how to determine if texas hoa is mandatory or voluntary

Our association was started in 1987. At that time deed restrictions were developed and supposedly registered with the county, then articles of incorporation were written as being voluntary and filed with the county in 1987. then the powers to be decided they didn't like the articles and let the payment lapse to sec of state so we became inactive, the powers to be then revised the deeds adding the verbage, assessment of fees for road maintenance, not specifying that is mandatory, however when the articles were written and filed with the county and SOS they state it is voluntary. To make matters worse the bylaws state the hoa is mandatory. Now we have written proof that when the hoa was formed certain residents who own land in the hoa were given grandfather privileges of not being members of the hoa and would not be affected by any of the convenants.

So is this a mandatory or voluntary HOA? They are trying to rewrite our bylaws to get them to be in compliance with Texas HOA Law, and say the Deeds trump any other convenant and want to make the HOA mandatory. The Deeds only state an assessment of fee, it does not say mandatory. And deed restrictions are NOT enforced in this HOA, so why can they enforce some and not all?

Kathy,

You really need to check with an attorney on if it's mandatory or voluntary. The reason is that they will have access to the actual language in the documents, the different versions of the documents (if they are applicable) and what is actually filed with the court house. The fact that you have private roads requires tosses certain laws into play as well.

Typically, the order of precedence is:

Federal Laws
State laws
County Regulations
City Ordinances
Deed Restrictions (your CC&Rs)
Articles of Incorporation
Bylaws
Resolutions

If there is a conflict between two documents, the higher precedence document typically controls. However, it is also possible for a higher documents to defer control (authority) to a lower document.

As for enforcement, I'm not sure if you're referring to not enforcing on those who are grandfathered or only selectively enforcing on those who must comply?

As for grandfathering, this is typically a reasonable thing to do depending on the issue and the circumstances. Without knowing the background or having access to the documents, any advice beyond that would simply be speculation.

As for enforcing the covenants on some and not others (who are not grandfathered) this can cause issues for an Association if the enforcement is challenged through the courts. Please be aware that I am not an attorney and I do not work in the legal profession. From my research, selective enforcement can be considered a valid defense against enforcement. However, it is not a guaranteed defense. The arguments and the courts would be the deciding factor. The court may indeed say that selective enforcement exists but still rule that you are in violation and must comply with the covenants. The court may say selective enforcement exists and the Association must enforce equally or not at all - BTW your in violation and must comply. The court may say selective enforcement exists and the Board can't enforce it on you unless they enforce it on everyone. The Court may say that failure to enforce on all relinquished the right to enforce that covenant. The court may say that there is no selective enforcement.

The best way to keep selective enforcement from happening is to become active with the running of your Association. This way, you can become part of the decision process and make sure that all enforcements are done equally.

Well, to be honest, although an Association (just like any member of the Association) has authority to enforce, there is typically no requirement to enforce (same with the members not being required to enforce, although they have the same authority).

If enforcement is an issue to you, you may want to volunteer to serve on the Board or on an enforcement committee for the Association.