HOA was no authority

Started by ConchoP • 23 replies • 781 views

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ConchoP (Texas)
Posts: 208

Posted:

Our HOA is still under developer control. However the developer dosen't enforce deed restrictions. The board can't impose fines all we can do is write letters informing the homeowner they are in violation.
The deed restrictions only allow for another homeowner to sue the homeowner in violation. Owners won't do it because of court costs and they don't want neighbor discord. So my question is can the board being made up of volunteer "homeowners" take violators to court using HOA fees to pay for it?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Suing your HOA is suing yourself and your neighbors... Why on earth you want to sue a neighbor for a violation? Really?

Former HOA President

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Ha ... While none in my current neighborhood, previously been on boards that sued for chickens, cows, unauthorized construction and materials, etc. Happens all the time.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Double check your bylaws to see if the duties of the board include enforcing restrictions. If not, then it's unlikely the board would be justified in going to court, and you probably won't get around it by claiming that the board is made up of homeowners.

If they use HOA money, then it is the HOA (ie, a corporation) that is suing. If the board wants to claim they are acting as individual homeowners, then they gotta use their own money and make it clear that they are not acting on behalf of the HOA.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

I think the CCRs are likely where the HOA right to sue will be found.

ConchoP (Texas)
Posts: 208

Posted:

As I understand an Hoa is designed to step in and enforce deed-restrictions violations. Our restrictions do not allow us to do that. They say only the developer or another owner can initiate suit against another owner for deed violations.as I stated this creates discord between neighbors. To me the purpose of the HOA is step in and be the "bad guy" the developer is not enforcing anything.

That is why I'm asking can the HOA board step acting as homeowners and initiate suit against violators using HOA funds to pay for the court costs?

ConchoP (Texas)
Posts: 208

Posted:

Thank you Cathy! The bylaws dont address the issue and the restrictions only allow for the developer or homeowner to initiate suit. I think all the board can do is send a letter notifying the homeowner they are in violation. I guess that is better than nothing.

AugustinD
Posts: 5,144

Posted:

Is this is not a condominium, then the Texas Property Owners Protection statute applies. To me, the statute indicates the HOA can file suit against owners to enforce covenants. Though the statute seems to encourage (1) an in-house hearing; and (2) Alternative Dispute Resolution before filing in court.

See https://statutes.capitol.texas.gov/SOTWDocs/PR/htm/PR.209.htm and search it for {enforce}

If this is a condo, please give the year the Declaration was recorded.

(Respectfully, at this point in your HOA adventures, you really could not google for what the statutes say?)

AugustinD
Posts: 5,144

Posted:

Also Texas's corporate statutes may give the HOA the right to file suit.

The problem is that, with the developer still in control, the Board one way or another likely has to cede decision-making on this to the developer.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

So, Concho, you are asking if your HOA can do something that your HOA, by your own admission of your docs, cannot do?

ConchoP (Texas)
Posts: 208

Posted:

I'm trying find a work around. The developer won't do a thing,he won't even meet with us. I've googles everything i can think of and turned to here to get help or advice. Which I have received. Than you

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Your still developer controlled. The HOA IS the Developer still even if it's volunteer members from the community. So until that situation ends, your still controlled/owned by the Developer. Spending HOA money to sue an owner means spending EVERYONE's money on that lawsuit. Which doesn't do the HOA many favors. A person can sell and move away never doing anything the lawsuit was for.

Just have to wait till developer is gone and you all own the HOA to do much. Otherwise, you as an individual owner has to do the suing.

Former HOA President

GeorgeS21 (Florida)
Posts: 3,808

Posted:

So, either pay for the lawsuit, or get other neighbors to band together with you and sue.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Concho

What are the deed restrictions you are concerned about?

SheliaH (Indiana)
Posts: 6,964

Posted:

If the developer is still running things, I wouldn't want to spend HOA fees on this until the homeowners have full control of the community (otherwise the violated might go to the developer and whine, and then the developer changes the rule in their favor).

Homeowners can enforce CCRs against each other, so if there's a violation that's really obnoxious, they can she the other and we'll see who comes out on top.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By MelissaP1 on 03/15/2020 11:41 AM
Suing your HOA is suing yourself and your neighbors... Why on earth you want to sue a neighbor for a violation? Really?

Our POA is in a similar situation. It is the ONLY way to enforce the restrictions if someone refuses to comply. We have never taken anyone to court but it is the board's job to enforce the restrictions so at some point we will probably have no choice.

BenA2 (Texas)
Posts: 1,273

Posted:

Based on what you have given us, I think the intent is clear that the developer, not the board, must enforce the restrictions and I don't think it would be appropriate to use HOA funds. I understand your feeling that the board should take action if the developer won't but the developer is currently in control.

I would definitely consult with an attorney who practices locally before taking anyone to court.

ConchoP (Texas)
Posts: 208

Posted:

Ben, we just want to have some kind of control. The developer does nothing, I can't even start explaining how screwed up our deed restrictions and by laws are..our HOA attorney even said there is nothing more he can do but to sue the developer. The deed restrictions leaves the developer to enforce but doesn't say how (ex.fines) or a homeowner can sue..but everyone knows that won't happen.so in the mean time homeowners know it's a free for all do what you want to to hell with property values. All we can do is write letters informing homeowners of deed violations we figure if anything the homeowners would know they are our radar and hopefully they will cure the violation. In the meantime we are meeting with a civil litigation attorney to see if it benefits to community to sue the developer.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

So how are you going to exactly sue for devaluing homes because deed restrictions are not being enforced? Like to hear that argument. Well neighbor X has a non-matching mailbox so our houses are no longer worth X dollars....

Former HOA President

ConchoP (Texas)
Posts: 208

Posted:

Melissa I didn't say we were sueing for devalued property values.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Well your saying that because of the violations they are deterring your property values. So are you suing for the enforcement of fixing the violation? If they do not fix it, then what is the exact damage the HOA is suffering? Your saying devalued home values. So you'd have to sue for the damages which are less home values.

Former HOA President

PaulJ6
Posts: 990

Posted:

Do a derivative demand on the developer. Then you can sue in the developer's name. IF law allows that. I don't know that it does.

ConchoP (Texas)
Posts: 208

Posted:

Melissa I never said what we were sueing for. I believe you mistook what I said about we can't enforce deed restrictions so property values are going down, as that is what we are sueing for. If you read the first part of my post, I basically said we have more problems than a math book and our HOA lawyer said we would have to sue...but I didn't feel compelled to write out all our problems on this forum because it would be like reading the book War and Peace. And again I never actually said what we are sueing for. Forgive me if I vented,but
I incorrectly assumed that venting out of frustration was allowed on this forum. But I have also incorrectly assumed this forum was to get information and support. However, I did read some greatly appreciated advice,that I will digest and research. If you must know we are meeting with a civil litigation attorney to see if sueing is our best option...because we don't know who owns our road. Our CC&Rs doesn't state in our poorly written CC&R when the roads would be turned over to the HOA. We live in the County were development rules are loose. The developer is building subpar roads in in a phased community and the HOA feels that we shouldn't have to inherit roads that are subpar or incomplete. The lawyer is also researching for us if we can gain some control over the CC&Rs without 70% of the homeowners vote to amend the CC&Rs so we can enforce restrictions. That a whole other rat's nest.

Is sueing the best option? I don't know that is what we are trying to figure out.. Back to my original posts, I understand that we cannot use HOA funds to act as a homeowner to enforce deed restrictions even if desperate times call for desperate measures.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

So what are you suing for exactly? The person clear up their violation? Well then that is an individual option in a HOA. Your in a HOA that isn't owned by you or your fellow owners. So suing would have to be by the person who feels the violation needs to be corrected. The developer doesn't have to do it if they choose not to. It's their money.

Suing for what and what effect do you think you will see because of it? Do you know lawsuits have to be reported to like FHA loans on HUD forms? What does that mean? That the loan companies are going to consider you all higher risk. Which means higher refi rates or limited loan options. FHA may not be an option anymore.

Just pointing out the reality of the damage a lawsuit really does to a HOA. A lawsuit can cause actual number/financial damage to your HOA versus something being an eyesore.

Former HOA President

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