Stone Oak-area HOA Again Loses Bid to Halt Extension of Hardy Oak Road in San Antonio

San Antonio HOA Lawyer Trey Wilson wrote:

The Fourth Court of Appeals in San Antonio, has twice ruled against the Sundance at Stone Oak Association, Inc. (the "HOA") in its bid to prevent the extension of Hardy Oak Road across the HOA’s property.  [Author's Note: Hardy Oak Rd. is a major roadway in the Stone Oak master-planned subdivision, which abruptly (and somewhat frustratingly) dead-ends at points between E. Sonterra Blvd. and Knight's Cross, and again between Knight's Cross and Stone Oak Pkwy.].

In May 2011, the Court of Appeals  upheld the Bexar County district court's initial refusal to grant a temporary injunction requested by the HOA in January 2011. Last month (November 2013), the Fourth Court affirmed the trial court's ultimate determination (made in August 2012) that the Northeast Independent School District had the legal right to build an extension of Hardy Oak Road across "common area" property owned by the HOA.  

The trial court had determined that, notwithstanding claims by the HOA that construction was altering the natural drainage patterns of surface waters (which would ultimately render a portion of the HOA property unusable), a 1986 easement filed by the subdivision developer (Sitterle) provided legal authority to build the extension of the road.  The Court of Appeals affirmed this determination, in an appeal filed by the Association on September 21, 2012.

In the lawsuit, the HOA argued that the rights conveyed under the 1986 easement were limited by the documents express terms, and did not allow for construction of a road. Among the HOA's claims were trespass and an unlawful taking of land based on the Hardy Oak Road extension’s construction.

The NEISD contended that Hardy Oak Road was being extended to support the flow of traffic to and from a nearby elementary school, as well as to the surrounding residential areas. The District further argued that the express terms of the Easement authorize construction of the Hardy Oak roadway across the HOA tract and that a roadway easement provides the right for all uses related to the use of a roadway, which necessarily includes the construction of the roadway. 

In its opinion, authored by Justice Alvarez, the Court of Appeals characterized the appeal as "simply a question of interpreting the [1986] Easement and the rights given to each party under it."  After reviewing the easement document's language, the Court held as follows:

Here, the plain language establishes the Sitterle Easement was granted for the purpose of building the Hardy Oaks roadway. The first paragraph of the Sitterle Easement expressly grants “a non-exclusive easement and right-of-way for . . . the 86' roadway known as ‘Hardy Oaks,’” as well as the right to construct underground electric, sewer, and water lines. Additionally, the third paragraph provides the grant is made “until the said easement and right-of-way shall be permanently dedicated by Grantor to the appropriate governing governmental authority and the said roadway known as Hardy Oaks is constructed thereon.” 

We conclude that the Sitterle Easement’s grant of the 86' roadway, and the identified rights of ingress and egress regarding pipes, cables, lines and appurtenances are consistent with the use for “road and street” purposes. See Harris Cnty. Flood Control Dist., 591 S.W.2d at 799. NEISD’s rights therefore include the uses necessary to carry out the purposes of the roadway, including construction of the roadway. Accordingly, the trial court did not err in granting Appellees’ motion for summary judgment. 

Hopefully, the ruling will bring some relief to the traffic congestion plaguing Stone Oak! 

Bexar County Jury Awards HOA $208K from former President and Lawyer

San Antonio HOA Lawyer Trey Wilson wrote:

A jury has spoken in the somewhat protracted dispute between the Ventura s HOA and various owners of properties in that northeast Bexar County subdivision. The former HOA President and its former attorney were hit with a whopping $280K verdict on December 21, 2012.

Watch the videos from WOAI TV below.

Houston Area HOA Sues to Stop Individual from Acting as HOA

San Antonio HOA Lawyer Trey Wilson wrote:

The battle over who is the the "official" homeowner's association governing a Park Harbor community, has ended-up in the Houston Court of Appeals.

According to the Court, the Park Harbor Improvement Association, Inc., sued appellant, Mildred Dunn, for usurping its duties and attempting to act as the official homeowner's association governing the Park Harbor community at issue. The Association sought injunctive relief and a declaratory judgment that Dunn had no authority to act. Dunn counterclaimed for defamation and sought injunctive relief to prevent the Association from acting as the authorized governing body of the Park Harbor community.

On August 30, 2011, in three orders, the 234th District Court granted summary judgment in favor of the Association on all claims and denied Dunn's motions for summary judgment. The trial court declared that Dunn has no authority to act as the homeowners' association; has no authority to levy or collect assessments, dues, or fines and fees; and has no authority to file documents on behalf of the Park Harbor community with the Texas Secretary of State or the Harris County Clerk. In addition, the trial court permanently enjoined Dunn from taking various related actions.

On February 9, 2012, the Court of Appeals of Texas, First District, Houston, dismissed Dunn's appeal, deeming it premature. We'll continue to track this case.

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

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

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.

Sometimes Fences Anger Neighbors... Especially Litigious Ones!

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

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

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.

Fourth Court Waters-Down Homeowner's Victory Against HOA

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.

Deed Restrictions -- They Aren't Always Forever !

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.

R L Wilson Law Firm takes on Regency Park HOA

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.

Senator Royce West Files Multiple HOA Bills in the Texas Legislature

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.