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Subject: Board Resolution and Enforcement
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Author Messages
CjB2
(Texas)

Posts:10


03/19/2020 3:30 PM  
In Texas,

Some of the current board members and a prior board member have filed a board resolution title Late fee and find schedule resolution. In this resolution they have changed the delinquent fees the service charges along with interest rates collection statements CCR violations minimum and maximum along with the reoccurring charges and added lot mowing. RCC an hours I've never been amended and the violation of policy and fines are very clear. However the board and property management company are trying to say that and threaten the high oh find on a daily occurrence because it is part of the associations finding policy. I have challenged them on this topic to which the property management owner stated that the board "The association and Board of Directors has every right and obligation to create and clarify rules and regulations as outlined in the Declaration of Covenants, Conditions and Restrictions. See ARTICLE VIII DUTIES AND POWERS OF THE PROPERTY OWNERS ASSOCIATION. Rules and Regulations do not require the vote of the membership. Changes to the DCC&R's would require a vote of the membership."

To which I replied and quoted the CCRs of ;

Article VIII Duties and Powers of the Property Owners Association, Section 8.10 of the Phase 4 CCRS does state the following “The Association may adopt, amend, repeal and enforce rules and regulations (“Rules and Regulations"), fines levees enforcement provisions as deemed necessary or desirable with respect to the interpretation of implementation of this Declaration, the operation of the Association, the use and enjoyment of the Common Areas, and the use of any other property, facilities or improvements owned or operated by the Association.

What that means is that for items listed above that the board feels necessary may be done under this section given that there there a is majority of approval by all lot owners in the subdivision, with a percentage of 66 2/3%. You have just confirmed that an amendment to the CCRs would require this vote from the membership.

Section 8.11 (i.) .i) is specific enough for there to be no further interoperation required as it states the following; "Fines will be based on a pert notice or violation charge. For first violation, a fine ranging from 50 to 500 will be assessed. In the event the violation is not cured within the timeframe specified in the final notice of violation, and additional fine ranging from 100 to 500 will be assessed there after for every 30 day period in which the violation is not corrected. “

From the section above you will see that there is no occurrence of daily infractions or fines as stated in the amended fine policy and the correspondence from your employee"

The interesting part is they have already attempted to fine my account several thousand dollars, and it has been back dated to November of 2019, and have never received an actual violation. They keep saying my house is out of compliance from not completing an item they thought I was was going to do during my constriction. However, they have refunded my construction deposit which marks my home as complete, as defined in our CCR and in their own documentation. These fines appeared on my account approximately one year after my home was marked as complete.

If I were to go to court that only cost association and my neighbors time and money due to the biased from the board in the property management company for holding them accountable.

What are the thoughts heres?
JohnT38
(South Carolina)

Posts:233


03/19/2020 3:55 PM  
I mean no disrespect but I could not understand half of what you wrote.
BenA2
(Texas)

Posts:613


03/19/2020 4:29 PM  
In some states, as I understand, HOA boards are allowed to clarify CC&Rs when they are not clear. In Texas, it is established law that if the CC&Rs are ambiguous, the courts must rule in favor of the free use of the land. In other words, they must rule in favor of the owner. I think that means that they cannot "create or clarify" anything in the CC&Rs as they apply to individual owner's property.

I would suggest speaking to an attorney or at least try to get the board to consult with an attorney. As you mentioned, if someone challenged this in court it could cost the HOA a lot of money.
AugustinD


Posts:2906


03/19/2020 5:11 PM  
Posted By CjB2 on 03/19/2020 3:30 PM
"The association and Board of Directors has every right and obligation to create and clarify rules and regulations as outlined in the Declaration of Covenants, Conditions and Restrictions. See ARTICLE VIII DUTIES AND POWERS OF THE PROPERTY OWNERS ASSOCIATION. Rules and Regulations do not require the vote of the membership. Changes to the DCC&R's would require a vote of the membership."
The courts say that Board-created Rules and Regulations cannot create restrictions that exceed what is already in the DCC&Rs.

Else like JohnT38, I am struggling with your English. Maybe you could get someone to edit your post and explain (1) what rule the Board created that you do not like; (2) what covenant does this rule violate; and (3) about how much money is at stake here?
JohnC46
(South Carolina)

Posts:9299


03/20/2020 10:08 AM  
If fining is allowed via your Covenants, then the BOD must set a fine schedule. They can also modify such.
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Forums > Homeowner Association > HOA Discussions > Board Resolution and Enforcement



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