In October 2007, our clients commenced construction of a swimming pool in their back yard. However, this pool wasn't designed just for enjoying lazy days and working on their tans. Instead, it was an integral part of a flood control plan engineered to mitigate the effects of rushing water experienced each time it rained. The pool was recommended by an engineer, and even by the City of San Antonio -- each of whom had investigated the tendency of the property to flood as the result of run-off from a parking lot constructed directly behind the home.
Prior to commencing construction, our clients submitted plans to the Architectural Control Committee of the Regency Park Owners Association. Much to their surprise, they recived no response. Despite additional approval requests, the HOA's silence continued for months. Frustrated by the lack of response, and after reviewing the ACC's deadline for approving plans, our clients decided to proceed with construction.
Almost immediately, they and their contractor were accosted by a member of the Regency Park HOA Board, who verbally demanded that they cease with construction. So they did. Two days later, the contractor returned to the home to retrieve his tools and equipment. That same day, the HOA scrambled its legal team, and obtained a Temporary Restraining Order preventing the construction -- which by that time had already been voluntarily abated. The other portion of the HOA's suit sought a declaration that the pool was not permitted without ACC approval.
After various meetings, the plans were ultimately approved, and our clients were allowed to complete the pool with the blessing of the HOA. They did, and many of the flooding issues have been resolved.
Case closed...or so they thought.
Several months later, the Association came calling. This time they wanted their attorneys' fees, and lots of them. When the homeowners balked, the Association set the case for trial.
On the day before the trial, the homeowners realized that they need the help of an attorney with experince litigating HOA issues. So they called me.
After reviewing the CCRs, I noticed a provision requiring that disputes between the HOA and property owners within the Regency Park subdivision be referred to arbitration. Based upon this requirement, I filed a Motion seeking to compel arbitration, instead of trial in the Bexar County District Court. Judge Andy Mireles considered the Motion, and sided with our clients. Thus, the dispute has been referred to arbitration, where an arbitrator will determine whether the HOA is entitled to its fees, even though it never obtained a Judgment in the suit it filed. We are confident in the property owners' position, and disappointed that the HOA has decided to expend costs and attorneys' fees solely in pursuit of attorneys' fees.
Many times HOAs and their Board Members use the judicial system to advance personal grudges or to "flex their muscle." The laws relating to HOA litigation and restrictive covenants are complex and often favor the HOAs. If you believe that you are the victim of HOA abuses, you should immediately contact an attorney experienced with HOA litigation, and the Texas Property Code. The HOAs are represented by experienced and knowledgable attorneys. You should be too.
