Texas Secretary of State filing, my POA has deceased person listed as registered agent, and burn down house as the address

Started by RogerJ1 • 16 replies • 631 views

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RogerJ1 (Texas)
Posts: 550

Posted:

My understanding in Texas is that the Secretary of State file is a POA's official contact for legal matters. For example, if a company needed to contact the organization, it would be following the law to send correspondence to that registered agent per the address on file. Registered agents need to be available to take certified mail during normal business hours. There are many company that sell a service to be organizations registered agent for that purpose.

My POA's listed registered agent is deceased and the address is a vacant lot with a slab left from a fire damage house. What kind of legal ramifications could this cause the POA? Note: we have a new management company, who I think should take care of this and would be negligence with the company not doing so. Also my Board is incompetent, shooting down any suggestions to it, so I am not going to inform them.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The PM is NOT a member of the HOA. Why would you want a non-member be a registered agent?

Former HOA President

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By MelissaP1 on 08/16/2022 4:04 PM
The PM is NOT a member of the HOA. Why would you want a non-member be a registered agent?

It has an office opened during business hours. Registered agent companies charge around a $100 a year to do the service. I think the management company should do it as part of its services - it is not normal daily mailing; it is legal notices and I doubt our Associations would receive any, so it is not much if any work. Regardless if the management company does that part, I think it is obligated to get the Secretary of State file amended to reflect current information. It should know it is needed as part of its routine management of POAs.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By MelissaP1 on 08/16/2022 4:04 PM
The PM is NOT a member of the HOA. Why would you want a non-member be a registered agent?

Added note: the management company updated the Management Certificate, filing with our County, listing the management company's address as the POA address per that certificate. That is the certificate that real estate agents would use to contact the Association, so it would generate much more correspondence than the type of mailing that would go to the Secretary of State file listed address. So if the management company can handle that more voluminous correspondence, why not the Secretary of State also?

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By MelissaP1 on 08/16/2022 4:04 PM
The PM is NOT a member of the HOA. Why would you want a non-member be a registered agent?

I am listed as the registered agent for ALL the association's I represent and it has also been the practice for EVERY firm I have ever worked for!

Agent of the Association. Boards may delegate the day-to-day operations of their associations. A managing agent is one who represents another, called the principal, in dealings with third persons. (Civ. Code § 2295.) A manager is "a person or entity who, for compensation or in expectation of compensation, exercises control over the assets of a common interest development." (Civ. Code § 4158(a); Berryman v. Merit Management.)

SheliaH (Indiana)
Posts: 6,964

Posted:

Quote:

Posted By RogerJ1 on 08/16/2022 3:53 PM
My understanding in Texas is that the Secretary of State file is a POA's official contact for legal matters. For example, if a company needed to contact the organization, it would be following the law to send correspondence to that registered agent per the address on file. Registered agents need to be available to take certified mail during normal business hours. There are many company that sell a service to be organizations registered agent for that purpose.

My POA's listed registered agent is deceased and the address is a vacant lot with a slab left from a fire damage house. What kind of legal ramifications could this cause the POA? Note: we have a new management company, who I think should take care of this and would be negligence with the company not doing so. Also my Board is incompetent, shooting down any suggestions to it, so I am not going to inform them.

If you're not even going to TRY and bring this up because the board is "incompetent" , why in the hell did you ask the question? you do realize if there are legal ramifications, diplomacy house much as the board and the rest of your neighbors, don't you? Quit acting like a big baby because your suggestions get shot down.

It may be the board doesn't know this and it's a simple fix. Or ask the property manager to bring it up during the next board meeting. In fact, if you'd googled the question, you would have found a link to the Texas Secretary of state website. It states if your registered when this no longer around, you could designate another and file a changed with that office ,- otherwise you risk an involuntary termination of a domestic filing entity. You can look up that part, but as Max noted, many property managers serve as a HOA's registered agent.

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

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By RogerJ1 on 08/16/2022 3:53 PM

Also my Board is incompetent, shooting down any suggestions to it, so I am not going to inform them.

Why are you being so concerned about the issue but refuse to take the simplest step to remedy it?

The Board simply needs to file an update to their annual report to the corporation commission.

If you desire to be petty, I suppose you could contact the corporation commission and see if they will do anything.
However, I would attempt sending a note to the Board first.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By TimB4 on 08/16/2022 7:24 PM

Posted By RogerJ1 on 08/16/2022 3:53 PM

Also my Board is incompetent, shooting down any suggestions to it, so I am not going to inform them.

I highly doubt anything adverse will happen as it is doubtful if the Association where to be sued by distant party that would use the State filing to obtain contact information, but if it does, it might be funny.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By SheliaH on 08/16/2022 6:50 PM

In fact, if you'd googled the question, you would have found a link to the Texas Secretary of state website. It states if your registered when this no longer around, you could designate another and file a changed with that office ,- otherwise you risk an involuntary termination of a domestic filing entity. You can look up that part, but as Max noted, many property managers serve as a HOA's registered agent.

Do you have links or more information on this?

SheliaH (Indiana)
Posts: 6,964

Posted:

Good grief, someone has to Google for you now?? Oh, alright, just this once:

sos.state.tx.us/index.shtml

From tgere, you can search registered agent - one page has frequently asked questions on the the subject. The change for you need is also there for downloading - and there's even a portal where you can upload the form.

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

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By SheliaH on 08/17/2022 4:12 AM
Good grief, someone has to Google for you now?? Oh, alright, just this once:

sos.state.tx.us/index.shtml

From tgere, you can search registered agent - one page has frequently asked questions on the the subject. The change for you need is also there for downloading - and there's even a portal where you can upload the form.

Thanks but I had already reviewed that finding nothing about involuntary termination. That is what I was wanted to read. Do you have information on that because I see none.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Roger,

I took 15 seconds to look up the issue.

Per Texas Business Organizations Code, the Secretary of State serves as the registered agent if an organization fails to maintain a registered agent.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By TimB4 on 08/17/2022 6:40 AM
Roger,

I took 15 seconds to look up the issue.

Per Texas Business Organizations Code, the Secretary of State serves as the registered agent if an organization fails to maintain a registered agent.

That reflects a 2003 law. I cannot find it now, but last night while reading a FAQ list on registered agents and entity registrations on the Secretary of State site, I am fairly sure one of the FAQs was something along the lines, "will the Secretary of State department serve as registered agent for an entity", and the answer was "no." So perhaps the law has been changed in almost twenty years.

RogerJ1 (Texas)
Posts: 550

Posted:

Here it is: "The secretary of state, or other governmental agency or authority, cannot serve as an entity's registered agent."

https://www.sos.state.tx.us/corp/registeredagentfaqs.shtml#:~:text=The%20secretary%20of%20state%2C%20or,as%20an%20entity's%20registered%20agent.

I have had this happen with my current Board. They will discuss a law, from a third party site, not the state or local government site, that is citing legal code from 10+ years ago that has been amended since, sometimes multiple amendments having happened, and wrong now - they will discuss the law at length advocating for something until someone points out it is old, wrong law.

They went through something even worse when the current Board verbatim cited Texas law in recently amended CCRs. I made the point, why? Texas law would override anything in conflict in the CCRs, so no point citing that law. It just makes the CCR longer than they needed to be. Also, law is often amended, and with the large Texas Property Code re-write in ~2018, there are likely to be many amendments going forward as kinks are found. The hard headed Board went with citing much legal code anyway, and within less than a year, there were state amendments passed that changed some of the laws that are cited in those amended CCRs that were adamant include those now amended laws.

AugustinD
Posts: 1,027

Posted:

RogerJ1, I think you need to read carefully the statute section that TimB4 graciously cited (and which is current), and maybe also search carefully using the link SheliaH graciously provided.

Per current Texas statute, the Texas Secretary of State does serve as the registered agent when the corporation's registered agent cannot be located, but only for the purposes of service of process, notice or demand. If you do not know what the latter terms mean, google.

What TimB4 cited is up-to-date. This was easily confirmed. I think you have some confusion about when a statute section is still valid.

For looking up Texas statutes, I happen to prefer the Texas .gov site. In particular, https://statutes.capitol.texas.gov/Docs/BO/htm/BO.5.htm confirms TimB4's citation is up to date. At this point in your career of complaining about your HOA Board, I would have expected you to know to check that what TimB4 cited is up to date. I would expect you to have the .gov sites for TPC 209 and BO 22 bookmarked, among other sites.

As far as the legal ramifications of not having a real live registered agent with address, what you want to do is to look up the statute that requires a corporation to provide an accurate name and address of a registered agent to the secretary of state. Then see if there is an enforcement section. I would start by searching BO 22 at

https://statutes.capitol.texas.gov/Docs/BO/htm/BO.22.htm

I quickly reviewed BO 22, and I have a suggestion about what step to take next. But I would like to see if you can review BO 22 and see what the suggestion is. If you post back with what you find, then I will comment further.

SheliaH (Indiana)
Posts: 6,964

Posted:

Quote:

Posted By AugustinD on 08/17/2022 8:50 AM
RogerJ1, I think you need to read carefully the statute section that TimB4 graciously cited (and which is current), and maybe also search carefully using the link SheliaH graciously provided.

Per current Texas statute, the Texas Secretary of State does serve as the registered agent when the corporation's registered agent cannot be located, but only for the purposes of service of process, notice or demand. If you do not know what the latter terms mean, google.

What TimB4 cited is up-to-date. This was easily confirmed. I think you have some confusion about when a statute section is still valid.

For looking up Texas statutes, I happen to prefer the Texas .gov site. In particular, https://statutes.capitol.texas.gov/Docs/BO/htm/BO.5.htm confirms TimB4's citation is up to date. At this point in your career of complaining about your HOA Board, I would have expected you to know to check that what TimB4 cited is up to date. I would expect you to have the .gov sites for TPC 209 and BO 22 bookmarked, among other sites.

As far as the legal ramifications of not having a real live registered agent with address, what you want to do is to look up the statute that requires a corporation to provide an accurate name and address of a registered agent to the secretary of state. Then see if there is an enforcement section. I would start by searching BO 22 at

https://statutes.capitol.texas.gov/Docs/BO/htm/BO.22.htm

I quickly reviewed BO 22, and I have a suggestion about what step to take next. But I would like to see if you can review BO 22 and see what the suggestion is. If you post back with what you find, then I will comment further.

Run for your lives, he's BÀAAAAAAACK! And that's a Good thing!

Good to see you again (Laska will be over the moon)

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

AugustinD
Posts: 1,027

Posted:

Thank you, SheliaH.

I suspect I am about where you are when it comes to RogerJ1.

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