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Subject: Restriction to use common areas
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Author Messages
PattiB3
(Texas)

Posts:2


08/09/2021 8:48 AM  
Greetings all. New to this forum and am seeking help.

I am the treasurer for our POA and trying to collect delinquent dues from a homeowner. They are two years in arrears. I have sent notices requesting payment, have notified their mortgage company of nonpayment, filed Notice of Assessment Lien, but get no response.

I am now writing a 209 Notice (Oh, I'm in Texas by the way and this is a small subdivision as opposed to a condominium association) to restrict their usage of any common areas until the dues, interest, and late fees are paid. My question is if the delinquent homeowner ignores the restriction and continues to use the facilities, what recourse is available? Our CCR's are silent on this. Seems to me it would constitute trespassing, but I'm not an attorney and don't know the answer. I would like to include the threat of some action on our part in the 209 Notice.

Thank you in advance for any help you can provide. Much appreciated!
JohnC46
(South Carolina)

Posts:11667


08/09/2021 8:51 AM  
Posted By PattiB3 on 08/09/2021 8:48 AM
Greetings all. New to this forum and am seeking help.

I am the treasurer for our POA and trying to collect delinquent dues from a homeowner. They are two years in arrears. I have sent notices requesting payment, have notified their mortgage company of nonpayment, filed Notice of Assessment Lien, but get no response.

I am now writing a 209 Notice (Oh, I'm in Texas by the way and this is a small subdivision as opposed to a condominium association) to restrict their usage of any common areas until the dues, interest, and late fees are paid. My question is if the delinquent homeowner ignores the restriction and continues to use the facilities, what recourse is available? Our CCR's are silent on this. Seems to me it would constitute trespassing, but I'm not an attorney and don't know the answer. I would like to include the threat of some action on our part in the 209 Notice.

Thank you in advance for any help you can provide. Much appreciated!




You seem to have done everything you can do except foreclose. Discuss foreclosure with your attorney.
AugustinD


Posts:1937


08/09/2021 9:10 AM  
-- From my experience, and writing as a non-attorney but someone who reads a lot on subjects like this, I would forget about trespassing. The Owner lawfully has an "interest" in the common area, recorded with the county clerk, meaning he or she has rights of ownership. It would take a court ruling to say the owner no longer has this interest. To get such a ruling would require a lot. I am not sure the HOA would prevail on the point.

-- Do your governing documents allow your HOA to fine? If so, consider giving the member a warning that continued use of common areas, while he/she is suspended from such use, will result in fines. Then start fining.

-- I suppose your HOA could seek an injunction in court to stop the owner from using the common area. If the court agrees with the HOA and issues an injunction, then it's possible the police may be a resource for enforcing the injunction.

-- I trust you are complying with all the requirements in Chapter 209 for suspending use of amenities.

-- At some point I hope your HOA may consider hiring a collections-specialized attorney.
DouglasK1
(Florida)

Posts:1689


08/09/2021 10:32 AM  
I think restricting access to amenities is easier when they need a key or fob to access, such a pool or clubhouse with a locked gate. As far as restricting access to common areas in general (which would include roads in some associations), I'm not sure that can even be done.

Escaped former treasurer and director of a self managed association.
MaxB4
(California)

Posts:1614


08/09/2021 10:41 AM  
I would wait for a property manager like either BarbaraT or BillH to give their two cents as they actually practice in the State of Texas.
BarbaraT1
(Texas)

Posts:591


08/09/2021 1:19 PM  
Posted By PattiB3 on 08/09/2021 8:48 AM
Greetings all. New to this forum and am seeking help.

I am the treasurer for our POA and trying to collect delinquent dues from a homeowner. They are two years in arrears. I have sent notices requesting payment, have notified their mortgage company of nonpayment, filed Notice of Assessment Lien, but get no response.

I am now writing a 209 Notice (Oh, I'm in Texas by the way and this is a small subdivision as opposed to a condominium association) to restrict their usage of any common areas until the dues, interest, and late fees are paid. My question is if the delinquent homeowner ignores the restriction and continues to use the facilities, what recourse is available? Our CCR's are silent on this. Seems to me it would constitute trespassing, but I'm not an attorney and don't know the answer. I would like to include the threat of some action on our part in the 209 Notice.

Thank you in advance for any help you can provide. Much appreciated!




Practically speaking, this only works if you have an amenity for which access is controlled, so you can turn off their keycard or disable their PIN, etc.

You can't patrol the grounds 24/7 in hopes of catching this homeowner, and having the police issue a trespass against him is the sort of public shaming I generally advise against.

Texas has a very effective method of collections; it's called foreclosure! Get yourself an attorney that specializes in HOA collections - I'm happy to make some recommendations offline. You'll want to move fast. As of September 1, you must give owners 45 days to pay up before you can proceed to the next collection step. This is going to drag into year three soon.

PattiB3
(Texas)

Posts:2


08/09/2021 1:48 PM  
Thank you all for the replies. @Barbara, yes, please I need a recommendation for an attorney to handle this. I don't see a way to contact you offline; I'm unfamiliar with how this forum works.
MikeB23
(Louisiana)

Posts:60


08/09/2021 2:13 PM  
Next door in Louisiana we have such an owner. We have had to sue him in District Court once already. We won a judgement and only then did the bank holding the mortgage step forward and pay the judgement to keep us from initiating foreclosure.

We are currently in that process again. Have the lien in place but this time he is paying on a verbally agreed to payment schedule. Bank has told us they won't get involved again until he quits making his agreed to payments.
BarbaraT1
(Texas)

Posts:591


08/11/2021 1:31 PM  
Posted By PattiB3 on 08/09/2021 1:48 PM
Thank you all for the replies. @Barbara, yes, please I need a recommendation for an attorney to handle this. I don't see a way to contact you offline; I'm unfamiliar with how this forum works.




Me either! I don't want to use my work email because that would reveal the company I work for and we can't do that, I don't want to give my personal email or I will get spam.

There are two firms that cover most of Texas that I recommend, and one other that works in the DFW area. There's really only one firm I would strenuously tell you to avoid and it begins with M.
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