercises its authority.

You should also be wary of amending your CC&R's as they might very well require an affirmative vote of a percentage of the members (ours requires a 3/5ths vote), that might very well be a hard target to reach given that most folks in HOA's don't want to be bothered.

In summary - no HOA in Texas can prevent a property owner from exercising their right to vote in an HOA election for any reason.
RaymondP1
(Texas)

Posts:7


03/29/2017 6:53 PM  
Void is not the issue. I have three reviewed three different Bylaws for other HOA's and they all restrict the voting rights and usage of common areas. My understanding from one of the co-board member is that the Deed Restrictions not only the Bylaws but also the State law. Also my understanding is that any Restriction in the Bylaws should also be reflected in the Deed Restrictions, otherwise, the Restriction is not enforceable.
RaymondP1
(Texas)

Posts:7


03/29/2017 7:01 PM  
Thank you NigeB, you have answered my question. What you stated definitely makes sense. You definitely had the best answer.
AugustinD


Posts:1631


03/29/2017 7:21 PM  
Here is discussion of a 2014 Texas lawsuit on this matter: http://www.hoamemberservices.com/news/192227/Texas-Homeowner-Wins-Battle-But-Loses-War-re-Validity-of-Board-Elections--Subsequent-Board-Actions.htm

The court supported what the statute already said: HOAs may not take away HOA members' right to vote, period. The court also noted that the Declaration incorporated the Bylaws yada, so the Bylaws are a "dedicatory instrument."

RaymondP1, if your HOA wants more clarity for laypeople, then sure, go through the process of amending the Bylaws and deleting this section that Texas statute now supersedes.
NigelB
(Texas)

Posts:252


03/29/2017 7:55 PM  
Posted By RaymondP1 on 03/29/2017 6:53 PM
Void is not the issue. I have three reviewed three different Bylaws for other HOA's and they all restrict the voting rights and usage of common areas. My understanding from one of the co-board member is that the Deed Restrictions not only the Bylaws but also the State law. Also my understanding is that any Restriction in the Bylaws should also be reflected in the Deed Restrictions, otherwise, the Restriction is not enforceable.




If you go to Section 209 of the Texas Property Code under definitions it says this:

"Dedicatory instrument" means each governing instrument covering the establishment, maintenance, and operation of a residential subdivision. The term includes restrictions or similar instruments subjecting property to restrictive covenants, "BY LAWS", or similar instruments governing the administration or operation of a property owners' association, to properly adopted rules and regulations of the property owners' association, and to all lawful amendments to the covenants, bylaws, rules, or regulations.

It then goes on to say as you previously pointed out:

(a) A provision in a dedicatory instrument that would disqualify a property owner from voting in a property owners' association election of board members or on any matter concerning the rights or responsibilities of the owner is void.

While the ByLaws govern the operation of the Association, the CC&R's are recorded against the deed and set forth the duties of the property owner. Bylaws did not previously be required to be recorded, however the 2012 State legislative session required that all Dedicatory Instruments including ByLaws be filed in the real property records of the county. The presumption is that now the ByLaws and Deed Restrictions must be read together to determine the meaning of a particular rule or deed restriction.

You mentioned that your ByLaws specify that a member not in good standing cannot vote (and apparently cannot use common areas) - but exactly what is "good standing" in order to find someone not in good standing your governing documents would have to define what good standing is:

" A member in good standing is a member as defined as one who is current in paying his or her assessments and not in violation of the governing documents."

State law obviously prohibits denying an member the right to vote regardless of standing. But you can limit or prohibit their access to common areas. To do so they have to be accorded due process by a hearing before the board.

Deed Restrictions are enforceable if they are legal and recorded against the deed - I'm not sure that a "Not in Good Standing" decision to limit an homeowners right to use common (HOA) property has to be in the deed restrictions - it is just an HOA policy.
JanetB2
(Colorado)

Posts:4168


03/29/2017 11:33 PM  
Posted By RaymondP1 on 03/29/2017 12:03 PM
Our existing Bylaws state that only Members in good standing have the right to vote. This means that Owners that are in default in the payment of dues and assessments. Our Declaration is silent on this issue. The latest HOA law section 209.0059 state: a provision in a dedicatory instrument that would disqualify a property Owner from voting in a property Owner Association election of Board Members or any other matter concerning the rights or responsibilities of the Owner is void". Would an Amendment to the Declaration (Deed Restrictions) to conform with the Bylaws take care of this issue? We are currently revamping our Bylaws and amending our Declaration.


If in CCR's that is doc to potentially amend. However, if State Law supersedes by not deferring to CCR's then you just need to abide by the State Law.
JanetB2
(Colorado)

Posts:4168


03/29/2017 11:40 PM  
Sorry missed that your CCR's are silent. So just need to remove section in your bylaws which hopefully as in many HOA's is just a BOD vote vs membership.
RaymondP1
(Texas)

Posts:7


03/30/2017 6:57 AM  
Thank you all guys, first time Member. I truly thank everyone for their replies. I did not mentioned that I am the new Board President that just got elected for an HOA that had been inactive for some time. We are meeting with a Lawyer hopefully within the next 2 weeks.
JohnC46
(South Carolina)

Posts:8347


03/30/2017 12:39 PM  
Posted By JanetB2 on 03/29/2017 11:40 PM
Sorry missed that your CCR's are silent. So just need to remove section in your bylaws which hopefully as in many HOA's is just a BOD vote vs membership.





In the 6 HOA's I have been member of (though never in CO), the BOD alone cannot change a Bylaw. The owners must vote to do so.
NigelB
(Texas)

Posts:252


03/30/2017 12:43 PM  
Posted By JohnC46 on 03/30/2017 12:39 PM
Posted By JanetB2 on 03/29/2017 11:40 PM
Sorry missed that your CCR's are silent. So just need to remove section in your bylaws which hopefully as in many HOA's is just a BOD vote vs membership.





In the 6 HOA's I have been member of (though never in CO), the BOD alone cannot change a Bylaw. The owners must vote to do so.



Generally, the ByLaws state the procedure for amending them. Ours can be amended by a majority of a quorum present in person or by proxy (10%)
JaredC
(Texas)

Posts:214


03/30/2017 1:27 PM  
I was an HOA president for 10 years.

Our Texas HOA has been around for 40+ years and many of our documents are outdated including the Covenants and By-Laws. Remember that state law takes precedence. This is especially important if your filed documents are very old. You would do well to familiarize yourself with Texas Property Code chapter 209 as it will overrule many of the statements made in your other documents and render them invalid.
JenniferG11
(Texas)

Posts:548


06/14/2018 3:42 PM  
Posted By RaymondP1 on 03/29/2017 12:03 PM
Our existing Bylaws state that only Members in good standing have the right to vote. This means that Owners that are in default in the payment of dues and assessments. Our Declaration is silent on this issue. The latest HOA law section 209.0059 state: a provision in a dedicatory instrument that would disqualify a property Owner from voting in a property Owner Association election of Board Members or any other matter concerning the rights or responsibilities of the Owner is void". Would an Amendment to the Declaration (Deed Restrictions) to conform with the Bylaws take care of this issue? We are currently revamping our Bylaws and amending our Declaration.




Section 209.0059 refers to POAs,not HOAs.
BenA2
(Texas)

Posts:531


06/14/2018 3:59 PM  
Posted By JenniferG11 on 06/14/2018 3:42 PM
Posted By RaymondP1 on 03/29/2017 12:03 PM
Our existing Bylaws state that only Members in good standing have the right to vote. This means that Owners that are in default in the payment of dues and assessments. Our Declaration is silent on this issue. The latest HOA law section 209.0059 state: a provision in a dedicatory instrument that would disqualify a property Owner from voting in a property Owner Association election of Board Members or any other matter concerning the rights or responsibilities of the Owner is void". Would an Amendment to the Declaration (Deed Restrictions) to conform with the Bylaws take care of this issue? We are currently revamping our Bylaws and amending our Declaration.




Section 209.0059 refers to POAs,not HOAs.



Jennifer,

Did you mean "not COAs?" Under Texas code, HOAs and POAs (that are not condo associations) are the same thing.
JenniferG11
(Texas)

Posts:548


06/14/2018 4:20 PM  
Posted By BenA2 on 06/14/2018 3:59 PM
Posted By JenniferG11 on 06/14/2018 3:42 PM
Posted By RaymondP1 on 03/29/2017 12:03 PM
Our existing Bylaws state that only Members in good standing have the right to vote. This means that Owners that are in default in the payment of dues and assessments. Our Declaration is silent on this issue. The latest HOA law section 209.0059 state: a provision in a dedicatory instrument that would disqualify a property Owner from voting in a property Owner Association election of Board Members or any other matter concerning the rights or responsibilities of the Owner is void". Would an Amendment to the Declaration (Deed Restrictions) to conform with the Bylaws take care of this issue? We are currently revamping our Bylaws and amending our Declaration.




Section 209.0059 refers to POAs,not HOAs.



Jennifer,

Did you mean "not COAs?" Under Texas code, HOAs and POAs (that are not condo associations) are the same thing.




It will make my research easier if that is the case, but it seems from my reading that I have come across things that differ.

BenA2
(Texas)

Posts:531


06/14/2018 7:40 PM  
Posted By JenniferG11 on 06/14/2018 4:20 PM
Posted By BenA2 on 06/14/2018 3:59 PM
Posted By JenniferG11 on 06/14/2018 3:42 PM
Posted By RaymondP1 on 03/29/2017 12:03 PM
Our existing Bylaws state that only Members in good standing have the right to vote. This means that Owners that are in default in the payment of dues and assessments. Our Declaration is silent on this issue. The latest HOA law section 209.0059 state: a provision in a dedicatory instrument that would disqualify a property Owner from voting in a property Owner Association election of Board Members or any other matter concerning the rights or responsibilities of the Owner is void". Would an Amendment to the Declaration (Deed Restrictions) to conform with the Bylaws take care of this issue? We are currently revamping our Bylaws and amending our Declaration.




Section 209.0059 refers to POAs,not HOAs.



Jennifer,

Did you mean "not COAs?" Under Texas code, HOAs and POAs (that are not condo associations) are the same thing.




It will make my research easier if that is the case, but it seems from my reading that I have come across things that differ.




Under the "Applicability of Chapter" Sec. 209.003(c) "This chapter applies to a residential property owners' association regardless of whether the entity is designated as a "homeowners' association," "community association," or similar designation in the restrictions or dedicatory instrument."

A book I recommend for anyone in Texas is "Texas Homeowners Association Law" by Gregory S. Cagle (if you enjoy learning the legal stuff and don't mind legaleze). In it he points out that HOAs and POAs are used interchangeably unless you are referring to a condo association, in which the laws are very different. The website also has good resources: http://texashoalaw.com
JenniferG11
(Texas)

Posts:548


06/14/2018 7:50 PM  
Posted By BenA2 on 06/14/2018 7:40 PM
Posted By JenniferG11 on 06/14/2018 4:20 PM
Posted By BenA2 on 06/14/2018 3:59 PM
Posted By JenniferG11 on 06/14/2018 3:42 PM
Posted By RaymondP1 on 03/29/2017 12:03 PM
Our existing Bylaws state that only Members in good standing have the right to vote. This means that Owners that are in default in the payment of dues and assessments. Our Declaration is silent on this issue. The latest HOA law section 209.0059 state: a provision in a dedicatory instrument that would disqualify a property Owner from voting in a property Owner Association election of Board Members or any other matter concerning the rights or responsibilities of the Owner is void". Would an Amendment to the Declaration (Deed Restrictions) to conform with the Bylaws take care of this issue? We are currently revamping our Bylaws and amending our Declaration.




Section 209.0059 refers to POAs,not HOAs.



Jennifer,

Did you mean "not COAs?" Under Texas code, HOAs and POAs (that are not condo associations) are the same thing.




It will make my research easier if that is the case, but it seems from my reading that I have come across things that differ.




Under the "Applicability of Chapter" Sec. 209.003(c) "This chapter applies to a residential property owners' association regardless of whether the entity is designated as a "homeowners' association," "community association," or similar designation in the restrictions or dedicatory instrument."

A book I recommend for anyone in Texas is "Texas Homeowners Association Law" by Gregory S. Cagle (if you enjoy learning the legal stuff and don't mind legaleze). In it he points out that HOAs and POAs are used interchangeably unless you are referring to a condo association, in which the laws are very different. The website also has good resources: http://texashoalaw.com





Thank you!
JenniferG11
(Texas)

Posts:548


06/16/2018 4:41 PM  
OK, so on COAs, this does not apply to voting or restricting from being elected, correct? We are generally governed by Section 81, but some parts of TUCA apply to all condo regimes.
GeorgeS21
(Florida)

Posts:1227


10/16/2018 9:12 AM  
Why is this back?
RichardP13
(California)

Posts:3595


10/16/2018 9:22 AM  
East buddy, CALM DOWN.

Been there, Done that
RichardP13
(California)

Posts:3595


10/16/2018 9:22 AM  
Easy

Been there, Done that
GeorgeS21
(Florida)

Posts:1227


10/16/2018 12:33 PM  
It was just a question.
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