Get 1 year of free community web site hosting from Community123.com!
Tuesday, June 15, 2021











HOATalk is a free service of Community123.com:

Easy to use website tools to help your board
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: ok , i need a lawyer
Prev Next
Please login to post a reply (click Member Login on the menu).
Page 1 of 212 > >>
Author Messages
LaskaS
(Texas)

Posts:494


05/20/2021 4:43 PM  

i know there are due process requirements before a board can assess an owner for fines or damages.

If these processes aren't followed. If my account is assessed a balance because of a false claim that i was given no opportunity to respond to.

If i respond with a letter that outlines that the due process wasn';t followed. Its just a sh** show.

actually, I need a referral to an attorney in houston. HOA ..

Im not trying to sue anyone. I do however want to make sure that my rights are protected
BillH10
(Texas)

Posts:712


05/20/2021 5:33 PM  
Laska, access the CAI (community Association Institute) Houston Chapter website. It may contain contact information for CAI attorneys. If not, call the chapter. They should provide you a list of attorney member names.

Please do not use a regular attorney, tax attorney, property attorney or the bother-in-law of you next door neighbor's cousin.

You need an attorney versed in condominium association law, especially since I believe you posted your's is a Chapter 81 association. That means it is old, your documents likely do not include the due process language, requirements, and protections found in newer condominium and HOA documents.
MelissaP1
(Alabama)

Posts:10247


05/20/2021 6:04 PM  
Do I fall down the Laska hole? 1st off Fines and damages are 2 different things. Fines are PUNITIVE or Corrective actions. Fines are NOT income for the HOA. Most states do not allow for fines to be the basis of liens or foreclosures. However, EACH STATE is different as each HOA. Accounting practices CAN make fines appear as "unpaid dues" by applying dues paid toward the fines. Plus on top of all of that the HOA has to have the RIGHT to fine.

Damages are something that caused actual damage to the HOA. These range from monetary to property. Damages can be if the HOA had to consult an attorney to respond to your inquiries or threats. It also can be NOT correcting a violation and the HOA does it. Example: They tell you to paint your house and you do not. The HOA can paint the house and send you the bill. The HOA can claim that as "damages".

There is also a meeting to discuss fines or damages prior to being charged. It should not be a "surprise".

Former HOA President
LaskaS
(Texas)

Posts:494


05/20/2021 6:19 PM  
Mellissa. I was informed that the board that during executove session. The acting property manager submitted to the board accusatuons that i caused damages to the landscape. These accusations were untrue. The board dod not ask for proof or evidence of any damages. They kust accepted what the propert manager claimed. They voted to assess me a sum fordamages that disnt occur and dont exist.

I was given no notification and have not been give. The opportunity to request a hearing to respond.

If proper procedure isnt followed which includes notice and a right to da hearing by a neutral party, what do i need to do to insost the charge is removed from my account. The board voted withoit asking ay questions or bothering to investigate the claims.

This is pure and simple a game to tproperty manager. The board has become a kangaroo court. The few board members that mention the requirement for dur process and notofication and overruled.

I
LaskaS
(Texas)

Posts:494


05/20/2021 6:20 PM  
Mellissa. I was informed that the board that during executove session. The acting property manager submitted to the board accusatuons that i caused damages to the landscape. These accusations were untrue. The board dod not ask for proof or evidence of any damages. They kust accepted what the propert manager claimed. They voted to assess me a sum fordamages that disnt occur and dont exist.

I was given no notification and have not been give. The opportunity to request a hearing to respond.

If proper procedure isnt followed which includes notice and a right to da hearing by a neutral party, what do i need to do to insost the charge is removed from my account. The board voted withoit asking ay questions or bothering to investigate the claims.

This is pure and simple a game to tproperty manager. The board has become a kangaroo court. The few board members that mention the requirement for dur process and notofication and overruled.

I
LaskaS
(Texas)

Posts:494


05/20/2021 6:21 PM  
I apologize for the typos. I was replying on my phone. Lesson learned.
AugustinD


Posts:600


05/20/2021 6:51 PM  
Posted By LaskaS on 05/20/2021 6:19 PM

If proper procedure isnt followed which includes notice and a right to da hearing by a neutral party, what do i need to do to insost the charge is removed from my account. The board voted withoit asking ay questions or bothering to investigate the claims.
-- Do either your condo's covenants or rules and regs require notice and a hearing?

-- Even though your condo is under Chapter 81, I believe that a court would say that, at a minimum, the condo must give you notice and a hearing (which are among the most basic due process rights). Texas courts may have already said this for corporations, but it's a lot for me to look up right now.

-- If you answer my questions above, I might be able to help further.
LaskaS
(Texas)

Posts:494


05/20/2021 7:24 PM  
Augustine, I'm searching for that info now.. I know that in 2015 there were changes that applied to all associations.

Again, I just want to make sure I respond appropriately.

LaskaS
(Texas)

Posts:494


05/20/2021 7:36 PM  
Augustine, there is not specific language regarding notification or hearing requirements in our declaration or rules and regulations regarding assessment for damages to common property.

however. texas property code 209 clearly defines the requirements and due process before fines and assessments..

http://www.trailwoodvillage.org/info.php?pnum=20&preview=1


that linke provides a good summary of 209.

I don't know if 209 applies to condominium associations though..


tuca.82. does give due process rights. but we are under 81.

BillH10
(Texas)

Posts:712


05/20/2021 8:11 PM  
Laska

You must understand, as a Chapter 81 condominium, you are not a Texas Property Code Section 209 Homeowners Association and virtually nothing in Section 209 will apply to a Chapter 81 condominium owner.

There are a few 'cross-over's between the two. The 2015 legislative changes again affected Section 209 HOAs as they did in 2011 and, with a few exceptions, did not address Chapter 81 condominiums.

I again strongly urge you to consult an attorney who specializes in these matters.
LaskaS
(Texas)

Posts:494


05/20/2021 10:25 PM  
thanks bill,, will do.. thanks for the clarification.
TimB4
(Virginia)

Posts:17609


05/21/2021 2:07 AM  
I would also get an opinion from an attorney who is versed in contract law.
The reason for this is that if the issue goes to court, the court looks at everything as mattes of a contract.
LaskaS
(Texas)

Posts:494


05/21/2021 3:08 AM  
I looked at the CAI website, the attorneys on that website represent hoa.s.

there has to be some protection for a condo owner that has become the target of an unscrupulous board. Voting them out is not an option when only a small number of owners are targets.

the other owners are completely oblivious to what is going on. over half the owners don't even live here anymore.

BillH10
(Texas)

Posts:712


05/21/2021 3:15 AM  
Laska

Call those who indicate they represent HOAs and ask if they also handle condominium matters or, if they do not, ask if they can refer you to someone who does.

The focus of the legislators in Texas is on HOAs, which is why the major changes in 2011, 2015, and this year focused primarily on Section 209 associations.
AugustinD


Posts:600


05/21/2021 6:31 AM  
Posted By LaskaS on 05/20/2021 7:36 PM
Augustine, there is not specific language regarding notification or hearing requirements in our declaration or rules and regulations regarding assessment for damages to common property.

however. texas property code 209 clearly defines the requirements and due process before fines and assessments..

http://www.trailwoodvillage.org/info.php?pnum=20&preview=1


that linke provides a good summary of 209.

I don't know if 209 applies to condominium associations though..


tuca.82. does give due process rights. but we are under 81.

Like BillH10 indicated (and I double checked), Chapter 209 does not apply to condominiums.

The fact that your condo's governing docs say nothing about notice or hearing does not matter. As I stated above, I expect a judge, facing a competent attorney representing you, would rule that you were owed notice and a hearing, based on case law.
AugustinD


Posts:600


05/21/2021 7:31 AM  
LaskaS, The section of Chapter 82 on "notice and an opportunity to be heard" also applies to Chapter 81 condominiums. Below is a letter you can write to your Board. Send it certified mail, return receipt requested.

=== Draft Letter to Board ===

Subject: Remove Charge to My Account

Dear Board of Directors,

The condominium association has failed to comply with Texas statute requirements for charging me for landscaping damage that I did not cause. Below is the relevant state law. Please remove this charge immediately.

Texas Property Code Chapter 82, Section 82.002, states, among other things, that Chapter 82 Section 82.102 (a) (12) applies to condominiums for which the declaration was recorded before January 1, 1994.

Section 82.102 "Powers of Unit Owners' Association," (a) (12) states:
"(a) Unless otherwise provided by the declaration, the association, acting through its board, may: (12) impose interest and late charges for late payments of assessments, returned check charges, and, if notice and an opportunity to be heard are given in accordance with Subsection (d), reasonable fines for violations of the declaration, bylaws, and rules of the association;"

Section 82.102 Subsection (d) states:
"(d) Before an association may charge the unit owner for property damage for which the unit owner is liable or levy a fine for violation of the declaration, bylaws, or rules, the association shall give to the unit owner a written notice that:

(1) describes the violation or property damage and states the amount of the proposed fine or damage charge;

(2) states that not later than the 30th day after the date of the notice, the unit owner may request a hearing before the board to contest the fine or damage charge; and

(3) allows the unit owner a reasonable time, by a specified date, to cure the violation and avoid the fine unless the unit owner was given notice and a reasonable opportunity to cure a similar violation within the preceding 12 months."

The condominium association failed to comply with these Texas statute sections. Please immediately remove the amount charged to my condominium unit's account for the landscaping damage that I did not cause. If you fail to remove this charge within 10 business days, I will have no choice but to take legal action.

Thank you,

name
address
phone
email addie


As needed, see https://statutes.capitol.texas.gov/Docs/PR/htm/PR.82.htm
LaskaS
(Texas)

Posts:494


05/22/2021 1:55 AM  
AUGUSTINE,,I LOVE YOU. THANK YOU
AugustinD


Posts:600


05/23/2021 9:49 AM  
LaskaS, this one was a pleasure. There's nothing better than having a few black-and-white, to the point, statute sections to tell a board, using the proper language of the law, to go *&^%$ itself. (Granted this is only a start. The battle may be long.)
LaskaS
(Texas)

Posts:494


05/28/2021 5:43 PM  
Augustine,

I know i'm in the right here. my question is this.

the property manager(board member who is at the root this campagne agianst me)

here is what happened. I want to make sure I have my ducks in a row.

the property manager board member falsely accused me of damaging a thousand dollars worth of plants.

This is a complete mischaracterization and outright lie.
i am attaching pictures for you to see.

At the board meeting. The property manager called special session, without notifying me (owner) of what was to be discussed.

I was told by a sympathetic board member that jb told the board that i damaged and destroyed common area. He had no proof , no pictures. because it didn't happen.
Jay fabricated costs for the plants that weren't damaged and the board agreed to charge my account.

I was not notified, nor was the announcement of the action taken during the executive session announced once the board came out of executive session(as required)

My question is,Do i even bring up the executive session stuff.?? .. What recourse do I have against JB for this continued harassment . I know the fines will be removed. What I want to ensure is that owners can be harassed like this in the future. If the board is giong to ignore the due process requirements and the accounting company is going to allow it to happen. This is maliscious intent on JB part. and willful ignorance on the rest of the board members who voted to assess my account 770 without independent investigation of whether it was true or not.

I received a letter today stating the following.


We are hereby requesting payment in the amount of $770 now being charged to the account for the removal and destruction of plants,shrubs and damage to the sprinkler pipe.

If you continue such activities, additional charges will be levied to the account and may be turned over to an attorney for further action. This action could result in a suite being filed in a court of Law. You will be liable for payment of all assessmentments. legal fees and court costs incurred should legal action become necessary. Pleat note that attorney fees and court costs incurred are seldom less than 1000 if continued pursuit is necessary, those fees could be a great deal more.

Truly Yours

JB..


augustine,, what i did do. was move plants that i purchased two years ago for the common areas, because the board still had not done any restoration of the common ground after harvey.
What i did do was progate some coleus plants to make babies and then planted them in this small area in an effort to have some beauty until the board properly addressed the need for proper professional landscaping and drainage correction.

I am well aware that the rules say that owners are not to plant plants without board approval, the board may remove them. However, when the board fails to properly address the landscaping at all for 3 years. When I finally was disgusted and spent my own money to do some kind of improvement. JB false distorted what occured and claimed damage when there was none. You can't damage dirt!

LaskaS
(Texas)

Posts:494


05/28/2021 5:59 PM  
augustine.

here is the section of tuca that i believe also applies to this improper board actions..

Sec. 82.108. MEETINGS. (a) Meetings of the association must be held at least once each year. Unless the declaration provides otherwise, special meetings of the association may be called by the president, a majority of the board, or unit owners having at least 20 percent of the votes in the association.

(b) Meetings of the association and board must be open to unit owners, subject to the right of the board to adjourn a meeting of the board and reconvene in closed executive session to consider actions involving personnel, pending litigation, contract negotiations, enforcement actions, matters involving the invasion of privacy of individual unit owners, or matters that are to remain confidential by request of the affected parties and agreement of the board. The general nature of any business to be considered in executive session must first be announced at the open meeting.


my question is, Should I just ignore this violation and only include the failure of due process as required( per your previous letter example )
LaskaS
(Texas)

Posts:494


05/28/2021 6:02 PM  
If the board willfully ignores the statute and does not remove the charge on my account. If I go to court to get it removed. Will I also be entitled to my legal expenses. Can I go to small claims court to have it removed? so basicly asking for an injunction for removal
AugustinD


Posts:600


05/28/2021 6:23 PM  
Posted By LaskaS on 05/28/2021 5:59 PM
augustine.

here is the section of tuca that i believe also applies to this improper board actions..

Sec. 82.108. MEETINGS.
[snip for brevity]

my question is, Should I just ignore this violation and only include the failure of due process as required( per your previous letter example )
I agree 82.108 also applies to your pre-1994 condo.

For now, I would hold off on complaining about the lack of an annual meeting.

As for going to small claims courts; legal expenses; et cetera: I do not like to do hypotheticals if it's really not necessary. Send the letter. The board might very well give you a hearing. And then still bill you because they believe their manager and not you. Let's see.
MelissaP1
(Alabama)

Posts:10247


05/28/2021 8:15 PM  
Any time you sue your HOA your suing yourself and your neighbors. That is a FACT. So yes you may have to eat your legal expense. You may even have to eat the HOA's legal expenses if the court does not believe your case has merit. It is the court that can/will decide who pays legal expenses. Plus your ONLY entitled to the amount your out. Which is to make you "whole". You can't say the HOA is making you pay "1000 dollars" and sue for 5000. It does not work that way. Your only entitled at most your legal expenses and the 1000 dollars.

So making the court have the HOA reimburse you any money you have to PROVE you paid out the money and deserve it back. It can't just be a "bill" you refuse to pay. You have to prove damages. Which would be paying money you did not have to pay out. Otherwise, it's just a bill.

Former HOA President
LaskaS
(Texas)

Posts:494


05/28/2021 8:31 PM  
oops. I meant 82.108b and 82.108c...


during the meeting.
the manager(also board member) called the board into executive session. ( which means I would be logged out, since I"m not on the board anymore)

I specifically requested I be allowed back in once the zoom executive session finished.

after about 10 minutes of being in waiting room(zoom). i was let back in.
nothing was announced regarding what they had talked about,

this clearly violates.. 82.108b

b) Meetings of the association and board must be open to unit owners, subject to the right of the board to adjourn a meeting of the board and reconvene in closed executive session to consider actions involving personnel, pending litigation, contract negotiations, enforcement actions, matters involving the invasion of privacy of individual unit owners, or matters that are to remain confidential by request of the affected parties and agreement of the board. The general nature of any business to be considered in executive session must first be announced at the open meeting.


also..

since texas governor lifted the covid requirements statewide regarding remote meetings. etc. zoom meetings are no long a requirement but a convenience.

I clearly see that this is allowed via 82.108c1.. . however. 82.108c1c precludes remote meetings when they involve voting on a fine or damage assessment. (see below)

1) a meeting of the board may be held by any method of communication, including electronic and telephonic, if:

(A) notice of the meeting has been given in accordance with Subsection (e);

(B) each director may hear and be heard by every other director; and

(C) the meeting does not involve voting on a fine, damage assessment, appeal from a denial of architectural control approval, or suspension of a right of a particular association member before the member has an opportunity to attend a board meeting to present the member's position, including any defense, on the issue;



Should I still just send the original suggested letter regarding failure of the board to follow due process etc..
I am thinking of sending the letter directly certified to the hoa attorney. This will ensure that the attorney reads it and when he calls the office manager to find out details. He will inform JB that the board can not just assess damages without due process etc. additionally. as part of the FU** O** I want to yell.. ( i won't) the attorney reading and contacting JB will thus cost attorney fees. I know it's my money also. But this will certainly enlighten the board and humiliate JB.
LaskaS
(Texas)

Posts:494


05/28/2021 8:36 PM  
melissa

I think you must have missed the context.

I was notified that my account was assessed $$$$ for damages to the common areas of the property.

However, there is no damage, there was never any damage, this is completely fabricated by JB, in retaliation for my refusal to follow his orders if they are not within his authority to order.

as augustine stated.. the Tuca,, sections relevant to the ability of the hoa to assess an owner for damages or fines requires specific due process steps.

None of those steps were followed. Which of course. makes sense, since there was no damage. and If i had been given a notice and then a right to present my defense before the board would have been easily proven with dated photos and witness statements that refute what JB is claiming.
MelissaP1
(Alabama)

Posts:10247


05/28/2021 8:42 PM  
I am just pointing out the facts and what to expect. Your case details are irrelevant. Your either going to be paying your own legal fees or both. Your only going to get to be made "whole" whatever that means. Suing your HOA is suing yourself and your neighbors. That is a consequence you have to accept when you go through the process. Whether or not you have a case is for a court to decide. It doesn't come without consequences.

Former HOA President
MaxB4
(Maine)

Posts:382


05/28/2021 8:48 PM  
I would disregard the advice Melissa or whatever her name is gives.
MelissaP1
(Alabama)

Posts:10247


05/28/2021 8:50 PM  
I concur about Max's as well. One should disregard FREE advice from anyone...

Former HOA President
AugustinD


Posts:600


05/28/2021 10:36 PM  
Posted By LaskaS on 05/28/2021 5:43 PM
what i did do. was move plants that i purchased two years ago for the common areas, because the board still had not done any restoration of the common ground after harvey.
What i did do was progate some coleus plants to make babies and then planted them in this small area in an effort to have some beauty until the board properly addressed the need for proper professional landscaping and drainage correction.

I am well aware that the rules say that owners are not to plant plants without board approval, the board may remove them. However, when the board fails to properly address the landscaping at all for 3 years. When I finally was disgusted and spent my own money to do some kind of improvement. JB false distorted what occured and claimed damage when there was none. You can't damage dirt!
LaskaS,

-- Sorry; before I posted earlier today, I missed your post that included the above statements.

-- In your communications with the COA Board, I think the only thing on which you should focus is the assessment for the alleged damage. Forget about the executive session violations. Forget about the annual meeting violations. Focus only on the improper assessment.

-- Respectfully, I disagree with rationalizing when one breaks a rule or covenant. Particularly when a HOA/COA member is on a board's radar, the HOA/COA should strive to follow all rules and covenants. Else one's (your) troubles are likely to escalate. I sense you are on this board's radar. You likely are in the right on many important issues. But I think what you are missing is that, for most-to-all-issues, you do not have the power to make significant change. All that stuff about right and wrong with which many people were raised: It's not the real world. Right and wrong has a huge role in one's personal world of family, very close neighbors, short interactions with strangers, and maybe interactions in, say, retail America (grocery stores and such). I think the real world is quite crooked. Justice is not all that common. People cheat and lie a lot.

-- I am observing two individuals, one where I live and another who is long distance, in significant legal disputes with their HOAs/COAs. For years now these two have been engaged in lawsuits. They may be in the right, but at what cost? I do not support spending one's life principally engaged in disputes with a HOA/COA. I think both these acquaintances of mine are not realizing that they are up against a corporation with a lot more resources. The corporations are fine letting disputes drag on in courts for years. The HOA/COA members who are parties in the lawsuit are not. I think these two acquaintances of mine will not enjoy a victory, even if the court finds in their favor. Why? Because they have given years of their lives, and a lot of money, to scheming how to be vindicated. Except in the movies, I think vindication is rare.

Posted By LaskaS on 05/28/2021 8:31 PM

I am thinking of sending the letter directly certified to the hoa attorney. This will ensure that the attorney reads it and when he calls the office manager to find out details. He will inform JB that the board can not just assess damages without due process etc. additionally. as part of the FU** O** I want to yell.. ( i won't) the attorney reading and contacting JB will thus cost attorney fees. I know it's my money also. But this will certainly enlighten the board and humiliate JB.


-- I think I'd send it to the board and cc the condo attorney.

-- I want to encourage you not to seek (1) revenge per se; (2) another's humiliation per se; (3) harassment per se of another; or (4) increasing your adversary's attorney fees without a good reason. In my experience, a mindset of revenge is harmful to one's self. I think it also exhausts a lot of innocent bystanders and turns people off. The facts of the Board denying you a hearing speak loudly all by themselves. Don't clutter up the message with, for one, your ego.

-- From afar, one stranger to another, I am concerned this condo stuff is taking over your life. You have a sh-tty board and probably a jerk (or worse) for a manager. And I think such boards and managers are pretty common. You have suffered through the effects of a hurricane and serious damage. Are you enjoying the richness of life?

-- I am amending the letter I proposed to you as follows: Delete the sentence at the end that says "If you fail to remove this charge within 10 business days, I will have no choice but to take legal action." The latter is a little too provocative yada. Send the letter without this sentence, and see what the Board does.
CathyA3
(Ohio)

Posts:2020


05/29/2021 5:47 AM  
Quote from Augustin:

"-- I am observing two individuals, one where I live and another who is long distance, in significant legal disputes with their HOAs/COAs. For years now these two have been engaged in lawsuits. They may be in the right, but at what cost? I do not support spending one's life principally engaged in disputes with a HOA/COA. I think both these acquaintances of mine are not realizing that they are up against a corporation with a lot more resources. The corporations are fine letting disputes drag on in courts for years. The HOA/COA members who are parties in the lawsuit are not. I think these two acquaintances of mine will not enjoy a victory, even if the court finds in their favor. Why? Because they have given years of their lives, and a lot of money, to scheming how to be vindicated. Except in the movies, I think vindication is rare."

A friend of mine used to refer to situations like this as "dying in full possession of the right of way".

I think the problem with a lot of HOA disputes is that egos are driving the bus. They may start with legitimate issues, but after a while people lose sight of that and the dispute itself becomes the point. They will pay a high cost, literally and figuratively, for such muddled thinking. I'd have less of a problem with this if people were only hurting themselves - but in an HOA/COA, the entire membership will pay the price for this nonsense, in the form of higher assessments and distracted board members.
AugustinD


Posts:600


05/29/2021 10:10 AM  
CathyA3, your observations make sense and are wise, afaic.

My only concern is that I am seeing some HOAs/COAs imposing fines with impunity. They ignore statutory and covenant obligations alike for notice and a hearing. Fines are made up numbers. Folks are paying, just because these folks know the cost of fighting the fine exceeds the value of their time and sanity. Who can afford an attorney, even if the fine is as high as $2000? Hiring an attorney will likely cost at least as much as the fine.

I think calling this thuggery in some cases is appropriate. Some hero or saint maybe will say no and fight the good fight over a few years. (As I have mentioned in the recent past, I am watching a federal government agency as we speak develop what I hope is a position of, "Nope. Nooooo. Keep doing this, and your HOA will pay mightily, HOA Board. You really need to get some second opinions from other attorneys, specialized in this law... " Signs continue to be good for same. I continue to think it's just going to be many more months before this dispute concludes.)

Still, you advised DennisG7 in the other thread to weigh paying the amount the HOA claims he owes (for alleged back assessments) against fighting the alleged debt. I think there is a lot to be said for just paying the amount the HOA claims one owes. And then moving.
CathyA3
(Ohio)

Posts:2020


05/29/2021 11:59 AM  
Posted By AugustinD on 05/29/2021 10:10 AM
CathyA3, your observations make sense and are wise, afaic.

My only concern is that I am seeing some HOAs/COAs imposing fines with impunity. They ignore statutory and covenant obligations alike for notice and a hearing. Fines are made up numbers. Folks are paying, just because these folks know the cost of fighting the fine exceeds the value of their time and sanity. Who can afford an attorney, even if the fine is as high as $2000? Hiring an attorney will likely cost at least as much as the fine.

I think calling this thuggery in some cases is appropriate. Some hero or saint maybe will say no and fight the good fight over a few years. (As I have mentioned in the recent past, I am watching a federal government agency as we speak develop what I hope is a position of, "Nope. Nooooo. Keep doing this, and your HOA will pay mightily, HOA Board. You really need to get some second opinions from other attorneys, specialized in this law... " Signs continue to be good for same. I continue to think it's just going to be many more months before this dispute concludes.)

Still, you advised DennisG7 in the other thread to weigh paying the amount the HOA claims he owes (for alleged back assessments) against fighting the alleged debt. I think there is a lot to be said for just paying the amount the HOA claims one owes. And then moving.



I'm a big believer in walking away from problems if possible.

I agree that fines can be unlawful. And if you're the victim of this, it's hard not to take it personally, which is where I think the trouble can start.

I understand wanting the draw a line in the sand and maybe putting a stop to the board's bad behavior. But as you pointed out, for owners who can't afford the attorney's fees that's not an option.

Even for those who can afford it, when it gets right down to it, unless there are some big money interests keeping bad directors in place - and it does happen once in a while - the bad directors are the fault of the membership. If they can't be bothered to fix this the correct way - by voting the bums out and electing new bums - then I'm not willing to throw a bunch of personal resources at the problem. Not when walking away is faster and cheaper. Yes, it would appear that I've lost this particular battle (which is why it's important to tell the ego to pipe down), but in the long run I think I've won the war. (I envision myself in ten years, $50000 poorer with fewer financial options. Will Ten Years Older Me think I did such a smart thing back in 2021? Probably not.)


JohnC46
(South Carolina)

Posts:11059


05/29/2021 12:20 PM  
Laska

Did you not do some plantings without asking for permission?
Yes or No only. No explanations.

Did the BOD have to pay to get those illegal plantings removed?
Yes or No only. No explanations.
LaskaS
(Texas)

Posts:494


05/29/2021 12:26 PM  
Augustine,

Can I reply by email? when you mentioned cc'ing the attorney, that's an email term, I thought.

I want to make sure and dot my i's and cross my t's.

I received the letter from the propertymanager regular mail with a stamp.
In order to make sure that my account is not assessed late fees on this improper charge for damage that doesn't exist, I thought I had to send certified mail??
Certainly, if I can respond with email that would be easier.

Regarding Cathy's response, back overdue assessments are one thing,(she referred to a different post and advised paying and moving on).. this is not about a regular assessment dispute. This is fabricated damages along with a dollar amount charged for which there is no factual basis or documented receipts. Damages to common property were assessed to my account without the required legal due process as outlined in above.


second, In the response above , you mention..

I am watching a federal government agency as we speak develop what I hope is a position of, "Nope. Nooooo. Keep doing this, and your HOA will pay mightily, HOA Board. You really need to get some second opinions from other attorneys, specialized in this law.


Can I get a link to also read up on this.


LaskaS
(Texas)

Posts:494


05/29/2021 12:32 PM  
the question on the first is.
1. yes
with the caveat, that, I received a letter after the fact telling me that the association employes landscapers and doesn't allow owners to do the work and tells me to not do it anymore.
once i received that letter, I didn't plant anything else.


2. the board has not removed any of the plantings I have done. I'm attaching pictures to the area in a question.

this is purely a vindictive attempt by the property manager to "show me".. it's not going to hold up to any scrutiny.



AugustinD


Posts:600


05/29/2021 12:37 PM  
Posted By LaskaS on 05/29/2021 12:26 PM
Can I reply by email? when you mentioned cc'ing the attorney, that's an email term, I thought.

I want to make sure and dot my i's and cross my t's.

I received the letter from the property manager regular mail with a stamp.
In order to make sure that my account is not assessed late fees on this improper charge for damage that doesn't exist, I thought I had to send certified mail??
Certainly, if I can respond with email that would be easier.
You can certainly try to respond by email (cc'ing the attorney) and ask the manager to respond back, indicating he received the email. Then save all the emails.

The purpose of using snail mail, certified with return receipt requested, is for legal documentation. It has long been the customary way of obtaining proof that one mailed a letter when one says one did.

For your reference: "Ccing" is short for "carbon copying." The term dates to the days before email when businesses snail mailed strictly hard copies to whomever. If the business wanted certain folks informed, it would "cc" the folks, making literally a carbon copy of the letter (as it was being typed by some secretary on a typewriter). So yes, one can "cc" an attorney a copy of a letter to the board. You just send the letter in a second snail mail to the attorney. Two snail mailed letters total would go out: One to the Board, and the other to the attorney.

But go ahead and try email.

Damages to common property were assessed to my account without the required legal due process as outlined in above.
Yes, I agree, with the caveats that CathyA3, JohnC46 and I pointed out.


I am watching a federal government agency as we speak develop what I hope is a position of, "Nope. Nooooo. Keep doing this, and your HOA will pay mightily, HOA Board. You really need to get some second opinions from other attorneys, specialized in this law."


Can I get a link to also read up on this.


The government agency is the U. S. Department of Housing and Urban Development (HUD), responding to a formal complaint of discrimination on the basis of race, sex and several other protected classes. The latter type of discrimination is potentially a violation of the federal Fair Housing Act, which HUD enforces to a large extent. The situation you describe in this thread does not involve violations of the Fair Housing Act.
LaskaS
(Texas)

Posts:494


05/29/2021 1:07 PM  
please see the attached pictures.. the area in question..

top photo was the condition of the common area and is not in keeping with the requirements for upkeep and maintenance by the association.
Several requests for maintenance and restoration of the common area landscaping has been submitted to the board.

the bottom picture is what it looks like today,,,


Attachment: 152973128471.pdf

AugustinD


Posts:600


05/29/2021 1:10 PM  
Posted By LaskaS on 05/29/2021 1:07 PM
please see the attached pictures.. the area in question..

top photo was the condition of the common area and is not in keeping with the requirements for upkeep and maintenance by the association.
Several requests for maintenance and restoration of the common area landscaping has been submitted to the board.

the bottom picture is what it looks like today,,,

Very compelling. I think a judge would sneer at the HOA for billing you and wasting the court's time. But the judge might also say, "LaskaS, you broke the covenants. You pay. Each side bears her/his/its own attorney fees."
MelissaP1
(Alabama)

Posts:10247


05/29/2021 1:26 PM  
Wait did YOU make the changes and add the additional plantings? Hate to say it but if you did, the HOA may have the right to do it. Makes no sense to you I am sure. However, if this is common area you as an individual can't take action without the Board's permission/knowledge.

You don't know if the area was that way for a reason. Like let's say the lawncare keeps cutting down the ground cover. The board got tired of them doing it and don't want ground cover/plants there. What if there was a planned maintenance project for that area? What if they were wanting to remove those trees? Plus you added a liability to them by doing your own landscaping. It's one thing to "garden" your yard. It is another to "garden" someone else's.

Former HOA President
LaskaS
(Texas)

Posts:494


05/29/2021 1:45 PM  
I did,, and i would have removed it if i was asked. all i was done was sent a notice to stop doing it. which i did.


I do know why the area was like that. remember I was on the board up until March. .
there is no valid reason for the area top be left like that for years on end.
LaskaS
(Texas)

Posts:494


05/29/2021 1:57 PM  
Let me be clear. i now realize that there is in fact a rule against planting plants without prior approval.

I was not aware of it before.

I did not seek reimbursement for the money i spent .

If the association is responsible for maintenance and upkeep and they have continued to fail to do so, despite 2 years of documented requests for action.

And an owner finally attempts to make some contribution to the common areas.. which is a NET POSITIVE.

Once i received the letter of the actual rule. I didn't do anything else.


Mellisa, you are correct, the area could have been that way for a reason,, Luckily, i know there was not valid reason . Other than JB failing to prioritize upkeep and maintenance of the common grounds of the association.

The upkeep and maintenance of the common areas is a legal obligation according to the declaration.

If the board is going to take action against an owner, there are requirements that must be followed. THESE WERE NOT FOLLOWED. end of story.

I'm not trying to justify what I did. I now realize there is a written rule against it. However, a board must be reasonable and fair in their enforcement of the community guidelines. Taking action against me, without any proof of actual damage, without giving me notice of the potential damage assesssment that the board was considering adding to my account, without giving me notice that I have a right to appeal and present informatin in front of the board. ALL OF THOSE THINGS INVALIDATE the charges assessed to my account.

If the board wants to start over. they can. but part and parcel to the process is actual inquiry into whether what JB is claiming as damage is actually true.
LaskaS
(Texas)

Posts:494


05/29/2021 2:01 PM  
Augustine,

the problem is,, the fair housing act is very clear, and government agencies will come down hard on associations that willfilly ignore the act.

Is there anything that you know of that any government agency is considering regarding the common occurance of boards gone amuck. Taking actions without reasonable inquiry. Taking actions contrary to the facts. Retaliation for personal vendettas. Using the power of the association and association money to go after an owner which has no basis in actual facts. It a personal vendetta.
KerryL1
(California)

Posts:8123


05/29/2021 2:04 PM  
But, see, Laska, it doesn't matter that the area "shoulda" been handled. You broke a tule or covenant. You certainly can get fined for that and also for whatever it const your HOA to removed the plants you put in. I agree that the Board's use of the language of "damage" is overkill.

An owner here had on the agenda Tuesday night that we accept his donation of some new accent pillows for a sofa & settee & 5 seat cushions to place on 20 y.o. furniture in one of our lounges (party room). It's very drab and dreary. The board wants to spend no money of decor since we'll be rehabbing it in about year. So the owner wanted to donate.

The board majority voted no with the reason that with this precedent, too many of the owners might want to donate various items and we'll have to decide each offer to avoid things looking worse. If he had donated without asking and we knew who it was, we'd probably just have removed the items. I don't think we'd have called him to hearing and fined him ($50) for placing items in the common area without permission.

But, your Board has even so far, the you were a director, as banning you form even visiting the PM's office. Clearly, they're trying to rein you in. I suspect that's why the penalty seems so stiff.
MaxB4
(Maine)

Posts:382


05/29/2021 4:19 PM  
And this is what HOA living is all about...For me personally...NO THANK YOU!!
AugustinD


Posts:600


05/29/2021 5:37 PM  
Posted By LaskaS on 05/29/2021 2:01 PM

the problem is,, the fair housing act is very clear, and government agencies will come down hard on associations that willfilly ignore the act.
I would have written, "The Fair Housing Act is not the problem. It is the solution to certain types of discrimination in housing."

Is there anything that you know of that any government agency is considering regarding the common occurance of boards gone amuck. Taking actions without reasonable inquiry. Taking actions contrary to the facts. Retaliation for personal vendettas. Using the power of the association and association money to go after an owner which has no basis in actual facts. It a personal vendetta.
No federal agencies. It appears you saw some proposals by members of the Texas legislature, as reported at https://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/303985/view/topic/Default.aspx. I doubt these will go anywhere.

I like what Arizona has in place, with the Az Department of Real Estate overseeing adjudication of many disputes between HOA/COA members and boards. The Department reports, in summary form, the outcome.

Florida turns out some wild-a-- stories of HOA/COA dispute arbitration via its own state agency. (Where is GenoS?) Like the arbitrators don't know much. Worse, it seems Florida HOA/COA arbitrator decisions are being held out as precedent?

You know I read a lot of case law. There is a logic to it. The appeals courts really do try to make decisions that are consistent. Hence I profane many of the reports GenoS has made about arbitration decisions in Florida.

I remain with you regarding the HOA's statutory due process obligations. I expect the reputable hoatalk veterans agree you were owed notice and a hearing.

I hope you keep in mind CathyA3's counsel. You have thugs on your board and for a manager. And they have a lot of money they can use on hired guns (attorneys) to attack you.
BenA2
(Texas)

Posts:886


05/29/2021 6:10 PM  
Posted By LaskaS on 05/20/2021 7:36 PM
Augustine, there is not specific language regarding notification or hearing requirements in our declaration or rules and regulations regarding assessment for damages to common property.

however. texas property code 209 clearly defines the requirements and due process before fines and assessments..

http://www.trailwoodvillage.org/info.php?pnum=20&preview=1


that linke provides a good summary of 209.

I don't know if 209 applies to condominium associations though..


tuca.82. does give due process rights. but we are under 81.




209 absolutely does not apply to condos.

"Section 209.003 (d) This chapter does not apply to a condominium as defined
by Section 81.002 or 82.003."
LaskaS
(Texas)

Posts:494


05/29/2021 10:46 PM  
ben,, augustine wasn't saying 209 was applying to condos.

he was saying the portions of tuca texas uniform condominium act 82 that deals with due process

also applies to texas condominiums governed by act 81.
LaskaS
(Texas)

Posts:494


05/29/2021 11:08 PM  
Kerry,
I agree , i did break a community rule that i was not aware of that says owners can't plant plants in common areas without prior consent of owners.

However. our rules and regulations do not give the board the authority to fine an owner for this. all that can be done is removing the plants.


the property manager is claiming that I damaged existing plants.
this is a bald face lie. there were no plants.. I divided monkey grass to restore it to the original surround that you can see in the before picture was at one point present.

Again, there are requirements in texas before an association can fine or charge an owner.. these were not followed.

end of story. the charge must be removed.. If the board wants to start over , let them. I have picture proof there was no damage and receipts showing that I purchased the plants myself.

I've already had one board member come to the property and tell me that what JB claimed in the executive session does not match what he sees with his own eyes.

An owner must be given an opportunity to remedy a violation before any action can be taken. If the board wants me to remove them , no problem. If the board has proof I damaged what JB is claiming I damaged. there should be proof. He has none.
Unfortunately, he called executive session and he presented misinformation and half truths that are not backed up by facts. However, in executive session., Not a single board member asked for evidence. They just voted to assess my account for 750 based on his statements . IT"S KANGAROO COURT AND ITS NOT LEGAL. IM IN THE RIGHT HERE.

Once some of the board members realize that Jay mislead them. Once they realize the association did not follow the statutory requirements . I believe they will agree that they didn't do it right. however. I think JB(who is acting property manager and handles notifying the accounting company of chargebacks ,fines etc.) will refuse to notify our accounting company to remove the charges.

we'll see.
LaskaS
(Texas)

Posts:494


05/29/2021 11:15 PM  
Augustine,

Can I ask, are you an attorney or were you ever an attorney? or do you just like reading case law.

I enjoy reading case law too. Obviously for the last 3years i've been reading mostly about hoa lawsuits and contractor fraud and what remedies are available or not.

BillH10
(Texas)

Posts:712


05/30/2021 12:55 AM  
Laska, my suggestion is you read the Governing Documents of your Association, Rules, Policies and and other documents which the Board uses to manage your association and know them backward and forward before you spend any more time reading case law. There is a book available written by a Texas attorney named Cagle, I recommend you obtain a copy of the most recent edition.

Regardless of the failure, or perceived failure, of the Board to act upon requests or maintain the property, you do not have the right to take the action which you did.

Would you do the same if the property required repainting?

You do have the right, and I know you know this, to rally the neighbors and throw out the Board. If that is what must be done, do it.

LaskaS
(Texas)

Posts:494


05/30/2021 4:20 AM  
Bill, I know our governing documents and and bylaws back and forth. I knew somewhat the rules and regulations.



Once again. I am not saying I was right. I clearly realize the association is contractually obligated to maintain and restore the common area grounds in a manner consistent with a first class community.

This entire post is about whether the board has the right to assess my account for damages to common property when I wasn't given notice, I wasn't given an opportunity answer the accusations. and to top it off, The damage that is claimed does not exist.



I hate to be a smart a** but,,,,,, regarding the repainting. after two years of the board not painting the front doors as they voted and approved to do. I painted all of the doors in my building to the color that the board had selected.
MelissaP1
(Alabama)

Posts:10247


05/30/2021 6:38 AM  
I am confused on how can say the damage they claim does not exist. There is damage. You did it. Plus I highly doubt there is some kind of "Standard" for landscaping of which you describe. Landscaping is subjective and in the eye of the beholder. If they were required to have a tree or ground cover in that area. That fit the bill. May not look "nice" but doesn't mean they did not meet the "standard".

Your basically NOT going to win this lawsuit if you were to bring one. Most likely the HOA can bring their own counter-suit. Which if they do may include their legal costs on top of the "damages". I am also not on board of not giving you notice if you know the expense was charged. What did you want them to do? Plus if they had sent you a letter, would you have removed the "damages" or would this have been a different post?

You have a long history of posting here. Many times it seems you bring much of this onto yourself. This is one of those times yet again IMO....

Former HOA President
AugustinD


Posts:600


05/30/2021 8:03 AM  
Posted By BillH10 on 05/30/2021 12:55 AM
Regardless of the failure, or perceived failure, of the Board to act upon requests or maintain the property, you do not have the right to take the action which you did.
Do you feel the Board/HOA has the lawful right to bill LaskaS, for alleged "damage" she/he did to the common area, without proper notice and a hearing?

See TUCA 82.002 and TUCA 82.102.

To me, LaskaS is correct that this is obviously a kangaroo court. Is this something about which you simply do not care?

LaskaS, I am not and have never been an attorney.
AugustinD


Posts:600


05/30/2021 8:08 AM  
Posted By MelissaP1 on 05/30/2021 6:38 AM
I am confused on how can say the damage they claim does not exist. There is damage. You did it.
Posted By KerryL1 on 05/29/2021 2:04 PM
I agree that the Board's use of the language of "damage" is overkill.


MelissaP1, How come you think the Board does not have to give proper notice and a hearing, as the Texas Condo statute requires?
MelissaP1
(Alabama)

Posts:10247


05/30/2021 8:39 AM  
As long as Laska has bee posting even example of this post, things seem to come out of the wood work. What does one define as "proper notice"? What is Laska's definition? Seems to me that to know about the violation and the expenses being charged to their account has to have some sort of paper trail? I mean does one just call up randomly to check on their account status? Was there a bill sent?

I always have the feeling there is more to the story than what is presented. Otherwise how would we have known that Laska actually did "damage" the common property? The HOA is RIGHT in this case is it not? May not agree 100% but it's clear Laska made "improvements" to common property without HOA permission or knowledge. Just like anyone else who erects a fence or paints house wrong color. The HOA has every right to make that person correct it and charge them if it costs the HOA money to correct it.

Former HOA President
CathyA3
(Ohio)

Posts:2020


05/30/2021 8:57 AM  
Before I play devil's advocate here, I'm going to say that it's unfortunate that the board has not been able to control what I feel is their understandable exasperation with a homeowner who has been an ongoing source of confrontations/issues/etc./etc. I think the board is in the wrong - this would be true if this were a first-time offense from a confused owner or the latest installment of the drama created by an owner who should know better at this point.

Cold, hard facts here: anyone who continually butts heads with the board, for whatever reason, has to expect that they will have burned through whatever goodwill existed in the beginning. The board is done with their sh**. The offender will not receive the patient handling and "understanding" that they might reasonably expect for a first offense.

As a board member, the hardest thing I had to deal with was a high-maintenance owner who manufactured a constant stream of issues and then cried crocodile tears when the newest crisis du jour weren't greeted with cries of enthusiasm. I'm over it. The job is tough enough without somebody pulling in the opposite direction all the time. The first time, you'll probably get patience. After the umpty-willionth time, you'll get tough love from me and it will be short on the love.

Nobody in the original post deserves any medals for good conduct.
JohnC46
(South Carolina)

Posts:11059


05/30/2021 9:05 AM  
Posted By CathyA3 on 05/30/2021 8:57 AM
Before I play devil's advocate here, I'm going to say that it's unfortunate that the board has not been able to control what I feel is their understandable exasperation with a homeowner who has been an ongoing source of confrontations/issues/etc./etc. I think the board is in the wrong - this would be true if this were a first-time offense from a confused owner or the latest installment of the drama created by an owner who should know better at this point.

Cold, hard facts here: anyone who continually butts heads with the board, for whatever reason, has to expect that they will have burned through whatever goodwill existed in the beginning. The board is done with their sh**. The offender will not receive the patient handling and "understanding" that they might reasonably expect for a first offense.

As a board member, the hardest thing I had to deal with was a high-maintenance owner who manufactured a constant stream of issues and then cried crocodile tears when the newest crisis du jour weren't greeted with cries of enthusiasm. I'm over it. The job is tough enough without somebody pulling in the opposite direction all the time. The first time, you'll probably get patience. After the umpty-willionth time, you'll get tough love from me and it will be short on the love.

Nobody in the original post deserves any medals for good conduct.



Well said.
SheilaJ1
(South Carolina)

Posts:242


05/30/2021 9:11 AM  
Yep, most states gotta give notice and a hearing and the HOA must have the authority to fine for the modification to common area which it doesn’t in this situation. But the HOA can charge a restoration fee.

AugustinD


Posts:600


05/30/2021 9:16 AM  
Posted By MelissaP1 on 05/30/2021 8:39 AM
As long as Laska has bee posting even example of this post, things seem to come out of the wood work. What does one define as "proper notice"? What is Laska's definition? Seems to me that to know about the violation and the expenses being charged to their account has to have some sort of paper trail? I mean does one just call up randomly to check on their account status? Was there a bill sent?

I always have the feeling there is more to the story than what is presented. Otherwise how would we have known that Laska actually did "damage" the common property? The HOA is RIGHT in this case is it not? May not agree 100% but it's clear Laska made "improvements" to common property without HOA permission or knowledge. Just like anyone else who erects a fence or paints house wrong color. The HOA has every right to make that person correct it and charge them if it costs the HOA money to correct it.
How come you feel LaskaS has to follow the rules but the HOA does not?

LaskaS is right that she was not offered a hearing, is she/he not?

Your jumping all over LaskaS without either (1) considering the strong possibility that this is a rogue board and a rogue manager; or (2) admitting that a hearing was owed is:

Not

fair.
KerryL1
(California)

Posts:8123


05/30/2021 9:16 AM  
I agree proper notice should have been given to Laska and whatever is called for in her docs & TX statutes should have been followed.

I agree she was wrong in her conduct. And, good gawd, now it seems she painted all the doors in her building??

I agree her Board, on which she did serve and, I think, resigned, is being overly harsh and the PM is too.
Please login to post a reply (click Member Login on the menu).
Page 1 of 212 > >>
Forums > Homeowner Association > HOA Discussions > ok , i need a lawyer



Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement