Good Fences: San Antonio Texas Homeowners Association Attorney - HOA Lawyer Blog

Secret Ballots Are Pretty Much Dead in Texas HOA Elections

2012-01-25T22:14:00.003-06:00

Trey Wilson wrote:

Secret ballots have long been the preferred method of collecting elections for many Texas homeowners associations. Beginning on January 1, 2012, however, secret votes became a thing of the past.

House Bill 2761 was passed by overwhelming majorities in both the Texas House and Texas Senate (no "nay" votes cast), and became the law of the land in this State. This law provides for a new Section 209.0058 to be added to the Texas Property Code, providing as follows:

Sec.209.0058.BALLOTS.
(a) Any vote cast in an election or vote by a member of a property owners’ association must be in writing and signed by the member.

(b) Electronic votes cast under Section 209.00592 constitute written and signed ballots.

(c) In an association-wide election, written and signed ballots are not required for uncontested races.

AOL Assembles List of Most Controversial HOA Moves of 2011

2012-01-25T15:07:00.003-06:00

San Antonio Homeowners Association Lawyer Trey Wilson wrote:

Picking on disabled veterans and the parents of a special needs child were some of 2011's LOWLIGHT for Homeowners Associations.

See the list of Most Controversial HOA Moves on AOL Real Estate.

Covenants Restricting Solar Panels Are Unenforceable in Texas

2012-01-25T14:29:00.008-06:00

San Antonio HOA Lawyer Trey Wilson wrote:

Solar energy has been used by humans for thousands of years. Scientists have discovered evidence that Greeks and Romans use burning mirrors to light torches for religious purposes as early as the 3rd century B.C.

In 1977 the U.S. Department of Energy launcheed the Solar Energy Research Institute
“National Renewable Energy Laboratory,” a federal facility dedicated to harnessing power from the sun. Fortunately, San Antonio, and our very own CPS Energy are solar industry leaders.

Yet, despite the historic and modern patterns of embracing solar energy, many restrictive covenants in Texas still expressly prohibit the installation of solar panels on homes and business.

I'll admit, solar panels are ugly.
Solar energy is also a somewhat esoteric topic. But, as our population grows solar energy is becoming an essential alternative to traditional energy sources. Thus, it was time that covenants prohibiting solar energy panels were addressed. That is exactly what happended during the last Texas legislative session.

House Bill 362 was adopted on June 17, 2011, and became effective on that day. The Bill __, and provides, in relevant part:

...a property owners’ association may not include or enforce a provision in a dedicatory instrument that prohibits or restricts a property owner from installing a solar energy device.

As usual, there are certain exceptions, and there is a specific definition of "solar energy device." The effect of the law, however, is clear -- to void a provision violating the general prohibition on CCR provisions that ban the installation of a solar energy device and roofing materials that meet certain criteria.

In my opinion as a lawyer with an active HOA litigation practice, the Legislature got this one right, as this was a law whose time had come!

The Great Flag Debate has Largely been Resolved in Texas

2012-01-24T17:23:00.004-06:00

San Antonio Homeowners Association Lawyer Trey Wilson wrote:

Over the years, I have received many inquiries from Texas property owners questioning the legality of restrictive covenants prohibiting the display of flags. A surpising number of these types of restrictions exist even here, in Military City, USA (also known as San Antonio, Texas).

In some absurd cases, I have written posts on this blog about HOA Boards that have asked for removal of patriotic, or other non-controversial flags. In one unfortunate instance that I called "Absurdity in Dallas," a north Texas homeowners association demanded that a retired Marine and Viet-Nam vet remove the "Semper Fi" stickers from his vehicle. You can imagine his response, and the firestorm sparked amongst Jarheads, Leathernecks and Devil Dogs everywhere (Once a Marine, ALWAYS a Marine)!

As dumb/stupid/assinine as it sounds, such covenants were historically legal property restrictions in Texas until recently. However, that all changed on June 17, 201, when Governor Perry signed HB 2779 into law.

That legislation -- which is now part of Chapter 202 of the Texas Property Code -- prohibits an HOA from adopting or enforcing any restriction that prohibits an Owner from displaying:

(1) the flag of the United States of America;
(2) the flag of the State of Texas; or
(3) an official or replica flag of any branch of the United States armed forces.

Of course, there are some limitations, but one thing remains true in Texas -- Don't "mess" with our flags or our military!

God Bless Texas, and our troops!

Round Rock family's fight with HOA heads to court - YNN - Your News Now

2012-01-17T09:54:00.001-06:00

Round Rock family's fight with HOA heads to court - YNN - Your News Now

New TX Law For HOAs Give Homeowners More Time Before Foreclosure

2012-01-09T14:19:00.002-06:00

San Antonio HOA Lawyer Trey Wilson wrote:

Here's a good story from Houston's NPR affiliate, KUHF

Listen to the story here:

Before January 1st, Homeowners Associations were able to foreclose on homes without going through the courts. Now, they have to ask a judge for an expedited order of foreclosure. Homeowners would get an extra 60 days to cover whatever they owe a homeowners association.

Kevin Cloves is a Houston attorney who represents both HOAs and homeowners. He says this will slow the process of taking away homes from people whose HOA debt is just a fraction of the home's value.

"The extra time that's given to the homeowner provides them with an added opportunity to save their property by virtue of maybe coming up with a loan from friends, working out a payment plan with the HOA."

And the new laws do require HOAs to offer payment plans of up to 18 months. Terry Sears is another Houston attorney who specializes in HOA matters. He says while the intent of the new laws is noble, the regulations will cost HOAs more to achieve the same result.

"We're eventually going to get the foreclosure. But now, we have to jump through additional hoops which requires a lawsuit and service fees and court costs. And it drove up the fees exponentially for the entire subdivision, and, in my opinion, unnecessarily so."

The new foreclosure rule is part of a batch of new laws governing HOAs. Some of the regulations took effect last September. They cover everything from flag displays, to where and how residents can collect rainwater for other uses.

Travis County Neighborhoods using radar speed signs

2012-01-04T08:06:00.000-06:00

Neighborhoods using radar speed signs: kxan.com

Texas Supreme Court Posts New Rules Regarding Foreclosure of HOA Liens

2011-12-30T17:56:00.005-06:00

San Antonio HOA Lawyer Trey Wilson wrote:

Today, the Texas Supreme Court posted the final version of its revisions to Texas Rules of Civil Procedure 735 and 736, governing the foreclosure of certain liens, including HOA assessment liens. The Court's full Order is posted here.

The Texas Legislature directed the Supreme Court to enact new rules relating to judicial foreclosures, when it adopted HB 1228 (82nd Leg., R.S.). That Legislation was one of numerous HOA reform bills adopted last session by Texas lawmakers.

The original analysis of the bill provided the following summary of its purpose.

Currently, a property owners' association may foreclose on real property for the property owner's failure to pay association assessments. In many instances, the foreclosed property is encumbered with a first lien that is not disposed of when the foreclosure sale occurs because there is no requirement to notify the lienholder of the foreclosure or the sale. H.B. 1228 sets out provisions relating to notice and providing the lienholder with an opportunity to cure a delinquency before a foreclosure sale.

Stay tuned to this blog for a future post summarizing the new rules and their practical effect.

Notably, the new Rules apply to foreclosures commenced on or after January 1, 2012.

New homeowner association laws in Texas designed to curb abuses

2011-12-27T22:08:00.001-06:00

This article from the Ft. Worth Star Telegram contains an excellent summary of new HOA laws going to effect on January 1, 2012.

New homeowner association laws in Texas designed to curb abuses

Sometimes Fences Anger Neighbors... Especially Litigious Ones!

2011-12-27T21:43:00.006-06:00

San Antonio HOA Attorney Trey Wilson wrote:

My client, the Zuehl Airport Flying Community Owners Association, was featured in the following article, which appeared in today's San Antonio Express News:

FENCE BESIDE AIRSTRIP AT ROOT Of DISPUTE
Guadalupe County officials accused of RICO violations.
By Zeke MacCormack, zeke@express-news.net

ZUEHL — A fence erected in 2008 beside a rural airfield here in southwest Guadalupe County has spurred a rash of lawsuits, the latest of which accuses dozens of county officials of engaging in organized crime and seeks $31 million in damages.

The defendants deny the allegations made by New Braunfels resident David Goad, whose prior self-drafted court pleadings led to his being declared a vexatious litigant.

Goad claims the fence installed by the property owners association illegally blocks access from the lot to subdivision roads, taxiways and the 3,000-foot airstrip. The fence runs along the edge of a portion of Windsock Lane that is largely undeveloped. The association says the Goad parcel lies outside the platted subdivision, so they can bar access to roads and the airstrip.

Goad's suit also asserts that association members conspired with county officials to deprive Goad of his rights, and to have him and witnesses he called at prior hearings arrested.

Read more in the Express News

83 Year Old Accused of Attacking fellow resident at homeowners meeting in Vero Beach, FLA

2011-12-26T08:39:00.004-06:00

By Lamaur Stancil, TC Palm

VERO BEACH — A Vista Royale resident attacked a man speaking during a homeowners meeting Monday, according to an incident report released Thursday by the Indian River County Sheriff's Office.

Arthur C. O'Neill, 83, of the first block of Woodland Drive, Vero Beach, was given a notice to appear for a battery charge. More than 150 people were at the Vista Royale clubhouse, in the 400 block of Woodland, when O'Neill tackled and punched resident Jim Preas at the podium, according to the report.

Preas, 78, said he was discussing a warehouse issue and Robert's Rules of Order when O'Neill charged him at 9:20 a.m. Five people told deputies O'Neill's attack was unprovoked. Preas, a former homeowners board member, said O'Neill has acted unruly at previous meetings.

Preas was not hospitalized, but was still recovering Thursday from the attack, he said.

Deputies said O'Neill denied striking Preas at the meeting, according to the report. O'Neill's wife told deputies her husband suffers from Alzheimer's disease, according to the report.

Two Time Winners of Town's Christmas Lights Display Are Fined by HOA

2011-12-24T08:47:00.002-06:00

WELLINGTON, COLORADO — Davin Armstrong is facing his own version of the Grinch this year: a homeowners association that wants to snuff out his Christmas decorations.

Armstrong, 35, and his wife, Amber Hersh, 34, have won the town of Wellington’s Christmas lights display two years in a row, but in June, his Buffalo Creek subdivision HOA passed a rule limiting the amount of permissible lawn ornaments to three, he said.

The HOA is now threatening to fine the family $25 every two weeks until they take the lights down, he said. His display, which has become a neighborhood favorite, exceeds the rule by more than 20.

Read the rest of the story in The Coloradoan.

Note the civic-minded nature of the Armstrong's display -- their home is a drop-off site for the Big Country 97.9 Quarter Million Can Crusade and Lights for Life, an initiative that recycles old and broken holiday string lights to benefit children with cancer.

Gestapo Poop Patrol? Some HOAs Use DNA Evidence to Track Culprits in Dog Turd Abandonment

2011-12-21T19:06:00.007-06:00

San Antonio HOA Lawyer Trey Wilson wrote:

Now we've seen it all... Some HOAs are actually using DNA evidence to catch those horrible wretches who inflict one of society's greatest ills upon us all -- dog poop!

A recent trend has community associations nationwide requiring Owners in restricted communities to register their canines' feces so that it can be entered into the PooPrints "crime database" hosted by BioPet Vet Lab in Knoxville, Tennessee. Those "prints" can later be used to match offensive droppings that a dog's owner leaves behind in a restricted community.

According to its website: PooPrints

is the responsible pet waste solution for managed communities and for the environment. Most pet owners are “super scoopers,” but there will always be a few poopers out there. PooPrints works by storing pet DNA profiles for all of the dogs in the community. If waste is found on the ground, the profile can be matched and the management has solved the “who did it” problem.

To get started, a community manager will order a "PooPrints DNA Collection Kit" for each dog on the property. The cost for said kit is ostensibly passed-on to dog owners whose pets are being "profiled." The PooPrints site further claims that "[a]fter the unique database has been created with all dogs on the property, it provides an incentive for all the pet owners to scoop after their dogs." That "incentive" is most likely a fine, if a determination is made that an offensive pile belongs to your dog.

As expected, there are critics of the program -- many on privacy grounds, and others because a dog need-not be an offender before being mandated to submit a "sample." So far to my knowledge, nobody has tested the program's legality (if this isn't an unreasonable search and seizure, there may be no such thing).

Nobody disputes the fact that there are health concerns associated with dog poop. That's not to mention its generally annoying qualities -- especially if those qualities end-up on your shoes. Nevertheless, in my humble opinion this idea fits in the "get a life" category! And I write as the owner of two enormous Labrador Retrievers, and the person charged with picking-up their sizable "offerings"

That being said, I do see that there may be franchise opportunities here in San Antonio....

Commercial Tenants Should Review Restrictions Before Signing Lease

2011-12-21T18:37:00.002-06:00

San Antonio HOA Lawyer Trey Wilson wrote:

Restrictive covenants and Property Owners Associations that enforce them are generally associated with residential communities. However, many commercial developments, including strip centers and office complexes have a condominium ownership arrangement. Even where a multi-unit commercial development is owned by a single individual or entity, there usually exist shared "common areas," available for non-exclusive use by all tenants. Frequently, these commercial developments are governed by Restrictive Covenants (or a "Declaration") which limit the types and scope of activities permitted by Owners and Tenants in the development.

Properly-recorded Restrictive Covenants usually "run-with the land" and are applicable even where a Tenant has not been provided a copy. Commercial tenants sometimes enter into leases that expressly authorize them to conduct activities or engage in practices that are prohibited by the applicable covenants. While this situation sometimes arises as the result of unscrupulous acts by a Landlord, most often, the Lessor, himself, is unaware of the language of the Declaration -- especially if the landlord is simply an investor who has never occupied the property. Imagine the surprise of the Tenant who receives notification from the POA or a neighbor that their use of the leased premises is unauthorized and/or expressly prohibited by the Declaration!

To avoid this situation, commercial interests should insist on receiving and reading a copy of all applicable Restrictions PRIOR TO entering a lease, or investing in the build-out of a commercial property. The provisions of a lease will almost NEVER trump valid Restrictive Covenants, and ignorance of the contents of the Covenants is no excuse. To be sure that the intended use is not prohibited, a wise commercial tenant will contact an experienced lawyer to review the terms of the commercial lease, and to identify any prospective problems with applicable restrictions.

Fourth Court Waters-Down Homeowner's Victory Against HOA

2011-12-21T16:51:00.005-06:00

BOTH SIDES SWALLOW THE LION'S SHARE OF THEIR OWN ATTORNEYS' FEES

On December 7, 2011, the Fourth Court of Appeals in San Antonio released its opinion, on rehearing, in a case where a Bexar County jury punished a local HOA and its attorney for pushing too aggressively in its efforts to collect past due assessments. The case received extensive media coverage when the verdict was first rendered in June, 2010.

The suit, Hidden Forest Homeowners Association, Inc. vs. James Hern was originally tried to a jury before Judge Martha Tanner. Following trial, the jury returned a mixed verdict requiring Hern to pay around $946 in past due assessments, plus the HOA's attorneys' fees of $728.00. **Notably, the Association had asked the jury to award attorneys' fees in the amount of $25,000.00** The jury also found that the Hidden Forest HOA engaged in unreasonable collection practices, and violated its own restrictions by attempting to foreclose on Hern's home and take an individual judgment against him. The jury awarded Hern $11,000.00, denied Hidden Forest's request for judicial foreclosure, and ordered the HOA to remove its assessment lien placed on Hern's home.

The HOA filed an appeal seeking to set aside the award to Hern, and the measly award of attorneys' fees to the Association (which approximate less than 5% of the amount sought by the HOA). Upon analyzing the verdict, the appeals court found that the HOA did not breach its covenants, or engage in unreasonable collection practices. Accordingly, Hern's verdict for damages was reversed.

With regard to the collection efforts, the Court did add this proviso:

Although we do not condone Hidden Forest’s refusal to accept Hern’s prepayment and subsequent settlement offers, we cannot say that its collection efforts were harassing or outrageous. Hidden Forest did not repeatedly call Hern or send letters to his home or business.

The Court refused to side with the HOA in its claims that the jury's award of only $728.00 was against the great weight of the evidence, and should be increased to $25,000.00. Despite the fact that the HOA's attorney testified that he personally spent 75 hours on the case (at $250/hr) , his associate spent over twelve hours on the case (at $200/hr), and his legal assistant spent almost 26 hours(at $125/hr), the Fourth Court found that:

the jury was aware of the simplistic nature of Hidden Forest’s case, which merely sought to recover assessments that Hern admitted he had not paid. The amount Hidden Forest sought in attorney’s fees was more than 26 times the amount it recovered due to Hern’s failure to pay assessments. The jury could have rationally determined that 3.78 hours was a reasonable amount of time to expend in legal services for this case (dividing $728 awarded in attorney’s fees by Newton’s hourly rate of $250).

A full copy of the Fourth Court's opinion can be found here.

In the end, it appears that the HOA spent a bunch of time and money to collect an amount that the homeowner was willing to pay all along. Spending attorneys' fees chasing attorneys' fees is never a good ida, especially in the arena of HOA litigation. Not surprisingly, though, local media reports that both sides are claiming victory in this dispute.

Colored Christmas Lights Draw Fine - Video from CNN

2011-12-13T12:11:00.004-06:00

WOMAN BATTLES FOR COLORED CHRISTMAS LIGHTS
A woman was fined $400 by her HOA for putting up colored Christmas lights last year, and she's at it again. Watch the video on CNN.

HOA BOARD MEMBERS WITH FELONY CONVICTIONS SUBJECT TO OUSTER

2011-11-03T22:23:00.004-05:00

Effective September 1, 2011, Directors of Texas Homeowners' Associations can be removed from the Board if there exists a paper trail showing them to be a convicted felon. This law -- which is incorporated into Chapter 209 of the Texas Property Code --is part of the broad HOA "reform" legislation adopted by the Texas Legislature in its most recent session.

The new law provides:

If a board is presented with written, documented evidence from a database or other record maintained by a governmental law enforcement authority that a board member has been convicted of a felony or crime involving moral turpitude, the board member is immediately ineligible to serve on the board of the property owners' association, automatically considered removed from the board, and prohibited from future service on the board.

Notably, the new law doesn't prevent a felon from running for or even serving on an HOA Board. Moreover, there is no requirement of self-disclosure or any obligation for Board candidates to undergo background checks.

SOME HOAs SUBJECT TO TEXAS PUBLIC INFORMATION ACT

2011-11-03T22:01:00.008-05:00

Sec. 552.0036. CERTAIN PROPERTY OWNERS' ASSOCIATIONS SUBJECT TO LAW. A property owners' association is subject to Chapter 552 of the Texas Government Code in the same manner as a governmental body:

(1) if:
(A) membership in the property owners' association is mandatory for owners or for a defined class of owners of private real property in a defined geographic area in a county with a population of 2.8 million or more or in a county adjacent to a county with a population of 2.8 million or more;
(B) the property owners' association has the power to make mandatory special assessments for capital improvements or mandatory regular assessments; and
(C) the amount of the mandatory special or regular assessments is or has ever been based in whole or in part on the value at which the state or a local governmental body assesses the property for purposes of ad valorem taxation under Section 20, Article VIII, Texas Constitution;

or

(2) if the property owners' association:
(A) provides maintenance, preservation, and architectural control of residential and commercial property within a defined geographic area in a county with a population of 2.8 million or more or in a county adjacent to a county with a population of 2.8 million or more; and
(B) is a corporation that:
(i) is governed by a board of trustees who may employ a general manager to execute the association's bylaws and administer the business of the corporation;
(ii) does not require membership in the corporation by the owners of the property within the defined area; and
(iii) was incorporated before January 1, 2006.

Notably, as of the 2010 census, only Harris County exceeded the threshold population of $2.8 million people

Not So Neighborly Associations Foreclosing On Homes by WADE GOODWYN

2011-06-11T00:56:00.003-05:00

Listen to this remarkable story of how a soldier serving our country in Iraq had his $300,000.00 home foreclosed because he didn't pay $3500 -- enough to cover outstanding HOA dues and legal costs.

From NPR

Texas Legislature Passes 18 HOA Reform Bills in the Waning Moments of 82nd Legislative Session

2011-06-01T07:13:00.007-05:00

Last night the fat lady sang, and we're "done" for 2011. Even if the Governor calls a Special Session, POA laws won't be on the agenda again (assuming no horrorific gut-wrenching headlines) until the 83rd Legislature meets in January 2013. That gives us a year and a half to figure out the many new POA laws that are going into effect between now and year end, and identify any fixes that may be needed.

WHAT PASSED?

18 POA Reform Bills have been sent to Governor Perry for the last step in the law-making process.

The 18 bills, together, constitute 30 independent law changes (by my count). If you have been watching specific POA Bills by number, here are the statewide POA-specific bills that passed: HB 8, HB 362, HB 1127, HB 1228, HB 1278, HB 1737, HB 1821, HB 2761, HB 2779, HB 3391, SB 101, SB 472, SB 498. These are the "bracketed" POA-specific bills that passed: HB 232, HB 364, HB 1071, HB 2702, HB 2869.

Whether you like the law changes or not, they are game-changers. A new day is dawning.

_______________________________________

GOVERNOR'S ROLE

After the Legislature finishes with a bill, it goes to Governor Perry, who has three options. He can sign the bill. He can veto the bill (all or nothing - no line item veto). Or, he can ignore the bill in which case it becomes law by its own terms. The Guv's options expire on June 19th.

========================

EFFECTIVE DATES

Most of the POA bills have specific dates on which they become effective - either September 1, 2011, or January 1, 2012. A few bills were written to become effective "immediately". When is that? If the Governor signs the bill, the date he signs is the date it becomes effective. If the Governor doesn't sign or veto, it becomes effective at the end of the veto period - on June 20th.

=======================

GETTING OUT THE WORD

"THE MEDIA" in Texas (and some of the anti-HOA blogs) has been duped into thinking that no meaningful HOA reforms were passed this Session. You've seen the headlines. We've got to correct that false impression, else the word will not filter down to the thousands of Texas POAs that are not connected to each other or to a reliable source of information about law changes.

Many of the POAs in Texas are small and self-managed. They plod along decade after decade in reliance on their POA documents and "the way we've always done it." Same is true of POA managers and POA lawyers who work with only one or a few POAs ~ they may be clueless about what's happening in Austin. They mean no harm, they just don't know any better. Hopefully the managers and lawyers who handle large numbers of POAs are in-the-know.

In order for the new reforms to work, everyone connected with Texas POAs needs to know about the law changes. For that, we need THE MEDIA. The same MEDIA that pummels POAs when they act badly now needs to beat the drum for the law changes so POAs can get on the right page. It's not fair for THE MEDIA to hide behind a log waiting to catch a POA violating a new law, when THE MEDIA doesn't do its part to reach the POAs with news of these sweeping law changes.

========================

WHERE TO FIND THE NEW LAWS

It may take months (many months) for publications of the Texas Property Code to be "amended and restated" with the Session changes. The State's own website announces that its online statutes and codes won't be updated until 2012. And it may be Fall 2011 before West Publishing produces its paper versions of the updated statutes and codes. CAUTION. If you put your hands on a paper version of the Texas Property Code, you can be pretty sure it's out of date regarding POA laws.

What to do in the interim? From the Legislature's FAQs . . ."Before the statutes are updated, use Texas Legislature Online to search, by subject, for enrolled bills and read summaries of the enrolled bills. Use the Index to Sections Affected tool to determine whether statute sections of interest to you were amended by any bills passed."

My recommendation, go to Texas Legislature Online, click on "Legislation", then on "Bill Look-Up." Enter the Bill Number ) from the attached chart, making sure the website is set for the 82(R) Legislature - 82nd Regular Session. (That's the default now, but may change if Gov. Perry calls a Special Session.) For "Information Type" select "Text." On the Text page, select the "Enrolled" version . . . the one at the bottom. You'll have a choice of Adobe, Word, and HTML versions.

= = = = = = = = =

HOW TO LEARN ABOUT THE NEW LAWS

It's going to be a scramble. Texas attorneys need time to get up to speed on the law changes so we can discuss the changes with our clients. Although some POA managers and directors are very knowledgeable about the new laws (and the old laws), attorneys licensed in Texas are the go-to resource for the effect of law changes. That's our job.

POAs with the wherewithal would be wise to schedule meetings with their lawyers, whose calendars may fill quickly during the transition period. Some large management companies may sponsor educational programs for their members. Some large management companies may do the same for their clients. Be on the lookout for programs and attend as many as you can. There may be more than one way to interpret and implement the new laws.

This post courtesy of Sharon Reuler.

Homeowner’s Fight Involves Flag Tied to Tea Party - NYTimes.com

2010-09-03T07:03:00.001-05:00

LAVEEN, Ariz.

This year, Mr. Andy C. McDonel began flying a yellow “Don’t Tread on Me” flag on his roof in this unincorporated area just outside Phoenix. The historic banner — which dates to 1775, when it was hoisted aboard ships during the initial days of the Revolutionary War — has been adopted by the Tea Party movement. But Mr. McDonel said that he had unfurled the flag for its historical significance and nothing else.

He notes that the banner, the Gadsden flag, has been widely used over the years and was even featured on the cover of a rock album. “Am I a Metallica fan because I’m using the flag?” he asked.

This month, he received a letter from the homeowners’ association ordering him to remove “the debris” from his roof. It threatened fines if the debris (i.e., the flag) did not go within 10 days. But Mr. McDonel, 32, a logistics operation manager, has vowed to fight the order.

“It’s a patriotic gesture,” he said of his banner. “It’s a historic military flag. It represents the founding fathers. It shows this nation was born out of an idea.”

The Avalon Village Community Association, which sent the letter, takes a strict interpretation of the state statute that allows Arizonans the right to fly a variety of flags — the Stars and Stripes, the state flag, flags representing Indian nations as well as the official flags of the Army, Navy, Air Force, Marines and Coast Guard.

The listing of acceptable flags stems from a dispute several years ago in nearby Chandler, Ariz., in which a woman with a son serving in Iraq was challenged by her homeowners’ association for flying the Marine Corps flag. State legislators intervened.

The Arizona law, says the homeowners’ association butting heads with Mr. McDonel, does not give residents authorization to fly anything else on their properties. That means no pennants bearing sports team logos, no Jolly Rogers, no rainbow banners celebrating gay pride and no historic flags showing a coiled rattlesnake baring its fangs.

As Javier B. Delgado, a lawyer for the homeowners’ association, put it in a statement on the association’s Web site:

“Should the Arizona Legislature expand the Community Association Flag Display Statute to include the Gadsden Flag, the Association will accommodate Mr. McDonel’s desire to display it. Bottom-line, anyone considering residing in a community association should carefully review the association’s governing documents beforehand to ensure that the community is a good fit for them.”

Mr. McDonel knows the rules well since, until July, he was a member of his homeowners’ association’s board of directors. He resigned in a dispute with the board’s president and shortly thereafter received his first debris notice. That one concerned a treadmill that he had left on his porch, which he admits was a violation of the rules. His second debris warning, which came weeks after that, concerned the flag, which had been up for about six months.

“If this is a grudge, it’s sad that the funds that the homeowners put into the association are being wasted on such a petty matter,” Mr. McDonel said.

Mr. Delgado, whose law firm represents thousands of homeowners’ associations, denies that any dispute among board members led to the citation of Mr. McDonel’s property. “There is still the potential for dialogue on both sides,” he said, indicating that no fines had yet been levied.

The homeowners’ association represents a community of tract homes in what had been a sprawling agricultural area.

A survey of Mr. McDonel’s neighbors after the dispute drew the attention of the local news media revealed more concern about the television trucks that have been parking in front of his property than the flag flapping on his roof.

After Mr. McDonel’s standoff was picked up by the media, the American Civil Liberties Union of Arizona jumped in on Mr. McDonel’s side, arguing that homeowners’ associations do not have the right to “hijack” the free speech rights of their members. The A.C.L.U. fired off a letter to the association on Monday that seeks a meeting with Mr. Delgado to resolve the matter without going as far as a lawsuit.

“We’re urging the homeowners’ association to adopt a less limited interpretation of the statute,” said Dan Pochoda, the legal director for the civil liberties group. “The Gadsden flag meets the spirit of the law. It’s a historic military flag. Many consider it the original American flag, before the Stars and Stripes.”

As for the political significance that the flag has taken on in this election season, Mr. Pochoda was uninterested, saying that Mr. McDonel’s motivation for flying the flag was irrelevant to the dispute. “We didn’t ask him,” Mr. Pochoda said.

As the flag becomes more popular — it was on prominent display on the Washington Mall last weekend during a rally organized by the conservative commentator Glenn Beck — more such disputes are expected. Already, a Colorado homeowner flying the same flag is locked in a standoff with his homeowners’ association. And in Connecticut, a group of retired Marines is challenging the Capitol Police’s decision blocking the Gadsden flag from being flown over the State Capitol.

By MARC LACEY, New York Times

Homeowner’s Fight Involves Flag Tied to Tea Party - NYTimes.com

Brian Collister's Report on HOA Foreclosures

2010-05-21T21:17:00.002-05:00

WOAI Reporter Brian Collister recently investigated HOA Foreclosures. Here's a link to his report.

Homeowner Wins Court Battle Over Piling-On of HOA Attorneys' Fees and other "Costs"

2010-05-21T21:04:00.005-05:00

Watch Brian Mylar's report about a San Antonio homeowner who stood up to unreasonable attorneys' fees charged by the Hidden Forest HOA in its efforts to collect $400 in association dues.

The Expreess News also ran this story about the Court victory.

I believe it's a sad commentary on our system of justice when a homeowner's victory against his HOA is newsworthy...

RLWPC to Assist Hampton Hills Condominiums HOA in Re-Building Efforts

2010-05-08T06:54:00.003-05:00

Last December a fire devastated a building within the Hampton Hills Condos located in North central San Antonio. The HOA Board has asked Trey Wilson to assist in their efforts to re-build. We look forward to this challenge, and to ensuring that the destroyed units are replaced in a timely, legal and orderly fashion.

Outraged homeowners detail HOA fines, foreclosure threats to Austin lawmakers | Denton Record Chronicle | News for Denton County, Texas | Texas Southwest

2010-05-08T06:53:00.000-05:00

Outraged homeowners detail HOA fines, foreclosure threats to Austin lawmakers -- From the Denton Record-Chronicle

In an effort to promote Texas legislation reigning-in Homeowners Associations, outraged homeowners told a House panel on Monday that they've been threatened with huge fines and possible foreclosure for what they described as minor infractions of association rules.

Outraged homeowners detail HOA fines, foreclosure threats to Austin lawmakers | Denton Record Chronicle | News for Denton County, Texas | Texas Southwest

RLWPC Retained by Knollcreek HOA in Dispute with City

2009-11-05T06:24:00.002-06:00

Knollcreek HOA, Inc. has hired RLWPC Law Firm to represent its intersts in a dispute with the City of San Antonio over what the City alleges is blockage of a drainage easement. According to City officials, a parking lot owned by the homeowners association encroaches on an existing easement, and improperly results in drainage to a particular lot within the community. The City has demanded that the HOA remove the lot. However, the lot pre-existed the Citry's annexation of the subdivision.

Trey Wilson is poised to engage in immediate negotiations with the City and, if necessary, to protect the Association's rights in court. The Knollcreek subdivision is located inside of 1604 on the City's northeast side.

Trey Wilson Completes Arbitration Against Regency Park HOA

2009-11-05T06:14:00.003-06:00

Our firm recently completed an evidentiary arbitration proceeding wherein we defended residents of San Antonio's Regency Park subdivision against claims made by that community's Homeowners Association. The dispute began in 2006 when our clients first request permission from the RPHOA's Architectural Committee to construct a swimming pool. The RPHOA and its ACC failed to respond for several months, but later engaged in a course of majing absurd demands of our clients.

By October 2007, the HOA still had not made a final decision, despite our clients submitting multiple applications, hiring a landscape designer and a professional enginerr-- all at the HOA's request. When the HOA failed to respond to our clients' final submission, they obtained "presumed approval" according to the terms of the applicable restrictions. Thereafter, our clients commenced construction of their pool. The HOA then filed suit and obtained a TRO preventing further construction.

Shortly after the TRO was issued, the HOA approved the swimming pool design, and construction was completed. The Association, however, sought to collect its attorneys fees associated with the TRO. The homeowners hired RLWPC on the eve opf trial over the attorneys' fees issues, and successfully had the lawsuit abataed and referred to arbitration as provided in the restrictive covenants.

A lengthy arbitration session was conducted by the Honorable Juan Gallardo -- a former district judge. Judge Gallardo's arbitration award is expected in the very near future.

Northwest Neighborhood Alliance gives homeowners collective clout

2009-09-21T09:17:00.000-05:00

If you drive on an upgraded road, walk in a new city park or read a book in your neighborhood library, you can probably thank the Northwest Neighborhood Alliance.

From wider and safer roads, to more parks and green space to a reduction of “bandit signs” on utility poles, the NNA has taken neighborhood issues to City Hall and often gotten results.

It was formed in 1994 to give homeowners associations (HOAs) a united voice that elected officials could not ignore.

“The Northwest Neighborhood Alliance has worked hard to be the voice of the people in this part of city toward City Council and the state Legislature, especially in zoning matters,” said Chairwoman Margaret Tovar.

The alliance also represents property owners associations (POAs), community improvement associations (CIAs) and smaller groups and individuals (homeowner or renter) living within its boundaries, Tovar emphasized.

NNA covers northwest San Antonio between Loop 410 and Loop 1604 stretching from Highway 90 on the west to Interstate 10 on the east. It was formed by the late Ernani "Nani" Falcone, Dominick Dina and others to improve their community.

But its influence stretches beyond the northwest area, said Dina, vice chairman of NNA.

“The Northwest Neighborhood Alliance was the model for the (City Council) District 9 Neighborhood Alliance in the North Central area. And the District 10 Neighborhood Alliance in the Northeast area was modeled after the D-9 group,” Dina said.

All three alliances typically help individual HOAs with a local issue such as a traffic intersection, but also work on larger issues that impact their area. Over the years they have become two-way conduits for residents to their council member and vice versa.

The alliances also have been training areas for and incubators of future council members and mayors.

Former San Antonio mayors Howard Peak and Ed Garza worked with the NNA while current District 10 Councilman John Clamp previously was an official with D-10.

“Back in the 1990s, the Leon Creek Greenbelt Coalition was very active in preserving the Leon Creek waterway,” Dina said. “The Northwest Neighborhood Alliance, along with several NNA members, took active leadership roles which lead to Mayor Peak's linear parks initiative we enjoy today.”

In recent years the Northwest Neighborhood Alliance has been able to help bring major projects to its area, officials said.

Those projects include: a $5 million upgrade to Tezel Road with added lanes, better drainage and sidewalks; “co-locating” city services like a library and fire station next to each other; the 11-acre New Territories Community Park at Guilbeau and Old Tezel roads; a city crackdown on “bandit signs"– illegal signs attached to utility poles and in public right-of-way.

“We (NNA) showed if you work with the city, show logic in your goals and do your homework, things can happen,” Dina said.

“When the New Territories HOA went defunct, we were able to persuade the city to buy their three-acre complex that included a park and swimming pool. And several years later when an adjacent property came available we suggested the city buy it and now we have an 11-acre city park with trails, a pool and recreational courts,” he added.

Similarly, NNA worked to have multiple city services “co-located” near each other. The Falcone Community Park is across the street from a city library and fire station on Mystic Park, a road that connects Bandera and Guilbeau roads.

NNA is comprised of more than 30 neighborhood groups representing more than 30,000 homes, but the number of those groups that participate in regular meetings has dropped in recent years, said NNA member Jody Sherrill.

Tovar said: “We are working to get more involvement from all our members and from new neighborhood groups as well.”

The organization routinely monitors northwest side issues such as zoning cases and road construction projects and posts updates on those issues on its web site and isn't afraid to bend the ears of city, county and state officials.

NNA is gearing up for City Council redistricting expected to take place within a year or two of the 2010 census.

Dina said the organization's service area is spread over three council districts – 6, 7 and 8.

“Growth and the dynamics of individual council districts have changed. And the boundaries need to also change to reflect those dynamic. Districts should not be elongated like District 6 is now,” Dina said.

“A former District 6 representative said it felt like he had three districts in one because the dynamics of the three areas were so different,” he said.

Dina said the current geographic configuration of some council districts splits HOAs in half making things difficult for those HOAs and the alliance. “The split means dealing with more than one council member on an issue,” he said.

Dina and other NNA board members also favor having more than 10 council districts.

“Having 12 council districts will reduce the population in districts (some which have more than 100,000 people) and give residents better representation,” Dina said.

Tovar said other issues NNA is actively looking at include digital billboards and getting a raised median on Guilbeau Road at its intersection with Bandera Road.

Some motors try to make a quick left turn into several food establishments creating a dangerous situation at that intersection.

Timberwood Park POA takes control of common areas

2009-09-21T09:08:00.001-05:00

After 30 years of managing Timberwood Park's common areas, the Timberwood Development Co. (TDC) is passing the mantle to the far North Side development's property owner association.

Since Timberwood Park's inception, TDC has managed and maintained the subdivision common areas, including entrance ways to Timberwood Park as well as a 30-acre recreational park available to all residents.

Cindy Griffin, president of Timberwood Park Property Owners Assocation (TPPOA), said the turnover was approved in 2001 but because of the large size of the 2,500-acre development, the process to make TPPOA the managing entity has taken time.

“This was a mutually-agreed-upon decision. The developers felt that their interests were well-protected and they had reached a point where their goals had been met,” Griffin said.

“The biggest change is that we are becoming self-managing and will be better able to ascertain how monies are spent. For example, if we want to build a new playground or make other improvements, we can do so without having to get approval from TDC.”

Chuck Krause, president of TDC, said it has always been the intention of TDC to turn over control and maintenance of the common areas to TPPOA and added that the turnover was made possible as TDC's obligation to maintain roads in Timberwood Park came to a close.

Krause said almost all of Timberwood Park's 43 miles of roads are now maintained by Bexar County with the exception of a few development units being completed at this time.

With a population of about 10,000, the Timberwood Park subdivision lies just north of Stone Oak, with U.S. 281 and Blanco Road serving as its east and west boundaries. The development abuts the city of Bulverde and is located in the Comal Independent School District.

Griffin said that as TPPOA assumes management of the development's common areas, it will begin collecting monthly assessments from about 2,600 homeowners. She said the turnover will not be officially complete until Dec. 31, 2010, but added that the transition is already underway.

Griffin said the majority of collected funds will be used to operate, maintain, and enhance the development's park, which contains a swimming pool, six-hole golf course, seven-acre fishing lake, playground, clubhouse with exercise facility, pavilion, and walking trails.

While TDC manager Jason Gale said most residents won't notice a discernible difference as TDC hands over the reins, Griffin said most of Timberwood Park's residents are “more than happy” that the property owners association is assuming management of the development's recreational facilities.

“Our priorities are different from TDC. We will now be property-owner driven and our interest will be to maintain the park at a level that is satisfactory to the Timberwood Park residents,” Griffin said.

“We are thrilled that the common areas will now belong to the property owners of Timberwood Park.”

Griffin, who has been president of TPPOA since 2006 and was involved in much of the turnover negotiations, said she is delighted with the smooth transition thus far.

“A lot of other turnovers between developers and property owner associations are contentious, but this is not the case with us,” she said.

By By Laura Mrachek

New State Bar of Texas Blog for Lawyers Handling HOA Issues

2009-08-27T07:17:00.003-05:00

The information age has definitely impacted the practice of law. Among the many benefits the internet offers to lawyers, is the ability to exchange ideas and information with other attorneys with similar practices, irrespective of your proximity, and even if you've never met. A perfect example is a new private, subscriber-based BLOG called "Property Owner Association Lawyers."

The blog was created by a Ft. Worth lawyer utilizing the "TexasBar Circle" program sponsored by the State Bar of Texas. She describes the blog -- which is restricted and private -- "A place for lawyers who represent or create property owner associations (including condos!) in Texas to meet and discuss issues."

As a Texas lawyer who represents Homeowners Association members (owners of property located in communities with HOAs), and Associations, themselves, I am excited about the possibilities of the new blog.

The Happy Fork vs. The HOA vs. Free Speech...by Tanji Patton

2009-08-01T09:53:00.002-05:00

Could the ongoing saga of the fork, the ugly wall and the angry homeowners association get any more bizarre!

Apparently....YES. Well known San Antonio artist Gilbert Duran tells me he's filed a complaint with the American Civil Liberties Union alleging his right to freedom of expression and the rights of the homeowners are being trampled by the Stone Oak Homeowners Association. This gets really interesting - colorful civil rights attorney Gerry Goldstein has been contacted by the restaurant owner/chef to enter the fracas.

You've heard the story--culinary artist/chef Damien Watel commissions well known San Antonio artist Gilbert Duran to create a sculpture in front of his new restaurants Ciel and Ciao 2 on Stone Oak Parkway. The Stone Oak Home Owners Association cries foul, and now a 14 foot tall eyesore-of-a-wall covers the artist's creation.

Wow...what a mess! I don't live in Stone Oak, so I can't say how I'd feel as a neighbor, but let's look at the big picture. Damiel Watel is an incredibly well respected chef and restaurant operator who most landlords and neighborhoods would welcome with open arms.

A successful business creates energy and often opens the door for more successful businesses where it locates. Then, there's the revenue generated with property taxes, sales taxes...etc. A good business is good for business!

To please the HOA, Watel doled out about $8,000 to erect the wall to cover the sculpture. Yet, nobody appears to be happy here.

My sympathies, so far, lie with Damien...unless someone can convince me otherwise. In fact, I think I'll have dinner there this weekend.

By Tanji Patton

Absurdity in Dallas -- HOA Tangles with U.S. Marine over Semper Fi Stickers

2009-08-01T09:22:00.006-05:00

Frank Larison is a disabled veteran with more than 14 years of service, including more than a year of combat duty in Vietnam. The 58-year-old former Marine now finds himself under attack by his Dallas homeowners association for displaying seven decals on his vehicle supporting the Marine Corps. "To me, it's being patriotic, and it shows that I served," the veteran told FOX 4. The board says the decals are advertisements that violate HOA rules, and must be covered or removed. Otherwise, the homeowners association for The Woodlands II on The Creek —- where Larimore has lived for eight years —- says in a letter it will tow the car at Larimore's expense. The board also threatens to fine him $50 for any future incident.

Here's the story from Fox 4 in Dallas:

In my opinion, this is an outrage! I hope this HOA President is promptly removed from office by the residents of her condo community. Semper Fi, Mr. Larison. Thank you for your service!

Deed Restrictions -- They Aren't Always Forever !

2009-08-01T08:38:00.005-05:00

Many, many homwoners who are disgruntled with a neighbor or with their own HOA underestimate the importance of closely reading applicable deed restrictions (CC&R's). I'm always amazed at the number of people seeking legal representation against their HOA, but who don't even have a copy of their CCRs or Association By-laws.

That's right. That small type-face, fuzzy, packet you were given at the closing upon your home is importance. Too many times, homeowners either glance over the restrictions just once at closing, or never bother to look at them at all. They then get filed away, or thrown away, with little thought. This is a mistake, though,m because the restrictions can carry tremendous implications for property values, neighnborhood regulation, and assessing the authority of your HOA Board.

In some cases, we have determined that particular CCRs have expired, or that some mandatory condition required to give them continuing force has never occured. In those instances, the restrictions are usually legal nullities that cannot be enforced. When serving as lawyers representing owners against their HOA, a discovery that the CCRs are non-enforceable is a powerful weapon that almost always carries the day. However, the absence of restrictions/covenants cuts both ways, and can carry several negative implications for all property owners in a given development.

Determining the Effectiveness of CCRs:

Covenants/Restrictions are placed upon subdivisions by the original developers who plat them. Those developers then go about selling individual lots to future residents, or selling the enitire development to a homebuilder who then builds homes upon the lots and re-sells them, individually. In either instance, the developer is often long-gone before the subdivision is fully built-out and occupied. Ususally, he's gone-on to develop his next subdivision.

The restrictions enacted by the developer often have expiration dates 20 to 30 years after they are adopted. Those CCRs may also contain procedures to transfer control of the subdivision to a Homeowner's Association (HOA). In those instances, the HOA becomes the "enforcer" of the CCRs. However, unless there is some action taken to extend them, the CCRs still expire.

In other cases, an HOA is never formed, is improperly formed, or is formed before power to enforce the restrictions is properly transferred away from the developer (or his successor). Each of these situations may result in an inability to enforce restrictions.

Good and Bad:

Like all institutions, HOAs have good and bad aspects. Homeowners seem to enjoy the stewardship of HOAs who clean community pools, keep gates in good working order, erect Christmas lights, and prevent cell phone towers from being erected in enighborhoods. But, when the HOA spirals out of control on issues like yard watering, car bumper stickers, backyard swingsets and the like, they can be downright nasty.

In the end, well thought-out, equally-enforced restrictions probably benefit all owners of lots within a given subdivision because they promote uniformity, land-use integrity, and the common interest in preserving home values.

If faced with a dilemna regarding enforceability of CCRS, one should start with a good reading/review of the restrictions, including any expiration dates. When in doubt, contact a lawyer with experience in HOA law, including interpretating and litigating restrictions. A strong HOA lawyer can be an invaluable asset in understanding your rights and responsibilities within the context of community living and community associations.

HOAs target anti-KB signs

2009-07-30T21:52:00.000-05:00

Homeowners in three San Antonio neighborhoods are continuing to battle with KB Home — and now their builder-controlled homeowners associations — about KB's decision to add lower-priced homes to their communities.

Although the fight over changing prices and home sizes has been ongoing for months, at issue now are the “For Sale by Owner” signs planted in some front yards that refer passers-by to the Web site KBLies.com.

Homeowners say the professionally made signs are a way to advertise their homes for sale and meet neighborhood covenants.

But the HOA at the Quarry at Iron Mountain, an upscale community in the Sonterra area, contends the signs violate neighborhood regulations and must be removed by Monday. The HOA board is controlled by KB Home, which has two-thirds of the votes. Covenants say homeowners could be fined $100 a day, and that failure to pay fines could result in a foreclosure proceeding.

Homeowners in Sundance Ridge and Sundance Trails, located west of Loop 1604 near Potranco Road, also have received HOA letters about their yard signs, but will begin having hearings before their board next week.

“I have no faith that they're going to give us any other answer,” Sundance Trails resident Jennifer Czuhajewski said.

Several homeowners from the Quarry at Iron Mountain, Sundance Trails and Sundance Ridge held a news conference Thursday to protest what they say are unfair actions by KB Home and the homeowners associations to suppress their free speech rights.

Quarry at Iron Mountain resident Sharon Cox said she was asked to prove her home is for sale at her HOA hearing earlier this week, and that board members said a legitimate listing would be one with a real estate agent and a number in the Multiple Listing Service.

“We made a sworn statement in front of their attorney that our home was for sale,” Cox said. “Do I need to take a lie detector test? I want to leave this neighborhood.”

There are seven homes listed for sale on the KBLies.com Web site.

“We have a real issue here of constitutional rights,” said Janet Ahmad, president of HomeOwners For Better Building.

Cathy Teague, the spokeswoman for KB Home who sits on the board of the HOAs, said other neighbors have questioned the motivations of the disgruntled homeowners.

“There's no telephone number so that somebody could contact them about the home,” Teague said of the for-sale-by-owner signs. “Any reasonable person would take a look and question whether the intent is to sell the home or to destroy the peace and quiet and harmony of the neighborhood.”

Meanwhile, some other homeowners at the Quarry at Iron Mountain have placed “I love my KB Home” dashboard visors in the windows of their homes or cars.

“We're trying to keep this quiet,” said Fortunato Tinoco, a resident of the Quarry at Iron Mountain who has such a sign in his front window. “It's like when families quarrel. You don't want the whole world to know.”

Tinoco said dozens of other residents signed a petition asking HOA board members to take action against the for-sale-by-owner signs. He does not believe the other homeowners really intend to market their homes for sale.

Resident George Horace, who has an “I love my KB Home” sign, said the negative yard signs have caused potential residents to cancel contracts on homes in the neighborhood. “You can't blame people for walking away,” he said. “They're paying $300,000 for a house. There are plenty of other options.”

Buying a new home in a still-developing community always carries risks, but the stakes have gotten higher as builders face a challenging market. KB has said it had to change the home product in the communities due to the economy.

HOA Votes to Ban Smoking

2009-07-25T11:38:00.003-05:00

It's not just indoor public places in Eau Claire where lighting up is prohibited. Now residents of a south side, owner-occupied housing complex will have to snuff out smoking in their homes, the most recent sign of public anti-smoking sentiment.

Members of the Fairfax Parkside Homeowners Association on Wednesday voted to outlaw smoking inside residences that are part of the 34-unit development. The ban also prohibits smoking in shared spaces, such as porches and garages, but does allow it in yards and on patios.

Of the 19 association members who voted on the issue, 15 favored the anti-smoking regulation proposed by association President Dave Hanvelt, while four argued that residents should be allowed to smoke in their homes.

"This doesn't restrict a smoker from living here," Hanvelt said of the smoking prohibition. "It just means that there are restrictions on where they can smoke."

Fairfax Parkside is believed to be the first Eau Claire development in which homeowners aren't allowed to light up indoors. "I'm not aware of any other instances where that is the case," said Julie Marlette, coordinator of the Tobacco Free Partnership of Eau Claire County.

The adoption of the indoor anti-smoking rule likely won't impact many Fairfax Parkside homeowners, as Hanvelt said he doesn't know of any smokers in the development. But it does restrict future homeowners there from smoking, and visitors also won't be allowed to smoke inside.

"You don't want to have to worry about your non-smoking neighbor moving out and a smoker moving in," he said.

Hanvelt proposed the regulation earlier this year because homeowners in the development own twin homes, or each side of a duplex-style home. Because of their close proximity, smoke from one unit could flow into the one next door.

"If we all lived in separate units, this wouldn't have been necessary," Hanvelt said, noting homeowners association members made sure to allow outdoor smoking so as to not be too restrictive.

The Fairfax Parkside regulation marks an extension of non-smoking rules from public places to private residences. Last year the Eau Claire City Council approved a controversial ban on smoking in indoor public places, including taverns.

The issue prompted heated response from people on both sides of the issue, and opponents were concerned that the ban could open the door to prohibitions on smoking in people's homes.

Word of the smoking restriction enacted at Fairfax Parkside has some people fuming.
"We worried that this might happen, and now it appears that it has," said Sally Jo Birtzer, a nonsmoker who is president of the Eau Claire City-County Tavern League and general manager of Wagner's Lanes. "As long as tobacco is a legal product, people should be allowed to smoke it in their own homes."

While preventing smoking in privately owned homes is unusual, prohibiting the practice in rental residences isn't unheard of in Eau Claire and elsewhere. Some landlords don't allow renters to smoke indoors in an effort to keep those living quarters cleaner and to reduce the chances of a house fire.

Stomping out smoking in multifamily rental units is a growing trend in other parts of the U.S., Marlette said. "I think people are recognizing the exposure that is occurring to secondhand smoke in multiunit housing," she said. "It is definitely a bona fide health issue, and I think we're going to see more requests for those units to go smoke free."

Dave FitzGerald, one of the Fairfax Parkside developers who also lives there, initially questioned whether the non-smoking measure would hinder future sales in an already tough housing market. But FitzGerald, a nonsmoker, said the anti-smoking rule could attract buyers too, especially given that nearly four of every five people don't smoke.

"Could we lose a sale to somebody who is a smoker? Certainly," FitzGerald said. "But I think there is a better chance of having somebody be willing to live here because there isn't any smoking."

Hanvelt knows firsthand the frustrations of living next to a smoker in a shared-space residence. He previously spent thousands of dollars at a former residence retrofitting his unit to prevent cigarette smoke from a next-door neighbor from making its way to his home, but the effort proved unsuccessful, he said.

Now he looks forward to living in a smoke-free environment. "We adopted this for our own safety and health," Hanvelt said. "This is a very nice place to live, and we want to keep it that way."

from the Eau Clair, WI Leader Times

$666,446 in HOA Funds Missing -- FBI Joins Search

2009-07-25T11:21:00.002-05:00

The Albemarle County Police Department has opened a joint criminal investigation with the FBI to find out what happened to the $666,446 missing from the Glenmore Community Association’s coffers.

An Albemarle detective and the FBI met with the association’s new treasurer on Tuesday, said police spokesman Lt. Todd Hopwood. The wife of Michael Comer, the former association treasurer who has been reported missing, also made her first public statements about his disappearance.

Comer, 45, was reported missing July 1, the date of a meeting he missed to discuss the association’s first external financial audit. The results of an expanded audit showed that money was removed without authorization over the last four years from operating and reserve accounts.

Comer also was the president of the Glenmore Country Club. Kandi Comer, his wife, is a former professional golfer and the golf director at the club. According to Albemarle County property records, the Comers own a home on Milton Village Lane near Glenmore.

Kandi Comer said in a written statement Tuesday that the family didn’t notice anything suspicious before the disappearance of her husband.

“It is frustrating because we are thinking and worrying about Mike 24 hours a day and want to do something to help find him, but all we can do at this point is continue to pray that he is safe and will come home,” the release said.

Kandi Comer reported her husband missing at 7:30 p.m. July 1, more than seven hours after he reportedly left to take a hike originating from his Wintergreen Resort vacation home. Police found Michael Comer’s unlocked car with his keys and cell phone inside at the house, but didn’t find him in the home or in the surrounding woods during a two-day search.

Hopwood said “obviously the disappearance is part” of the investigation into the missing funds. Albemarle police Sgt. Tim Aylor, the detective handling the case, said the case will require an “extensive investigation.”

Trevor Joscelyne, the association’s president, said the association collects $766 a year from about 720 lot owners for maintenance of the common areas and security. Joscelyne said the association is planning to delay road maintenance to make up for the missing expenditures, which were transferred from the association’s accounts to Glenmore Associates. According to a memo sent to Glenmore residents from Joscelyne and the association’s board of directors, some payments from the country club, which is owned by Glenmore Associates, were recorded but not received.

Glenmore Associates, where Michael Comer was a senior official, announced its intention Monday to repay the association in full. According to the association’s letter, Glenmore Associates will have to sell or refinance assets to repay the entire amount due to the economy. The letter said the company already has paid $50,000, plans to pay another $205,000 in the next two weeks and the remainder with interest within the next year.

“Your board of directors is evaluating this proposed settlement as a preferred alternative to taking legal action to recoup the losses,” the memo said. “We are mindful of the potential cost and duration of litigation, as well as the distinct possibility that it could lead to a devaluation of Glenmore property values far in excess of the approximately $900 per residence that is missing.”

Jeff Gaffney, a top official with Glenmore Associates and Michael Comer’s brother-in-law, didn’t immediately return a call seeking comment for this story.

The community association’s 2009 budget is $732,000. According to the homeowner letter, the association has $488,000 in available funds as of July 1, which is “sufficient cash on hand (to) continue operations for the time being.”

The Glenmore Community Association was incorporated in 1992; Michael Comer became treasurer in 1994. An external audit wasn’t ordered before because previous directors thought the $10,000 price tag would have been burdensome, the letter said, so the association relied on the treasurer to keep accurate books.

According to the association’s memo, the board didn’t look at bank statements because they trusted Michael Comer. The board hasn’t been able to find the paperwork for a $1 million fidelity bond that the former treasurer said was in place to cover half of its annual dues plus accumulated reserves, the letter said. The board now is taking steps to secure the necessary bond.

Kandi Comer said in Tuesday’s statement that her husband’s disappearance has been unspeakably difficult for their family. She described Michael Comer as an honest, hardworking man and a devoted father.

Nelson County Sheriff David Brooks said Tuesday that the investigation into Michael Comer’s disappearance remains open without any leads. Brooks said his office is working with U.S. Immigration and Customs Enforcement to see if Comer may have left the country.

New Advance, Lynchnurg, VA.

Utah Man Shot While on HOA Patrol

2009-07-25T11:11:00.003-05:00

This is a sad story, involving a man trying to make his neighborhood a better place.

NC Woman charged with stealing $35,000 from homeowner's association

2009-07-25T11:08:00.001-05:00

A Flat Rock, North Carolina woman has been charged with obtaining property by false pretenses for allegedly stealing from a homeowner’s association.

Heather Pettit Barnette, 31, was charged with obtaining property by false pretenses by allegedly taking $35,544 from the Shadowbrook Property Owner’s Association, according to court records. Barnette was arrested late last month, but was released from custody without a bond.

The alleged crime occurred between Sept. 20, 2002 and Nov. 15, 2008, according to court records. Barnette is slated to appear in court on this charged on Aug. 28.

Community associations can be easy targets for con artists

2009-07-25T10:24:00.000-05:00

Community associations - and their budgets - can be ripe targets for con artists.

Associations are run by unpaid volunteers, some with little more financial experience than balancing a personal checkbook. And many condominium and homeowner associations have large and multiple bank accounts, with checks constantly coming in and going out for maintenance and other projects.

Amid all of that, directors have to learn to fight against possible fraud from those within the community and from the outside.

"Fraud is an ongoing threat to associations. And the likelihood of being a victim escalates during bad times," said Donna Berger, the executive director of the Community Advocacy Network, a lobbying group for associations.

"Association boards are run by volunteers who take time away from families, jobs and hobbies to serve. Con artists know these time constraints and divided attention might leave an opening."

With that in mind, Berger and other experts advise association members to be on guard and take specific steps to prevent fraud.

Berger recommends directors need to take the time, for instance, to create a delicate system of checks and balances to make sure the books remain in order. And don't leave the work to one or two members. The entire board should be up to speed on all financial transactions and practices. Berger's strongest piece of advice: Make sure your association requires two signatures to write an association check.

"If you do not already require two signatures to write an association check, consider implementing this requirement," Berger said. While it might prove to be inconvenient at times, it's a good security measure.

More tips:

Make sure to have a bond in place for every person who has access to association funds.

Pay attention to details. In bad times, employees might be more tempted to steal money by exploiting weaknesses in an association's financial controls. Look closely at what supplies are being ordered, what checks are sent out and all petty cash disbursements.

Review the association's "Employee Dishonesty" coverage under its insurance policy to determine what losses will be covered and not covered. The last thing you want is to be ripped off by an office manager, find out your association is not covered and you owe an insurance bill.

Check your own records regularly. Even if you have professional management in place, it is essential that the board review all bank accounts each month, every month.

Obtain photocopies of checks from the bank and review the payee, amount and authorizing signatures.

A monthly examination will catch checks paid to unauthorized suppliers and vendors or those approved with fraudulent signatures. Also, transfers between all bank accounts should be reconciled. Many fraudulent transactions are intentionally committed near the end of the month to allow the wrongdoer to cover the fraud by categorizing it as an outstanding deposit or a check in transit, Berger said. This usually leaves 30 days for the board and/or manager to forget about the discrepancy or for the employee to cover up the misappropriation.

Look out for red flags. Are checks being sent to a series of companies with similar sounding names? If your association is paying the American Pool Company for monthly services and the American Pool Inc. too, there could be a problem. Also look out for money being sent to businesses using P.O. box numbers rather than street addresses.

By Daniel Vasquez, The Sun Sentinel

Subdivision residents vote to oust HOA board

2009-07-25T10:21:00.000-05:00

A neighborhood association dispute is headed to court after homeowners met and voted to remove the association's board of directors and install a new and larger board.

Homeowners in the Ventura and Spring Meadows subdivisions in northeast Bexar County met June 30 and voted 221-1 to remove the association's current board members — President Lisa Pfeiffer, Vice President Vicki Pawelek and Secretary Kathleen Vargas — after a tumultuous eight months that saw the board close its monthly meetings to the public, remove lifeguards from the community pool and discontinue participation in the county Citizens On Patrol program.

The group of homeowners called a special meeting and gathered at Northeast Church of Christ on FM 78 and voted to remove the three board members, to enlarge the board to five members and to fill the board with a new slate of board members.

But attorney Susan Rice, speaking on behalf of the Ventura Homeowners Association, told those gathered that their votes didn't count and that any action taken that evening would end up in court.

“Basically, it's the corporation's position that this is not a properly called meeting, pursuant to the governing documents; nor are the votes that are going to be taken proper.

“It does not mean that tomorrow morning your votes are going to be honored,” she said, adding, “Those are going to be going through the court system and we'll be dealing with those through the courts.”

But Lanny Worel, one of a group of organizers of the special meeting, disagreed.

“We feel that this meeting is lawfully called and … in compliance with association bylaws, and that any and all business that takes place here tonight will be valid and binding,” Worel said.

The association board tried to file a restraining order to keep the meeting from happening, but a county judge found no validity in the association's complaint and allowed the meeting to go forth.

“In November, the board of directors closed the board meetings to all of us, none of us could go,” Worel said. “It was three months later that (they) began sending out invitations. Without an invitation, you couldn't attend.”

Worel was one of five Ventura/Spring Meadows homeowners elected to the board during the meeting. Also elected to the board were Tony Jones, Evelyn Nolde, Stephen Turner and Gary Siegel.

Worel said the board has done everything in its power to stop the group from meeting, despite the group's gathering of enough signatures to properly call a special meeting of the association. The board told Worel's group that the petition contained invalid signatures, but refused to give the group a list of any faulty signatures.

The group decided in May to call the special meeting, assured they had enough valid signatures to do so. A letter dated May 15 was sent to the board, citing articles and sections of the Ventura bylaws that allowed for such a meeting to take place.

Once a quorum was established at the meeting, a motion was made to remove all three current board members from their positions. A ballot vote was taken and the motion passed, 221-1. The next motion sought expansion of the board from three to five members, which was approved 223-0. Names of seven homeowners were put on a ballot and the five were selected.

Residents openly questioned why the board meetings were closed, and asked who was responsible for monitoring the board's actions.

Worel explained that the homeowner associations are governed under the non-profit corporation act and that board meetings are not mandated to be open, “but what we go by is the (people) who have been here for over 20 years, board meetings have always been open except for a short time in 2007, when they simply didn't hold meetings.”

Jones, a subdivision resident since 1999, said, “If you pay your dues, you should have a say in how your money is spent. If they take that away from you, you should also be allowed to say, ‘If I don't have a say, then why am I paying you?'”

Homeowners expressed anger over the board's decision to cancel its lifeguard contract at the pool and replace it with a camera-security system.

“I've never seen a camera give CPR,” Jones said. “By the time you see it on camera, what's happened has happened.”

“It was a total three-person decision,” Worel said. “It was not our decision to do away with the lifeguards and put a web-based camera in there for security.”

The pool was closed for a period of time following a June 11 investigation by the San Antonio Metropolitan Health Department. A resident who spoke during the meeting said she called the health district on June 8 following a weekend swim.

“I was disappointed with the condition of the water, it was filthy,” said resident Yvonne Rex. “That was Saturday; on Monday morning, I called the Metro Health Department and filed a complaint, because they (association management) didn't seem too concerned.

“They officially closed it down (June 11) because of the condition of the water. Come to find out, the filter was broken ... but my question is, how long had the filter been broken, and they were still allowing people to use the pool, with that disgusting water?” she added.

Lifeguards in neighboring subdivisions commonly perform hourly or bi-hourly water sampling in addition to enforcing hourly safety breaks and monitoring pool attendance.

Worel said that since the June 30 meeting, both sides have agreed to enter into mediation.

“We don't know where it will go from here; all we can do is do our best and then carry on,” he said.

By: Jeff B. Flinn, Northeast Herald

HOA Fight May Cause Loss Of Services -- from KSAT 12

2009-07-25T10:17:00.002-05:00

Northeast Side Complex Faces Water, Electricity, Cable Shutoff

SAN ANTONIO -- The Village at Woodlake Condominiums were once a prime place to live on the city's northeast side off of FM 78. But now, the pool is closed and the complex is in danger of losing some basic services because of a fight involving the homeowners' association.

"Unfortunately, there's gonna be innocent people forced out of their homes," said Denny Huston, the former HOA board president.

The reason is that Travelers Insurance has dropped the insurance that protected the directors and officers of the HOA in case they were sued in their official capacity. Travelers cited the frequency of claims against the HOA as the reason the policy was not being renewed.

"On the tenth of June, at midnight, this HOA basically ceased to exist," said Huston.

In single family home developments, HOAs have more limited duties, but at the Village at Woodlake, the HOA pays for all residents’ water service, basic cable television, outside lighting and landscaping, and if those bills are not paid, then even the electric gate would cease to function. Currently, nobody in the complex is authorized to collect the monthly dues or pay the complex’s bills.

"Our hands are tied as to what's going to happen in the next few weeks," said Huston.

Huston said he’s contacted a number of government offices asking for help, but has been turned down. He produced letters from the Texas Attorney General’s Office and the Texas Secretary of State’s Office, and he said he contacted his county commissioner and the Bexar County District Attorney’s Office. Dee McGee has managed HOAs for more than 30 years and looked into solutions for the Village at Woodlake.

"They will cut their water off," said McGee of Maximum Management Resources.

She could only think of one possible solution. "They'll appoint a receiver who will take over and collect the money and make the payments, get everything sorted out," said McGee.

The problem is that means owners may end up paying a lot more money. She said that people who buy into developments where HOA membership is required should remember that they are co-owners of the HOA, and that if the HOA suffers as a result of continual challenges and lawsuits, they too will suffer.

The Village at Woodlake hopes a government agency will take note of their plight before residents lose water and other basic services.

Lubbock HOA Bans Sex Offenders From Neighborhood

2009-07-22T21:36:00.000-05:00

LUBBOCK, Texas - The sales pitch for this planned subdivision goes beyond the usual vision of attractive homes and amenities: Homeowners will be required to pass criminal background checks and no convicted sex offenders will be allowed.

It's a concept that might prove right for the times, said first-time developer Clayton Isom, one of three partners in a company creating Milwaukee Ridge on the outskirts of this west Texas city.

The idea was inspired by the killings of two Florida girls - 9-year-old Jessica Lunsford and 13-year-old Sarah Lunde - allegedly by registered sex offenders, Isom said.

"It makes me sick at my stomach every time I hear one of these stories about these innocent girls," said Isom, a graduate student in business administration at Texas Tech University.

Isom and his two partners in I&S Investments, all in their early 20s, own a 213-acre parcel and plan to subdivide it for 665 houses. Relatives and other investors are backing the trio.

Homes will be priced from $100,000 to $150,000.

Builders agreeing to the development's terms will run background checks on home buyers and any juveniles expected to live in the homes. They could be penalized if they even unknowingly sell to a convicted sex offender.

Residents will face penalties if they allow a convicted sex offender to live in their homes, and will be responsible for checking the backgrounds of potential buyers if they sell. Isom's company promises to buy a home back for 85 percent of the lesser of appraised or market value if builders sell to an offender or if an owner or a resident is convicted of a sex offense.

A homeowners association will be the developers' eyes and ears.

There have been no recent reports of high-profile sex offender crimes in Lubbock, but the city has 413 registered offenders, ranking it 16th in the state, which has 46,000 registered sex offenders.

The subdivision's ban appears to be legal, according to the U.S. Department of Housing and Urban Development. Sex offenders are not a protected class under the Fair Housing Act, HUD spokesman Jerry Brown said.

The ban could give residents a false sense of security since it can't keep offenders from living near the subdivision, said Katherine Stark, a board member of the National Fair Housing Alliance. "They're a block away," she said.

However, Rula Maabra, 35, said her family is weighing a move to Milwaukee Ridge because two registered sex offenders live within two blocks of their Lubbock home. She and her husband have children ages 6 and 8.

"You can't protect your kids 100 percent, but knowing that the street I'm living on and the one nearby doesn't have one, makes me feel much better," she said.

Homeowner associations start foreclosures to collect dues

2009-06-17T17:16:00.002-05:00

I was interviewed for this article, which appeared in USA Today. Unfortunately, I wasn't quited!

IRVING, Texas — Thousands of Americans who have generally kept up with their mortgages are still in danger of losing their homes because they made a fateful trade-off in this shaky economy: They let their homeowner association dues slide.
Many homeowners are learning to their surprise that condo and neighborhood associations that oversee security patrols, mow lawns, plant flowers and clean the community swimming pool might have the right to foreclose when dues aren't paid. That right is often written into the purchase agreement signed by the homeowner.

"We have compassion for those folks," says Andrew Schlegel, executive vice president for Merit Property Management, which manages more than 140,000 California homes in community associations. "At the same time, we feel for the rest of the homeowners who are paying their dues."

Most people end up saving their homes. HOA boards often work with down-on-their-luck neighbors to come up with some sort of compromise. That's what happened with Lacey Pilat, who lost her job catering lavish corporate parties and nearly lost her two-story house in this Dallas suburb.

The management company for the Beacon Hill homeowner association sent Pilat a foreclosure notice in April after several attempts to collect her $450 annual dues, which paid for the mowing of front lawns. The amount she owed snowballed to $1,800 after penalties and fees. The company eventually agreed to let Pilat and her husband, Steve, pay the debt over time.

Gauging the number of foreclosures nationwide by HOAs is difficult. But in Texas, foreclosure attempts initiated by HOAs in 19 counties are up 30% from two years ago, according to Dallas-based Foreclosure Listing Services. In the San Antonio area alone, foreclosure actions by HOAs jumped to 170 in April from 21 in April 2008, RexReport.com says.

In Florida, attorney Bob Tankel, who represents hundreds of homeowner and condo associations, says he has increased his staff from three to 16 in the past 18 months to handle a mounting caseload of 3,500 open collections. About one-fifth of those cases have reached foreclosure, he says.

In California, Schlegel says more than 6% of the homes that his company manages are in some stage of delinquency on membership dues, up from around 1% in previous years.

More than 59 million people live in more than 300,000 association-governed communities nationwide, according to the Community Associations Institute, the nation's largest group for homeowners and condo boards.

If the house is foreclosed on, it is sold, and the HOA takes what it is owed from the proceeds. Proceeds also go to the bank to pay off the mortgage.

By: Paul Weber, Associated Press

Enforcement of Restrictive Covenants -- HOA Board Actions are PRESUMED to be Reasonable

2009-06-09T20:28:00.002-05:00

Did you know that there is a built-in presumption in the Texas Property Code that an HOA's actions (and the actions of its Board members, attorneys, management companies and other agaents) are PRESUMED to be reasonable? Did you know that in seeking to overcome this presumption, the party challenging the HOA bears the burden of proof? It's true.

Section 202.004(a) of the TPC provides: "An exercise of discretionary authority by a property owners' association or other representative designated by an owner of real property concerning a restrictive covenant is presumed reasonable unless the court determines by a preponderance of the evidence that the exercise of discretionary authority was arbitrary, capricious, or discriminatory."

In order to grasp the import of this provision, understanding presumptions is important. A presumption is not evidence but rather a rule of procedure that is overcome when positive evidence to the contrary is introduced. See Green v. Ransor, Inc., 175 S.W.3d 513, 516 (Tex. App.–Fort Worth 2005, no pet.). The presumption “disappears” when evidence to the contrary is introduced. See Republic Nat’l Life Ins. Co. v. Heyward, 536 S.W.2d 549, 558 (Tex. 1976).

There exist many manners in which to contest the reasonableness of an HOA's actions. One of which is by allleging and proving selective enforcement. Be careful, however, as the Texas Courts have usually sided with the HOA unless their actions are, indeed, arbitrary. That means that proving an HOA's properly-authorized action is tough. However, overly-zealous HOAs and their agents do act "arbitrary, capricious, and/or discriminatory" in many circumstances. With the right facts, careful presentation of evidence, and an attorney knowledgable in HOA law (particularly Title 11 of the Texas Property Code), an owner can porevail in her claims that an HOA's actions are illegal or unsupported by law. In those instances, an owner might well obtain relief from oppressive HOA actions and even recover attorneys' fees and costs.

Battle Brewing in Cadillac Drive Neighborhood Covenant Dispute

2009-06-08T09:20:00.003-05:00

For the last several monnths, a battle has been brewing in the Cadillac Drive neighborhood. The picturesque, oak-lined street with estate-sized lots and a country-in-the-city feel is deeply divided. On one side, the Chabad Lubavitch Jewish organization proposes to construct a new 15,000 square foot synagouge on a lot zoned (at least in part) for residential use. On the other, the neigborhood association has cited the plan as a violation of the restrictive covenants, and demanded that the Rabbi cease and desist with efforts to construct any structure which violates the residential-use-only restrictions on the lot.

Of course, it is never that simple...there are factors that complicate both sides of the coin, and their respective arguments. First, the Rabbi lives on Cadillac Drive -- actually right between two members of the CDNA Board of Dirctors. Second, it is claimed that religious services have been performed on the lot for years, with no prior complaints by the Association. Third, the lot in question has dual zoning from the City of San Antonio, and dual classifications under the restrictive covenants -- half )(the back half) is within the neighborhood association's jurisdiction while the other half is exempted. Fourth, and perhaps most interesting, is the fact that the Rabbi and his wife voted many years ago in favor of placing the residential-use only restrictions on the lot where the synagouge is now proposed.

Our firm initially represented the neighborhood association, and issued the letter directing the CL to cease and desist with violations of the restrictions. In addition, we participated in conducting and noticing an election, whereby the membership of the Association could vote whether to make an exception to the restrictions, and authorize construction of the synagouge on the lot in question. This election resulted in an overwhelming denial of the requested amendment.

As of this writing the parties remain locked in a stand-off. The Association and its Board have spoken. However, the Rabbi and his legal team have taken note of a provision in the Restrictive Covenants that allow them to be amended by a majority of the Owners. Thus, there is an effort underway to secure -- by petition -- enough votes to amend the Restrictions in much the manner previously denied by the Association's membership.

Only time will tell...

R L Wilson Law Firm takes on Regency Park HOA

2009-05-19T20:16:00.003-05:00

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.

Did your HOA Jump the Gun When it sued you? If so, you may be spared paying their Attorneys' Fees

2009-04-28T16:59:00.004-05:00

Homeowners Associations are filing more lawsuits than they used to. I'm not sure of the reason for this, but the types of suits are as varied as are the subdivisions in Texas. In many instances the suits seek to collect upon unpaid assessments. In others, they are filed to enforce declarations/CCRs/restrictive covenants. In virtually all cases -- irrespective of the nature of the HOA's claims -- there is a request for recovery of attorneys' fees and court costs. It is important to note that HOAs are not automatically entitled to recovery of their costs and fees in every case. Further, many times HOAs are required to provide written notice prior to filing suit. If an HOA or its attorney fails to follow the strict procedure required by the Texas Property Code, costs and/or fees may not be recoverable.

Section 209.006 of the Texas Property Code generally mandates notice before an enforcement lawsuit may be filed by a Homeowners Association. It provides:

(a) Before a property owners' association may suspend an owner's right to use a common area, file a suit against an owner other than a suit to collect a regular or special assessment or foreclose under an association's lien, charge an owner for property damage, or levy a fine for a violation of the restrictions or bylaws or rules of the association, the association or its agent must give written notice to the owner by certified mail, return receipt requested.

Subsection (b) of Section 209.006 provides that the notice must: (1) describe the violation or property damage that is the basis for the suspension action, charge, or fine and state any amount due the association from the owner; and

(2) inform the owner that the owner: (A) is entitled to a reasonable period to cure the violation and avoid the fine or suspension unless the owner was given notice and a reasonable opportunity to cure a similar violation within the preceding six months; and (B) may request a hearing under Section 209.007 on or before the 30th day after the date the owner receives the notice.

It is important to understand that certain types of suits -- those seeking a Temporary Restraining Order or Injunctive Relief -- are not subject to the notice provisions. However, a party to such a suit may request that the Court compel mediation. See Section 209.007(d)

Written notice is also a prerequisite in those instances where an HOA seeks recovery of attorneys' fees or costs. Such claims are governed by Texas Property Code Section 209.008(a), which provides:

"A property owners' association may collect reimbursement of reasonable attorney's fees and other reasonable costs incurred by the association relating to collecting amounts, including damages, due the association for enforcing restrictions or the bylaws or rules of the association only if the owner is provided a written notice that attorney's fees and costs will be charged to the owner if the delinquency or violation continues after a date certain."

Many times, an Association and/or its lawyer will fail to issue the notice required by Section 209.008. In those instances, there is a good chance that an Owner or other person sued by an HOA can avoid having the HOA's fees and costs taxed against them.

Any time you are sued -- whether by an HOA or otherwise -- you should make a timeline of events leading to the suit. The Property Code is not the only provision of Texas law that requires notice before attorneys' fees can be recovered. A similar provision exists in contract disputes and other legal contexts. Knowledge is power, and it is higly advisable to consult with both the applicable law and an experienced attorney any time you are faced with litigation.

Perhaps one day HOA litigation will slow down - there are initiatives pending at the Texas Legislature which might curtail the filing of some HOA-related suits. Until then, read your CCRs, abide by the covenants, and remain ever-vigilant of your rights under Texas law.

San Antonio Residents Fire Back At Homeowners Association and Builder

2009-04-08T20:08:00.000-05:00

A group of residents of the West Oaks Estates subdivision in San Antonio, Texas are fighting back against what they believe is an unmeritorious attack by their homeowners association, and the builder/developer who controls the HOA. In a counter-suit filed in Bexar County District Court in San Antonio, Texas, the residents have accused the West Oak Estates HOA, Inc., and McMillin Development of breach of contract, real estate fruad, violations of the covenants, and conversion.

The counter-suit, which was filed in response to a series of suits initiated by the builder and HOA against 19 families who purchased their properties in the subdivision PRIOR TO the time that the builder recorded the covenants/restrictions. In the original suit the HOA and builder seek a judicial declaration that the properties are subject to the declaration of covenants and restrictions("CCRs") and to mandatory membership, despite the fact that the builder dropped the ball in timely filing the CCRs with respect to the residents' particular unit of the subdivision.

In the counter-suit, the residents deny the applicability of the restrictive covenants to their properties. In addition, they have alleged that membership in the HOA is not mandatory for them. In support of that argument, the residents have argued that the law in Texas, and even before Texas or the United States were established, provides that a covenant does not run with the land unless it "touches and concerns the land." It is clear from records recorded with the Bexar County Clerk that the restrictive covenants applicable to the West Oaks Estates HOA were not filed until AFTER each of the Counter-Plaintiffs purchased their properties.

The residents are represented by San Antonio attorney Trey Wilson, who has handled HOA litigation before both on behalf of and against homeowners associations. Wilson maintains that the West Oaks Estates HOA is not a proper Plaintiff in the lawsuit because there is no membership in the HOA by his clients. "Restrictive Covenants are treated by Courts as contracts, and since it is undisputed that my clients are not members of the HOA, there is no contractual privity between them and the HOA which would allow the HOA to bring this suit," said Wilson.

There is currently no trial date in the case.

Great Texas HOA Absue/Reform Handbook Posted by Harris County Homeowner

2009-04-08T20:06:00.001-05:00

Barbara J. Hogan, a long-time advocate of HOA reform and crusader against its abuses published a fine paper entitied "A Handbook For Texas Legislators Relating to Homeowners Association Issues." According to her introduction, Ms. Hogan wrote the Handbook over the course of 2 years, and intends for it to be a resource for legislators when considering HOA-related bills.

I have read the Handbook, and find it to be well-researched and very informative. A copy of it is available in format at Ms. Hogan's website (www.texashoaissues.com), or view the .pdf version by clicking HERE. Congratulations to Ms. Hogan.

Austin, Texas Homeowner group sues man over metal roof

2009-04-08T20:02:00.001-05:00

By Asher Price/AMERICAN-STATESMAN

Joe Sigel put a metal roof atop his West Austin house in 2007 to cut energy use and improve the home's look. Now it has landed Sigal in court, facing a suit by a homeowners association that says he violated its rules.

Sigel, who owns the Art on 5th gallery, had lived in his house for more than five years when he decided to replace the composition roof with a metal one. "It's energy-saving; it looks better; it improves the neighborhood," said Sigel, who lives alone in the house, which has about 3,900 square feet and was built in 1998.

But the Treemont Homeowners Association, which filed suit against Sigel in September in Travis County District Court, says Sigel did not ask its permission before erecting the roof, which it says violates a rule barring "galvanized steel sheet" on roofs. No court date has been set.

"The Architectural Committee has determined that the roof reflects light in an unacceptable manner," the filing says. It says Sigel finished the roof after being given notice by the homeowners association.

The conflict comes as lawmakers again wade into whether homeowners associations should be able to prevent their members from trying measures that would cut their energy use.

"It's not just an environmental question; it's also a covenant question," said Larry Parks, the attorney for the homeowners association, which represents homeowners just south of Bee Cave Road and west of MoPac Boulevard (Loop 1). "He neglected to meet his obligation to his neighbors by not obtaining the approval of the homeowners association."

At least one of his next-door neighbors said he supports Sigel. The roof "looks great. It adds to the style of the neighborhood. It's something we as a neighborhood should look to going forward," said Todd Davidson, the neighbor. "He didn't get permission in the first place, and he should have, but the homeowners association is being petty about this."

Many houses in Austin have metal roofs. They were common in Austin in the 19th century after railroads began shipping the material, said John Mayfield, an architect who sits on the board of the Heritage Society of Austin.

Many barns also had roofs of corrugated metal, "with a crimped look, kind of like a potato chip," Mayfield said. Old metal roofs, which were susceptible to rust, were typically painted. They began going out of fashion in the mid-20th century as cheaper materials, such as shingles, began to supplant them, he said.

Sigel said he replaced the original shingle roof because it was developing black algae. The new roof, made from steel coated with an aluminum-zinc alloy marketed as Galvalume, cost Sigel $30,000, according to Jason Snell, Sigel's lawyer. (Sigel said he does not want to paint the roof to cut down on glare because the paint will peel and leave the roof looking chalky.)

Sigel, who said he was not asked to stop the construction of the roof until it was near completion, said his energy use from May through October 2007, under the old roof, was 11,265 kilowatt-hours. During the same period in 2008, under the new roof, he said he used 7,952 kilowatt-hours of electricity.

Putting a metal roof on a house is "the most energy-efficient approach you can implement," said Ed Clark, a spokesman for Austin Energy, which oversees the city's Green Building program. "It reflects heat back out, reduces heating and cooling, and encapsulates heat within during the wintertime," he said.

Peter Pfeiffer, an architect specializing in green building, said metal roofs can cost three times as much as their more conventional counterparts. The roof "minimizes excess gain of solar radiation," said Pfeiffer, whom Sigal paid to make a presentation about the metal roof to the homeowners association's architectural committee this year. "You want as light a roof as possible, just as a white or silver car sitting in the sun will be less hot inside than a black car or a brown car."

Several lawmakers have made proposals this session to bar homeowners associations from preventing members from putting solar panels atop their houses.

A 2003 state law prevents property owners associations from prohibiting water-saving measures such as installing rain barrels or implementing efficient irrigation systems.

"We're running into this more and more," Pfeiffer said, "where a lot of these subdivision restrictions were written before people understood the effects of dark roofs or by people who don't understand building science."

Texas Bill Aimed At Preventing HOA Foreclosures Receives Committee Hearing

2009-04-08T20:00:00.001-05:00

House Bill 899, filed by Rep. Harold Dutton of Houston, would prevent Homeowners Associations from foreclosing upon Texas homesteads. It was filed in response to numerous complaints of HOA abuses, including mass foreclosures, foreclosures upon sick and elderly homeowners, and even foreclosure upon soldiers deployed to war.

The Bill, originally filed in January, was the subject of a hearing yesterday in the powerful House Business and Industry Committee, chaired by Rep. Joe Deshotel of Port Arthur.

As currently proposed, HB 899 would add a new Section 202.010 to Chapter 202of the Texas Property Code. The proposed Section 202.010 would read as follows:

Sec. 202.010. FORECLOSURE OF CERTAIN LIENS. A restrictive covenant may not be adopted that places a lien on real property to secure payment of a debt created by the covenant unless the covenant exempts a homestead, as defined by Section 41.002, from foreclosure of the lien.

Unfortunately, even if passed, the Bill would only apply to restrictive covenants (CCRs) adopted on or after the effective date of the Act.

The Committee also considered yesterday HB 1760, which would extend the limitations period for homeowners seeking to file suit against persons seeking to foreclose liens placed upon property under Chapter 51of the Texas Property Code.

I believe that both Bills are necessary to protect Texas homeowners from abuses often committed by those with lien authority over their homes. Accordingly, I support passage of both HB 899 and HB 1760, and encourage you to support these bills by contacting your eleceted official in the Texas Legislature.

West Oaks Estates HOA / Builder Dispute Settled

2009-04-08T19:57:00.001-05:00

Yesterday we successfully resolved the dispute existing by and between 17 families residing in the West Oaks Estates subdivision, and their San Antonio HOA (West Oaks Estates Homeowners Association) and builder (McMillin Homes). R L Wilson, P.C. Law Firm serves as attorneys for the 17 families, who were sued (each in different suits) by McMillin and their homeowners association (the "WOEHOA") in November 2008.

The skirmish involved the failure of the builder/developer to annex Unit 2 of the development into the Restrictive Covenants established for Unit 1 PRIOR TO selling homes to the 17 families. This gaffe resulted in our clients' homes not being subject to mandatory membership in the HOA, and the homeowners not being legally required to pay association dues or abide by the restrictions applicable to those residents who purchased homes after the discrepancy was cured by the builder. We characterized their homes as a "donut hole" in the rules and payment obligations imposed upon the subdivision by the late-filed Restrictions.

When the builder asked the 17 families to voluntarily submit to the restrictions and voluntarily pay HOA dues, they refused, citing what they deemed to be past abuses by the developer-controlled HOA. When various "incentives" offered did not entice them to voluntarily join the HOA, our clients were served with lawsuits filed jointly by McMillin and the WOEHOA. They brought those suits to our firm, and asked us to vigorously defend them and preserve their freedom from what they consider to be an oppressive HOA. As lawyers who regularly litigate claims involving homeowners associations in Texas, we were glad to step up to the plate.

Along with Answering the suits on behalf of the 33 Defendants, we sought and achieved consolidation into a single action, and then advanced various counter-claims against the builder related to promises of community facilities that were never delivered, including a "resident's park." Other counter-claims that were asserted related to fraud in the inducement, conversion of HOA dues paid prior to the time the residents realized they were not required to pay, and fraud in a real estate transaction.

Fortunately, after yesterday's 9 hour marathon mediation session --- in which both sides fought hard but finally succumbed to reason -- the case was settled. In the end, our firm's clients were not required to join the HOA, but did agree to pay a reasonable and reduced "license fee" as their "fair share" of the cost of maintaining the development's gates and roads. This seemed to be a satisfying resolution to all involved, and I was thrilled to receive a late-night "thank you" e-mail from the client representative.

We are proud of the work our law firm did in the case, and of our track record as lawyers in lawsuits involving HOAs in and around San Antonio, Texas. We look forward to the "celebration bar-b-q" our clients invited us to!

Mission Creek Homes Avoid Auction

2009-04-08T10:49:00.000-05:00

The foreclosure threat hanging over more than 80 homes in the Mission Creek community came to nothing on Tuesday after the homeowners association opted not to go through with the foreclosures after all.

Initially, the South Side homeowners association had filed to foreclose on dozens of homes because of unpaid association dues. That number of foreclosures — on about 21 percent of the homes in the neighborhood, according to foreclosure tracking service RexReport.com — would have been unprecedented.

Some homeowners had not paid their estimated $130 in annual neighborhood dues because they were upset that a promised park had not yet been developed and that the association didn't return phone calls and letters.

But most communities have covenants that give a homeowners association the right to foreclose for unpaid dues.

Neither the developer, builder, HOA management company nor association attorney responded to voice messages left by the San Antonio Express-News.

Randy Gool of the Austin-based Westar Realty Corp said homeowner associations sometimes use foreclosure as a way to get paid. “They really don't want the property and can't afford to have it,” he said.

If a homeowner association does foreclose, Texas homeowners have a 180-day right of redemption.

But even with that right, problems for the homeowner can snowball. “They're going to have the pay the fees, the late fees, the attorney's fees,” real estate attorney Carl Pipoly said.

And Gool said the homeowner association foreclosure might trigger the first lien holder — the mortgage lender — to foreclose, too.

The legislature passed the 180-day rule after an elderly Houston widow lost her home thanks to unpaid homeowner association dues, Gool said.

Foreclosure Listing Service Inc. said the Mission Creek postings made up half of the total homeowners association-related foreclosure postings for April and helped create a 745 percent increase in those postings compared with the same month last year.

By Jennifer Hiller - Express-News

A BILL of RIGHTS for HOMEOWNERS in ASSOCIATIONS

2009-04-07T11:34:00.003-05:00

This Article drafted by David A. Kahne of the Law Office of David A. Kahne, and presented by The AARP Public Policy Institute, a part of the Policy and Strategy Group of AARP. It is copied to this Blog from the Website of Texas Homeowners for HOA Reform.

1. The Right to Security against Foreclosure

An association shall not foreclose against a homeowner except for significant unpaid assessments, and any such foreclosure shall require judicial review to ensure fairness.

2. The Right to Resolve Disputes without Litigation

Homeowners and associations will have available alternative dispute resolution (ADR), although both parties preserve the right to litigate.

3. The Right to Fairness in Litigation

Where there is litigation between an association and a homeowner, and the homeowner prevails, the association shall pay attorney fees to a reasonable level.

4. The Right to Be Told of All Rules and Charges

Homeowners shall be told - before buying - of the association's broad powers, and the association may not exercise any power not clearly disclosed to the homeowner if the power unreasonably interferes with the homeownership.

5. The Right to Stability in Rules and Charges

Homeowners shall have rights to vote to create, amend, or terminate deed restrictions and other important documents. Where an association's directors have power to change operating rules, the homeowners shall have notice and an opportunity, by majority vote, to override new rules and charges.

6. The Right to Individual Autonomy

Homeowners shall not surrender any essential rights of individual autonomy because they live in a common-interest community. Homeowners shall have the right to peaceful advocacy during elections and other votes as well as use of common areas.

7. The Right to Oversight of Associations and Directors

Homeowners shall have reasonable access to records and meetings, as well as specified abilities to call special meetings, to obtain oversight of elections and other votes, and to recall directors.

8. The Right to Vote and Run for Office

Homeowners shall have well-defined voting rights, including secret ballots, and no director shall have a conflict of interest.

9. The Right to Reasonable Associations and Directors

Associations, their directors, and other agents shall act reasonably in exercising their power over homeowners.

10. The Right to an Ombudsperson for Homeowners

Homeowners shall have fair interpretation of their rights through the state Office of Ombudsperson for Homeowners. This ombudsperson enables state oversight were needed, and increases available information for all.

Origins of the HOA's right of Foreclosure...Understanding Inwood vs. Harris

2009-04-07T11:31:00.001-05:00

Nonprofit homeowners' association brought action against homeowners who were delinquent in their payment of assessments. The 152nd District Court, Harris County, Jack O'Neill, J., awarded association judgment but denied foreclosure. The association appealed. The Houston Court of Appeals, Dunn, J., 707 S.W.2d 125, affirmed. Association petitioned for review. The Supreme Court, Robertson, J., held that homestead law did not protect homeowners against foreclosure for failure to pay assessments.

San Antonio HOA Moves to Foreclose on 84 Homes

2009-04-07T11:21:00.000-05:00

In a rare move, a South Side homeowners association has filed to foreclose on 84 homes in the Mission Creek community because of unpaid association dues.

That’s 21 percent of the roughly 400 homes in the community, based on data from RexReport.com. The 84 are set to go on the auction block April 7 at the Bexar County Courthouse — an event that would devastate the neighborhood’s property values, experts say.

Judith Gray, an attorney hired as the auction trustee, said the association is foreclosing because many homeowners have not paid dues for several years, and the multiyear loss of those dues is making it difficult for the association to function and to provide services required by the city.

“We’ve got a lot of stubborn people who believe they do not have to pay homeowners dues,” Gray said. “They have on average not paid homeowners dues for two to three years.”

Partly at issue is a community park that one of Mission Creek’s builders, Sivage Homes, and homeowners say the association has been promising to develop for several years. Currently, the park site comprises grass and trees.

Also fueling anger, homeowners claim, is the lack of response from the association when they call for an update on the project or any other issue in the neighborhood. Letters and phone calls go unanswered.

Neither developer Harry Hausman of HLM Development nor association board members responded to multiple voice messages left by the San Antonio Express-News.

Homeowners such as Cynthia Carrillo say they have deliberately stopped paying their $130 in yearly dues in response to being ignored.

“They are maintaining the front area where they sell those homes, but aren’t doing anything else,” Carrillo said. “If they are going to get $130 from all these people, they need to return people’s calls and put in more than those flower beds.”

The association’s attorney says it’s the nonpayment that’s preventing the association from following through on promised projects.

“If we don’t do this (collect the fees), the homeowners association cannot survive to do what homeowners want and have the park taken care of, have lights on in the park and cut the grass,” Gray said.

Most communities have covenants that give a homeowners association the right to sue property owners, assess penalty fees and even foreclose if dues aren’t paid.

The association usually must issue written notices asking a homeowner to pay and then file a lawsuit before starting foreclosure proceedings.

Cities encourage homeowners associations as a way to maintain housing and community standards to preserve home values — the source of property taxes — with minimal city involvement.

But if the 84 homes are auctioned, it could severely undermine home values in Mission Creek, one real estate expert said.

“That would be a spectacular event, and I can’t think of how it would be positive for the community,” said Al Kiris, agent and general partner at Bradfield Properties. “That’s unusual.”

Studies back this up. One conducted by the University of Missouri at St. Louis found that homes within a mile of a foreclosure typically see a hit in value.

For instance, between 2000 and 2008, homes nearest a foreclosed property lost an average 1 percent of their value. Between January 2006 and September 2008, when the market was more sluggish, homes nearest a foreclosure lost up to 5 percent in value.

Some of the homeowners facing foreclosure say their nonpayment is not from protest against the association, but a simple misunderstanding.

Adam Chavarria says his unpaid dues were the result of poor communication from the association as to his payment due date.

Chavarria, who bought his home in July 2004, said the association had sent a bill and coupon book in previous years to help in payments, but not last year.

“I didn’t have a problem paying,” he said.

Chavarria says his next personalized written communication from the association was a “formal notice” of default telling him to pay $267.58, including $100 in legal fees, or have his home auctioned off between 1 p.m. and 4 p.m. April 7.

“That was kind of a shock. For a couple hundred dollars, I thought that was a bit much,” Chavarria said.

Still, he said, he paid the fees.

As of Friday, the showdown between Carrillo and the association continued. Carrillo was adamant she wouldn’t pay the nearly $700 in fees she was assessed until an association representative speaks with her.

“I’m willing to come to a compromise,” she said. “But I should not have to pay fees and penalties and all that. They are not doing anything for the community.”

She hopes someone from the association will call her back and give a place where she can go and pay in person, rather than send something in the mail.

By Aïssatou Sidimé - Express-News

Proposed constitutional amendment would prohibit HOA foreclosures

2009-04-04T15:13:00.001-05:00

AUSTIN – Homeowners associations in Texas would lose their power to foreclose on individual homeowners for nonpayment of dues and other fees under a proposed constitutional amendment filed Friday by a Dallas-area lawmaker.

The amendment and companion legislation by Rep. Burt Solomons, R-Carrollton, would provide more rights and protections for homeowners in HOA neighborhoods – including thousands in North Texas and across the state who have faced losing their homes for not paying dues.

"Things have gotten out of control with homeowners associations," Solomons said. "It's amazing that the courts have allowed them to foreclose on homesteads for something as minor as getting behind on association dues. ... We have to restore some balance."

There are an estimated 20,000 homeowners associations in Texas.

Solomons said the plight of many Texans in HOAs has been illustrated in news stories, such as when a Frisco homeowner was threatened with fines by his association in August for parking his Ford F-150 pickup in his driveway. HOA rules there required that nonluxury trucks be kept in the garage.

"Some of the requirements are excessive. Are you really going to fine somebody because their fence is six inches too high?" Solomons asked.

Rick Stopfer, an Irving City Council member and longtime board member for the Valley Ranch homeowners association, said the constitutional amendment would cripple the ability of HOAs to carry out their responsibilities.

"People agree to pay certain dues and fees when they become a homeowner in a community with an association. There has to be some type of penalty for those who are not willing to abide by the agreement," he said.

Solomons' proposal, which is expected to be opposed by HOA groups, would submit a constitutional amendment to Texas voters that would prohibit foreclosures by associations on homesteads within their jurisdiction.

That foreclosure authority dates to a 1987 ruling by the Texas Supreme Court. Texas is one of only a handful of states that allows HOAs to foreclose on members.

The amendment states that a homestead within an HOA would be "protected from forced sale for the payment of a debt" to the association. It would allow an association to place a lien on the property, which would entitle it to payment once the house is voluntarily sold by the owner.

A companion bill filed by Solomons would revamp the state's homeowners association laws, giving homeowners access to HOA meetings and records and requiring fair and transparent elections of homeowner boards.

His bill also would take aim at associations that prohibit use of solar panels by homeowners – a rule that Solomons said is out of step with current efforts to switch to more environmentally friendly types of energy.

Sen. Royce West, D-Dallas, is carrying similar legislation in the Senate.

Stopfer said he could not recall any instance where a Valley Ranch homeowner was forced to give up his home for nonpayment of dues or fees. Where there are problems, he added, a payment plan can typically be set up.

By TERRENCE STUTZ / The Dallas Morning News

Rep. Solomons Proposes Reform of Texas HOA Laws

2009-04-04T15:05:00.003-05:00

Adapted from a Press Release from State Rep. Burt Solomons (Carrollton)

On April 27, 2009, Rep. Solomons announced plans for a sweeping reform of the state's homeowners’ association laws, including a constitutional amendment that would prohibit foreclosure of a homestead by a homeowners’ association. Solomons, a recognized real estate attorney in the North Texas area who served for fourteen years on the House committee with jurisdiction over homeowners’ associations, said the legislation is necessary. “It’s clear to me that while homeowners’ associations are valuable” said Solomons, “things have just gotten out of control with some of them. I think it’s amazing that in Texas the courts, not the legislature, have allowed homeowners’ associations to foreclose on a homestead.”

Solomons’ constitutional amendment, HJR 76, would give citizen of Texas the right to vote on whether to prohibit foreclosures by homeowners’ associations on homesteads, whereas HB 1976, filed today, proposes sweeping reforms to the operation of homeowners’ associations, including requirements to allow homeowners access to all homeowners’ association records, meetings, and to fair and transparent elections. Solomons’ proposed changes also give homeowners powerful tools to enforce the law. “Many homeowners’ associations have abdicated their responsibilities to management companies and attorneys who can not be held accountable and use penalties and attorneys’ fees to harass and intimidate homeowners who question the use of their association dues or the arbitrary enforcement of rules or bylaws,” stated Solomons. In response, he has proposed changes that will give homeowners greater access to the courts to battle homeowners’ associations by providing court and attorney fees to homeowners if the homeowners’ associations fail to comply with statutory requirements, as well as granting the courts the authority to assess fines against the associations.

The proposed legislative changes also address a myriad of issues which have negatively impacted homeowners, including priority of payment and prohibiting bans of solar panels. Homeowners are monetarily disadvantaged by prohibitions of solar panels, the use of which could dramatically lower the energy consumption and costs to homeowners. “At a time when the entire nation is focusing on renewable energy and the reduction of negative impacts on our air quality” said Solomons, “it is beyond me why we allow homeowners’ associations to ban the right of individuals to generate their own electricity in a reliable, environmentally-friendly method.”

The bill also addresses the priority of payment issue. While homeowners’ associations are currently prohibited from foreclosing on a home for failure to pay fines or attorneys’ fees, many associations will redirect a homeowners’ payment of association dues to pay for those outstanding fines or fees, which leaves their dues in arrears. Under the law now, failure to pay dues is the only reason for which an association may foreclose on a home; thus redirecting payments allows a homeowners’ association to foreclose on homeowners who have made good faith efforts to stay current with their obligations.

Solomons offered major reforms to homeowners’ association laws last session, but they died on the last day of session. “It is estimated that there are over 20,000 homeowners’ associations in Texas impacting citizen throughout the state,” said Solomons. “While some are conscientious about their fiduciary duties to their neighbors, others tend to operate like little fiefdoms. This is a strong property rights state and I believe we should ensure that homeowners’ associations can not intimidate and harass Texans out of their homes.”

Senator Royce West Files Multiple HOA Bills in the Texas Legislature

2009-03-26T12:44:00.007-05:00

On February 18, 2009, Senator Royce West (D - Dallas) filed a flurry of bills that would impact the way HOAs transact business. The following is a brief summary of the Bills. I will post updates as the bills work their way through the 81st Regular Session of the Texas Legislature.

SB 234 by West
HOAs are intended to maintain common areas in residential neighborhoods and to protect homeowners' investments in their property by enforcing certain aesthetic guidelines. In recent years, however, many homeowners have become dissatisfied with the operation of their association. Disputes between HOA boards and individual homeowners can generate considerable acrimony and expense. This bill attempts to restore balance to the relationship between homeowner's association (HOA) boards and individual homeowners.

As proposed, S.B. 234 requires a court to allow the prevailing party in an action on a breach of a restrictive covenant reasonable attorney's fees and cost and claims. S.B. 234 requires the seller of residential property that is subject to membership in a property owner's association to provide certain information and notice to a buyer, including a resale certificate. S.B. 236 sets forth certain requirements relating to the content of and fees for such resale certificates.

SB 235 by West

HOAs are intended to maintain common areas in residential neighborhoods and to protect homeowners' investments in their property by enforcing certain aesthetic guidelines. Developers often retain control over most aspects of an HOA while construction and sale of houses within the development is still ongoing.

As proposed, S.B. 235 strikes a balance between the developer's interest in the ultimate completion of a development and the need to prevent discriminatory housing practices. The bill provides that a restrictive covenant providing a right of first refusal for the sale or lease of a residential unit or residential lot in favor of the HOA or its members is void.

SB 236 by West

HOAs are intended to maintain common areas in residential neighborhoods and to protect homeowners' investments in their property by enforcing certain aesthetic guidelines. In recent years, individual homeowners have become frustrated with what they perceive as unduly restrictive HOA board policies regarding the installation of solar energy devices.

S.B. 236 strikes a balance between the community's interest in maintaining consistent aesthetics, and the freedom of individual homeowners to make sensible investments in clean energy.

As proposed, S.B. 236 prohibits a property owners' association from imposing or enforcing a restriction against solar energy devices, except under certain listed circumstances. S.B. 236 provides that restrictions that violate the provisions of this Act are void.

SB 237 by West

HOAs are intended to maintain common areas in residential neighborhoods and to protect homeowners' investments in their property by enforcing certain aesthetic guidelines. In recent years, however, many homeowners have become dissatisfied with the operation of their associations. Many homeowners lack confidence in the conduct of board elections. Additionally, some HOAs operate under extremely cumbersome provisions for the amendment of their declarations. S.B. 237 attempts to restore confidence in the HOA election process and to provide a uniform standard for amending a declaration.

As proposed, S.B. 237 provides that a declaration may be amended on a vote of 67 percent of the total votes allocated to owners of property in the subdivision, unless the declaration creating the subdivision specified a lower percentage. It also establishes that the right to vote in board elections cannot be limited and states the conditions under which a person is disqualified from serving on the board. The bill requires the use of a neutral third party to count election ballots under certain circumstances and sets forth the requirements for the conduct of elections. S.B. 237 sets forth certain property owners' associations to which certain provisions of this Act do not apply. S.B. 237 prohibits a person from serving on the board of an HOA if the person has been convicted of certain offenses and requires an HOA to obtain criminal history information on candidates for HOA boards. Finally, S.B. 237 provides for the use and content of an association's bylaws.

SB 238 by West

HOAs are intended to maintain common areas in residential neighborhoods and to protect homeowners' investments in their property by enforcing certain aesthetic guidelines. In recent years, however, many homeowners have become dissatisfied with the operation of their associations. Often, they feel frustrated in attempts to challenge an HOA board decision due to a lack of information. S.B. 238 attempts to restore balance to the relationship between HOA boards and individual homeowners.

As proposed, S.B. 238 sets forth remedies available to a homeowner if an HOA board fails to comply with its statutory duty to make its books and records, including financial records, reasonably available to a homeowner.

SB 239 by West

(HOAs) are intended to maintain common areas in residential neighborhoods and to protect homeowners' investments in their property by enforcing certain aesthetic guidelines. In recent years, however, many homeowners have become dissatisfied with the operation of their HOAs. Disputes between HOA boards and individual homeowners often begin with the imposition of relatively small fines by the board for violations of deed restrictions. The manner in which the board notifies the individual homeowner is at times the subject of some disagreement.

As proposed, S.B. 239 sets forth the required content and manner of delivery of a notice of enforcement action by a property owners' association . The bill also requires that the homeowner be given a date certain by which a violation must be cured.

SB 240 by West

(HOAs) are intended to maintain common areas in residential neighborhoods and to protect homeowners' investments in their property by enforcing certain aesthetic guidelines. In recent years, however, many homeowners have become dissatisfied with the operation of their associations. Disputes between HOA boards and individual homeowners often begin with the imposition of relatively small fines by the board for violations of deed restrictions. The actions of some HOA boards can cause such fines to become insurmountable burdens for the homeowner. Additionally, because foreclosure is a remedy available to an HOA board for delinquent assessments, the order of application by the HOA board of payments received from a homeowner is a critical issue.

As proposed, S.B. 240 sets forth certain requirements and restrictions regarding a fine imposed by a property owners' association. The bill also requires a property owners' association to adopt reasonable guidelines for an alternative payment schedule, sets forth provisions relating to the priority of application of payments by a homeowner, and sets forth time limitations relating to collection actions against a homeowner. S.B. 240 repeals Section 202.004(c), Property Code, relating to an assessment of civil damages by a court for the violation of a restrictive covenant.

SB 241 by West

HOAs) are intended to maintain common areas in residential neighborhoods and to protect homeowners' investments in their property by enforcing certain aesthetic guidelines. In recent years, however, many homeowners have become dissatisfied with the operation of their associations. Disputes between HOA boards and individual homeowners often begin with the imposition of relatively small fines by the HOA board for violations of deed restrictions. Such fines, when combined with assessments and legal fees, can quickly become insurmountable for a homeowner, ultimately resulting in foreclosure. Currently, a homeowner is not guaranteed access to the courts in a proceeding for the foreclosure of an assessment lien.

As proposed, S.B. 241 requires a property owners' association to obtain a court judgment foreclosing an assessment lien and providing for issuance of an order of sale before the foreclosure of the lien, unless judicial foreclosure is waived in writing by the homeowner.

Recovery of Attorneys Fees in Texas Cases Alleging Breaches of Restrictive Covenants

2009-03-26T11:06:00.006-05:00

Did you know that the Texas Property Code provides that the "prevailing party" who brings a legal action or lawsuit "based on" breach of a restrictive covenant, sometimes referred to as a "CCR," may recover their costs and attorneys' fees?

More particularly, Section 5.006 of the Texas Property Code provides as follows:

ATTORNEY'S FEES IN BREACH OF RESTRICTIVE COVENANT ACTION. (a) In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney's fees in addition to the party's costs and claim.

(b) To determine reasonable attorney's fees, the court shall consider:

(1) the time and labor required;

(2) the novelty and difficulty of the questions;

(3) the expertise, reputation, and ability of the attorney; and

(4) any other factor.

It should be noted that recovery of fees is not limited to a Homeowners Association. In that regard, a party who successfully challenges an HOA's enforcement of a particular covenant, and even an individual homeowner seeking to enforce the CCRs could recover the fees and expenses. This statute, which is often overlooked, has tremendous "loser pays" implications.

Often times, however, a particular set of CCRs will precribe that the HOA for a given development can recover its fees from a homeowner against whom enforcement is sought. Frequently, there is no reciprocal clause. Thus, it is important to check the language of your particlaur HOA's restrictive covenants and By-laws to consider whether such documents conflict with Section 5.006.

In any event, litigation concerning the enforcement of CCRs is complex and frequently turns on minute legal nuances. Accordingly, any person or entity should seek experienced legal counsel when contemplating litigation based on breach of a restrictive covenant related to real estate.

Favorite Quotes About Neighbors

2009-03-26T10:30:00.003-05:00

Health consists of having the same diseases as one's neighbors.
Quentin Crisp

A nation is a society united by delusions about its ancestry and by common hatred of its neighbors.
William Ralph Inge (1860 - 1954)

There are many who dare not kill themselves for fear of what the neighbors will say.
Cyril Connolly (1903 - 1974)

The Bible tells us to love our neighbors, and also to love our enemies; probably because they are generally the same people.
G. K. Chesterton (1874 - 1936)

This is the best kind of voyeurism, hearing joy from your neighbors.
Chuck Sigars

Nothing makes you more tolerant of a neighbor's noisy party than being there.
Franklin P. Jones

Love thy neighbor, yet pull not down thy hedge.
English Proverb quotes