TX deed restriction changes/updates

Hello all,
Anyone here from Texas, or maybe it's a generic thing. But, our HOA has been told it is rather expensive to change deed restrictions, you have to get a lawyer and all that jazz. The deed restrictions the developer started off with was nothing more than a copy/paste of a previous community he had built. Based on guidence/suggestions from this forum and the lack of attention the deed restrictions pays to certain things specific to our community, it would be nice to amend them and get them up-to-date... I know sometimes with anything legal in life, there are those things you can change yourself (no lawyer needed) and then there are things you definitely want a lawyer for..

Any suggestions?

Thanks..
Troy

Yes, you do need a lawyer when changing your CC&R's and Articles of Incorporation. That is because those two documents need filed at the county and state respectively. The by-laws aren't required to be filed and are more easily changed. A simple vote or meeting notes can change those.

Read your documentation to see what majority it takes to change your documentation. It was 75% to change the By-laws and Incorporation documents. It was 90% to change the CC&R's. It also required a special meeting. Which can be avoided if it's better to go door to door instead. Which is what we had to do. However, the owners have to agree when signing the changes that they also agree NOT to attend a special meeting to do so.

I would look for a lawyer who specializes in contractual/business law and not a real estate attorney. It is a contract. You can also find some documents at your local Office supply store. It's near the Do it yourself Rental agreements etc...area. They are about 20 dollars depending if you want a CD or not. You may have to request the store to order these packages for you because they don't stay on the shelf often.

It cost us about $2,500 dollars for the legal cost portion. It was about $750 in filing fees alone. The process took us about 3 years to complete. We just eliminated the name of our developer and added a separated water meter as the biggest items out of 5. The ownership of the property changed so often we had a hard time determining who was the owner or tenant. Only the owner's can sign.

It's difficult to be sure but worth the effort completely. It should be done in my opinion every 5 years or so. It should reflect technology changes as well. Especially with green energy items or satellite dishes etc....This is an area overlooked.

Get a list of owners and be best friends with the tax assessor's office is my biggest suggestion...Good luck!

Dang,,, I didn't realize it was so "legally" involved. I'm taking it day-to-day criteria isn't governed by the by-laws? Only the deed-restrictions? The things we've been brainstorming about is trash can placement (when). Some people leave their trash cans out by the driveway curb for days on end and/or the bags that their lawncare company leave behind, usually for days sitting out. Most people in the community wish to have cans out no earlier than the night before and stowed the day off pick-up. Then there's definitions of standards to lawn maintainence. But, the deed restrictions do give the Board authority to define what is neat and tidy along with the Architectural Review Committee (ARC), which is appointed by the Board. I would think that in it's own right would be sufficient enpowerment to get a homeowner into gear to get his/her lot on the same standard as the majority..

Man, to do this right, proper and fair is going to be a major undertaking...... I know one of the main missions of the Board is to maintain the quality of life, to included visual appeal, for all residents.............

Troy,

As others stated, a lawyer is needed but not for the whole process. When we did ours in 1993 it was a two year process and that was with hiring a company to assist. Basically the process is:

Form a Committee

Committee does Research - look at existing laws (HOA/Condo/Corporate), existing covenants, covenants from other similar communities, past practices of previous Boards, etc.

Committee drafts a proposal - using the existing covenants as a guideline

Committee seeks feedback from various sources (some Associations will solicit feedback from the membership at this stage) and makes changes to proposal

Committee presents proposal to Board

Board Does Research

Board makes changes to proposal

Board sends proposal to legal for advice

Board makes changes based on legal advice

Board sends draft to membership

Board actively solicits proxies so there are enough votes

Meeting is held

vote is taken

If adopted, Board sends final paperwork to legal for filing

Note: if you are updating one document that the membership needs to vote on, you should look at amending all of the documents.

It is a long process but it should be.

To expand on what Susan posted, typically, the purpose of each document is as follows:

The Articles of Incorporation, filed with the Secretary of State, provide the legal basis of the association in the form of an Incorporated Profit or Non-Profit Corporation. State Corporation Law will usually specify what needs to be included within the Articles of Incorporation.

The CCR's (Covenants, Conditions, and Restrictions) are publicly recorded deed restrictions. They also typically will define: Boundaries of each unit or lot and definition of common areas; Responsibilities and processes required of each owner regarding financial matters such as fee collection and spending, mortgage lending, and insurance; Protocol for property usage, building rules and regulations, and communication and resolution of problems and disputes. Basically covering the main issues in more generalized terms vs. specifics.

The Bylaws are the rules for management and administration of the Association. It's possible that State Corporation laws and/or State HOA/Condo laws might specify some items that are included within the Bylaws.

Resolutions are additional rules, regulations and guidelines that the association may adopt. It's best if these resolutions are based in the authority of the higher documents.

Basically, they all work off of higher precedence documents. For EXAMPLE:

CC&Rs empowers the Board to adopt Rules, Regulations and guidelines
CC&Rs empowers the Board to enforce the covenants with fines and/or other actions of law
CC&Rs requires the membership to seek and receive approval from the Association for all changes.
Bylaws empowers the Board to establish committees
A Resolution is adopted creating an Architectural committee to be the approving authority and the Board an appeal authority for changes.
A Resolution is adopted specifying the guidelines the Architectural Committee shall use as a standard in approving/disapproving the requests.
A Resolution is adopted specifying the procedures for enforcement including any fines along with maintaining a members right to due process.

Tim