Looking for advice on building in Hoa

Started by KrisK2 • 31 replies • 597 views

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KrisK2 (Texas)
Posts: 10

Posted:

Hopefully yall can offer me some insight on what I should do if anything. My wife and I recently purchased an acre and a half in a ne community here in texas. 20 lot community with about 7-8 current houses in the process of being built or already built.The Hoa is a no time frame to build and only approved home builders allowed.
So currently 3 home builders are approved. "A" is owned an operated by the Hoa founder or director rather.He also owns all the land. "B" is his best friend company. "C" is a reputable home builder in this area.
A has 5 houses in the neighborhood,B has 2 and C is currently building their first. So that's the back story.
My wife and I closed on the property on the 13th on Feb. We were excited to start looking at these custom homebuilders and get something goin. Then we recieved an email from A saying he cant wait to help us get started. Well we decided to go with C so we let him know. We got a reply back saying C will no longer be an approved builder in the neighborhood and that they will no longer be accepting new home builders to be approved.
This threw us for a loop. Considering before we closed everything was fine. Then 2 days after we close our perferd builder is no longer approved to build.
Their first reply was because they claimed sub-standard construction. Then they changed their tune and said that they are not a "true " custom home which they are. Can I get some input from y'all. Considering most have and currently deal with Hoa now. I can provide more details if needed.. Thanks alot

AugustinD
Posts: 5,144

Posted:

I think you would have to hire an attorney for this one. With an attorney, this might be winnable. Then again, hiring an attorney will likely earn the wrath of the developer. If you can afford a few thousand dollars for an attorney consult, then go for it. The attorney will likely want to review the governing documents, and this is generally not cheap.

MarkM31 (Washington)
Posts: 494

Posted:

Have you reviewed the documents to see if the CC&Rs grant the HOA authority over property owners choice of contractors?

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By KrisK2 on 02/21/2020 9:27 AM
So currently 3 home builders are approved.

Currently meaning what? When you closed on your lot? Did they provide you with anything in writing about that? That's going to be crucial, I think.

KrisK2 (Texas)
Posts: 10

Posted:

Sorry yes. They were all 3 approved at the time of closing. I have not seen any paper stating who was approved or not approved

KrisK2 (Texas)
Posts: 10

Posted:

The CCR only says the selected builder must be approved by the HOA.

MarkM31 (Washington)
Posts: 494

Posted:

Have you read your CC&Rs?

MarkM31 (Washington)
Posts: 494

Posted:

Find out what the criteria for approval is. Who is responsible for approval.

MarkM31 (Washington)
Posts: 494

Posted:

Is the HOA still under declerant control, if there are 13/20 lots unsold sure could indicate that. And how are Contractor A and B conected to the powers that be?

MarkM31 (Washington)
Posts: 494

Posted:

Quote:

Posted By MarkM31 on 02/21/2020 11:47 AM
Is the HOA still under declerant control, if there are 13/20 lots unsold sure could indicate that. And how are Contractor A and B conected to the powers that be?

I missed that A is the declerant and B is his buddy. So your HOA is being ran like a fiefdom as per the CC&Rs.

KrisK2 (Texas)
Posts: 10

Posted:

Yes I have read the CCR a few times. And actually skimming through again, it doesnt say they builder per say needs approved. Just the structure.

KrisK2 (Texas)
Posts: 10

Posted:

Section 1. Architectural Control Committee. As used in this Declaration the term “Architectural Control Committee” shall mean a committee of three (3) Members, all of whom shall be appointed by Declarant, except as otherwise set forth herein. Declarant shall have the continuing right to appoint all three (3) Members until the earlier of (a) the date the last Lot owned by Declarant is sold (except in connection with a conveyance to another party that is a successor to Declarant); or (b) such date as Declarant elects to discontinue such right of appointment by written notice to the Board. Thereafter, the Board shall have the right to appoint all members of the Architectural Control Committee. Members of the Architectural Control Committee may, but need not be, Members of the Association. Members of the Architectural Control Committee appointed by Declarant may be removed at any time and shall serve until resignation or removal by Declarant. Members of the Architectural Control Committee appointed by the Board may be removed at any time by the Board, and shall serve for such term as may be designated by the Board or until resignation or removal by the Board. The Architectural Control Committee shall use its best efforts to promote and ensure a high level of taste, design, quality, harmony, and conformity throughout the community consistent with this Declaration.
Section 2. Successors. In the event of the death, resignation or removal by Declarant of any member of the Architectural Control Committee, Declarant shall have full authority to designate and appoint a successor. No member of the Architectural Control Committee shall be entitled to compensate for, or be liable for claims, causes of action or damages arising out of services performed pursuant to this Declaration.
Section 3. Address of Committee. The address of the Architectural Control Committee shall be at the office of the Declarant.
Section 4. Procedure for Approval. Before commencement of work to accomplish any proposed Improvement to Property, the Owner proposing to make such Improvement to Property (the “Applicant”) shall submit to the Architectural Control Committee at its offices, copies of such descriptions, surveys, plot plans, drainage plans, elevation drawings, construction plans, specifications, and samples of materials and colors as the Architectural Control Committee reasonably shall request, showing the nature, kind, shape, height, width, color, materials, and location of the proposed Improvement to Property, as may be more particularly described from time-to-time in any minimum construction standards and/or architectural guidelines adopted by the Architectural Control Committee (the “Architectural Guidelines”). The Architectural Control Committee may require submission of additional plans, specification, or other information before approving or disapproving the proposed Improvement to Property. Until receipt by the Architectural Control Committee of all required materials in connection with the proposed Improvement to Property, the Architectural Control Committee may postpone review of any materials submitted for approval. The Architectural Control Committee may, at their sole

KrisK2 (Texas)
Posts: 10

Posted:

discretion, retain and/or delegate review of plans and specifications to a designated AIA architect experienced and qualified to review same, who may then render an opinion to the Architectural Control Committee or Board of Directors.
Section 5. Criteria for Approval. The Architectural Control Committee shall approve any proposed Improvement to Property only if it determines in its reasonable discretion that the Improvement to Property in the location indicated will not be detrimental to the appearance of the surrounding areas of the Properties as a whole; that the appearance of the proposed Improvement to Property will be in harmony with the surrounding areas of the Properties, including, without limitation, quality and color of materials and location with respect to topography and finished grade elevation; that the Improvement to Property will comply with the provisions of this Declaration and any applicable plat, ordinance, governmental rule, or regulation; that the Improvements to Property will not detract from the beauty, wholesomeness, and attractiveness of the Improvement to Property will not become a burden on the Association. The Architectural Control Committee is specifically granted the authority to disapprove proposed Improvements because of the unique characteristics or configuration of the Lot on which the proposed Improvement would otherwise be constructed, even though the same or a similar type of Improvement might or would be approved for proposed Improvement to Property upon the making of such changes thereto as the Architectural Control Committee may deem appropriate. The Architectural Control Committee shall have sole discretion with respect to taste, design, and all standards specified herein. The Architectural Control Committee shall also have the authority to generally require that any plans meet the standards of the existing improvements on neighboring Lots.
Section 6. Architectural Guidelines. The Architectural Control Committee from time to time may supplement or amend the Architectural Guidelines. The Architectural Guidelines serve as a guideline only and the Architectural Control Committee may impose other requirements in connection with its review of any proposed Improvements. If the Architectural Guidelines impose requirements that are more stringent than the provisions of this Declaration, the provisions of the Architectural Guidelines shall control.
Section 7. Decision of Committee. The decision of the Architectural Control Committee requires a majority vote by the members and shall be made within twenty (20) days after receipt of all materials required by the Architectural Control Committee. The decision shall be in writing and, if the decision is not to approve a proposed Improvement to Property, the reasons therefor shall be stated. The decision of the Architectural Control Committee promptly shall be transmitted to the Applicant at the address furnished by the Applicant to the Architectural Control Committee. The Owner, however, is responsible under all circumstances to conform to the provisions of these restrictions in their entirety. The Architectural Control Committee and shall be the final authority.
Section 8. Failure of Committee to Act on Plans. Any request for approval of a proposed Improvement to Property shall be deemed approved by the Architectural Control Committee, unless disapproval or a request for additional information or materials is transmitted to the Applicant by the Architectural Control Committee within twenty (20) days after the date of receipt by the Architectural Control Committee of all required materials; provided, however, that no such deemed approval shall operate to permit any Owner to construct or maintain any Improvement to Property that violates any provision of this Declaration or the Architectural Guidelines. The Architectural Control Committee shall at all times retain the right to object to any Improvement to Property that violates any provision of this Declaration or the Architectural Guidelines.

MarkM31 (Washington)
Posts: 494

Posted:

It doesn’t seem like the board (Contractor A) has the authority to disqualify other contactless from working.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Sell the lot, run away. You really want to deal with this for decades? LOL. Its only going to get worse.

KrisK2 (Texas)
Posts: 10

Posted:

Quote:

Posted By SteveM9 on 02/21/2020 4:41 PM
Sell the lot, run away. You really want to deal with this for decades? LOL. Its only going to get worse.

Oh if it's not corrected peacefully then I will hold on to the property and keep it un finished.. I'm sure that's the last thing they want in their fancy neighborhood

MarkM31 (Washington)
Posts: 494

Posted:

Quote:

Posted By SteveM9 on 02/21/2020 4:41 PM
Sell the lot, run away. You really want to deal with this for decades? LOL. Its only going to get worse.

The whole problem seems to be because it’s declarant ran. Once he’s gone it’s a whole new ballgame.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Yeah, that will teach them. Pay taxes on the lot and sit on it. They will finish the rest of the development and never been seen again and they will remember that one guy who didn't develop his lot. Hehe. No.

PS. As a developer, they can easily create a rule for empty lots to pay a full assessments and a penalty. They are in charge.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

All our lots pay assessments - no break for empty lots. Same as the last two neighborhoods I was in.

KrisK2 (Texas)
Posts: 10

Posted:

Quote:

Posted By SteveM9 on 02/21/2020 6:10 PM
Yeah, that will teach them. Pay taxes on the lot and sit on it. They will finish the rest of the development and never been seen again and they will remember that one guy who didn't develop his lot. Hehe. No.

PS. As a developer, they can easily create a rule for empty lots to pay a full assessments and a penalty. They are in charge.

Actually the declarent owns a lot in the sub division and will be building his own home there. Hes not a developer. Simply a guy that bought some acreage and decided to sub divide it. My lot is actually 2 down from him.

MarkM31 (Washington)
Posts: 494

Posted:

Quote:

Posted By KrisK2 on 02/21/2020 7:22 PM

But you said that contractor A is the HOA founder

KrisK2 (Texas)
Posts: 10

Posted:

Quote:

Posted By MarkM31 on 02/21/2020 7:52 PM

Posted By KrisK2 on 02/21/2020 7:22 PM

But you said that contractor A is the HOA founder

Contractor A is the land owner,home builder,founder of HOA and will be building a house in the neighborhood

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

Contractor A is the land owner,home builder,founder of HOA and will be building a house in the neighborhood

So your stuck with this guy forever...... even worse. Likely he will be president when the hoa is turned over and rule with an iron fist..... forever.

Gotta wonder why you want to put yourself through this.

MarkM31 (Washington)
Posts: 494

Posted:

Quote:

Posted By SteveM9 on 02/22/2020 6:55 AM

Contractor A is the land owner,home builder,founder of HOA and will be building a house in the neighborhood

He can only rule by iron fist if he is allowed by the other homeowners

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Maybe it is a nice neighborhood in a beautiful area!

And, since the developer lives there, many maintenance issues could be dealt with less expensively.

But, the Board has to be STRAIGHT!

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Kris

As the builder/declarant/developer, etc is still in control, you are at his mercy. Time to fish or cut bait.

KrisK2 (Texas)
Posts: 10

Posted:

I really appreciate all your opinions and suggestions. This is my first time dealing with this so need outside help. The area is beautiful with awesome rolling hill views. What drew us to the property was the views and the diversity of home builder, as well as the school district is one of the best in the area. One has been taken away.
We literally just closed on the property a few weeks ago. I think we will take some time to decide what we are going to do. We will most likely sell the property though. Dont want to deal with this guy for however long we decide to live there. Thanks again for everything.

BenA2 (Texas)
Posts: 1,273

Posted:

Our attorney told us that any attempt to restrict any builder from building in our subdivision would violate Texas's anti-trust law because it restrained trade or commerce. This was in reference to a builder who consistently ignored our CC&Rs. We don't have anything in our CC&Rs giving authority to approve builders but it seems to me your CC&Rs would violate the same law. I recommend speaking to an attorney.

MarkM31 (Washington)
Posts: 494

Posted:

Quote:

Posted By BenA2 on 02/22/2020 9:19 PM
Our attorney told us that any attempt to restrict any builder from building in our subdivision would violate Texas's anti-trust law because it restrained trade or commerce. This was in reference to a builder who consistently ignored our CC&Rs. We don't have anything in our CC&Rs giving authority to approve builders but it seems to me your CC&Rs would violate the same law. I recommend speaking to an attorney.

I think their CC&R's are in fact silent on the authority to approve contractors. It is the declerant who is trying to impose this via fiat, and regardless of the fact that he is the declerant, I believe the CC&R'smust still be followed

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By MarkM31 on 02/22/2020 9:26 PM

If the CC&Rs are silent then you can use whatever builder you want. I would tell them to pack sand. In Texas, if the CC&Rs are ambiguous, the courts must rule "in favor of the free use of land." In other words, if the CC&Rs don't state clearly that the builder has to be approved, no one can implement that rule.

That being said, it's worth consulting an attorney first.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

That being said, it's worth consulting an attorney first.

I've done the lawyer route many times. Sure, even if your right, it could go on for months..... years.....

I've even won a supreme court case against a town. Was it worth it, and would I do it again? Hell no. If I knew how long it would take and the toll it takes on you, I would have not bought the property or sold it immediately.

Even if you win, you never really win. Your thinking about it for months..... years...... Simply isn't worth the time, money, aggravation. I avoid it at all costs now. The only people who really win are the lawyers.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Kris,

Sounds like the Association is still under control of the builder.
Therefore, I doubt if a lot will change until control is transferred.

If time is an issue, find a new place to build with the builder you like, then sell this property.

If time is not an issue, wait until control is transferred to the owners (might take years).

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