MaryP13 (Texas)
Posts: 21
Posts: 21
Posted:
Reading through all of these different codes, how can I tell which one actually prevails over a HOA?
A service of:
Community123.com
Professional websites for HOAs & condos, since 2004
Professional websites for HOAs & condos, since 2004
🎁 1st year FREE for HOATalk members! →
Texas Property Code vs. Business Operations and/or Government Codes
Started by MaryP13 • 12 replies • 2908 views
💬 Join us to post & get advice from 50,000 HOA & Condo leaders.
Create Free Account →
⚡ Takes 30 seconds
Already a member? Log in
MelissaP1 (Alabama)
Posts: 13,836
Posts: 13,836
Posted:
Read your CC&R's. They will tell you what rules apply. I believe that a HOA can't violate a state/local/federal law but may supercede with their own laws if one doesn't exist. It's just a mis-mash of rules and regulations. Basically though, a HOA is run by it's members FOR it's members. It'a democracy where majority rules with you and your neighbors. If someone doesn't like something, then that is when people bring up all these codes...
Former HOA President
MaryP13 (Texas)
Posts: 21
Posts: 21
Posted:
I appreciate your reply. It's not a matter of "not liking something" and therefore bringing up the codes/laws. It's a matter of the HOA board not acting leagally. We have researched for several months and have documentation to back it up, BUT -- when or how can we tell what supersedes what?
We have read the CC&Rs. Not only have they violated their own rules, they have violated laws. But - again, trying to figure out if Texas Property Code prevails, Business Operations Code prevails, Government Code prevails or which applies to which. The more reading is done, the more confusing it becomes.....
Just trying to get some clarity
Thanks......
We have read the CC&Rs. Not only have they violated their own rules, they have violated laws. But - again, trying to figure out if Texas Property Code prevails, Business Operations Code prevails, Government Code prevails or which applies to which. The more reading is done, the more confusing it becomes.....
Just trying to get some clarity
Thanks......
BrianB (California)
Posts: 2,820
Posts: 2,820
Posted:
the higher the governmental body that enacted the law, the higher the hierarchy of that law.
Federal trumps state trumps county trumps city trumps organizational (when one law conflicts with another).
So, it's likely that your business codes were done by the state or city, and would trump HOA regulations if there is a conflict between the two.
Federal trumps state trumps county trumps city trumps organizational (when one law conflicts with another).
So, it's likely that your business codes were done by the state or city, and would trump HOA regulations if there is a conflict between the two.
MaryP13 (Texas)
Posts: 21
Posts: 21
Posted:
Ok, - again, thanks. *Sigh*
There's times when we feel like we've found definitively which codes/laws apply, then something else comes up and makes us question it.
There's times when we feel like we've found definitively which codes/laws apply, then something else comes up and makes us question it.
PetunkaM (Florida)
Posts: 1,009
Posts: 1,009
Posted:
Mary, it depends on the wording. Here is a hypothetical:
Texas law may state: ' An association in a community of fewer than 50 parcels, regardless of the association’s annual revenues, may prepare a report of cash receipts and expenditures in lieu of financial statements … unless the governing documents provide otherwise.'
IF your By-laws are silent on this issue the statute prevails and the association is not required to prepare financial statement. BUT, if your By-laws require a financial statement, your By-laws prevail. If you like, please cite a provision you are not clear about.
Texas law may state: ' An association in a community of fewer than 50 parcels, regardless of the association’s annual revenues, may prepare a report of cash receipts and expenditures in lieu of financial statements … unless the governing documents provide otherwise.'
IF your By-laws are silent on this issue the statute prevails and the association is not required to prepare financial statement. BUT, if your By-laws require a financial statement, your By-laws prevail. If you like, please cite a provision you are not clear about.
MaryP13 (Texas)
Posts: 21
Posts: 21
Posted:
Petunka, I wish I could! There is soooooo much involved with this HOA and so many codes and laws we've read through, my mind is mush at this point.
I appreciate you trying to help. I'm going to try to clear my mind and then possibly be able to post a good example of what I'm talking about!
I appreciate you trying to help. I'm going to try to clear my mind and then possibly be able to post a good example of what I'm talking about!
PetunkaM (Florida)
Posts: 1,009
Posts: 1,009
Posted:
Mary,
it takes some time to plow thru all this.
And, if you like to read more, here is a book ‘Texas Homeowners Association law’.. perhaps your library could have a copy?
http://texashoabook.com/
INTRODUCTION
CHAPTER 1: MASTER-PLANNED COMMUNITIES AND CONDOMINIUMS
1.1 The Association-Governed Community Concept
1.2 Common-Interest Developments in Texas
1.3 Homeowners Associations in Texas
1.4 Statutory Laws and Governing Documents that Apply to Texas Homeowners Associations and the Hierarchy of such Authorities
1.4.1 Hierarchy of Public Law Applicable to Texas Homeowners Associations
1.4.2 Hierarchy of Governing Documents Applicable to Texas Homeowners Associations
1.4.3 Exceptions to the General Rules of Hierarchical Authority and other Rules Concerning the Application of Public Law and Governing Documents to Homeowners Associations
1.5 Synonymous Terms of Art Applicable to Texas Homeowners Association and Use of Terms of Art in this Book
1.5.1 Terms of Art Utilized in this Book in Reference to Homeowners Associations
1.5.2 Terms of Art Utilized in this Book in Reference to Property Owners
1.5.3 Terms of Art Utilized in this Book in Reference to Corporate Governing Documents
(The second part addresses condominiums)
PS: Not sure if this is of any help either, but it lists a couple of new provisions
http://www.txhoalaws.com/blog/
it takes some time to plow thru all this.
And, if you like to read more, here is a book ‘Texas Homeowners Association law’.. perhaps your library could have a copy?
http://texashoabook.com/
INTRODUCTION
CHAPTER 1: MASTER-PLANNED COMMUNITIES AND CONDOMINIUMS
1.1 The Association-Governed Community Concept
1.2 Common-Interest Developments in Texas
1.3 Homeowners Associations in Texas
1.4 Statutory Laws and Governing Documents that Apply to Texas Homeowners Associations and the Hierarchy of such Authorities
1.4.1 Hierarchy of Public Law Applicable to Texas Homeowners Associations
1.4.2 Hierarchy of Governing Documents Applicable to Texas Homeowners Associations
1.4.3 Exceptions to the General Rules of Hierarchical Authority and other Rules Concerning the Application of Public Law and Governing Documents to Homeowners Associations
1.5 Synonymous Terms of Art Applicable to Texas Homeowners Association and Use of Terms of Art in this Book
1.5.1 Terms of Art Utilized in this Book in Reference to Homeowners Associations
1.5.2 Terms of Art Utilized in this Book in Reference to Property Owners
1.5.3 Terms of Art Utilized in this Book in Reference to Corporate Governing Documents
(The second part addresses condominiums)
PS: Not sure if this is of any help either, but it lists a couple of new provisions
http://www.txhoalaws.com/blog/
MaryP13 (Texas)
Posts: 21
Posts: 21
Posted:
Thank you Petunka! I will try to find that book and maybe it will shed some light. Over the past hour or so I had a lawyer tell me that Texas Property Code trumps their bylaws -- that they have to conform to the law.
But I know I still need more information. This is such a total mess of a board who knows nothing of laws and what they're doing. They twist and conform things to suit them at the time. *Ugh*
But I know I still need more information. This is such a total mess of a board who knows nothing of laws and what they're doing. They twist and conform things to suit them at the time. *Ugh*
JohnB26 (South Carolina)
Posts: 1,569
Posts: 1,569
Posted:
welcome to a democracy
to paraphrase Thomas Jefferson:
"Gentlemen, I give you the Republic ... I pray that you may keep her!"
a democracy was the founding fathers worst nightmare, hence the formation of:
The Republic of the United States of America
to paraphrase Thomas Jefferson:
"Gentlemen, I give you the Republic ... I pray that you may keep her!"
a democracy was the founding fathers worst nightmare, hence the formation of:
The Republic of the United States of America
MaryP13 (Texas)
Posts: 21
Posts: 21
Posted:
Yes, John, I hear ya!!!
TimB4 (Tennessee)
Posts: 21,059
Posts: 21,059
Posted:
Mary,
As others have pointed out it most laws work with each other, that is to say each law giving more specifics about the issue.
As an example (and it' not great): State law might allow for the towing of cars. County Code might specify what type of signage is required. City Ordnance might specify owners of private property can have cars towed. HOA Covenants might identify that commercial vehicles will be towed if parked in the common area (private property). As long as everyone is complying with the higher governing body and there is no conflicting language - then there are no problems.
When there is a conflict between the laws/governing documents, you need to read the language of the laws/documents to determine which one controls. This is because many State laws will defer to the governing documents by having language like:
Unless the [document] provides for a [greater/lesser] amount
If the [document] is silent then xyz
A thread was started awhile ago that discussed how to read statutes that might be helpful:
http://www.hoatalk.com/Forum/tabid/55/view/topic/postid/103015/Default.aspx
Typically, the order of Precedence is:
Federal Law
Federal Regulations
State Law
County Code
City Ordnances
Declaration of Covenants Conditions and Restrictions (CC&Rs)
Articles of Incorporation
Bylaws
Resolutions adopted by the Board
Hope this helps,
Tim
As others have pointed out it most laws work with each other, that is to say each law giving more specifics about the issue.
As an example (and it' not great): State law might allow for the towing of cars. County Code might specify what type of signage is required. City Ordnance might specify owners of private property can have cars towed. HOA Covenants might identify that commercial vehicles will be towed if parked in the common area (private property). As long as everyone is complying with the higher governing body and there is no conflicting language - then there are no problems.
When there is a conflict between the laws/governing documents, you need to read the language of the laws/documents to determine which one controls. This is because many State laws will defer to the governing documents by having language like:
Unless the [document] provides for a [greater/lesser] amount
If the [document] is silent then xyz
A thread was started awhile ago that discussed how to read statutes that might be helpful:
http://www.hoatalk.com/Forum/tabid/55/view/topic/postid/103015/Default.aspx
Typically, the order of Precedence is:
Federal Law
Federal Regulations
State Law
County Code
City Ordnances
Declaration of Covenants Conditions and Restrictions (CC&Rs)
Articles of Incorporation
Bylaws
Resolutions adopted by the Board
Hope this helps,
Tim
MaryP13 (Texas)
Posts: 21
Posts: 21
Posted:
Thanks Tim. I have a fresher mind today, so it helps a lot. I will read through the thread you referenced.
🎯 You've read this entire discussion
Join the conversation with 50,000 HOA & Condo Leaders:
- ✓ Ask follow-up questions
- ✓ Share your experience
- ✓ Get expert advice
- ✓ Access 350,000 discussions
Create Free Account →
⚡ Takes 30 seconds
Already a member? Log in here