Does our HOA have any authority if they neglected to file any legal document with the state or the county?

Started by SusanR • 7 replies • 2241 views

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SusanR (Texas)
Posts: 3

Posted:

I live in Texas and have had continual problems with a new Town home community. It was turned over from the developer to the homeowners in 2002. Since then the Board has been trying to make sence of the bylaws. They have been making "ammendments" to them without the input of the home owners. When I say making ammendments I mena by putting a letter on our front door stating that the President changed one of the bilaws and it will be enforced the following month. I have some legal background and didn't think that form of notification was binding. I did some checking and discovered that our townhomes are not registered or filed with the state of Texas and nothing has been filed with our county. Our HOA technically doesn't "exist". There is a lot of turmoil in our small townhome community- lot's of people fighting about bylaws and covenants. The Board has been assessing fees/penalties for people who do not follow the "amendments" made by the President. Has anyone experienced this kind of chaos? Does our current Board have any authority if we've never established a legal HOA with the County or the State? Not to mention that the "amendments" have been made in a way that violate our very generic/common bylaws.

Susan

JulieS (Georgia)
Posts: 412

Posted:

The covenants and by-laws should have been filed by the developer and you should find where they developer turned over items to the association. Some counties have this information available on-line, others will require researching the deed books at the county office building.

If the documents were never filed, then I would think that the board cannot enforce or fine based on the documents.

As for amendments, the directions for amendming should be in your covenants/by-laws. Our community requires a 2/3 majority vote of the eligible association to amend the docs.

SusanR (Texas)
Posts: 3

Posted:

Thank you for responding! I researched online and I called and spoke with the County and the State where the documents should have been filed. There is an expired document with the state, under the previous owner/developer's name. It's also in a different (but similar)name than our town homes.

Our bylaws also state a 2/3 vote of the eligible association to amend. The association wasn't notified about the pending changes. We were notified that the President changed amended the bylaws. Even if they followed the rules outlined in the bylaws to amend them- they would still have to file them before they could be enforced. Correct? That is my understanding- that they have to file the amendments and then they become binding.

RogerB (Colorado)
Posts: 5,067

Posted:

Susan, first and foremost focus on the Declaration. It should have been filed with the County Clerk in the Real Property Records. If it was not filed then there is no Association with CC&Rs. Check with the Developer to find out what they know about this. If they actually failed to file it would required signatures of all (100%) of he current owners in order to file a Declaration of CC&Rs. To have "teeth" you need CC&Rs recorded with the County.

The state maintains records for Incorporated organizations; but incorporation has little meaning without CC&Rs. By-laws are created by any organization and often only define organizational structure. You may have only an organization formed for social functions.

SusanR (Texas)
Posts: 3

Posted:

I did some research today. The only listing in the Real Property records is under the previous owner/developer's name back in 2001. It looks as though he withdrew the paperwork when he sold the 1st unit of the town home property. Nothing has been filed since. So it looks like our HOA does not exist. Any other way I can confirm this?

MikeJ (Florida)
Posts: 9

Posted:

" Susan, first and foremost focus on the Declaration. It should have been filed with the County Clerk in the Real Property Records. If it was not filed then there is no Association with CC&Rs."

Maybe I misread this. The Articles of Incorporation are what creates an Association, not the Declaration.

RogerB (Colorado)
Posts: 5,067

Posted:

Mike, the Declaration creates the Association; the Articles create a Corporation. There are many HOAs that are not incorporated.

MikeJ (Florida)
Posts: 9

Posted:

Yes, you are right Roger. I have been out of the Association game too long, so my mind is not as sharp

I am a long time Association manager that left the business about 10 years ago.

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