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ARC REQUEST INSPECTION OF REQUEST BY HOMEOWNER

Started by JaneL2 • 37 replies • 665 views

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JaneL2 (Texas)
Posts: 175
Posted:
If I ask the property manager to review ARC request that may or may have not been submitted by another homeowner, regardless of the outcome, am I allowed to review the request that may or may have not been submitted by my neighbor?

I know that I cannot be privy to the response given to the homeowner as to the outcome of the request. I just want to know am I allowed to know without having to wait on Certified mail request to process to find out?

I have court date in 2 days so I was thinking I could just go to the property managers office and verbally request to see if the homeowner had made the request?
SheliaH (Indiana)
Posts: 6,964
Posted:
If you're suing about this, why are you asking this question here - especially if you're heading to court in two days???

Go to your attorney and if you don't have one, you'll have to go with what you have. If you need more time to prepare your case, you could ask that the matters postponed, but that's up to the judge. That said, exterior request by other homeowners aren't for review by other homeowners anyway, and that would include the request, appeals, etc.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
JaneL2 (Texas)
Posts: 175
Posted:
i am being sued by my neighbor.
JaneL2 (Texas)
Posts: 175
Posted:
No attorney i am handling my own case but she has an attorney
JaneL2 (Texas)
Posts: 175
Posted:
My neighbor was able to get the documents that were submitted as far as ARC request via her attorney. She was not allowed to get the answers to the request.
JaneL2 (Texas)
Posts: 175
Posted:
My neighbor was able to get the documents that were submitted as far as ARC request via her attorney. She was not allowed to get the answers to the request.
SheliaH (Indiana)
Posts: 6,964
Posted:
You don't say what this lawsuit is about or why the exterior change request might be important, but this isn't the sort of thing You can get simply just rolling over to the property manager and asking for it. It may be You won't have to - the neighbor may bring it up in court and then you can take a look, but that may not help very much because that isn't the time to stop and ponder.

I don't know if you're prepared to defend yourself if you're wondering about obtaining documents at the last minute. Maybe You should ask the court to postpone the hearing to give you time to look at the lawsuit in detail and plan your defense. If you're in small claims court, you don't need an attorney but it doesn't hurt to have an attorney take a look at what you have and make suggestions. If this isn't small claims court you reminding a pillow to a UFC match and that won't end well for you
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
DouglasK1 (Florida)
Posts: 2,046
Posted:
I don't know Texas law, but in Florida both the request and the result should be available for inspection by any homeowner. Does TX have an association open records law?
Escaped former treasurer and director of a self managed association.
JaneL2 (Texas)
Posts: 175
Posted:
I don't know about the Open records law regarding the HOA but, the HOA entities are corporations so I do not know why the Open Records Act would not apply to them as well.

And, I have been preparing for court on Wednesday for two months straight. She alleges that I violated deed restrictions by not getting permission for landscaping and having any personal item in my yard such as planters, etc. Anyway, the problem is that she has also personal items attached to the exterior of the building for which I am 98% sure that she did not get permission to do. She is suing me for the maximum of 20K but, I am asking the judge to impose sanctions for plaintiff filing documents onto record that her counsel and she knows are incorrect and false.
Her lawsuit is only brought about with intent to harass me. If she was concerned about rules and appearances, then where are the other defendants. What ever happens happens, I am sick of dealing with this psychopath because it started 2 years ago. I want it to be over what ever the outcome. She will never get a dime out of me I can promise you that
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Well sounds like a good ol peeing contest between neighbors. Not sure what the HOA has to do with the lawsuit at all except you two live in one. An owner/member can still bring an individual lawsuit against another member if they want. Which sounds like is happening here. So not sure how much the HOA wants to participate and get everyone covered in your pee.

The option would have been for you to countersue. Which would been the appropriate response to their lawsuit. In the end, I highly suspect the whole case to be tossed out of court. Plus each one responsible for their own legal costs. There is a right to "discovery" but not sure how much in small claims. Which has a limit. 20K does not sound like a small claims court claim. It's usually 5- 10K.

So until see actual damages come into play. This whole thing just wreaks of get a life...
Former HOA President
MaxB4
Posts: 3,513
Posted:
Quote:
Posted By JaneL2 on 07/12/2021 9:25 PM
I don't know about the Open records law regarding the HOA but, the HOA entities are corporations so I do not know why the Open Records Act would not apply to them as well.

And, I have been preparing for court on Wednesday for two months straight. She alleges that I violated deed restrictions by not getting permission for landscaping and having any personal item in my yard such as planters, etc. Anyway, the problem is that she has also personal items attached to the exterior of the building for which I am 98% sure that she did not get permission to do. She is suing me for the maximum of 20K but, I am asking the judge to impose sanctions for plaintiff filing documents onto record that her counsel and she knows are incorrect and false.
Her lawsuit is only brought about with intent to harass me. If she was concerned about rules and appearances, then where are the other defendants. What ever happens happens, I am sick of dealing with this psychopath because it started 2 years ago. I want it to be over what ever the outcome. She will never get a dime out of me I can promise you that

Why isn't either of you suing the HOA. Your neighbor just can't sue you because of deed restrictions unless the HOA themselves decided not to enforce. The question then begs, is there anything to really enforce?
JaneL2 (Texas)
Posts: 175
Posted:
The HOA does not have a problem with me after 20 years of living peaceably alongside my neighbors. I am not certain that she has not sued the HOA. If she did we will not know because they would have settled out of court. It really is only about revenge. This person has targeted me and there is no telling how far she will take it. What is weird here is that if lose in the justice court and try to appeal in the county court, I will have to come up with close to 60K or more for a surety bond in order to continue to litigate because the appellee has to pay a huge bond while the plaintiff only pays a $500 bond
JaneL2 (Texas)
Posts: 175
Posted:
Nope our JP court max is 20k. I have their petition I know what they have filed in court. I will go there with even more evidence. It has nothing to do with the HOA. It has to do with a bitter psychopath that uses me as her twisted entertainment as she has nothing else better to do
BillH10 (Texas)
Posts: 1,217
Posted:
With certain exceptions, if you live in a Property Code Section 209 Homeowners Association in Texas, the records of the Association may be reviewed by an owner.

I recommend you review Texas Property Code Section 209.005 regarding Association Records and how to request a review of the records. There are specific steps you must follow, and there are timelines involved which, if you have a court tomorrow or Thursday, make it very unlikely you will be able to review the records prior to appearing in court.
LetA (Nevada)
Posts: 2,679
Posted:
You should have done this leg work the minute you received your blueback in the mail. Why are you waiting until the 11th hour to gather documents?

If or when her attorney submits those documents into evidence, ask for a continuance to review them. Thats a bit on non attorney advice.
JaneL2 (Texas)
Posts: 175
Posted:
Because one of the things that the plaintiff did just happened in the last week. As to the other violation the property manager told me 6 months ago that neither the plaintiff or myself got permission to install cameras on the exterior walls of the building. I only got a camera after she kept coming onto my property tormenting my cats and making threats to take me to court. No excuse really. I have plenty of evidence against her but the problem is that my most recent pleading does not involve a counterclaim Just Motion to Strike Sham, Motion to Dismiss for Failure to show cause of Action and Motion for Sanctions on the plaintiff and her counsel
SheliaH (Indiana)
Posts: 6,964
Posted:
As LetA said, you really need to request a continuance so you can discuss all this with an attorney, who can help you better defend yourself. There's no guarantee who'll win of course, but right now, my money's on your neighbor because you don't sound prepared at all.
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
AugustinD
Posts: 3,698
Posted:
Quote:
Posted By MaxB4 on 07/12/2021 9:38 PM

Why isn't either of you suing the HOA. Your neighbor just can't sue you because of deed restrictions unless the HOA themselves decided not to enforce.
Whether the HOA is attempting to enforce the deed restrictions is likely not relevant. Covenants typically let a HOA member sue another HOA member directly for alleged violations of deed restrictions.
AugustinD
Posts: 3,698
Posted:
Quote:
Posted By JaneL2 on 07/12/2021 10:22 PM
The HOA does not have a problem with me after 20 years of living peaceably alongside my neighbors. I am not certain that she has not sued the HOA. If she did we will not know because they would have settled out of court. It really is only about revenge. This person has targeted me and there is no telling how far she will take it. What is weird here is that if lose in the justice court and try to appeal in the county court, I will have to come up with close to 60K or more for a surety bond in order to continue to litigate because the appellee has to pay a huge bond while the plaintiff only pays a $500 bond
Your living 'peacably alongside neighbors' for decades does not matter. What matters is if you have violated the covenants. Have you? If so, then you are taking a big risk facing someone with an attorney while you are pro se.

You ought to consider paying a HOA attorney for an hour's consultation and review of covenants to get some real-life wisdom. Because the chances are good that your pro se effort may cost you tens of thousands of dollars.

There's a reason attorneys spend three years in law school and then preferably, spend several years under the supervision of an experienced attorney. Do you have this kind of background? From your posts, I think not.

I read a bit about this surety bond (for appeals in Texas from Justice Court, a.k.a. Small Claims Court, to County Court) and tend to think you are substantially correct in what you posted above. But I will not call this weird. Instead I think it is Texas trying to compel people to think long and hard before they tie up the County courts with appeals.
LetA (Nevada)
Posts: 2,679
Posted:
Quote:
Posted By JaneL2 on 07/13/2021 12:17 PM
Because one of the things that the plaintiff did just happened in the last week. As to the other violation the property manager told me 6 months ago that neither the plaintiff or myself got permission to install cameras on the exterior walls of the building. I only got a camera after she kept coming onto my property tormenting my cats and making threats to take me to court. No excuse really. I have plenty of evidence against her but the problem is that my most recent pleading does not involve a counterclaim Just Motion to Strike Sham, Motion to Dismiss for Failure to show cause of Action and Motion for Sanctions on the plaintiff and her counsel

If that is the case, subpoena your property manager to appear in court or pay for a court approved deposition.
BenA2 (Texas)
Posts: 1,273
Posted:
Quote:
Posted By JaneL2 on 07/12/2021 9:25 PM
I don't know about the Open records law regarding the HOA but, the HOA entities are corporations so I do not know why the Open Records Act would not apply to them as well.

And, I have been preparing for court on Wednesday for two months straight. She alleges that I violated deed restrictions by not getting permission for landscaping and having any personal item in my yard such as planters, etc. Anyway, the problem is that she has also personal items attached to the exterior of the building for which I am 98% sure that she did not get permission to do. She is suing me for the maximum of 20K but, I am asking the judge to impose sanctions for plaintiff filing documents onto record that her counsel and she knows are incorrect and false.
Her lawsuit is only brought about with intent to harass me. If she was concerned about rules and appearances, then where are the other defendants. What ever happens happens, I am sick of dealing with this psychopath because it started 2 years ago. I want it to be over what ever the outcome. She will never get a dime out of me I can promise you that

Generally speaking, if the HOA code has a specific law that applies to HOAs it would supersede the corporation code. In other words, follow the open records laws for HOAs. I'm not an attorney but this is my understanding. This is for POAs. Condo associations have different rules.

Almost all HOA records are open to owners in Texas. https://blog.cstx.gov/2012/03/12/hoas-are-subject-to-open-records-requests/#:~:text=HOAs%20are%20subject%20to%20open%20records%20requests%20from%20property%20owners,homeowners%20before%20conducting%20board%20meetings.

The HOA is not required to release personal information or violation history of other owners.
https://codes.findlaw.com/tx/property-code/prop-sect-209-005.html
AugustinD
Posts: 3,698
Posted:
Quote:
Posted By BenA2 on 07/14/2021 6:19 AM

Generally speaking, if the HOA code has a specific law that applies to HOAs it would supersede the corporation code.
This is true only when there is a bona fide "conflict" between what the HOA code says and what the nonprofit corporation code says. Nationwide, and when there is a conflict between two different statutes, this rule is a part of the "rules of statutory construction."
JaneL2 (Texas)
Posts: 175
Posted:
Thank you. Well when the attorney sent the claim and demand letter to the HOA which in turn they sent to the attorney, they could have lied but, supposedly they were only able to see what was submitted from homeowners in the form of ARC request but that they were not privy to the response from the HOA. However, knowing the attorney and the neighbor, she is a not a person that you can rely on as far as telling the truth and I really do not trust attornies
MaxB4
Posts: 3,513
Posted:
Quote:
Posted By JaneL2 on 07/14/2021 1:39 PM
and I really do not trust attornies

I am on the same page with you. I've worked for a HOA attorney and his staff of attorneys. I have often wondered what the hell they actually did in the three years of law school and the what, two years of "experienced supervision".
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Typically attorneys are scum bags. The main difference between your attorney and my attorney, is one of them scum bags is mine.
JaneL2 (Texas)
Posts: 175
Posted:
My prose efforts so far have only cost the making color copies. I have not hired an attorney but have someone giving me some good advice. Plaintiff did not come to court and he made it clear that he does not want to go to trial. They have no case. I have plenty of evidence for my counterclaim which I was not sure was still in play. Instead of a tree limb trespassing onto her property in the back yard, if she wants to go there I got way more to throw back at her. I think they will run with tails tucked
JaneL2 (Texas)
Posts: 175
Posted:
My prose efforts so far have only cost the making color copies. I have not hired an attorney but have someone giving me some good advice. Plaintiff did not come to court and he made it clear that he does not want to go to trial. They have no case. I have plenty of evidence for my counterclaim which I was not sure was still in play. Instead of a tree limb trespassing onto her property in the back yard, if she wants to go there I got way more to throw back at her. I think they will run with tails tucked
JaneL2 (Texas)
Posts: 175
Posted:
If you wanna send me your email. I will send you my pleading.
JaneL2 (Texas)
Posts: 175
Posted:
yep the DCCRS do let a homeowner sue. I have become very familiar with the DCCRS and the others also. She will not get one cent from me. I am trying to decide whether I want to push for her paying me for two months lost income while I have been getting my case ready. Way overkill for the court I am in
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Yeah your most likely NOT going to get any of your income back for this. Court is in the business of making one "whole". Meaning returning back to the original conditions whatever those may be. This sounds more like a punitive thing going on here unless there is actual damage. Violations are not necessarily equal of damages.

Again I see this case just most likely getting tossed out altogether. If not, then I would need more details on what the actual details of what you are getting sued for. So far that has not been that clear.
Former HOA President
JaneL2 (Texas)
Posts: 175
Posted:
I do not mean to sound so cocky. I am just relieved because I was way over prepared and now I wished I had not spent so much time on it. I truly appreciate everyone advising me. I know I can come here and get the correct information
JaneL2 (Texas)
Posts: 175
Posted:
Actually this court can only award money. I asked for sanctions against attorney and plaintiff since they filed false documents to court record. But, the judge wants the attorney and I to work it out outside of court so Will see what happens there. The plaintiff is the one who will suffer if we move further I can promise you that. Thank you for your help
BenA2 (Texas)
Posts: 1,273
Posted:
Quote:
Posted By AugustinD on 07/14/2021 7:15 AM
Posted By BenA2 on 07/14/2021 6:19 AM

Generally speaking, if the HOA code has a specific law that applies to HOAs it would supersede the corporation code.
This is true only when there is a bona fide "conflict" between what the HOA code says and what the nonprofit corporation code says. Nationwide, and when there is a conflict between two different statutes, this rule is a part of the "rules of statutory construction."

It depends on how the law is written. My understanding from our attorney is that the open meeting statute for corporations in Texas does not apply at all to HOAs because there is a specific HOA open meeting statute that supersedes it.

AugustinD
Posts: 3,698
Posted:
Quote:
Posted By BenA2 on 07/15/2021 6:54 AM
It depends on how the law is written.
Yup, it does. Where the Texas (non-condo) HOA act has a bona fide conflict with the Texas nonprofit corporations act, the Texas HOA Act controls. Where there is no conflict, then both statutes control. With regard to whether board meetings must be open to HOA members, the Texas nonprofit corporation act defers to the Bylaws and HOA certificate of formation. By contrast, the Texas HOA Act requires board meetings to be open to members. There is no conflict. Texas HOA Board meetings must be open to members.
JaneL2 (Texas)
Posts: 175
Posted:
From what I understand and researched the HIERARHCY of laws regarding HOAs are:

FEDERAL
STATE - texas non-profit
PLATS
DCCRS
ARTICLES OF INC
BYLAWS
RULES AND REGULATIONS

IS THIS NOT CORRECT?
TimB4 (Tennessee)
Posts: 21,059
Posted:
Jane,

You have your hierarchy of documents correct.

Keep in mind that a lower document can be more restrictive then a higher document and have no conflict with the higher document.

For example: Zoning laws may allow 6 foot fences but your governing docs only allow for 4 foot fences.
In this example, there is no conflict as the 4 foot height is within the 6 foot max. Therefore, the governing docs must be complied with,

An example of a conflict would be the reverse: Zoning allows only 4 foot fences but your governing docs allow for 6 foot fences.
This is a prime example of a conflict and regardless of what the governing docs say, the higher document must be complied with and you would only be allowed to have a 4 foot fence.

Hope this helps,

Tim
JaneL2 (Texas)
Posts: 175
Posted:
I get what you are saying but the DCCRS in our situation have not been modified, But were modified and relaxed in our Rules and Regulations and our DCCRS were not ever changed. Whether the HOA board or the attorney did not and will not change the DCCRS but, did relax the rules may be an issue but, what was the point in changing the rules or/and relaxing the rules if said new rules could not be what we live by? Honestly, I still have my counterclaim and we are going to trial for sure. Waiting on court date.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By JaneL2 on 07/28/2021 12:18 AM
I get what you are saying but the DCCRS in our situation have not been modified, But were modified and relaxed in our Rules and Regulations and our DCCRS were not ever changed. Whether the HOA board or the attorney did not and will not change the DCCRS but, did relax the rules may be an issue but, what was the point in changing the rules or/and relaxing the rules if said new rules could not be what we live by? Honestly, I still have my counterclaim and we are going to trial for sure. Waiting on court date.

While not disagreeing with you, I look upon R&R's as clarifying but not modifying nor relaxing Covenants/Bylaws. One example is setting pool hours but not being used to close the pool.

Many BOD's get in trouble when they try to "override" Covenants/Bylaws with R&R's. Typical example is trying to eliminate or control rentals when there is no mention of rentals in the Covenants/Bylaws.

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