Texas caselaw

LillyH1 (Texas)
Posts: 40

Posted:

Hi,

This information on this forum has been a huge help to me in researching my battle with my HOA, so thank you all for all of the info you’ve posted over the years. If not for the info I stumbled across here I would have no idea what the law says or what my rights are.

We still have not decided what we are going to do but I have been doing a lot of amateur lawyering.

To recap, our HOA has been doing some very shady things such as:
1. Issuing fines with no authority granted in the CCR or Bylaws
2. Issuing fines without following the ch 209 procedure
3. Not holding open board meetings, ever
4. Passing rules and changing bylaws in closed meetings
5. Prohibiting members from voting if they are behind on dues or fines (209.0059 says you can’t)
6. Ignoring rules on ACC members and the ACC and fine appeal procedures

I’ve been searching for case law covering some of these and I’m wondering if anyone is aware of anything specific. I’ve been using google scholar but can’t find anything at all about someone challenging the authority to fine in TX. Also I’m wondering how serious the open meeting violations are. There are some other resolutions they passed in closed meeting that I can’t describe without giving up too much info about the exact subdivision. Is anyone aware of caselaw challenging actions taken by a board in closed meetings?

Here are a couple I’ve found but they are not great matches.

https://scholar.google.com/scholar_case?case=7479726100259061809&q=Brooks+v.+Northglen+Ass%27n&hl=en&as_sdt=6,44&as_vis=1

https://casetext.com/case/w-hills-harbor-owners-assn-v-todd-baker-george-joseph-wife-evelyn-joseph-charles-johnson-charles-michael-props-inc

SheliaH (Indiana)
Posts: 6,964

Posted:

Amateur lawyering can be a dangerous thing, don't some point you may have to sit down with obe, especially if you want to take them to court. Instead of case law, start with your DOCUMENTS (they should be somewhere among the stack of papers you got at closing).

Usually, bylaws dictate how the community is to be run, addressing things soundboard powers and owner rights and responsibilities. There may be language stating the board can set additional rules as long as they don't supersede the current documents. The CCRs dictate how the common area can be used - this is where you'll see rules about exterior change requests or parking.

If you didn't read any of this stuff when you bought your home, get comfy and start taking notes to see how some of your issues are addressed. Next, go-to your state government website and see where current state law is posted. There should be a search engine relationship you look for the current law on HOAs. Note the effective date - some may only apply to HOAs established after a certain date and may not be applicable to your community.

Now that you've educated yourself, remember boards can't run amock unless the homeowners stand around and watch. Meaning you and your neighbors must get together and demand answers. if you don't like what you hear or the board ignores you, that's when you take note of what documents say about calling special homeowner meetings where people may need to recall this board and appoint anither. Your better have some people ready gastronomic it comes to that and you may need to be one of tgem. From there you can focus on what needs to be done.

this won't get fixed overnight and you'll need help from your neighbors to pressure the board to straighten up or be sacked. It may even mean all of you chip in for an attorney who'll right the good fight or send a nastygram that makes them blink. Good luck!

For what it's worth, I have no problem suspending voter rights when people don't pay their fair share of assessments. Why should you get to use the amenities or serve on the board when others are indirectly subsidizing you while you get to spend your money on whatever you want? If you're ok with that, shut your yap next time assessments increase because that's one reason it happens.

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

LillyH1 (Texas)
Posts: 40

Posted:

Quote:

Posted By SheliaH on 10/07/2021 12:56 PM
Amateur lawyering can be a dangerous thing, don't some point you may have to sit down with obe, especially if you want to take them to court. Instead of case law, start with your DOCUMENTS (they should be somewhere among the stack of papers you got at closing).

Usually, bylaws dictate how the community is to be run, addressing things soundboard powers and owner rights and responsibilities. There may be language stating the board can set additional rules as long as they don't supersede the current documents. The CCRs dictate how the common area can be used - this is where you'll see rules about exterior change requests or parking.

If you didn't read any of this stuff when you bought your home, get comfy and start taking notes to see how some of your issues are addressed. Next, go-to your state government website and see where current state law is posted. There should be a search engine relationship you look for the current law on HOAs. Note the effective date - some may only apply to HOAs established after a certain date and may not be applicable to your community.

Now that you've educated yourself, remember boards can't run amock unless the homeowners stand around and watch. Meaning you and your neighbors must get together and demand answers. if you don't like what you hear or the board ignores you, that's when you take note of what documents say about calling special homeowner meetings where people may need to recall this board and appoint anither. Your better have some people ready gastronomic it comes to that and you may need to be one of tgem. From there you can focus on what needs to be done.

this won't get fixed overnight and you'll need help from your neighbors to pressure the board to straighten up or be sacked. It may even mean all of you chip in for an attorney who'll right the good fight or send a nastygram that makes them blink. Good luck!

For what it's worth, I have no problem suspending voter rights when people don't pay their fair share of assessments. Why should you get to use the amenities or serve on the board when others are indirectly subsidizing you while you get to spend your money on whatever you want? If you're ok with that, shut your yap next time assessments increase because that's one reason it happens.

Thanks for the reply. I'm well past the point of reading our governing docs and have already had a consultation with an attorney which is where I've gotten most of my info to this point(there's another thread titled "suing HOA" from a couple of weeks ago).
The reason I'm looking for caselaw is to get an idea how a lawsuit will play out but I haven't been able to find any real examples of a homeowner suing over a board overstepping their power.

And you may be ok with taking away the voting rights of someone who is disputing a fine or late fee, but I and the TX state legislature, are not OK with it. Each owner needs to be able to vote regardless of their "standing" with the board.

LillyH1 (Texas)
Posts: 40

Posted:

Quote:

Posted By RollandE1 on 10/07/2021 5:13 PM

Posted By SheliaH on 10/07/2021 12:56 PM

For what it's worth, I have no problem suspending voter rights when people don't pay their fair share of assessments. Why should you get to use the amenities or serve on the board when others are indirectly subsidizing you while you get to spend your money on whatever you want? If you're ok with that, shut your yap next time assessments increase because that's one reason it happens.

Totally agree, wish the USA government, state and local gov. would apply this to all people who are behind on taxes too! think of how many people could be kicked off the election rolls! stupid constitution gets in the way though. Maybe we can repeal the right to vote, they did it with convicts in many states, jsut need to take it to the next level!

Haha. Exactly.

SheliaH (Indiana)
Posts: 6,964

Posted:

Reading is fundamental, you two. I said ASSESSMENTS - I didn't say late fees or fines. It's ok to dispute a late fee if you can prove your assessment was paid on time (if not you're supposed to get a late fee.) Try paying a credit card bill or car note whenever you want and less than what you're supposed to and watch what happens.

I also expect people to dispute fines if they aren't permitted by the documents or state law, if homeowners aren't given a schedule of fines in advance, etc. Disputing fines should be part of the appeals process when you get a rules violation notice. I prefer they reflect what the association had to pay to correct the problem if necessary. Otherwise, fines should serve as a deterrent - don't want to pay them, comply with the damned rules! Have an issue with the rules, like selective enforcement - there are ways to address that as well.

Late fees and fines alone should cause your voting rights to be suspended, but assessments pay for the services the association is supposed to provide. Y'all know he or she who has the gold rules, and I find people usually sit up and pay attention when THEIR money is involved and because they help pay the bills, others are inclined to listen to what the payers have to say. If you aren't paying your fair share, but still expect to receive the same level of services, I have a HUGE problem with that.

Simple math dictates if you have to provide services for say, 100 homes, but only 80 owners are paying, you don't have enough money. Vendors are usually contracted to provide services for the entire community and if you live in a high rise condo or a townhouse community like mine, you don't have the luxury of ignoring the units of people who don't pay because if those repairs aren't made, the entire building might be at risk, and that would include the people who do pay.

Like I said - if YOU want to support people who don't pay or refuse to, have at it.

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

SheliaH (Indiana)
Posts: 6,964

Posted:

A typo - I meant to type late fees and fines alone SHOULDN'T result in your voting rights to be suspended.

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

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Our docs say Members In Good Standing may vote. Our attorney tells us being late on dues says you are not in good standing thus cannot vote. Late only dues only.

LillyH1 (Texas)
Posts: 40

Posted:

In Texas, an HOA can't prohibit someone from voting if they own the property. End of discussion. And I wholeheartedly agree with that. Collecting dues, late fees, penalties or whatever is a separate matter from voting. You seem to equate voting with using amenities when they have nothing to do with one another. Having your say in how the association is run is a fundamental right granted to whomever owns the property. It is not a privilege to be taken away irrespective of someone's "standing". You want to take away their access to the pool or whatever? Fine, but they can still vote. I'm surprised this is a law in every state.

Sec. 209.0059. RIGHT TO VOTE. (a) A provision in a dedicatory instrument that would disqualify a property owner from voting in a property owners' association election of board members or on any matter concerning the rights or responsibilities of the owner is void.

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By LillyH1 on 10/08/2021 12:50 PM
In Texas, an HOA can't prohibit someone from voting if they own the property. End of discussion. And I wholeheartedly agree with that. Collecting dues, late fees, penalties or whatever is a separate matter from voting. You seem to equate voting with using amenities when they have nothing to do with one another. Having your say in how the association is run is a fundamental right granted to whomever owns the property. It is not a privilege to be taken away irrespective of someone's "standing". You want to take away their access to the pool or whatever? Fine, but they can still vote. I'm surprised this is a law in every state.

Sec. 209.0059. RIGHT TO VOTE. (a) A provision in a dedicatory instrument that would disqualify a property owner from voting in a property owners' association election of board members or on any matter concerning the rights or responsibilities of the owner is void.

I agree 100%.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By BenA2 on 10/08/2021 3:33 PM

Posted By LillyH1 on 10/08/2021 12:50 PM
In Texas, an HOA can't prohibit someone from voting if they own the property. End of discussion. And I wholeheartedly agree with that. Collecting dues, late fees, penalties or whatever is a separate matter from voting. You seem to equate voting with using amenities when they have nothing to do with one another. Having your say in how the association is run is a fundamental right granted to whomever owns the property. It is not a privilege to be taken away irrespective of someone's "standing". You want to take away their access to the pool or whatever? Fine, but they can still vote. I'm surprised this is a law in every state.

Sec. 209.0059. RIGHT TO VOTE. (a) A provision in a dedicatory instrument that would disqualify a property owner from voting in a property owners' association election of board members or on any matter concerning the rights or responsibilities of the owner is void.

I agree 100%.

We can agree to disagree. I say deadbeat (dues delinquent) owners should have no voice in how an association is run.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By JohnC46 on 10/09/2021 2:28 PM

Posted By BenA2 on 10/08/2021 3:33 PM

Posted By LillyH1 on 10/08/2021 12:50 PM
In Texas, an HOA can't prohibit someone from voting if they own the property. End of discussion. And I wholeheartedly agree with that. Collecting dues, late fees, penalties or whatever is a separate matter from voting. You seem to equate voting with using amenities when they have nothing to do with one another. Having your say in how the association is run is a fundamental right granted to whomever owns the property. It is not a privilege to be taken away irrespective of someone's "standing". You want to take away their access to the pool or whatever? Fine, but they can still vote. I'm surprised this is a law in every state.

Sec. 209.0059. RIGHT TO VOTE. (a) A provision in a dedicatory instrument that would disqualify a property owner from voting in a property owners' association election of board members or on any matter concerning the rights or responsibilities of the owner is void.

I agree 100%.

We can agree to disagree. I say deadbeat (dues delinquent) owners should have no voice in how an association is run.

Also agree and find the argument, "Having your say in how the association is run is a fundamental right granted to whomever owns the property..." to be lacking. Since the homeowner agreed to the terms when they purchased the home doesn't the HOA have a fundamental right to collect the dues they are owed so that they can run the business? My opinion is obviously not a legal one. If you can't afford the dues or you don't want to pay them then move.

LillyH1 (Texas)
Posts: 40

Posted:

Quote:

Posted By JohnT38 on 10/09/2021 2:36 PM

Posted By JohnC46 on 10/09/2021 2:28 PM

Posted By BenA2 on 10/08/2021 3:33 PM

Posted By LillyH1 on 10/08/2021 12:50 PM
In Texas, an HOA can't prohibit someone from voting if they own the property. End of discussion. And I wholeheartedly agree with that. Collecting dues, late fees, penalties or whatever is a separate matter from voting. You seem to equate voting with using amenities when they have nothing to do with one another. Having your say in how the association is run is a fundamental right granted to whomever owns the property. It is not a privilege to be taken away irrespective of someone's "standing". You want to take away their access to the pool or whatever? Fine, but they can still vote. I'm surprised this is a law in every state.

Sec. 209.0059. RIGHT TO VOTE. (a) A provision in a dedicatory instrument that would disqualify a property owner from voting in a property owners' association election of board members or on any matter concerning the rights or responsibilities of the owner is void.

I agree 100%.

We can agree to disagree. I say deadbeat (dues delinquent) owners should have no voice in how an association is run.

Also agree and find the argument, "Having your say in how the association is run is a fundamental right granted to whomever owns the property..." to be lacking. Since the homeowner agreed to the terms when they purchased the home doesn't the HOA have a fundamental right to collect the dues they are owed so that they can run the business? My opinion is obviously not a legal one. If you can't afford the dues or you don't want to pay them then move.

Yes, the HOA does have the right to collect dues they just can’t prevent the owner from voting if they are behind (or disputing something). One thing has absolutely nothing to do with the other. One is debt collecting and the other is a person’s voice in a (privatized) representative democracy. The HOA already has the power to place a lien on the property and initiate foreclosure. Why do they also need to stop them from having a vote?

It would be the same principle if you owed the IRS taxes and they took away your right to vote for congressional representatives or mayor or whatever.

(I know some states prohibit felons from voting and I disagree with that on the same grounds)

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By LillyH1 on 10/10/2021 5:02 PM

Posted By JohnT38 on 10/09/2021 2:36 PM

Posted By JohnC46 on 10/09/2021 2:28 PM

Posted By BenA2 on 10/08/2021 3:33 PM

Posted By LillyH1 on 10/08/2021 12:50 PM
In Texas, an HOA can't prohibit someone from voting if they own the property. End of discussion. And I wholeheartedly agree with that. Collecting dues, late fees, penalties or whatever is a separate matter from voting. You seem to equate voting with using amenities when they have nothing to do with one another. Having your say in how the association is run is a fundamental right granted to whomever owns the property. It is not a privilege to be taken away irrespective of someone's "standing". You want to take away their access to the pool or whatever? Fine, but they can still vote. I'm surprised this is a law in every state.

Sec. 209.0059. RIGHT TO VOTE. (a) A provision in a dedicatory instrument that would disqualify a property owner from voting in a property owners' association election of board members or on any matter concerning the rights or responsibilities of the owner is void.

I agree 100%.

We can agree to disagree. I say deadbeat (dues delinquent) owners should have no voice in how an association is run.

Also agree and find the argument, "Having your say in how the association is run is a fundamental right granted to whomever owns the property..." to be lacking. Since the homeowner agreed to the terms when they purchased the home doesn't the HOA have a fundamental right to collect the dues they are owed so that they can run the business? My opinion is obviously not a legal one. If you can't afford the dues or you don't want to pay them then move.

Yes, the HOA does have the right to collect dues they just can’t prevent the owner from voting if they are behind (or disputing something). One thing has absolutely nothing to do with the other. One is debt collecting and the other is a person’s voice in a (privatized) representative democracy. The HOA already has the power to place a lien on the property and initiate foreclosure. Why do they also need to stop them from having a vote?

It would be the same principle if you owed the IRS taxes and they took away your right to vote for congressional representatives or mayor or whatever.

(I know some states prohibit felons from voting and I disagree with that on the same grounds)

My comment was directed towards owners that are habitually 6 months or more behind on their dues. In these cases, I stand behind every word I said and I realize that my opinion is not based on law and may be wishful thinking. These people are not contributing members and their negligence often means that another owner's request for maintenance or repair is put on hold if there is enough of these dead beats in the community.

In my state there was a proposed bill submitted by a politician a couple of years ago that would have outlawed ANY HOA related foreclosure or liens for ANY reason. This means I could live in my condo for years and not pay a dime in fees. I find this sickening. As a paying member of my HOA I should not have to pay higher fees for Joe Blow to use the pool, tennis courts and any other amenity that is provided. It is my opinion that if this bill had passed the sense of entitlement that runs rampant in our society could very well be the downfall of an HOA which is dependent on dues being paid by all owners. Unlike the government, an HOA can't just print off money to offset non paying members.

At the risk of appalling you I would have no problem with suspending a citizens right to vote in cases where the citizen hasn't even bothered to file taxes in years and it can be demonstrated that they knowingly did so to avoid their responsibility.

LaskaS (Texas)
Posts: 1,025

Posted:

hi, here's how it will turn out. The board will use the homeowners money to pay the hoa lawyer to defend their incompetence.

I've been through nightmare after nightmare...

It's almost annual election time. HERE IS THE LEAST EXPENSIVE WAY TO facilitate change.

you must gather other owners to run for the board. If you don't have people willing to help, you will give way too much of your life to fight an uphill battle. Even when you are right.

How many board members does your community have. ? are any of them salvageable?