when declaration is silent on an issue

I'm in texas, condominium, goverened under texas 81.

Our declaration doesn't have any clause of section under the power of the association board regarding the ability to institute fees or charges for services.

Texas 81 doesn't have anything regarding a power of the board to charging to institute charges for services or common element operation.

some parts of texas 82 do apply to condominiums goverened under 81./

specifically.. https://texas.public.law/statutes/tex._prop._code_section_82.102

however. the applicability of this section to condos under 81 specifically does NOT include

82.102.a. )impose and receive payments, fees, or charges for the use, rental, or operation of the common elements and for services provided to unit owners;

A certain board member has begun charging for services and operation of common elements. If 81 is silent. Can the board decide own to expand it's authority?

Currently the board member/propery manager has been charging owners for unplanned water shutoff. There was never a board vote. no motion, nothing in the minutes.

When I disputed a charge applied to my account, the property manager/board member came to a meeting and made the motion and the board approved charging owners 70 for turning off the water.
the board can not grand itself powers that are not explicitly granted in our declaration or governing state statute? is that correct? Am i missing something.

The declaration clearly says , all operation, maintenance and repair of any common element is done by the association and is included in the monthly assessment the owners pay.

Our condominiums do not have individual water shutoffs to each unit. we have common utilities.

thus, when an owner needs to perform a repair or upgrade which requires the water to be shutoff,, they must fill a water shutoff request .

Only the association maintenance is authorized to turn off the water.

starting last year. the property manager/board member, without board approval started charging owners when they request the water be shutoff.

because neither our declaration nor the texas 81 statute gives the board the right to institute charges and fees for services provided.

This is important , texas 82 does give the board that right. But 81 specifically does not include that power.

The property manager decided to charge owners because he was tired of responding to requests to turn the water off. What he should have done is abide by the policy. outside of emergencies, the water will not be shut off. Elective upgrades and repairs must be scheduled by the owner and their plumber on the third wednesday of the month.

Instead, he started charging this fee. Never board discussed or approved until last month.(after I submitted a written objection to the charge because it was not withint the property manager or boards authority.

changing the declaration requires an owner vote.

Well why is it wrong if you get tired of doing something to charge for it if it sucks up your time? Our city charges you for responding to false alarms. They will respond to a few but after about the 3rd time they start charging you to come out. So I still don't see why this person or the HOA can't do this.

Well said.

john.

the statute actually uses both terms.. https://texas.public.law/statutes/tex._prop._code_section_82.102

82.102a)11 impose and receive payments, fees, or charges for the use, rental, or operation of the common elements and for services provided to unit owners;

this power is expressly granted to condominium boards whose association was formed after 1994 and is goverened by texas 82.

Yes.

thank you mellissa.

My following question,
What can an individual owner do if the board of managers has been misinterpreting the maintenance responsiblites in our declaration and thus has been charging owners for repair of limited common elements.

(remember. limited common elements according to our documents and texas 81. are covered under common expenses)

I don't think anyone did anything malisciously, however, this discover will mean the association is going to have to credit serveral owners accounts for the cost incurred to repair a common element.

I anticipate some of the board is going to say "what done is done" ,, or we've been doing it this way for a long time.

Once the mistake is brought to the boards attention, does the board have the authority to vote to not go back and make affected owners whole.