Board Candidate behindon dues (COA, Texas)

JenniferG11 (Texas)
Posts: 667

Posted:

We have a candidate for the board that is behind on dues. I read in another thread that for HOA's, it doesn't matter per Texas law.

Is that the same for COAs? If so, can anyone help me find the statute?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

It should be in your documents on what is considered "Good standing" and if someone has to be in order to be on the board. Here is what I go with if it's not... Basically the person can not vote for themselves. Doesn't mean others can't vote for them. It's just who votes for someone behind in dues?

Now there are those candidates who are not paying their dues out of "protest". The cause/reason/excuse can vary. They may choose to run to "change" things. Those people can be the village idiot or someone who really has a cause. The choice to vote for them is yours and your neighbors.

Former HOA President

KerryL1 (California)
Posts: 14,550

Posted:

As Melissa asks, what do your documents, probably your bylaws say about qualifications, if any, to be on the board?

How do you know they're behind on their dues? How long? Are you on the Board?

JenniferG11 (Texas)
Posts: 667

Posted:

He tells people he is behind on dues. IDK why. Anyway, yes our docs do state he can't vote, much less run, but TX law seems to 'void' that.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Have you liened his property?

KerryL1 (California)
Posts: 14,550

Posted:

Please give us the exact wording in your docs. Is it your bylaws?

We have a least one very knowledgeable TX poster who might tell us what TX law says. I don't see how or why TX law would say something like: "no matter what a member does, he or she may still serve on the board" of COAs or non-profits or whatevers.

BenA2 (Texas)
Posts: 1,273

Posted:

In Texas, for HOAs that are not condos, the only requirement to serve on the board is that you be an owner and not be convicted of a felony or crime of moral turpitude. Any provision in the governing documents that contradict that is void according to Chapter 209 of the state code, which does not apply to condos.

There is no such rule for condos that I know of, at least not under the two condominium acts (chapters 81 & 82 of the state code).

If your governing document state that someone has to be in good standing to serve on the board then he probably can't. However, you stated that he can't vote according to your documents. Voting is not the same as running or serving on the board.

JenniferG11 (Texas)
Posts: 667

Posted:

The by-laws state a member must be in good standing to be elected to the board. However, I am seeking whether TX law trumps that. It does for voting.

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By JenniferG11 on 06/03/2018 1:07 PM
The by-laws state a member must be in good standing to be elected to the board. However, I am seeking whether TX law trumps that. It does for voting.

As I said earlier, I don't know of any applicable law that would trump your bylaws but before taking them off the ballot, I would check with a local HOA attorney.

You might try contacting the candidate and asking him/her to withdraw based on the bylaws, if that hasn't been tried.

JenniferG11 (Texas)
Posts: 667

Posted:

OK, well in another thread here (how I found the forum) the section of Texas Property code that was amended to say that any prohibition on voting due to delinquency are void. When I googled that, it seemed to say the same is true of being on the board. I know it does for HOA, but I am unsure of COA. I accidentally closed out the tabs to that, and can't find it again! :-(

Going off our by-laws, I did say to the Presidnet that imo, under Article IV, section 1, this candidate needs to pay up or be removed from the ballot. Same for anyone else, to me that seems basic.

I am not going to suggest that to the candidate! He wants to erase people's past dues. Give them a 'fresh start'. He apparently knows nothing of our by-laws, because they do not permit that. He certainly doesn't want to remove himself.

Researching this is frustrating, because quite often legislative updates and other things apply to HOA and/or POA, but COAs are often not addressed either way.

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By JenniferG11 on 06/03/2018 2:50 PM
OK, well in another thread here (how I found the forum) the section of Texas Property code that was amended to say that any prohibition on voting due to delinquency are void. When I googled that, it seemed to say the same is true of being on the board. I know it does for HOA, but I am unsure of COA. I accidentally closed out the tabs to that, and can't find it again! :-(

Going off our by-laws, I did say to the Presidnet that imo, under Article IV, section 1, this candidate needs to pay up or be removed from the ballot. Same for anyone else, to me that seems basic.

I am not going to suggest that to the candidate! He wants to erase people's past dues. Give them a 'fresh start'. He apparently knows nothing of our by-laws, because they do not permit that. He certainly doesn't want to remove himself.

Researching this is frustrating, because quite often legislative updates and other things apply to HOA and/or POA, but COAs are often not addressed either way.

It is confusing for condos. One problem is that you have to know if you fall under Chapter 81 or 82 of the state code. If your declaration was filed in 1994 or later, it's simple, you fall under Chapter 82 and you can ignore 81.

If your declaration was filed before 1994, it's complicated. You fall under Chapter 81, UNLESS you meet the special circumstances under Chapter 82. If you fall under Chapter 81 then there are still several sections under Chapter 82 that apply to all condos. This is all under the "applicability" section of both chapters.

One of the sections under Chapter 82 that applies to all condos is 82.102(17) which states the HOA can "suspend the voting privileges of or the use of certain general common elements by an owner delinquent for more than 30 days in the payment of assessments" unless your documents say otherwise. The opposite is true for non-condo HOAs.

I don't know of anything that addresses serving on the board in the condo statutes so you should be good following your bylaws.

https://statutes.capitol.texas.gov/SOTWDocs/PR/htm/PR.82.htm
https://statutes.capitol.texas.gov/SOTWDocs/PR/htm/PR.81.htm

JenniferG11 (Texas)
Posts: 667

Posted:

Quote:

Posted By BenA2 on 06/03/2018 3:32 PM

Posted By JenniferG11 on 06/03/2018 2:50 PM
OK, well in another thread here (how I found the forum) the section of Texas Property code that was amended to say that any prohibition on voting due to delinquency are void. When I googled that, it seemed to say the same is true of being on the board. I know it does for HOA, but I am unsure of COA. I accidentally closed out the tabs to that, and can't find it again! :-(

Going off our by-laws, I did say to the Presidnet that imo, under Article IV, section 1, this candidate needs to pay up or be removed from the ballot. Same for anyone else, to me that seems basic.

I am not going to suggest that to the candidate! He wants to erase people's past dues. Give them a 'fresh start'. He apparently knows nothing of our by-laws, because they do not permit that. He certainly doesn't want to remove himself.

Researching this is frustrating, because quite often legislative updates and other things apply to HOA and/or POA, but COAs are often not addressed either way.

It is confusing for condos. One problem is that you have to know if you fall under Chapter 81 or 82 of the state code. If your declaration was filed in 1994 or later, it's simple, you fall under Chapter 82 and you can ignore 81.

If your declaration was filed before 1994, it's complicated. You fall under Chapter 81, UNLESS you meet the special circumstances under Chapter 82. If you fall under Chapter 81 then there are still several sections under Chapter 82 that apply to all condos. This is all under the "applicability" section of both chapters.

One of the sections under Chapter 82 that applies to all condos is 82.102(17) which states the HOA can "suspend the voting privileges of or the use of certain general common elements by an owner delinquent for more than 30 days in the payment of assessments" unless your documents say otherwise. The opposite is true for non-condo HOAs.

I don't know of anything that addresses serving on the board in the condo statutes so you should be good following your bylaws.

https://statutes.capitol.texas.gov/SOTWDocs/PR/htm/PR.82.htm
https://statutes.capitol.texas.gov/SOTWDocs/PR/htm/PR.81.htm

OK, I thought that a court case caused this not to be true anymore. I really wish I could find that again. Someone quoted it on this forum.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Why are we even worried about this? Who is going to vote for a person who admits being behind in their dues? Plus is so stupid they want to do a "forgiveness" program? Do you have enough voters on that "forgiveness" roster to cast a vote for this person? I would be more worried about living with a group of people who are dumb enough to vote for such a person...

Former HOA President

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By MelissaP1 on 06/03/2018 8:03 PM
Why are we even worried about this? Who is going to vote for a person who admits being behind in their dues? Plus is so stupid they want to do a "forgiveness" program? Do you have enough voters on that "forgiveness" roster to cast a vote for this person? I would be more worried about living with a group of people who are dumb enough to vote for such a person...

If it is a typical association there may be no challengers. One vote is all you need to get elected. If the docs say you remain on the board until succeeded, and there is no challenger, no votes are needed to remain on the board.

Also, we don't know why he is behind. It could be a dispute over how much he owes and he could be in the right.

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By JenniferG11 on 06/03/2018 7:50 PM

OK, I thought that a court case caused this not to be true anymore. I really wish I could find that again. Someone quoted it on this forum.

That is possible. That is why it is always better to check with a local HOA attorney before taking action. Any competent attorney will get court updates when they happen (especially for their jurisdiction).

MelissaP1 (Alabama)
Posts: 13,836

Posted:

No matter how "right" you are you still need to pay your dues. You lose your right to vote or be voted in... (The irony). Sometimes it may be a case of "Be careful what you wish for". I've seen plenty of hot headed full steam ahead candidates take office. Once they get there, the brakes go full on. Why? They find out exactly how difficult it really is and their real responsibility.

My former HOA new board was manipulated by the former con man ex-president. They wanted my head. (Always a bigger fish). I had basically straightened out the HOA and kicked him out of any financial gains. First thing they did? Tell lies about me and spend our entire budget. Told everyone we had the money... Guess what? The next month they had no money. Why? Because you collect the money to pay next month's bills the month before. They had basically spent ALL the money that was to be used to pay or bills on their special projects before getting any money in or bills out.

So guess who started getting phone calls to help them? It did not take long for that new board to learn a few things about budgets...

Former HOA President

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By MelissaP1 on 06/04/2018 5:15 AM
No matter how "right" you are you still need to pay your dues. You lose your right to vote or be voted in... (The irony).

I agree that you should absolutely pay your assessments, IF you owe them. We don't know the situation.

JenniferG11 (Texas)
Posts: 667

Posted:

Ha. Well, I don't know how many people know.

JenniferG11 (Texas)
Posts: 667

Posted:

Quote:

Posted By BenA2 on 06/04/2018 4:24 AM

Posted By MelissaP1 on 06/03/2018 8:03 PM
Why are we even worried about this? Who is going to vote for a person who admits being behind in their dues? Plus is so stupid they want to do a "forgiveness" program? Do you have enough voters on that "forgiveness" roster to cast a vote for this person? I would be more worried about living with a group of people who are dumb enough to vote for such a person...

If it is a typical association there may be no challengers. One vote is all you need to get elected. If the docs say you remain on the board until succeeded, and there is no challenger, no votes are needed to remain on the board.

Also, we don't know why he is behind. It could be a dispute over how much he owes and he could be in the right.

It's not a dispute. He's just behind due to financial issues. He is behind on property taxes too. I don't see how that could be a dispute. Until he changed it a month ago, this was his mother's place of residence. She had a life estate and either the over 65 exemption or disabled homestead exeption so her taxes were 200 or 300 a year. He put it fully in his name for the specific purpose of running for the board.

RichardP13 (California)
Posts: 3,868

Posted:

We have an issue in California regards members being allowed to run or be on a Board if behind on payments of their assessments. I have attached two links, one for a newsletter that the owner of the davis-stirling website penned and the account text of the proposed bill.

https://www.davis-stirling.com/Newsletters/2018-Newsletters/SB-1265-Train-Wreck

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB1265

Their opinion is different from what the bill states. There is case law that a Board may put in their operating rules (election rules) director qualifications that are fair and reasonable. The amended bill, if passed, states that it now must be in their Bylaws. So, contrary to what the attorney states, as long as it is in the Bylaws and the association followed due process in determining that debt (good luck) you can disqualify a member from running and a director from serving.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Has the HOA liened his property?

JenniferG11 (Texas)
Posts: 667

Posted:

Quote:

Posted By GeorgeS21 on 06/04/2018 1:05 PM
Has the HOA liened his property?

No.

JaredC (Texas)
Posts: 264

Posted:

Check out Texas Property Code 209.0055 specifically (b)(2)

JaredC (Texas)
Posts: 264

Posted:

BTW, our covenants say the same thing but they're trumped by state law... 209.0055.

NigelB (Texas)
Posts: 254

Posted:

Quote:

Posted By JenniferG11 on 06/02/2018 3:31 PM
We have a candidate for the board that is behind on dues. I read in another thread that for HOA's, it doesn't matter per Texas law.

Is that the same for COAs? If so, can anyone help me find the statute?

That only seems to apply to HOA that are not governed by section 209 of the Texas Residential Property Owners Protection Act (Section 81.002 or 82.003)

(Sec. 209.0059. RIGHT TO VOTE. (a) A provision in a dedicatory instrument that would disqualify a property owner from voting in a property owners' association election of board members or on any matter concerning the rights or responsibilities of the owner is void.)

(Sec. 209.00591. BOARD MEMBERSHIP. (a) Except as provided by this section, a provision in a dedicatory instrument that restricts a property owner's right to run for a position on the board of the property owners' association is void.)

If you look at sections 81 and 82 they do not appear to leave eligibility to serve on the board to the governing documents of the Condo association and do not have the same prohibitions as those contained in section 209

JaredC (Texas)
Posts: 264

Posted:

Do you know which chapter you condo's fall under i.e. Chapter 81 or 82?

JenniferG11 (Texas)
Posts: 667

Posted:

Quote:

Posted By JaredC on 06/06/2018 12:31 PM
Do you know which chapter you condo's fall under i.e. Chapter 81 or 82?

81, but some sections of 82 apply to all.

JaredC (Texas)
Posts: 264

Posted:

Krikey. What a mess. My opinion:

82.002(c) tell us which sections apply to Chapter 81 therefore if voting rights are denied in your governing documents and not specifically allowed via state law Chapter 81 or the related sections of Chapter 82 then your governing documents win.

Make Sense?

JenniferG11 (Texas)
Posts: 667

Posted:

Quote:

Posted By JaredC on 06/06/2018 12:58 PM
Krikey. What a mess. My opinion:

82.002(c) tell us which sections apply to Chapter 81 therefore if voting rights are denied in your governing documents and not specifically allowed via state law Chapter 81 or the related sections of Chapter 82 then your governing documents win.

Make Sense?

Absolutely it does. Someone kept telling me there was a court case that we should go by, which was debunked, but now it's being cited again for voting. I feel 99% what you said here applies to voting when not in good standing as well, but I want to be sure.

I don't personally care if people who are delinquent vote, and were I writing the by-laws or amending them I would not have that in there, but for the upcoming election, I want us to follow the by-laws that exist now, if nothing voids that provision.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JenniferG11 on 06/16/2018 7:19 PM

Posted By JaredC on 06/06/2018 12:58 PM
Krikey. What a mess. My opinion:

82.002(c) tell us which sections apply to Chapter 81 therefore if voting rights are denied in your governing documents and not specifically allowed via state law Chapter 81 or the related sections of Chapter 82 then your governing documents win.

Make Sense?

Absolutely it does. Someone kept telling me there was a court case that we should go by, which was debunked, but now it's being cited again for voting. I feel 99% what you said here applies to voting when not in good standing as well, but I want to be sure.

I don't personally care if people who are delinquent vote, and were I writing the by-laws or amending them I would not have that in there, but for the upcoming election, I want us to follow the by-laws that exist now, if nothing voids that provision.

It is not your Bylaws that you need to be overly concerned with in regards to your Annual Meeting and the Membership Elections. It is the CCR’s and your State Statutes. The Bylaws only govern the HOA Non-Profit Corporation (essentially the non-profit business) and will dictate the “governing” of that Non-Profit Corporate Board after they are elected. The CCR’s on the other hand is the document which is filed with your local County Records and ATTACHED to everyone’s Property Titles. This is the reason that most CCR’s will have sections governing the Annual Meetings and Elections of the Board along with your State Statutes. Hope that makes sense ...

JenniferG11 (Texas)
Posts: 667

Posted:

Quote:

Posted By JanetB2 on 06/16/2018 8:10 PM

Posted By JenniferG11 on 06/16/2018 7:19 PM

Posted By JaredC on 06/06/2018 12:58 PM
Krikey. What a mess. My opinion:

82.002(c) tell us which sections apply to Chapter 81 therefore if voting rights are denied in your governing documents and not specifically allowed via state law Chapter 81 or the related sections of Chapter 82 then your governing documents win.

Make Sense?

Absolutely it does. Someone kept telling me there was a court case that we should go by, which was debunked, but now it's being cited again for voting. I feel 99% what you said here applies to voting when not in good standing as well, but I want to be sure.

I don't personally care if people who are delinquent vote, and were I writing the by-laws or amending them I would not have that in there, but for the upcoming election, I want us to follow the by-laws that exist now, if nothing voids that provision.

It is not your Bylaws that you need to be overly concerned with in regards to your Annual Meeting and the Membership Elections. It is the CCR’s and your State Statutes. The Bylaws only govern the HOA Non-Profit Corporation (essentially the non-profit business) and will dictate the “governing” of that Non-Profit Corporate Board after they are elected. The CCR’s on the other hand is the document which is filed with your local County Records and ATTACHED to everyone’s Property Titles. This is the reason that most CCR’s will have sections governing the Annual Meetings and Elections of the Board along with your State Statutes. Hope that makes sense ...

This is a condo association, not an HOA, and it's in our by-laws that state members who are not in good standing may not vote or be elected to the board.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By JanetB2 on 06/16/2018 8:10 PM
It is not your Bylaws that you need to be overly concerned with in regards to your Annual Meeting and the Membership Elections. It is the CCR’s and your State Statutes. The Bylaws only govern the HOA Non-Profit Corporation (essentially the non-profit business) and will dictate the “governing” of that Non-Profit Corporate Board after they are elected. The CCR’s on the other hand is the document which is filed with your local County Records and ATTACHED to everyone’s Property Titles. This is the reason that most CCR’s will have sections governing the Annual Meetings and Elections of the Board along with your State Statutes. Hope that makes sense ...

In Florida, at least, the condo law says any deviations from the the statutory "standard" election procedures must be in the Bylaws. Most HOA declarations I've seen include election procedures in the Bylaws. I always thought the Bylaws were the "right" place for election procedures. On the other hand, the HOA statute says they must be in "the governing documents" so that leaves it up to each association.