Get 1 year of free community web site hosting from Community123.com!
Wednesday, October 27, 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: Attorney fees passed to homeowner
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
BrS
(Texas)

Posts:21


09/29/2021 5:38 PM  
I live in a neighborhood with a small hoa in Texas. A homeowner here is petitioning to have one of the restrictions amended and he has enough homeowners interested in voting on it. If it were to pass, can the hoa charge said homeowner the fee being charged by the attorney to amend it? The hoa has no money to hire an attorney. The hoa has changed things previously and because it’s too costly to officially amend the restrictions, they call it a policy change rather than an amendment.
JohnT38
(South Carolina)

Posts:768


09/29/2021 5:47 PM  
Why would you not spread this cost out amongst all owners as a special assessment?
AugustinD


Posts:1695


09/29/2021 5:52 PM  
Posted By BrS on 09/29/2021 5:38 PM
I live in a neighborhood with a small hoa in Texas. A homeowner here is petitioning to have one of the restrictions amended and he has enough homeowners interested in voting on it. If it were to pass, can the hoa charge said homeowner the fee being charged by the attorney to amend it? The hoa has no money to hire an attorney.
-- Is there a provision in your Declaration stating that the HOA's attorney fees specifically for amending may be passed onto the owner who initiated the petition to amend? I doubt it.

-- Assuming no such provision exists, then the Board needs to recognize that a lawful vote to amend occurred. This vote is the voice of the corporation, and the Board needs to respect this. The Board is obliged to arrange for an attorney and special assess owners as needed to pay the attorney.

-- The Board probably should immediately inform owners of any pending special assessment to pay the attorney, and the reasons for this special assessment. It's possible this could change some people's vote, and additional steps may be necessary.

-- Keep in mind that an attorney may review whatever was voted on and deem either the proposed amendment or how the voted was conducted legally impropr. The attorney will advise the board what its options are subsequently.
Posted By BrS on 09/29/2021 5:38 PM
The hoa has changed things previously and because it’s too costly to officially amend the restrictions, they call it a policy change rather than an amendment.
Depending on what exactly the "policy change" is, and because the covenants on amendments were not followed, the "policy change" might not be enforceable in a court of law.
MaxB4


Posts:1395


09/29/2021 5:55 PM  
Posted By BrS on 09/29/2021 5:38 PM
I live in a neighborhood with a small hoa in Texas. A homeowner here is petitioning to have one of the restrictions amended and he has enough homeowners interested in voting on it. If it were to pass, can the hoa charge said homeowner the fee being charged by the attorney to amend it? The hoa has no money to hire an attorney. The hoa has changed things previously and because it’s too costly to officially amend the restrictions, they call it a policy change rather than an amendment.



So you have made changes to your CCRs, without legally amending them?
BrS
(Texas)

Posts:21


09/29/2021 5:55 PM  
Good question. Is that how it’s normally handled? The homeowners are not onboard with paying I know that much.
BrS
(Texas)

Posts:21


09/29/2021 6:00 PM  
Posted By MaxB4 on 09/29/2021 5:55 PM
Posted By BrS on 09/29/2021 5:38 PM
I live in a neighborhood with a small hoa in Texas. A homeowner here is petitioning to have one of the restrictions amended and he has enough homeowners interested in voting on it. If it were to pass, can the hoa charge said homeowner the fee being charged by the attorney to amend it? The hoa has no money to hire an attorney. The hoa has changed things previously and because it’s too costly to officially amend the restrictions, they call it a policy change rather than an amendment.



So you have made changes to your CCRs, without legally amending them?




Yes they have. They changed deed restrictions and added rules, no voting or discussion.
BrS
(Texas)

Posts:21


09/29/2021 6:50 PM  
Posted By AugustinD on 09/29/2021 5:52 PM
Posted By BrS on 09/29/2021 5:38 PM
I live in a neighborhood with a small hoa in Texas. A homeowner here is petitioning to have one of the restrictions amended and he has enough homeowners interested in voting on it. If it were to pass, can the hoa charge said homeowner the fee being charged by the attorney to amend it? The hoa has no money to hire an attorney.
-- Is there a provision in your Declaration stating that the HOA's attorney fees specifically for amending may be passed onto the owner who initiated the petition to amend? I doubt it.

-- Assuming no such provision exists, then the Board needs to recognize that a lawful vote to amend occurred. This vote is the voice of the corporation, and the Board needs to respect this. The Board is obliged to arrange for an attorney and special assess owners as needed to pay the attorney.

-- The Board probably should immediately inform owners of any pending special assessment to pay the attorney, and the reasons for this special assessment. It's possible this could change some people's vote, and additional steps may be necessary.

-- Keep in mind that an attorney may review whatever was voted on and deem either the proposed amendment or how the voted was conducted legally impropr. The attorney will advise the board what its options are subsequently.
Posted By BrS on 09/29/2021 5:38 PM
The hoa has changed things previously and because it’s too costly to officially amend the restrictions, they call it a policy change rather than an amendment.
Depending on what exactly the "policy change" is, and because the covenants on amendments were not followed, the "policy change" might not be enforceable in a court of law.




They changed what fences are allowed here to accommodate two fences that don’t meet the intended guidelines.
AugustinD


Posts:1695


09/29/2021 6:58 PM  
Posted By BrS on 09/29/2021 6:50 PM
They changed what fences are allowed here to accommodate two fences that don’t meet the intended guidelines.
For me to comment intelligently, you'd have to quote here the covenant that speaks about fences and then quote what exactly the board did.

Are you planning on running for the Board? If not, I really do not want to get into this right now.
BrS
(Texas)

Posts:21


09/29/2021 7:47 PM  
Posted By AugustinD on 09/29/2021 6:58 PM
Posted By BrS on 09/29/2021 6:50 PM
They changed what fences are allowed here to accommodate two fences that don’t meet the intended guidelines.
For me to comment intelligently, you'd have to quote here the covenant that speaks about fences and then quote what exactly the board did.

Are you planning on running for the Board? If not, I really do not want to get into this right now.



Thank you for your responses. I was wanting to know if this situation is typical and since it can be called a “special assessment” then that answers my question. I’ll share the information you all have provided with others who are interested. Thanks again.
CathyA3
(Ohio)

Posts:2475


09/30/2021 6:32 AM  
Posted By BrS on 09/29/2021 5:38 PM
I live in a neighborhood with a small hoa in Texas. A homeowner here is petitioning to have one of the restrictions amended and he has enough homeowners interested in voting on it. If it were to pass, can the hoa charge said homeowner the fee being charged by the attorney to amend it? The hoa has no money to hire an attorney. The hoa has changed things previously and because it’s too costly to officially amend the restrictions, they call it a policy change rather than an amendment.



General comments:

* Any amendment to your CC&Rs need to be done by a lawyer. They're written in legalese, and among other things, the lawyer will verify that the amendment doesn't contradict any other provisions in your governing documents or in state law. It's not a job for amateurs.

* Rules, "policies", etc can't contradict the CC&Rs, which will take precedence. Trying to do an end run around this sets your HOA up for legal wrangling, which means you will really need a lawyer and it will cost everyone money.

* No, you can't pass on attorney's fees for amendments to the homeowner who wants them. It's an association expense.

* When we amended our CC&Rs, the cost for one amendment was around $1000. This included the lawyer's fee for his work, including the final recording of the approved amendment, as well as costs incurred by our association for mailings to the membership and voting.
BrS
(Texas)

Posts:21


09/30/2021 8:04 AM  
Thank you.
JohnC46
(South Carolina)

Posts:11539


09/30/2021 8:36 AM  
BrS

It appears your dues are to low to cover things. What money is in your Reserves? I believe a dues increase is warranted.
BrS
(Texas)

Posts:21


09/30/2021 3:19 PM  
They have no money in reserves.
LetA
(Nevada)

Posts:1429


10/01/2021 2:45 PM  
Posted By BrS on 09/30/2021 3:19 PM
They have no money in reserves.







No money in your reserves??? What kind of HOA do you live in?? Any amenities etc? Even non managing HOA's that have no amenities or responsibilities have some amount of money in reserves.
MaxB4


Posts:1395


10/01/2021 3:11 PM  
Posted By LetA on 10/01/2021 2:45 PM
Posted By BrS on 09/30/2021 3:19 PM
They have no money in reserves.







No money in your reserves??? What kind of HOA do you live in?? Any amenities etc? Even non managing HOA's that have no amenities or responsibilities have some amount of money in reserves.



Unfortunately, a somewhat typical HOA.
BrS
(Texas)

Posts:21


10/01/2021 5:36 PM  
Posted By MaxB4 on 10/01/2021 3:11 PM
Posted By LetA on 10/01/2021 2:45 PM
Posted By BrS on 09/30/2021 3:19 PM
They have no money in reserves.







No money in your reserves??? What kind of HOA do you live in?? Any amenities etc? Even non managing HOA's that have no amenities or responsibilities have some amount of money in reserves.



Unfortunately, a somewhat typical HOA.




Agreed. I live in a very contentious subdivision because the hoa was not established by the developer. It was started by homeowners after the fact because by right it should have been established beforehand. Hiring the property management company has been where most of the money has gone. We have no amenities or common areas. Come January we will have funds again.
BenA2
(Texas)

Posts:1040


10/01/2021 7:30 PM  
Presumably, the association members believe that they will benefit from the amendment or they would not have voted for it. It would not be fair to penalize one homeowner simply because they proposed the change when the majority agreed to it.

If the HOA changed the restrictions without going through all the required procedures then they are not valid. It does not matter if you call it a policy change. Any change to the restrictions must be voted on by the owners and be properly filed.

Amendments are not necessarily costly. You have the administrative costs for an election and county filing fees. Attorney fees could be high, depending on how complicated the changes are but you are not required to have an attorney draft or approve the changes.
BrS
(Texas)

Posts:21


10/01/2021 8:42 PM  
Posted By BenA2 on 10/01/2021 7:30 PM
Presumably, the association members believe that they will benefit from the amendment or they would not have voted for it. It would not be fair to penalize one homeowner simply because they proposed the change when the majority agreed to it.

If the HOA changed the restrictions without going through all the required procedures then they are not valid. It does not matter if you call it a policy change. Any change to the restrictions must be voted on by the owners and be properly filed.

Amendments are not necessarily costly. You have the administrative costs for an election and county filing fees. Attorney fees could be high, depending on how complicated the changes are but you are not required to have an attorney draft or approve the changes.



I appreciate your input, thank you.
JohnC46
(South Carolina)

Posts:11539


10/02/2021 10:07 AM  
BrS

Will the change be a Covenant or Bylaw change which owners must vote on or a Rule change that the BOD alone can do?
KerryL1
(California)

Posts:8620


10/02/2021 11:53 AM  
BrS, you note that your HOA has no" amenities." Does that means there are no common areas in your assn.? Examples might be lighting systems, sprinkling systems, curbs, sidewalks, even streets, entry planter beds and/or signs, etc.
BrS
(Texas)

Posts:21


10/02/2021 4:05 PM  
Posted By JohnC46 on 10/02/2021 10:07 AM
BrS

Will the change be a Covenant or Bylaw change which owners must vote on or a Rule change that the BOD alone can do?




It’s a restrictive covenant change.
BrS
(Texas)

Posts:21


10/02/2021 4:08 PM  
Posted By KerryL1 on 10/02/2021 11:53 AM
BrS, you note that your HOA has no" amenities." Does that means there are no common areas in your assn.? Examples might be lighting systems, sprinkling systems, curbs, sidewalks, even streets, entry planter beds and/or signs, etc.




No common areas whatsoever but the developer intended on having an hoa but failed to follow through.
CathyA3
(Ohio)

Posts:2475


10/03/2021 7:51 AM  
Posted By BrS on 10/02/2021 4:08 PM
Posted By KerryL1 on 10/02/2021 11:53 AM
BrS, you note that your HOA has no" amenities." Does that means there are no common areas in your assn.? Examples might be lighting systems, sprinkling systems, curbs, sidewalks, even streets, entry planter beds and/or signs, etc.




No common areas whatsoever but the developer intended on having an hoa but failed to follow through.



"No amenities" does not mean "no common area".

The only way I can think of that an HOA would have no common area at all is if the developer had owned some lots on a city street in an area that is entirely served by municipal utilities.

Otherwise your HOA may still own undeveloped land where things like landscaping/signage would have been located and where infrastructure such as water, sewer and electrical lines may be located and which the HOA may be responsible for maintaining.

If the developer simply walked away before he was done, he may or may not have sold off this land (and amended your CC&Rs to reflect this, which homeowners should have been informed of and voted to approve).
BrS
(Texas)

Posts:21


10/03/2021 12:52 PM  
Posted By CathyA3 on 10/03/2021 7:51 AM
Posted By BrS on 10/02/2021 4:08 PM
Posted By KerryL1 on 10/02/2021 11:53 AM
BrS, you note that your HOA has no" amenities." Does that means there are no common areas in your assn.? Examples might be lighting systems, sprinkling systems, curbs, sidewalks, even streets, entry planter beds and/or signs, etc.




No common areas whatsoever but the developer intended on having an hoa but failed to follow through.



"No amenities" does not mean "no common area".

The only way I can think of that an HOA would have no common area at all is if the developer had owned some lots on a city street in an area that is entirely served by municipal utilities.

Otherwise your HOA may still own undeveloped land where things like landscaping/signage would have been located and where infrastructure such as water, sewer and electrical lines may be located and which the HOA may be responsible for maintaining.

If the developer simply walked away before he was done, he may or may not have sold off this land (and amended your CC&Rs to reflect this, which homeowners should have been informed of and voted to approve).




We have zero common areas. We have 42 homes on 4 acres each with private wells and septic systems. There is nothing shared. No curbs, no sidewalks and no street lights. The streets are public.

I think the developer realized an hoa was unnecessary and decided not to form one.
JohnC46
(South Carolina)

Posts:11539


10/03/2021 2:26 PM  
Posted By BrS on 10/03/2021 12:52 PM
Posted By CathyA3 on 10/03/2021 7:51 AM
Posted By BrS on 10/02/2021 4:08 PM
Posted By KerryL1 on 10/02/2021 11:53 AM
BrS, you note that your HOA has no" amenities." Does that means there are no common areas in your assn.? Examples might be lighting systems, sprinkling systems, curbs, sidewalks, even streets, entry planter beds and/or signs, etc.




No common areas whatsoever but the developer intended on having an hoa but failed to follow through.



"No amenities" does not mean "no common area".

The only way I can think of that an HOA would have no common area at all is if the developer had owned some lots on a city street in an area that is entirely served by municipal utilities.

Otherwise your HOA may still own undeveloped land where things like landscaping/signage would have been located and where infrastructure such as water, sewer and electrical lines may be located and which the HOA may be responsible for maintaining.

If the developer simply walked away before he was done, he may or may not have sold off this land (and amended your CC&Rs to reflect this, which homeowners should have been informed of and voted to approve).




We have zero common areas. We have 42 homes on 4 acres each with private wells and septic systems. There is nothing shared. No curbs, no sidewalks and no street lights. The streets are public.

I think the developer realized an hoa was unnecessary and decided not to form one.




Do tell what the proposed change is.
CathyA3
(Ohio)

Posts:2475


10/03/2021 2:53 PM  
Posted By BrS on 10/03/2021 12:52 PM
... snip ...

We have zero common areas. We have 42 homes on 4 acres each with private wells and septic systems. There is nothing shared. No curbs, no sidewalks and no street lights. The streets are public.

I think the developer realized an hoa was unnecessary and decided not to form one.



In that case I'm confused. Whose attorney are we talking about if there is no HOA? If a homeowner wants to change a restriction on his property, who is going to stop him - do other area homeowners have the right to sue him if he violates a restriction? Enforcing restrictions is usually the job of the HOA, although some CC&Rs give homeowners the right to do so as well.

If it's the latter and several homeowners want to jointly hire an attorney to draft the change, everybody including the attorney better get it in writing and include the sharing of costs as part of it. Otherwise, without an HOA, I don't understand how anyone could pass on costs to anyone else.
PatJ1
(North Carolina)

Posts:254


10/03/2021 3:44 PM  
Posted By BrS on 10/01/2021 5:36 PM
Posted By MaxB4 on 10/01/2021 3:11 PM
Posted By LetA on 10/01/2021 2:45 PM
Posted By BrS on 09/30/2021 3:19 PM
They have no money in reserves.







No money in your reserves??? What kind of HOA do you live in?? Any amenities etc? Even non managing HOA's that have no amenities or responsibilities have some amount of money in reserves.



Unfortunately, a somewhat typical HOA.




Agreed. I live in a very contentious subdivision because the hoa was not established by the developer. It was started by homeowners after the fact because by right it should have been established beforehand. Hiring the property management company has been where most of the money has gone. We have no amenities or common areas. Come January we will have funds again.




I'm confused and may be missing something -

***We have zero common areas. We have 42 homes on 4 acres each with private wells and septic systems. There is nothing shared. No curbs, no sidewalks and no street lights. The streets are public.***

What does the MC do for you?

Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
BrS
(Texas)

Posts:21


10/03/2021 3:54 PM  
Posted By PatJ1 on 10/03/2021 3:44 PM
Posted By BrS on 10/01/2021 5:36 PM
Posted By MaxB4 on 10/01/2021 3:11 PM
Posted By LetA on 10/01/2021 2:45 PM
Posted By BrS on 09/30/2021 3:19 PM
They have no money in reserves.







No money in your reserves??? What kind of HOA do you live in?? Any amenities etc? Even non managing HOA's that have no amenities or responsibilities have some amount of money in reserves.



Unfortunately, a somewhat typical HOA.




Agreed. I live in a very contentious subdivision because the hoa was not established by the developer. It was started by homeowners after the fact because by right it should have been established beforehand. Hiring the property management company has been where most of the money has gone. We have no amenities or common areas. Come January we will have funds again.




I'm confused and may be missing something -

***We have zero common areas. We have 42 homes on 4 acres each with private wells and septic systems. There is nothing shared. No curbs, no sidewalks and no street lights. The streets are public.***

What does the MC do for you?




Sends out the annual bill for assessments and looks for violations. That’s all. About 1/4 of the homeowners here don’t pay and don’t acknowledge the hoa much less the management co. We don’t even have restrictive covenants on file. The developer wrote some up but never filed them. The more I write this all down the more I think this is a bigger mess than anyone realizes including me.
BrS
(Texas)

Posts:21


10/03/2021 7:26 PM  
Posted By JohnC46 on 10/03/2021 2:26 PM
Posted By BrS on 10/03/2021 12:52 PM
Posted By CathyA3 on 10/03/2021 7:51 AM
Posted By BrS on 10/02/2021 4:08 PM
Posted By KerryL1 on 10/02/2021 11:53 AM
BrS, you note that your HOA has no" amenities." Does that means there are no common areas in your assn.? Examples might be lighting systems, sprinkling systems, curbs, sidewalks, even streets, entry planter beds and/or signs, etc.




No common areas whatsoever but the developer intended on having an hoa but failed to follow through.



"No amenities" does not mean "no common area".

The only way I can think of that an HOA would have no common area at all is if the developer had owned some lots on a city street in an area that is entirely served by municipal utilities.

Otherwise your HOA may still own undeveloped land where things like landscaping/signage would have been located and where infrastructure such as water, sewer and electrical lines may be located and which the HOA may be responsible for maintaining.

If the developer simply walked away before he was done, he may or may not have sold off this land (and amended your CC&Rs to reflect this, which homeowners should have been informed of and voted to approve).




We have zero common areas. We have 42 homes on 4 acres each with private wells and septic systems. There is nothing shared. No curbs, no sidewalks and no street lights. The streets are public.

I think the developer realized an hoa was unnecessary and decided not to form one.




Do tell what the proposed change is.




They want to change the number of pets a household can have. Right now it’s two dogs/cats. They are wanting to vote on lifting that. Most people want it changed.
CathyA3
(Ohio)

Posts:2475


10/04/2021 5:11 AM  
Posted By BrS on 10/03/2021 3:54 PM
... snip ...

About 1/4 of the homeowners here don’t pay and don’t acknowledge the hoa much less the management co. We don’t even have restrictive covenants on file. The developer wrote some up but never filed them. The more I write this all down the more I think this is a bigger mess than anyone realizes including me.



Yup.

My take on this is that before you try to change any restrictions, you need to know where you stand legally - and that means talking to a lawyer.

You're trying to operate as an HOA, but if your CC&Rs were never recorded, none of the provisions may be legally in force. If they're not, this means the "HOA" has no authority to collect assessments or to enforce your covenants.

There may be other issues as well. Among other things, HOAs carry various kinds of insurance: general liability, employee dishonesty (protects your financial assets in case your MC takes off with them), and D&O (legal protection for board members in case they're sued by the membership). The D&O insurance is especially important for board members - otherwise they put their personal assets at risk if they are sued, and I for one would *never* serve on an association board without this. But your "HOA" has to have a basis in law (eg., your CC&Rs probably need to be recorded and Articles of Incorporation filed) before you can get this insurance - otherwise it's every man for himself.


BrS
(Texas)

Posts:21


10/04/2021 7:29 AM  
Posted By CathyA3 on 10/04/2021 5:11 AM
Posted By BrS on 10/03/2021 3:54 PM
... snip ...

About 1/4 of the homeowners here don’t pay and don’t acknowledge the hoa much less the management co. We don’t even have restrictive covenants on file. The developer wrote some up but never filed them. The more I write this all down the more I think this is a bigger mess than anyone realizes including me.



Yup.

My take on this is that before you try to change any restrictions, you need to know where you stand legally - and that means talking to a lawyer.

You're trying to operate as an HOA, but if your CC&Rs were never recorded, none of the provisions may be legally in force. If they're not, this means the "HOA" has no authority to collect assessments or to enforce your covenants.

There may be other issues as well. Among other things, HOAs carry various kinds of insurance: general liability, employee dishonesty (protects your financial assets in case your MC takes off with them), and D&O (legal protection for board members in case they're sued by the membership). The D&O insurance is especially important for board members - otherwise they put their personal assets at risk if they are sued, and I for one would *never* serve on an association board without this. But your "HOA" has to have a basis in law (eg., your CC&Rs probably need to be recorded and Articles of Incorporation filed) before you can get this insurance - otherwise it's every man for himself.






They don’t have money to speak to an attorney. I have a feeling things are about to go downhill pretty quickly. I know they spoke to an attorney previously but they did not like what she said and have been doing as they fit and most go along with it.
AugustinD


Posts:1695


10/04/2021 7:49 AM  
BrS, can you go to your county clerk and ask to see the CC&Rs?

Or does your copy of the CC&Rs have a stamp on it indicating the CC&Rs were recorded?
BrS
(Texas)

Posts:21


10/04/2021 9:22 AM  
Posted By AugustinD on 10/04/2021 7:49 AM
BrS, can you go to your county clerk and ask to see the CC&Rs?

Or does your copy of the CC&Rs have a stamp on it indicating the CC&Rs were recorded?




I’ve been to the county and they are not on file. They are not recorded anywhere. The homeowner that started the hoa is trying to file them but the clerk apparently told him to seek legal advice because the developer should have filed them before he sold property here.
I just received an email this morning from the property management company indicating a new rule, we are all to have the same color Christmas lights on our homes. I’m not a lawyer but I can’t imagine that being enforceable.

Thanks everyone for your replies and questions. I think it’s safe to say that we have a rogue board and possibly unenforceable restrictions and I don’t even think the hoa is legally operating at this point. I’m not sure I want to take on the expense of hiring a lawyer but it might be necessary.
JohnC46
(South Carolina)

Posts:11539


10/04/2021 9:39 AM  
BrS

It is sounding questionable if you even have a legal HOA versus some "made up" owners association. I would band a few owners together and legally investigate this.
PatJ1
(North Carolina)

Posts:254


10/04/2021 9:54 AM  
Posted By JohnC46 on 10/04/2021 9:39 AM
BrS

It is sounding questionable if you even have a legal HOA versus some "made up" owners association. I would band a few owners together and legally investigate this.




I agree with John. In NC we have Neighborhood Associations that are not HOA's. They are not mandatory. They are usually a band of neighbors that have gotten together to gather support. They collect voluntary funding to provide street markers, landscaping, social events, holiday decorations, etc. to build a sense of community.

If nothing was found recorded, then I would say that they can't enforce anything. And they can't fine anyone for pink holiday lights, having too many pets, or putting up the wrong fence unless there is a city or county restriction.



Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
AugustinD


Posts:1695


10/04/2021 9:55 AM  
I would consider ignoring all instructions from this group (that calls themselves a HOA Board) and pay nothing to this group. I would consider sending a short letter to this group, certified mail, return receipt requested as follows:

Dear [list names of the people pretending to be a lawful HOA board],

I believe you have no authority under the law either to enforce covenants; to create and enforce rules; or to collect assessments. This is because Texas Property Code Chapter 209 states in part:

"Sec. 209.002. DEFINITIONS. In this chapter:
...
(3) "Declaration" means an instrument filed in the real property records of a county that includes restrictive covenants governing a residential subdivision.

Sec. 209.003. APPLICABILITY OF CHAPTER. (a) This chapter applies only to a residential subdivision that is subject to restrictions or provisions in a declaration that authorize the property owners' association to collect regular or special assessments on all or a majority of the property in the subdivision."


You claim that the document from which you are working is a "Declaration." However this document was never recorded with the county. Therefore you do not have the authority to "enforce" anything in this document.

I also believe that your group may be perpetrating fraud in violation of Texas statutes.

Please stop issuing orders to me. Please stop attempting to collect assessments from me.

Thank you for your cooperation,

name
address
email addie
phone number
BrS
(Texas)

Posts:21


10/04/2021 10:54 AM  
Posted By AugustinD on 10/04/2021 9:55 AM
I would consider ignoring all instructions from this group (that calls themselves a HOA Board) and pay nothing to this group. I would consider sending a short letter to this group, certified mail, return receipt requested as follows:

Dear [list names of the people pretending to be a lawful HOA board],

I believe you have no authority under the law either to enforce covenants; to create and enforce rules; or to collect assessments. This is because Texas Property Code Chapter 209 states in part:

"Sec. 209.002. DEFINITIONS. In this chapter:
...
(3) "Declaration" means an instrument filed in the real property records of a county that includes restrictive covenants governing a residential subdivision.

Sec. 209.003. APPLICABILITY OF CHAPTER. (a) This chapter applies only to a residential subdivision that is subject to restrictions or provisions in a declaration that authorize the property owners' association to collect regular or special assessments on all or a majority of the property in the subdivision."


You claim that the document from which you are working is a "Declaration." However this document was never recorded with the county. Therefore you do not have the authority to "enforce" anything in this document.

I also believe that your group may be perpetrating fraud in violation of Texas statutes.

Please stop issuing orders to me. Please stop attempting to collect assessments from me.

Thank you for your cooperation,

name
address
email addie
phone number




Wow, thank you all. I guess I don’t know enough about hoa’s to know the laws governing them.
AugustinD


Posts:1695


10/04/2021 11:44 AM  
BrS, you might want to contact the Texas Secretary of State, corporations yada division, and ask if there is a corporation registered in the name of this (faux) HOA. If not, this will further reinforce your position. Try the contact information here: https://www.sos.state.tx.us/corp/sosda/index.shtml

Usually a state's Secretary of State web site has a search engine for all corporations registered with the state. But I cannot quite nail down where this is for Texas's Sec of State.
BrS
(Texas)

Posts:21


10/04/2021 12:35 PM  
Posted By AugustinD on 10/04/2021 11:44 AM
BrS, you might want to contact the Texas Secretary of State, corporations yada division, and ask if there is a corporation registered in the name of this (faux) HOA. If not, this will further reinforce your position. Try the contact information here: https://www.sos.state.tx.us/corp/sosda/index.shtml

Usually a state's Secretary of State web site has a search engine for all corporations registered with the state. But I cannot quite nail down where this is for Texas's Sec of State.




They created their board first, not via an election process then many months later they registered with the sos. Since then it has been email after email with no substance. One rule after another. If they don’t actually have the power to foreclose, I believe many plan to continue to ignore them.
AugustinD


Posts:1695


10/04/2021 12:47 PM  
Sounds like the right plan to me.

Though it might be worth your while to get a copy of the Articles of Incorporation from the Secretary of State site. I think it's still possible you may not have all the facts here. The Articles of Inc may shred more light on this.
AugustinD


Posts:1695


10/04/2021 12:48 PM  
shed, not "shred."
PatJ1
(North Carolina)

Posts:254


10/04/2021 1:02 PM  
Posted By AugustinD on 10/04/2021 12:47 PM
Sounds like the right plan to me.

Though it might be worth your while to get a copy of the Articles of Incorporation from the Secretary of State site. I think it's still possible you may not have all the facts here. The Articles of Inc may shred more light on this.




If they registered with the SOS as a legal entity then there may be some IRS tax filings required. AugustinD brought up a good path to look into.

Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Attorney fees passed to homeowner



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