Suing POA

LillyH1 (Texas)
Posts: 40

Posted:

Hi,

I and a few others are seriously considering suing our POA but I’d like to make sure it’s not a fool’s errand before going too far. Our POA is in the DFW area and fairly small, fewer than 100 homes and about 30 years old. I’ve lived here since 2010 and it’s been fine for nearly the entire time. There’s a common park that the POA maintains and a few other common areas but that’s about it. No pool or anything. Dues are small. EZPZ

About a year ago the board decided to hire a property management company to manage things. Fair enough I guess. But recently they’ve started driving around the neighborhood and handing out fines like Halloween candy. For stupid things like edging sidewalks or boxes on porches. It’s almost as if the manager gets a cut of the fines and is incentivized to find them. I got one and appealed it to the board but it was upheld with no explanation.

These fines really pissed off a lot of us so we started looking at laws and documents. Our CCRs absolutely DO NOT mention anything about fines. The bylaws also don’t but the rules and regs, which were adopted right after they hired the management co do authorize fines. Am I correct that CCRs are above the others?

But more than that, after reading section 209 of the Texas property code, I’m convinced that they have made many terrible mistakes. I most definitely did not get a “209 letter” as specified in 209 nor did I get a packet of evidence before my appeal. They also have never given notice of any board meetings at all at least as long as I’ve lived here (except for the annual ones where the board is voted on). 209.0051 is pretty clear that they can’t do that.

Am I missing something or they walking off a cliff here? Is it the POA or the management co ( or both) that should be sued? I originally thought this was a really bad idea since were basically suing ourselves and I assumed it wouldnt do anything other than make lawyers richer but after browsing here I’m not so sure anymore. This looks pretty clear but I haven’t spoken to a lawyer yet.

Is this likely to have a good outcome or just get stuck in court for years? Do lawyers do this type of thing on contingency or no?

LillyH1 (Texas)
Posts: 40

Posted:

Here’s an article about the 209 letter I’m talking about.
https://blog.realmanage.com/restrictive-covenant-enforcement-for-texas-poas

And here is the bit about evidence (the appeal happened after Sep 1 but they ignore all of 209)
https://www.rmwbh.com/senate-bill-1588-has-passed-the-house-and-senate-what-changes-lie-ahead/

BillH10 (Texas)
Posts: 1,217

Posted:

Lily

First, the Legislature approved an Act during the Regular Session which ended May 31, 2021, and which was signed by the Governor, which changes some of the existing provisions you may have read in your review of Section 209 of the Property Code and your governing documents. Do not despair, the act imposes more stringent requirements on topics such as the notice window for meetings of the Board of Directors.

As to your other points, I believe involving an attorney should be a subsequent step in the process of ensuring the Board is following Section 209 of the Property Code and the requirements of your governing documents, and not the first step.

To your points:

"About a year ago the board decided to hire a property management company to manage things. Fair enough I guess. But recently they’ve started driving around the neighborhood and handing out fines like Halloween candy. For stupid things like edging sidewalks or boxes on porches. It’s almost as if the manager gets a cut of the fines and is incentivized to find them. I got one and appealed it to the board but it was upheld with no explanation."

Does your Association have a set of Architectural Standards, Rules and Regulations, or a similar document which speaks to maintenance of the properties? If so, does that document contain language regarding edging, maintenance of the appearance of the property, or similar words? What the management company is doing may be enforcing the association documents and may in fact be one of the reasons why they were engaged by the Board. The management company (MC) takes its direction from the Board, the reviews and citations may be exactly what the Board desires to be implemented.

"But more than that, after reading section 209 of the Texas property code, I’m convinced that they have made many terrible mistakes. I most definitely did not get a “209 letter” as specified in 209 nor did I get a packet of evidence before my appeal. They also have never given notice of any board meetings at all at least as long as I’ve lived here (except for the annual ones where the board is voted on). 209.0051 is pretty clear that they can’t do that."

If the Board is not following required processes and procedures, they must be notified they are not doing so.

I recommend you, in conjunction with the others, craft a professional in tone, business-like letter to the Board, citing the issues you identified, and the conflicts with Section 209 (the newly amended Section 209 effective September 1, 2021), and conflicts with the governing documents of the Association. In your letter, request the Board address your concerns. I recommend you send the letter to all the Board members, and to the Registered Agent of the Association, certified mail, return receipt requested. Then see what happens. Do not be accusatory, threatening, or demeaning.

Also, if you do not attend meetings of the Board of Directors, you should begin doing so when you are notified they are scheduled.

It is unlikely an attorney will agree to take on your issues until you as a property owner have exhausted a reasonable set of remedies in an attempt to notify the Board of the error(s) of its ways so that it may modify its processes to comply with the property code and documents of your association.

LillyH1 (Texas)
Posts: 40

Posted:

Thank you for the reply. Several of us have written to the board and the management co and either been ignored or aggressively argued with. I even went through the entire appeal which was not even a discussion - they treated it as an annoyance. They claim that they have the authority to enact whatever rules they want. I don’t personally know any of the board members but I suspect the problem lies with one or two of them who have decided to do this.

The CCRs do have language about having an ACC, yard maintenance and some other typical things but the HUGE sticking point is that the CCRs very clearly DO NOT give the board the authority to levy fines and I understand from several other threads here is that power must be explicitly granted by CCRs in Texas. They also have to send a 209 letter before resorting to fines. The CCRs also do not address parking at all which is what I’ve been fined for. So it seems to me that this board (or maybe the management co) has gone completely rogue and I am not going to sit around and let them siphon money from my account every time they feel like it. I’m already out $250 and I am not alone.

I am looking for a legal reason the board can do what they are doing (ignore 209 and the CCR) but I can’t find anything.

LillyH1 (Texas)
Posts: 40

Posted:

(I guess you can’t edit posts around here)I should clarify that the letters I’ve sent did mention that the CCRs do not authorize fines and they countered that the R&Rs do. I did not mention 209 to them. I didn’t even know 209 was a thing until a few hours ago.

BillH10 (Texas)
Posts: 1,217

Posted:

Yes, I should have added, as a management company in the DFW area, we have been advised by counsel there must be explicit language in the Declaration that the Board may develop a schedule of fines or words to that effect.

The attorney told us he would not represent the Association should a fine process be implemented and challenged without underlying authority.

Continue to document your concerns to the Board and ensure you copy the property manager and owner of the property management company. You may wish to consider setting in motion a process to change the composition of the Board as the annual meetings take place.

Unfortunately, in Texas, we have no ombudsperson or agency at the state level to which someone such as yourself may appeal when a Board is not fulfilling its fiduciary responsibilities. There is a process in your Bylaws to follow to change the composition of the Board, you should pursue it vigorously.

BillH10 (Texas)
Posts: 1,217

Posted:

I just noticed you mentioned parking.

Is this on private property (a lot, driveway, or garage, or the street? Are your streets the property of the city (or other jurisdiction) or is yours a private community with gated streets?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By LillyH1 on 09/21/2021 2:47 PM
Our CCRs absolutely DO NOT mention anything about fines. The bylaws also don’t but the rules and regs, which were adopted right after they hired the management co do authorize fines. Am I correct that CCRs are above the others?

-- All I see on the net for Texas HOAs is that, for a Texas HOA to impose fines, either the CC&Rs or Bylaws must expressly authorize these fines.

-- I checked TPC 209 and it generally supports this. However more likely Texas case law says that fines are not allowed unless the CC&Rs authorize them.

-- Hierarchy of documents:
Municipal, state and federal law
CC&Rs
Articles of Incorp
Bylaws
Rules and Regs (written by the Board)

-- Please be aware that the covenants are part of the contract to which you agreed when you bought in the HOA. Cussing out the manager for (1) doing what doing what the board directed the manager to do; and (2) enforcing the covenants to which you agreed is, in my opinion, unfair. If you are in violation, correct the violation.

-- I suggest you write a short, just-the-facts, sugary sweet polite letter to the Board and inform them of your understanding that it may not fine. Do not try to drill them a new ass----. Why not? Because doing so distracts from the solid facts you have regarding the HOA not being allowed to fine.

LillyH1 (Texas)
Posts: 40

Posted:

Quote:

Posted By BillH10 on 09/21/2021 5:15 PM
I just noticed you mentioned parking.

Is this on private property (a lot, driveway, or garage, or the street? Are your streets the property of the city (or other jurisdiction) or is yours a private community with gated streets?

Public city streets. The board just decided among themselves that each resident is only allowed to park X number of cars on the street and started handing out fines for what they deem to be violations. The CCRs contain no language about parking whatsoever. It only appears in the rules which were adopted by the board last year.

LillyH1 (Texas)
Posts: 40

Posted:

Quote:

Posted By AugustinD on 09/21/2021 5:22 PM

Posted By LillyH1 on 09/21/2021 2:47 PM
Our CCRs absolutely DO NOT mention anything about fines. The bylaws also don’t but the rules and regs, which were adopted right after they hired the management co do authorize fines. Am I correct that CCRs are above the others?

-- All I see on the net for Texas HOAs is that, for a Texas HOA to impose fines, either the CC&Rs or Bylaws must expressly authorize these fines.

-- I checked TPC 209 and it generally supports this. However more likely Texas case law says that fines are not allowed unless the CC&Rs authorize them.

-- Hierarchy of documents:
Municipal, state and federal law
CC&Rs
Articles of Incorp
Bylaws
Rules and Regs (written by the Board)

-- Please be aware that the covenants are part of the contract to which you agreed when you bought in the HOA. Cussing out the manager for (1) doing what doing what the board directed the manager to do; and (2) enforcing the covenants to which you agreed is, in my opinion, unfair. If you are in violation, correct the violation.

-- I suggest you write a short, just-the-facts, sugary sweet polite letter to the Board and inform them of your understanding that it may not fine. Do not try to drill them a new ass----. Why not? Because doing so distracts from the solid facts you have regarding the HOA not being allowed to fine.

I can’t find any laws about authority for issuing fines specifically but I have found lots of anecdotal reports that the power must be given explicitly by the CCRs for POAs or HOAs (I don’t have a clue how to search for case law beyond google). Condo associations do have the power to fine granted by statute.

I have no problem with the CCRs I agreed to when I bought the house. The problem I have is them making up and enforcing new ones that no one other than the board has agreed to. I don’t dispute that the MC is probably just doing what the BOD tells them to unless they are getting a cut of the fines. If they are then that’s total BS.

I’m not trying to do anything to anyone’s ass. I’m the one who’s being drilled here. And sorry, but the polite emails are long since sent. We tried that for months and were either ignored entirely or met with hostility. The more I research this the more convinced I become that this board and/or MC has just completely gone off the rails.

BillH10 (Texas)
Posts: 1,217

Posted:

OK. You and others who are in your camp may wish to consult with an attorney who specializes in HOA matters as to your options.

Please ensure you consult an attorney whose practice focuses on HOA and Condominium law in Texas. As I have previously mentioned, the third cousin of your brother-in-laws ex-wife who practices corporate law is about as knowledgeable of HOA and Condominium law as is a speed bump.

But, be prepared to pay for the consultation out of your own pocket. The attorney retained by the HOA is not accessible to you. He or she is not the 'traffic cop'.

I am aware of at least two attorneys in the Metroplex who specialize in HOA matters. You should be able to find several to many more through a Google search.

Your concerns seem to be well founded. Expect to be asked hard questions should you consult with an attorney.

LillyH1 (Texas)
Posts: 40

Posted:

Quote:

Posted By BillH10 on 09/21/2021 7:55 PM
OK. You and others who are in your camp may wish to consult with an attorney who specializes in HOA matters as to your options.

Please ensure you consult an attorney whose practice focuses on HOA and Condominium law in Texas. As I have previously mentioned, the third cousin of your brother-in-laws ex-wife who practices corporate law is about as knowledgeable of HOA and Condominium law as is a speed bump.

But, be prepared to pay for the consultation out of your own pocket. The attorney retained by the HOA is not accessible to you. He or she is not the 'traffic cop'.

I am aware of at least two attorneys in the Metroplex who specialize in HOA matters. You should be able to find several to many more through a Google search.

Your concerns seem to be well founded. Expect to be asked hard questions should you consult with an attorney.

Thanks for the advice. Are they off their rocker trying to enforce parking on a city street? I hadn’t even thought of that angle. There seem to be a lot of angles. What if the attorney is an ex’s former college roommate’s brother in law? Would that be ok? 😁 I’m going to hopefully get a referral from a business attorney I know.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By LillyH1 on 09/21/2021 9:20 PM

Are they off their rocker trying to enforce parking on a city street?

If the parking restrictions are in the CC&Rs, then they can enforce but it would only apply to members. Joe and Jane public can still utilize the road as they local laws allow.

In fact, this became an issue in Arizona to the point that the legislature had to adopt a law to override the covenants of HOAs that had this authority.

see:

HOA cracks down on street parking

Parking Wars a 2008 article by an attorney about enforcement of parking.

In MARYLAND ESTATES HOMEOWNERS' v. PUCKETT, which seems to be the basis for enforcing parking restrictions on public streets on Associations members.

Regarding the fines, in a Virginia ruling, covenant violations can only have monetary penalties if they are in the covenants. I've attached the ruling (in two parts). This would only be an advisory ruling and not precedence to your court.

Here is a link to an earlier thread on this forum (many links in that thread may or may not work): Subject: VA Associations, Do you still have the authority to use monetary penalties for violations?

Hope this helps,

Tim

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TimB4 (Tennessee)
Posts: 21,059

Posted:

Lily,

Your group should also request to review a copy of the contract between the HOA and the management company. You may get push back. Therefore, your letter should cite the sections of statute and governing documents that authorize said review.

Example:

In accordance with [property code xxx, section yyyy], [corporate code xxx section yyy] and our governing documents article xxx, section yyy I wish to review a copy of the approved contract between the Association and the management company.

Note: corporate statutes only apply if your association is incorporated. Most are but check to be sure.

See: Property Owners' Associations from the TX State law library.

LillyH1 (Texas)
Posts: 40

Posted:

Quote:

Posted By TimB4 on 09/22/2021 2:23 AM
Lily,

Your group should also request to review a copy of the contract between the HOA and the management company. You may get push back. Therefore, your letter should cite the sections of statute and governing documents that authorize said review.

Example:

In accordance with [property code xxx, section yyyy], [corporate code xxx section yyy] and our governing documents article xxx, section yyy I wish to review a copy of the approved contract between the Association and the management company.

Note: corporate statutes only apply if your association is incorporated. Most are but check to be sure.

See: Property Owners' Associations from the TX State law library.

Thanks for the reply. We’ve asked the MC for the contract several times and were completely ignored but that was before we were aware of the 209 rules that govern all of this. I can’t believe that a (not tiny) MC would either be completely ignorant of a state law that specifically regulates their activities or just choose to completely ignore it. That just blows me away. Based on their website, they manage at least a dozen communities all over the state.

We have a suspicion that the MC is getting a cut from the fines thus motivated to find as many as they can. Is that a typical arrangement for MCs in Texas? If so it seems entirely unethical and should be illegal. If a traffic cop’s salary went up if he wrote more tickets, he would start citing people for going 56 in a 55. Combine that with the power to make up new rules and it’s a recipe for abuse.

We don’t really have a way to contact the actual board members directly short of trying to find out where they live and knocking on their doors. There are no email lists available. They do have a community forum but it’s heavily moderated and anything negative or asking questions never even makes it to the site.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By LillyH1 on 09/21/2021 6:29 PM

I can’t find any laws about authority for issuing fines specifically but I have found lots of anecdotal reports that the power must be given explicitly by the CCRs for POAs or HOAs (I don’t have a clue how to search for case law beyond google). Condo associations do have the power to fine granted by statute.

You are correct about the power to fine having to be stated explicitly in the CCRs (or possibly Bylaws). The Board writes the Rules and Regulations. If the Board added fining authority to the Rules and Regulations, without having authority from either the CCRs or Bylaws, then the fines are not enforceable.

The Board can make up new rules and regulations, but they must not exceed the authority of the CCRs or Bylaws.

If you are unable to write a just-the-facts, non-snarky letter about why the HOA/Board does not have the authority to fine you, then I recommend you hire an attorney.

Also FWIW, I likely agree with everything that BillH10 and TimB4 posted here. They are studious, highly experienced and honest about what they know and do not know.

PatJ1 (North Carolina)
Posts: 568

Posted:

Quote:

Posted By LillyH1 on 09/22/2021 6:36 AM

Posted By TimB4 on 09/22/2021 2:23 AM
Lily,

Your group should also request to review a copy of the contract between the HOA and the management company. You may get push back. Therefore, your letter should cite the sections of statute and governing documents that authorize said review.

Example:

In accordance with [property code xxx, section yyyy], [corporate code xxx section yyy] and our governing documents article xxx, section yyy I wish to review a copy of the approved contract between the Association and the management company.

Note: corporate statutes only apply if your association is incorporated. Most are but check to be sure.

See: Property Owners' Associations from the TX State law library.

Thanks for the reply. We’ve asked the MC for the contract several times and were completely ignored but that was before we were aware of the 209 rules that govern all of this. I can’t believe that a (not tiny) MC would either be completely ignorant of a state law that specifically regulates their activities or just choose to completely ignore it. That just blows me away. Based on their website, they manage at least a dozen communities all over the state.

We have a suspicion that the MC is getting a cut from the fines thus motivated to find as many as they can. Is that a typical arrangement for MCs in Texas? If so it seems entirely unethical and should be illegal. If a traffic cop’s salary went up if he wrote more tickets, he would start citing people for going 56 in a 55. Combine that with the power to make up new rules and it’s a recipe for abuse.

We don’t really have a way to contact the actual board members directly short of trying to find out where they live and knocking on their doors. There are no email lists available. They do have a community forum but it’s heavily moderated and anything negative or asking questions never even makes it to the site.

I wouldn't mention your suspicions they are keeping part of the fines. It may be part of their signed contract with the HOA that they do keep a portion of them. Some MC's retain a portion of late fees per their contract. It appears that you have confirming information on the inappropriate fining. Focus entirely on that.

To find out who the Board members are you will need to ask around and even knock on doors if you have to. I can't believe that there isn't someone who knows who they are. You can request meeting minutes, they should include the attendees. That could be a start. Even if they are still not on the Board, they may know who replaced them.

PatJ1 (North Carolina)
Posts: 568

Posted:

There is a website called Nextdoor.com. I'm fairly sure it's nationwide. It's broken down by neighborhoods and it's a forum for residents.

Check it out. Perhaps some of your neighbors are on it and you can ask who the Board members are there. If you find it and post, pay attention to it carefully. A Board member could be a lead for the community and delete the post so you'll need to be quick. You can set it up to send you an email if anyone posts. You can also ask that people message you directly through the website. I don't think leads can delete those.

BarbaraT1 (Texas)
Posts: 821

Posted:

Quote:

Posted By LillyH1 on 09/22/2021 6:36 AM

Posted By TimB4 on 09/22/2021 2:23 AM
Lily,

Your group should also request to review a copy of the contract between the HOA and the management company. You may get push back. Therefore, your letter should cite the sections of statute and governing documents that authorize said review.

Example:

In accordance with [property code xxx, section yyyy], [corporate code xxx section yyy] and our governing documents article xxx, section yyy I wish to review a copy of the approved contract between the Association and the management company.

Note: corporate statutes only apply if your association is incorporated. Most are but check to be sure.

See: Property Owners' Associations from the TX State law library.

Thanks for the reply. We’ve asked the MC for the contract several times and were completely ignored but that was before we were aware of the 209 rules that govern all of this. I can’t believe that a (not tiny) MC would either be completely ignorant of a state law that specifically regulates their activities or just choose to completely ignore it. That just blows me away. Based on their website, they manage at least a dozen communities all over the state.

We have a suspicion that the MC is getting a cut from the fines thus motivated to find as many as they can. Is that a typical arrangement for MCs in Texas? If so it seems entirely unethical and should be illegal. If a traffic cop’s salary went up if he wrote more tickets, he would start citing people for going 56 in a 55. Combine that with the power to make up new rules and it’s a recipe for abuse.

We don’t really have a way to contact the actual board members directly short of trying to find out where they live and knocking on their doors. There are no email lists available. They do have a community forum but it’s heavily moderated and anything negative or asking questions never even makes it to the site.

Texas does not require managers or management companies to have any kind of licensing. Anyone can call themselves a property manager. The state legislature rationalizes this as "you shouldn't have to pay a fee to do your job" and by not requiring licensing they are giving consumers the freedom to choose whomever they want. (They apply this same logic to general contractors too so your house could have been built by any random person off the street, isn't that reassuring!).

All that to say, I'm not surprised that your management company isn't following the property code, whether it's through ignorance or design. There is no oversight unless, you the homeowner, pursue civil litigation.

You should be able to find the names and addresses of your board members through a business entity search on the Secretary of State's website. You could start with writing a letter to your board members expressing your concerns.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By LillyH1 on 09/22/2021 6:36 AM

We have a suspicion that the MC is getting a cut from the fines thus motivated to find as many as they can. Is that a typical arrangement for MCs in Texas?

It depends on the contract.
Some MC contracts specify that they get $x per violation (to cover additional paperwork involved). Unfortunately, some MC's will see this as a revenue stream vs. providing a service.

We had a similar situation in my HOA and that's when I made sure that the residents knew to the applicable statutes, etc. This allowed them to make informed decisions at the elections. It took time, about 3 years. Then things began to change. Gathering support and replacing the board is far less expensive then a court case.

LillyH1 (Texas)
Posts: 40

Posted:

I got a referral to a lawyer who specializes in HOA law and have a paid consultation tomorrow. The lawyer isn’t in the immediate area but this is exactly the type of work he does.

My worry is that even if we have a bulletproof case, the HOA can probably just appeal and delay until we just give up. I know for certain they have 6 figures in reserves with very little to spend it on.

LillyH1 (Texas)
Posts: 40

Posted:

Quote:

Posted By AugustinD on 09/22/2021 6:57 AM

Posted By LillyH1 on 09/21/2021 6:29 PM

I can’t find any laws about authority for issuing fines specifically but I have found lots of anecdotal reports that the power must be given explicitly by the CCRs for POAs or HOAs (I don’t have a clue how to search for case law beyond google). Condo associations do have the power to fine granted by statute.

You are correct about the power to fine having to be stated explicitly in the CCRs (or possibly Bylaws). The Board writes the Rules and Regulations. If the Board added fining authority to the Rules and Regulations, without having authority from either the CCRs or Bylaws, then the fines are not enforceable.

The Board can make up new rules and regulations, but they must not exceed the authority of the CCRs or Bylaws.

If you are unable to write a just-the-facts, non-snarky letter about why the HOA/Board does not have the authority to fine you, then I recommend you hire an attorney.

Also FWIW, I likely agree with everything that BillH10 and TimB4 posted here. They are studious, highly experienced and honest about what they know and do not know.

It’s not that I’m unable to write a polite letter, it’s that we’ve already been doing just that for MONTHS and gotten nowhere. The fact that the CCRs do not mention fines or parking has been pointed out to them at least a dozen times and they just reply with a canned response that they are following the R&Rs, so there. The only new thing to add would be 209 violations but I’m 99.999% certain that it would get the same response as everything else.

I don’t see any point in wasting more time and fine money trying to appeal to logic. It’s a circular argument with them and I don’t think anything from a regular homeowner will do anything to change it.

Another thing that REALLY annoys me (and others) is that the MC seems to treat us all as if we are bad tenants in a bad apartment building even referring to our homes as “units”. Every single-family “unit” is valued from $500k to over $2m and the HOA dues are a whopping $30 per month.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Lilly

At $30 per month, eat it and get one with your life. After all you have been there 11 years with, I assume, no issues. The other alternative is gather enough votes/proxies to change the make-up of the BOD.

LillyH1 (Texas)
Posts: 40

Posted:

Quote:

Posted By TimB4 on 09/22/2021 10:13 AM

Posted By LillyH1 on 09/22/2021 6:36 AM

We have a suspicion that the MC is getting a cut from the fines thus motivated to find as many as they can. Is that a typical arrangement for MCs in Texas?

Gathering support and replacing the board is far less expensive then a court case.

I’m not sure this is even practical in this situation. The only board meeting they ever have (or tell us about) is the one with elections and that is done entirely by proxy votes. They give everyone a ballot with 5 names on it to fill the (shocker) 5 seats. That’s it. There is not even really a process to run for a position. It’s been this way forever and until now no one cared because the ONLY thing the HOA did was pay for landscaping and maintenance for the 2 common areas. It only changed when they hired a MC for whatever reason.

LillyH1 (Texas)
Posts: 40

Posted:

Quote:

Posted By JohnC46 on 09/22/2021 1:43 PM
Lilly

At $30 per month, eat it and get one with your life. After all you have been there 11 years with, I assume, no issues. The other alternative is gather enough votes/proxies to change the make-up of the BOD.

It’s not about the dues. I have no problem paying for maintenance of the common areas.. It’s the fines, making up rules that conflict with the CCRs and ignoring state law that I can’t let go of. If they would go back to what they did for the previous 11 years there would be no issue at all.

BenA2 (Texas)
Posts: 1,273

Posted:

I think others have confirmed that the HOA can absolutely not assess fines unless the CC&Rs authorize it. You are also right about the 209 letter.

One thing I do not think was mentioned is that there is a new Texas law that allows any homeowner to sue the HOA in the Justice of the Peace (JOP) court. That means you can sue without an attorney and I believe the filing fees are less than higher courts where you previously had to sue.

You do not have to sue for money. It sounds like you want the HOA to start following the rules, which I believe the JOP can order. I suggest at least speaking to an attorney even if you decide to go to court without one.

In my opinion, it is in your best interest to take them to court if you cannot convince them to do the right thing otherwise. Every time they fine someone illegally, they are opening the association to costly legal fees which the homeowners will end up paying.

The down side is that everyone who has paid a fine will want to be paid back, but that is probably going to happen eventually anyway. The earlier you stop this, the better.

LisaB32 (Tennessee)
Posts: 31

Posted:

Lilly,

I'm new to this forum and I realized the same thing about editing, but once I read this, on the bottom of this screen ("All new topics and replies are emailed to members.") I realized why we can't edit. Our posts are immediately shot off to members.

We are also about to be fined, so I feel your pain over the unfairness.
____________

As to the fines, you stated: "I got one and appealed it to the board but it was upheld with no explanation." So I'm guessing it was only a written appeal, correct?

Maybe this, and the next, could help, as it's specifically Texas-based. (Of course don't know how recent the info is.):

"Before the fine is imposed, the association must provide notice of the violation AND THE OPPORTUNITY TO CURE, IF THE VIOLATION IS CURABLE. (<< MY EMPHASIS) Id. The member has a right to request a hearing before the board or a committee it appoints. Tex. Prop. Code § 209.007."

https://www.hopb.co/texas-hoa-questions-and-answers
____________

"Fines

If an association's declaration grants it the right to impose fines for violations, it must notify the property owner in writing VIA CERTIFIED MAIL (<< MY EMPHASIS) before imposing the fine.

According to Section 209.006 of the Property Code, the notice must contain the following information:

A description of the violation

The amount the property owner owes to the association as a result of the violation

A statement that the owner has 30 days from the date the notice was mailed TO REQUEST A HEARING BEFORE THE BOARD OF DIRECTORS (<< AGAIN, MY EMPHASIS)

Notice of any special rights or relief that the owner might have under the law, including the Servicemembers Civil Relief Act

If the violation is not a threat to public health or safety and is of a "curable nature," a reasonable amount of time period to fix the violation and avoid the fine. The notice should state the date by which the violation must be fixed."

https://guides.sll.texas.gov/property-owners-associations/ccrs
____________

GOOD LUCK!!!

_____________________

LillyH1 (Texas)
Posts: 40

Posted:

Thanks, and you’re right. The management company and board have been completely ignoring the Texas Property Code, specifically Ch 209. I had a (paid) consultation with an attorney today and he shed a LOT of light on everything. It’s a bit of a sh/t sandwich no matter what.

First, they are completely in the wrong. Both in respect to the 209 violations and also their lack of power to fine. Full stop. No question about it. I’m right and they can kick rocks.

Now the question is what to do about it and we have a few options that are all bad. Try and change the board is the safest and cheapest but there’s no telling how long that will take or how much we’ll be fined in the meantime (I’m currently being fined $250 a month over a nonexistent violation). I also don’t have any faith in our ability to gather enough votes or signatures on a petition. And who has time to do petitions? These people have been running this POA forever and most people pay no attention at all.

Or, as someone else here mentioned, we can file a suit with the justice of the peace. Its sort of like small claims court but they can hear and rule on things like this. I’m likely to win and get the fines reversed for now but it’s not a sure thing, there are some judges who always side with the POA no matter what, so it’s a bit of a dice roll. They also can’t do anything to prevent future fines or force them to change anything. They just rule on whatever is in front of them so even if I win this month it may just make them mad and they can fine me twice next month. To stop that we have to get an injunction and to do that you have to...

Go to district court and file a real deal lawsuit which will cost several thousand dollars and even then it’s not a guarantee because some judges there also tend to rule in favor of HOAs without even looking at the law (or sometimes even really reading the cases!!!!). So you need to be prepared to lose round one and expect to win on appeal. The good news is, eventually we will definitely win and the POA will be forced to pay all of the attorney fees and court costs. Eventually.

What will probably happen is that the insurance company’s lawyer will tell them to settle because there really isn’t any question about the law or precedent. They will eventually lose and the insurance lawyer will definitely know that and insurance companies hate spending money. There’s no upside to the insurance company fighting because of some complex rule 911(12)(b)(c)4A mumbo jumbo they may not be able to recover their expenses even if they were to eventually win. It would be unusual for a case like this to not be quickly settled. But it’s still a gamble.

The deck is really stacked against homeowners.

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By LillyH1 on 09/23/2021 4:04 PM
I’m likely to win and get the fines reversed for now but it’s not a sure thing, there are some judges who always side with the POA no matter what, so it’s a bit of a dice roll.

This is why I always think it is a good idea to talk to an attorney who practices in your area. Two JOPs in the same county may have very different philosophies about HOAs so an attorney who has been in there court would have a better idea of how things will go.

Of course, you could hope they will follow the law but all judges in Texas are elected (studies have shown they are less likely to follow the law) and JOPs do not even have to be lawyers. They only have to have 80 hours of training after they are elected.

Good luck. It sounds like a real mess.

PatJ1 (North Carolina)
Posts: 568

Posted:

Quote:

Posted By LillyH1 on 09/23/2021 4:04 PM
Thanks, and you’re right. The management company and board have been completely ignoring the Texas Property Code, specifically Ch 209. I had a (paid) consultation with an attorney today and he shed a LOT of light on everything. It’s a bit of a sh/t sandwich no matter what.

First, they are completely in the wrong. Both in respect to the 209 violations and also their lack of power to fine. Full stop. No question about it. I’m right and they can kick rocks.

Now the question is what to do about it and we have a few options that are all bad. Try and change the board is the safest and cheapest but there’s no telling how long that will take or how much we’ll be fined in the meantime (I’m currently being fined $250 a month over a nonexistent violation). I also don’t have any faith in our ability to gather enough votes or signatures on a petition. And who has time to do petitions? These people have been running this POA forever and most people pay no attention at all.

Or, as someone else here mentioned, we can file a suit with the justice of the peace. Its sort of like small claims court but they can hear and rule on things like this. I’m likely to win and get the fines reversed for now but it’s not a sure thing, there are some judges who always side with the POA no matter what, so it’s a bit of a dice roll. They also can’t do anything to prevent future fines or force them to change anything. They just rule on whatever is in front of them so even if I win this month it may just make them mad and they can fine me twice next month. To stop that we have to get an injunction and to do that you have to...

Go to district court and file a real deal lawsuit which will cost several thousand dollars and even then it’s not a guarantee because some judges there also tend to rule in favor of HOAs without even looking at the law (or sometimes even really reading the cases!!!!). So you need to be prepared to lose round one and expect to win on appeal. The good news is, eventually we will definitely win and the POA will be forced to pay all of the attorney fees and court costs. Eventually.

What will probably happen is that the insurance company’s lawyer will tell them to settle because there really isn’t any question about the law or precedent. They will eventually lose and the insurance lawyer will definitely know that and insurance companies hate spending money. There’s no upside to the insurance company fighting because of some complex rule 911(12)(b)(c)4A mumbo jumbo they may not be able to recover their expenses even if they were to eventually win. It would be unusual for a case like this to not be quickly settled. But it’s still a gamble.

The deck is really stacked against homeowners.

Don't interject what "might" or "will probably" happen. Your attorney consultation verified that your PMC and HOA is in the wrong with the fines. Did you consult with your attorney about sending a letter to the Board about their actions? Under most circumstances any letter received from an owner's attorney will be turned over to the HOA attorney for response. Of course that is unless the Board ignores it. If other owner's don't have an interest, it will continue.

How much time and energy do YOU have?

You can -

- Continue to pay the fine knowing it's not valid.
- Use JOP court to recoup what they have charged. Bring with you your attorney's findings. Then use JOP again, and again. Perhaps they'll tire of the process, or move, or die.
- If you receive a favorable verdict from JOP court, follow through to collect it. This may be hardest part. Awards in court don't always mean monies are collected. Research how to actually collect the money awarded.
- Elect new Board members.
- Move. Not being harsh, but it is an option.

Your post has been very interesting to follow. Thank you for contributing.

LillyH1 (Texas)
Posts: 40

Posted:

Quote:

Posted By PatJ1 on 09/23/2021 5:00 PM

Did you consult with your attorney about sending a letter to the Board about their actions? Under most circumstances any letter received from an owner's attorney will be turned over to the HOA attorney for response. Of course that is unless the Board ignores it.

Yes and there is a very specific and very good reason NOT to do that. If they get any whiff of possible litigation it is very advantageous for them to file suit against me first. Remember the legal mumbo jumbo that may prevent them from collecting fees? That is reversed if they file first. If they have an attorney who knows what they are doing they’ll file a preemptive suit as quickly as possible regardless of the merits.

LillyH1 (Texas)
Posts: 40

Posted:

Quote:

Posted By BenA2 on 09/23/2021 4:41 PM

Posted By LillyH1 on 09/23/2021 4:04 PM
I’m likely to win and get the fines reversed for now but it’s not a sure thing, there are some judges who always side with the POA no matter what, so it’s a bit of a dice roll.

This is why I always think it is a good idea to talk to an attorney who practices in your area. Two JOPs in the same county may have very different philosophies about HOAs so an attorney who has been in there court would have a better idea of how things will go.

Good luck. It sounds like a real mess.

That’s just it, you don’t get to pick the judge. You are randomly assigned one.
The lawyer I spoke with does practice in the DFW area all the time and knows the courts very well - he even knew who the good JOPs were off the top of his head.

ND (PA)
Posts: 792

Posted:

With fewer than 100 homes in your HOA, going house-to-house even with only a few people is a pretty simple task to start a movement/momentum toward specific goal(s), some possibly being:
1) Better gage and account for how many homeowners are impacted (and likely upset) by the new violation and fine process. Is it just you and the 1-2 other folks you talked to, or is this issue impacting dozens of other neighbors?
2) Gather contact info from homeowners who want to join "your side" so you don't have to go door to door anymore. Easier to communicate with all folks simultaneously if you have email addresses and phone numbers.
3) Figure out who your Board Members are. Maybe some neighbors know for certain. Maybe you'll even run into those Board Members when you're visiting houses.
4) Encourage other owners to show interest in becoming Board Members in the future.
5) Properly route a petition for a specific purpose (call a special meeting, toss out the old Board & elect a new one, have a HOA-wide discussion on what's going on, etc.).
6) Make other requests, demands.

Getting legal advice is great to better understand that your read of things and thoughts on how things should be done are correct; however, continuing down the legal path (unless absolutely the only last possible avenue) is only going to cost you and everyone else a significant amount of time and money without guaranteed success. Further, if someone tries to sue the HOA, racking up large legal bills on each side, and the legal battle is lost, then the losing party could be made to pay for the legal costs of the opposing side. Not a big deal if you come out victorious, but if you lose . . .

LillyH1 (Texas)
Posts: 40

Posted:

Quote:

Posted By LillyH1 on 09/23/2021 7:32 PM

Posted By PatJ1 on 09/23/2021 5:00 PM

Did you consult with your attorney about sending a letter to the Board about their actions? Under most circumstances any letter received from an owner's attorney will be turned over to the HOA attorney for response. Of course that is unless the Board ignores it.

Yes and there is a very specific and very good reason NOT to do that. If they get any whiff of possible litigation it is very advantageous for them to file suit against me first. Remember the legal mumbo jumbo that may prevent them from collecting fees? That is reversed if they file first. If they have an attorney who knows what they are doing they’ll file a preemptive suit as quickly as possible regardless of the merits.

I should clarify that getting a letter from some random general attorney would probably not trigger a lawsuit from the HOA. But if they got a letter from THIS lawyer who sues HOAs into the dirt all day every day or if they even knew we had consulted with him they would likely try to get a suit on file first in order to preserve the legal fee advantage. Sometimes within hours he said.

LillyH1 (Texas)
Posts: 40

Posted:

Quote:

Posted By ND on 09/24/2021 5:45 AM
With fewer than 100 homes in your HOA, going house-to-house even with only a few people is a pretty simple task to start a movement/momentum toward specific goal(s), some possibly being:

Further, if someone tries to sue the HOA, racking up large legal bills on each side, and the legal battle is lost, then the losing party could be made to pay for the legal costs of the opposing side. Not a big deal if you come out victorious, but if you lose . . .

I’m not going to be too specific, but going door to door in this neighborhood would not be well received. You’ll just have to trust me on that. Our camp has about 10 homeowners out of 100ish.

The situation with legal fees in Texas is not that simple. I don’t entirely understand it but in some HOA situations only the plaintiffs can recover legal fees. If the HOA sues a homeowner and the homeowner wins, the HOA does not usually have to pay legal fees and vice versa but there are complicated legal mumbo jumbo exceptions.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By LillyH1 on 09/24/2021 7:24 AM

Posted By ND on 09/24/2021 5:45 AM
The situation with legal fees in Texas is not that simple. I don’t entirely understand it but in some HOA situations only the plaintiffs can recover legal fees. If the HOA sues a homeowner and the homeowner wins, the HOA does not usually have to pay legal fees and vice versa but there are complicated legal mumbo jumbo exceptions.

Unilateral attorney fee clauses are covenant dependent, not state dependent.

Check your covenants. If there is a unilateral attorney fees clause, it will favor the HOA corporation and not the HOA owner.

If the covenants and statute are silent on the award of attorney fees, then an attorney's fee rule called the "American Rule" applies, and judges order that each side pays its own attorney fees.

LillyH1 (Texas)
Posts: 40

Posted:

Quote:

Posted By AugustinD on 09/24/2021 7:55 AM

Posted By LillyH1 on 09/24/2021 7:24 AM

Posted By ND on 09/24/2021 5:45 AM
The situation with legal fees in Texas is not that simple. I don’t entirely understand it but in some HOA situations only the plaintiffs can recover legal fees. If the HOA sues a homeowner and the homeowner wins, the HOA does not usually have to pay legal fees and vice versa but there are complicated legal mumbo jumbo exceptions.

Unilateral attorney fee clauses are covenant dependent, not state dependent.

Check your covenants. If there is a unilateral attorney fees clause, it will favor the HOA corporation and not the HOA owner.

If the covenants and statute are silent on the award of attorney fees, then an attorney's fee rule called the "American Rule" applies, and judges order that each side pays its own attorney fees.

Not here according to the lawyer I spoke to There is a state law covers it. The bit where it says a “prevailing party who asserted the action” means that only plaintiffs can get legal fees. So if the HOA sues the homeowner first you have to pay your own legal fees even if you win. But like I said there are some exceptions that I don’t fully understand.

Sec. 5.006. ATTORNEY'S FEES IN BREACH OF RESTRICTIVE COVENANT ACTION. (a) In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney's fees in addition to the party's costs and claim.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By LillyH1 on 09/24/2021 12:02 PM

[Texas Property Code] Sec. 5.006. ATTORNEY'S FEES IN BREACH OF RESTRICTIVE COVENANT ACTION. (a) In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney's fees in addition to the party's costs and claim.

LillyH1, thank you for the correction.

At least this works in favor of anyone (owner or HOA) alleging someone violated the covenants, regardless of whether the someone is the Board or a fellow owner.

LillyH1 (Texas)
Posts: 40

Posted:

Yes, it covers either party but also creates a perverse incentive to sue first rather than work things out. Whoever gets to the courthouse first will be the plaintiff and have an advantage. If the HOA’s attorney knew that we were even considering it they could sue me for painting my house pink. I haven’t and the case would be dismissed but they would still be the plaintiffs and I would have no chance to recover fees on counterclaims because I wasn’t the party who “asserted the action”.

It’s very unfair.

It also creates a situation where other homeowners can file multiple lawsuits against someone they just want to get rid of. A few lawsuits could bury someone in legal fees that they would have no hope to recover even if they completely won. This has happened before many times.

Stuff like this is why people hate lawyers. 99% of them give the other 1% a bad name.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By LillyH1 on 09/25/2021 7:57 AM
Yes, it covers either party but also creates a perverse incentive to sue first rather than work things out. Whoever gets to the courthouse first will be the plaintiff and have an advantage. If the HOA’s attorney knew that we were even considering it they could sue me for painting my house pink. I haven’t and the case would be dismissed but they would still be the plaintiffs and I would have no chance to recover fees on counterclaims because I wasn’t the party who “asserted the action”.

It’s very unfair.

Do you understand that a counterclaim is the equivalent of a whole new lawsuit? That if you counterclaimed, you are referred to as the "counter-plaintiff" and the HOA is the "counter-deendant."

I disagree about some advantage occurring via who gets to the courthouse first. If the HOA sues you for a covenant violation and prevails, then under Texas statute, you pay the attorney fees for the HOA (along with your own attorney's fees). But if you counterclaim, asserting that the HOA has violated certain covenants, and you prevail, then the HOA has to pay your attorney's fees.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By LillyH1 on 09/25/2021 7:57 AM

Was the management company's name two words, initials RM?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

This is an old post.

Former HOA President

JohnH38 (South Carolina)
Posts: 100

Posted:

Sir:

You wrote:

« I disagree about some advantage occurring via who gets to the courthouse first. If the HOA sues you for a covenant violation and prevails, then under Texas statute, you pay the attorney fees for the HOA (along with your own attorney's fees). But if you counterclaim, asserting that the HOA has violated certain covenants, and you prevail, then the HOA has to pay your attorney's fees. »

Twice so far I did appeal a $25 fine. The board sets a day and time for me to be heard. Early in the morning of D-Day I notify the property manager of an impediment. The meeting is then reset and I do same again. The third and last meeting, I look inside of the meeting room from the window, wave hello to them and walk away: seeing their faces is well worth $25 indeed.

As an aside, whenever they send a certified letter to me, I don't accept it. The mailman knows by now and doesn't even ring my doorbell.

Hope this helps!

MelissaP1 (Alabama)
Posts: 13,836

Posted:

This again is an OLD post... However, you refusing to sign a certified letter does you no favors. It's used as evidence against you in court for proof you were sent a notice and refused to sign for it. This does nothing but bolster the HOA case against you.

Former HOA President