Quote:
Posted By BenA2 on 07/03/2018 11:15 AM
Posted By JanetB2 on 07/03/2018 9:22 AM
Posted By BenA2 on 07/01/2018 8:12 PM
Posted By JanetB2 on 07/01/2018 7:28 PM
Richard is correct ... If you own two Lots and are subject to the assessments for each Lot you have TWO votes.
That makes sense but, if it is not based in law, it's only an opinion and you have to refer to the governing documents. If they are ambiguous, it is best to get the advice of an attorney.
There is nothing ambiguous in the OP’s statement:
... “each lot owner in good standing shall be entitled to cast one vote per lot owned or one vote per homesite as the case may be.”
Per what the OP noted in the documents it is one vote per lot
OR per house on a lot (a.k.a. homesite). Also, the lots will be as noted on any Final Plat filed with the County Records. Potentially the only way the OP would have one vote is if two lots had been purchased and the Plat revised to note that now only one lot exists instead of the previous two lots. The same would be true if for example the opposite occurred such as my subdivision where acreage was divided into more than one lot.
The State Law also notes:
Sec. 209.0056. NOTICE OF ELECTION OR ASSOCIATION VOTE. (a) For an
election or vote taken at a meeting of the owners, not later than the 10th day or earlier than the 60th day before the date of the election or vote, a property owners' association shall give written notice of the election or vote to:
(1)
each owner of property in the property owners' association, for purposes of an association-wide election or vote; or
(2)
each owner of property in the property owners' association entitled under the dedicatory instruments to vote in a particular representative election, for purposes of a vote that involves election of representatives of the association
who are vested under the dedicatory instruments of the property owners' association with the authority to elect or appoint board members of the property owners' association.
(a-1) For an election or vote of owners not taken at a meeting, the property owners' association shall give notice of the election or vote to all owners entitled to vote on any matter under consideration. The notice shall be given not later than the 20th day before the latest date on which a ballot may be submitted to be counted.
(b)
This section supersedes any contrary requirement in a dedicatory instrument. (c) This section does not apply to a property owners' association that is subject to Chapter 552, Government Code, by application of Section 552.0036, Government Code.
I would contend Ben if your own HOA is not allowing votes for certain items and if you are comprised of Lots vs Condo that those provisions in your governing documents are potentially null and superseded by the State Statute. Assessments in a single family HOA are determined by the lots on the final plat and who has vested interest or essentially owns those lots. You cannot mess with people’s “vested” property rights.
The part that makes me disagree with others' interpretation is that if the intent was to have one vote per lot in all cases, the second part of the sentence referring to homesites would not be necessary. "Each lot owner in good standing shall be entitled to cast one vote per lot owned would be clear by itself. "... as the case may be" implies that the two parts of the sentence refer to different cases which would also imply different voting rights depending on the case. I understand how you and others interpret that differently, hence the ambiguity.
As for my HOA, it allows one vote per owner on everything except deed restriction changes, in which it is one vote per lot. Our CC&Rs are very clear on the matter and we have had two different attorneys in the last few years confirm this. There is nothing in the state code that contradicts our CC&Rs on voting.
If you read 209.0056 carefully, you will see that it only covers notice of elections. It does not grant or discuss voting rights, other than requiring notification of all owners "entitled to vote."
Generally the second part of the sentence potentially would not be necessary. However, I have seen more documents now reference both because of past instances and lawsuits where an individual who owned just a lot with no home built would state that because they had no home yet with landscaping and other items, made them not subject to HOA fees. Referencing both Lots and Homesites takes care of that BS.
The title of that section states “Notice of Election
OR Association Vote”. Also it starts out stating “(a) For an
Election or
Vote taken at a meeting ...”. Also, it notes (1) each Owner of property in the property owner’s association ...”. Again ... the Final Plat will determine each property and boundaries. Some of your best answers can be found in the various statute definitions such as:
(2) "Residential real estate subdivision" or "subdivision" means:
(A) all land encompassed within one or more maps or plats of land that is divided into two or more parts if the maps or plats cover land within a city, town, or village, or within the extraterritorial jurisdiction of a city, town, or village and are recorded in the deed, map, or real property records of a county, and the land encompassed within the maps or plats is or was burdened by restrictions limiting all or at least a majority of the land area covered by the map or plat, excluding streets and public areas, to residential use only;
(3) "Owner" means an individual, fiduciary, partnership, joint venture, corporation, association, or other entity that owns record title to real property in a subdivision, or the personal representative of an individual who owns record title to subdivision property.
I have had a few attorneys give me incorrect information. However, if I was in your subdivision and owned two Lots along with paying assessments for each Lot and was told I did not have a vote for both my properties ... I would not hesitatate to sue for my rights no matter how many attorneys you had say the HOA was right. Because the Map/Plat and how the assessments are noted to be paid would state otherwise with regards to my “vested” property rights. If I pay assessments for a lot I get to vote who I believe is the best person to manage the HOA, my money, and represent each of my properties.