can of worms , association charging for already included services

Did you try to bring this subject up before you ambushed them in a meeting? If not, I can't blame for them for staying silent. A wise Board member wouldn't say anything until they had time to research the issue.

You claim you can prove $7,000 worth of charges that should not have occurred. Suppose the Board digs in their heels and ends up spending $20,000 on lawyer fees. If this does happen, you've gained nothing since the owners ultimately pay for the lawyer.

No.

The Board should make it right. They do not have to.


No you can't. You can go to court on behalf of yourself.
Others must either bring their own legal action or join yours (the choice is theirs)


The court can do what ever it chooses to.
The losing party can then appeal that decision.

Personally, I doubt the court would approve such action.
This is because the funds were likely spent for the good of the Association. Additionally, if any units sold in the last 3 years (or more, depending on how long it takes the case to be resolved) it can be next to impossible to track down the previous owners to refund theirs.

I would simply request the court order the Board to comply with the governing documents and adjust assessments accordingly.

Don't forget the unintended consequences of bringing such action (dividing the community, perhaps increased assessments to pay for the Associations legal defense, etc.).

You might do better by simply having your attorney write the board on your behalf.
This will show that you are serious about the issue.
This may have the board make changes.
This may simply have the board dig in and any further discussion on the issue will be through the legal process and attorneys.

I should add: I think a derivative suit is really pie in the sky in this case. Even if we were talking about a lot more money, making a lawsuit maybe something to consider, I can see (and have seen) litigation of this nature dragging on for years, with each side paying hundreds of thousands of dollars. Granted there absolutely are people who only understand the futility of litigation until they have gone through it. If LaskaS is one of these people, then she should hire the attorney, and pray that the attorney is not just out to take her money, filing suit where it is in fact a bad idea to file suit, all told.

I am posting about derivative suits more for the sake of completeness, for the archives, and my interest in general in HOA/COA law.

kerry,, here you go.

unit as defined by our declaration

A. "Unit" means an individual air space unit which is contained within the perimeter walls, floors, ceilings, windows and doors of such unit, all as shown on the Condominium Map filed herewith, together with all fixtures and improvements therein contained but not including any of the structural components of the building in which such unit is located.
-
B. "Condominium Unit" means the fee simple interest and title in and to a unit together with the undivided interest in the general and limited common elements thereto.
G. "Common Expenses" means and includes expenses for maintenance, repair, operation, management and administration; expenses declared common expenses by the provisions of this Declaration and the By-Laws of The Pines Condominium Association; and all sums lawfully assessed against the general common elements by the Board of Managers of the Association.

4. Common Elements.
Common elements are composed of general common elements and limited common elements

5. Utilities. All expenses incurred for the service of electricity, gas and water for all units shall be regarded as common expense and assessed in accordance with Paragraph 21 hereof.

21. Assessment for Common Expenses. All owners shall be obligated to pay the assessments, either estimated or actual, imposed by the Board of Managers of the Association to meet the common expenses. The initial assessments shall be determined in accordance with the following schedule:
.....
and shall cover
all estimated expenses growing out of or connected with the maintenance, repair, operation, additions, alterations and improvements of and to the general common elements,..

the I went to the state statutes governing condominiums. our condominiums are governed under 81 and parts of 82.

the parts of 82 that Do designate some limited common utilities that serve only one unit to the owner are contained in

https://texas.public.law/statutes/tex._prop._code_section_82.107

82.107 is specifically excluded from retroactively applying to condo's governed under 81.

https://texas.public.law/statutes/tex._prop._code_section_82.002

additionally, the powers of the association granted under 82.107 that apply to 81 are (a)(1)-(7), (a)(12)-(21), (f), and (g),
https://texas.public.law/statutes/tex._prop._code_section_82.107

specifically, exclude 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;

Based on our declaration, and the the applicable statutes. The association goverened by the board of managers does not have the power granted in section 11 above. However, it appears that the current board has expanded thet authority they are granted. And whenever questioned by an owner who has been charged back the costs to repair a common drain line running through the walls or potable water line running through the walls, the manager has been quoting.. Texas 82.107 b. https://texas.public.law/statutes/tex._prop._code_section_82.107
Which does not apply to our condominiums. But up until now. noone else has caught this .

yikes. i'm sorry, the powers of the association granted is in 82.102 not 82.107

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

11.. in 82.102 a.11

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;

here are the defitions in our declaration.

CONDOMINIUM DECLARATION
.
LWHEREAS, Declarant desires to establish a condominium project under the Condominium Act of the State of Texas; and
WHEREAS, Declarant does hereby establish a plan for the ownership in fee simple of the real property estates consisting of the area or space contained in each of the units in the building improvements and the co-ownership by the individual and separate owners of all of the remaining property, which remaining property is hereinafter defined and referred to as the limited and general common elements: ;
.

NOW, THEREFORE, Declarant does hereby publish and declare that the following terms, covenants, conditions, easements, re strictions, uses, limitations and obligations shall be deemed to run *th the land, shall be a burden and a benefit to Declarant and any persor. or entity acquiring or owning an interest in the real property and improvements, their heirs, personal representatives, devisees, successors and assigns.
1. Definitions. Unless the context shall expressly provide otherwise

A. "Unit" means an individual air space unit which is contained within the perimeter walls, floors, ceilings, windows and doors of such unit, all as shown on the Condominium Map filed herewith, together with all fixtures and improvements therein contained but not including any of the structural components of the building in which such unit is located.

B. "Condominium Unit" means the fee simple interest and title in and to a unit together with the undivided interest in the general and limited common elements thereto.

C. "Owner" means a person, firm, corporation, partnership, association or other legal entity, or any
combination thereof, who owns one or more condominium Units.

D. "General Common Elements" means and includes the land described in Exhibit "A"; all common utility. lines, including sewerage, water, gas, and electric wiring leading to each unit or servicing more than one unit; all air conditioning equipment, heating equipment, hot water equipment and all components thereof servicing more than one 'unit; the swimming pools and swimming pool
equipment; Condominium office, club room, utility rooms (which includes laundry rooms and mechanical rooms) and storage rooms as shown on Exhibit "B"; roads; yards; shrubs; trees; walks; parking spaces and balconies not otherwise designated as limited common elements; pavement; foundation; roof; exterior walls; chimneys; and all other areas of such land and the improvements thereon necessary or convenient to its existence, maintenance and safety which are normal and reasonably in common use, including the air above such land, all of which shall be owned by the owners of the separate units except where specifically designated "limited common elements," as that term is defined in Paragraph 1E hereof, each owner of a unit having an undivided percent age interest in such general common elements as set forth in Exhibit "C" attached hereto.

E. "Limited Common Elements" means those common elements which are either limited to and reserved for the exclusive use of an owner of a condominium unit or are limited to and reserved for the common use of more than one but fewer than all of the condominium owners. The limited common elements shall be:
(i) the structural and other commonly used components of each building and the utilities, sewers, power, water and other common lines running through the walls, ceiling or floor of each unit and utilized only to service such unit; and
. (ii) where applicable, any parking spaces reserved for the exclusive use of a unit and any storage areas, stairways, balconies and patios reserved for the exclusive use of one or more units; such parking spaces, storage areas, stairways, patios, and balconies being shown on the attached Exhibit "B" wherein unit numbers shown on such parking spaces, storage areas, stairways, patios and balconies and followed by the letter "L" corres pond to the unit number or unit numbers for which such parking space, storage area, stairway, patio or balcony is exclusively reserved, each owner of a unit having an undivided percentage interest in such limited common elements as set forth on Exhibit "C" attached hereto.

F. "Condominium Project" means all of the land and improvements submitted by this Declaration.

G. "Common Expenses" means and includes expenses for maintenance, repair, operation, management and administration; expenses declared common expenses by the provisions of this Declaration and the By-Laws of The Pines Condominium Association; and all sums lawfully assessed against the general common elements by the Board of Managers of the Association.
H. "Association of Unit Owners" or "Association" means The Pines Condominium Association, an unincorporated association, its successors and assigns, the By-Laws of which shall govern the administration of this condominium property, the members of which shall be all of the owners of the condominium units

augustine,

what i would be seeking is an order by the court for the board to follow the declaration regarding the maintenace responsiblities and who pays for what....

I found this case, based on the clear designation of maintenance responsibilities in our declaration. Looks like bringing a case and making a motion for summary judgement based on the declaration and statutes.

https://www.condolawgroup.com/2017/12/28/auto-draft-6/

exactly mellissa,

all owners are already paying our maintenance fees.. and the board has failed to actually use the maintenance fees for what they were intended and budgeted.

so yes,, any owner who was charged a second time for something already covered by their monthly maintenance should have a credit placed on their account for the ammount the association charged.

yes, it will lower the common fund balance. but again, at this point, the board has failed to properly allocate over 140,000 in estimated, budgeted costs for the day to day maintenance and operataions. The money just keep piling up and no improvments other than emergency repairs.

Okay. So what if there was a vote or majority agreed to this? Why are we needing to go down this rabbit hole again??? Ship has sailed...Where you personally damaged? If not, then so what? Stop trying to be a "hero" for others. Do you..

Finally the "Truth" comes out... You were charged. Why could you not have stated this in the beginning? The TRUTH is that YOU are pissed off about it. So are you ASSUMMING others are as well to justify your stance? I have yet to see you post that others have contacted you or gone to a board meeting to address the issue. So it comes off sounding like another "You" problem...

LaskaS, this forum has repeatedly concluded that your COA should not be assessing you or any owner for the expense you described earlier, involving the COA manager's operation of a common area or limited common area valve.

You have started numerous threads on this subject. Today you ask about Justice Court: Can "a justice court determine that the association has been doing it wrong and award all the owners their money back?"

What is possible, in my very layperson's opinion: f you qualify to file a derivative lawsuit (meaning you formally sue on behalf of the corporation, for harm the directors are doing to the corporation by violating the Declaration), the court might order that the COA pay back money owed to any owner who was charged in the way you were charged. However you would likely have to get every single owner so charged involved. I think your doing is not going to happen. I do not want to debate the point.

To me, and if you have money to throw away, your best chance is to hire an attorney and file suit on behalf of only yourself. If you prevail

You're either going to locate a COA attorney for a consult and pay up, or you're not.

I think the more times you repeat the same topic here, and fail to 'walk the talk,' the less credibility you are going to have.

This is absolutely not something any non-COA lawyer should undertake. Go hire the attorney.

To repeat much of the analysis from before:
This is a 2017 Washington state case. The appeals court decision appears here:

https://casetext.com/case/leo-v-diana-court-owners-assn
===

Aug's summary:
In 2015 a Washington COA attempted to amend its bylaws so that owners would have to pay for the maintenance and repairs of those limited common areas assigned to them. The COA maintained the amendment was proper. Sometime after the alleged amendment, the COA repaired a particular limited common area (LCA) (a carport) assigned to three owners. Based on the alleged bylaws amendment, the COA assessed the three owners, but not the many other owners in the COA, for the repair.

In court proceedings, the plaintiff-owner said the amendment was not proper, due to no vote by the owners taking place. The court agreed with the plaintiff. The plaintiff also pointed out that state statute required that the COA Declaration (not the Bylaws) have a provision for assessing individual owners for repairs to an limited common area. The COA Declaration has no such provision.

Based on the Declaration's assessment section, the appeals court ruled for the owner. Per the court, the Declaration and state statute prohibited the COA from assessing the individual owner for repairs to the limited common area assigned to the owner.
===

In LaskaS's case, the COA operated either an LCA valve or a common area valve and assessed her for the labor to do so. This Texas COA Declaration, like the Washington COA Declaration, does not speak of assessing individual owners for costs associated with common area maintenance and repairs. Furthermore, TPC 81 does not speak to assessments. TPC 82 has a section on assessments applicable to newer condos, but not LaskaS's older condo. To me, this leaves the Declaration as controlling here.

Augustin,

Ok, I understand.

Fyi, I have listened to a lot you have said before, That's why i haven't gone to a lawyer previously. even though the board was not abiding by the declaration and legal requirements.

I have been collecting signatures for the petition to call a special meeting. We have over 70 signatures so far.

The reason I brought this topic up again recently, is because I found out that it's not just me that the board has been assessing fees without authority.

When I was able to locate thousands of dollars worth of chargebacks to numerous owners. I thought I may have a new window. Texas now allows cases to be filed in justice courts for up to 10,000. Justice court would not require me throwing away 10,000.

I consulted with a lawyer about 3 weeks ago(before i found out many owners were charged unauthorized fees). He said I could file a case, it would like settle before any trial as this is a matter of law and enforcement of the ccr's. He hen informed me that I wouldnt be guaranteed my legal fees back if it didn't go to trial. Anyway, he said I would be better off continuing with the petition to call a special meeting.

Just wanted to let you know, I'm not just doing nothing, and asking the same questions. I was asking a nuanced question, that i now realize I should direct to a lawyer.

thanks augustine

I think it's likely that Texas Justice Court (a type of small claims court) does not have jurisdiction over derivative lawsuits like the one you are effectively proposing. I cannot quite nail this right now, but this is what my reading has indicated for certain states.

If you have started a list of questions for next time you maybe see an attorney, I would add this. Said question being: "Does Justice Court have jurisdiction(?) over derivative lawsuits?" Mostly for your layperson's education (and mine).

LaskaS's condo is pre-1994. For many months now I know both LaskaS and I have taken care to try to make sure when her pre-1994 condo might have sections of TPC 82 applicable to it. Because yes indeed, only some sections of TPC 82 apply to pre-1994 condos. All of TPC 81 applies to LaskaS's condo.

Thanks for checking in. It should help the archives.

?

I just go to TPC 82.002, which contains the full list of those sections of TPC 82 that apply to pre-1994 condos. Is that somehow deficient in your mind? It appears 82.002 reflects the various amendments over the years. Assuming one has a genuine, current copy of TPC 82.002 sitting in front of one.

I still want a matrix of all those parts of the TPC outside of {Chapters 81, 82 and 209} that might apply to the covenants of Texas HOAs and COAs.

Bill,

You are exactly correct. I am very familiar with the differences . Our condominium is goverened under 81. we never opted into tuca.

the applicability is confusing, luckily, i found this well presented format for texas laws and it specifically states the portions that are retroactive.

have a look. you might already be familiar with it. but if not, it's amongst the easiest to navigate of the websites that include texas statute and code.

https://texas.public.law/statutes/tex._prop._code_section_82.002

section c lists all the portions that are retroactive.

regarding the 2021 passed legislative updates. You are correct, these are important too.

with all that being said. our condominiums are 81. the issues i discuss in this message are specific and different between 81 and 82. that's why its so important for a board or anyone makind decisions for the association to know the difference. Unfortunately, many board members take action they think is right, and then if questioned after the fact, they get the hoa attorney to write an opinion that gives a plausible explanation..

plausible being questionable.

kerry,

the excerpt

But, it does look like the declaration makes owners responsible for repair of (say, plumbing) if the item serves only the Owner’s unit. 17. “Owner's Maintenance Responsibility of Unit.....All fixtures and equipment installed within the unit commencing at a point where the utilities enter the unit shall be maintained and kept in repair by the owner thereof.”

specifically says, WITHIN THE UNIT.( see declaration definition of unit)
Unit is described as airspace within the walls. not behind the walls. That is the mistake in interpretation that is being made.

the excerpt Moreover, "...the Board of Managers shall have the right to do any necessary maintenance work or repairs to limited common elements if the owner fails to do so and assess the owner for the cost thereof." This is condos usually is done to protect other condos and the common areas.

This has to do with common areas which include the limited common elements appurtuant to a unit.. i.e. walkway, balcony, porch.

remember limited common elements are part of common elements not different than.

kerry,, anything within our unit,, on the unit side of the wall is an owners responsiblity. Ive had repairs done over the year that were right on my side of the wall , where the utility entered my unit. It was my responsiblity. no problem.

our condominiums have one utlity bill one water bill one gas bill.. we are a shared utilities condominium.

Can you just spell out what you had to pay for and what you think the HOA should have? Sometimes being straight forward with the facts works better to understand what your talking about 90% of the time.

I think I don't understand your complaint, Laska: "...anything within our unit, on the unit side of the wall is an owners responsiblity. Ive had repairs done over the year that were right on my side of the wall , where the utility entered my unit. It was my responsiblity. no problem."

With Melissa, please give 3 examples where repairs in a Unit of an item that serves only that unit should not have been billed to the unit owner. If you could succinctly say where the problematic valve was, what its function is and who it serves, that might help. (I don't recall having read it previously)

17 "...the Board of Managers shall have the right to do any necessary maintenance work or repairs to limited common elements if the owner fails to do so and assess the owner for the cost thereof." To me, this gives the assn. the authority to make repairs to LCE items that serve only the Owner's unit. And it also shows that the owners should be doing the repair (because it only serves that owner) themselves or most likely by a professional.

Agree with Laska's definition of "fixtures," but, and yes, this is an odd sentence, Owner is responsible for "...All fixtures and equipment installed within the unit commencing at a point where the utilities enter the unit shall be maintained and kept in repair by the owner thereof.”

I maintain that (i) refers to our issue and it matters; (ii) refers to walkways, patios, etc. (i) An owner exclusively uses "... the utilities, sewers, power, water and other common lines running through the walls, ceiling or floor of each unit and utilized only to service such unit..." Note this includes stuff in between the walls (aka plenum, chase).

Let's try, the fixture valve to my toilet won't turn off. The water coming to my toilet serves only my unit. Unit owners is responsible to repair/replace the valve. The clogged drain that serves only my fixture also is my obligation to repair, which is why I want to turn off the valve. If the plumber finds that the clog is not in my drain, but in the common area drain, the assn. will repair.

IMO, the WA case doesn't fit here because the reasons rule agains the HOA were no vote on the (incorrect) amendment and that the declaration gave the HOA no authority,. I believe Laska's dec does give the HOA such authority.

Her citation of common expenses refers to "general common area"items, which doe not include LCE.

Gotta go: Have read Dover in the past and will review later.

I don't know what the valve was, what it served, etc. If the valve served more than Laska's unit it's the HOA's responsibility to repair.

But in her OP she's now talking about items that solely serve one unit.

Laska

Are you back on the charge for turning the water on/off in a building when necessary for repairs?

Hmmmm, Laska usually replies quickly. There are 3 of us now, who'd like to know: the location of the valve, purpose of the valve, and whether it served only one unit, or more than one. Please be concise.

Meanwhile, I don't think Dover (Calif.), which I read in its entirely, applies. One reason is the CC&Rs involved only refer to the LCE as in Laska's E. (ii). It also only refers to items used by more than one but fewer than all. Their CC&Rs do not contain Laska's E. (i). The latter, imo, in your assn. obligates the Owner to maintain & repair the items noted

E. "Limited Common Elements" means those common elements which are either limited to and reserved for the exclusive use of an owner of a condominium unit... The limited common elements shall be: (i) the structural and other commonly used components of each building and the utilities, sewers, power, water and other common lines running through the walls, ceiling or floor of each unit and utilized only to service such unit;

17. "An owner shall also maintain and keep in repair limited common elements appurtenant to his unit but he shall not be entitled to modify or change such limited common elements without the written consent of the Board of Managers."

The way I see it is that Laska should get her HOA-savvy attorney's interpretation of her relevant CC&Rs before even thinking about going to any kind of court. As noted a couple of times, there MAY be something in the insurance Article as well.

There are many utility lines that run between my condo's walls and contiguous Units that exclusively serve only me. The main valve to shut off the primary bath & shower is behind an almost-unreachable panel in my ceiling above the bathroom counter that's within that wall (between my floor & the floor above). The dryer vent duct that runs 30 feet from my dryer to my balcony ceiling is in the "space" between two floors. The gas that only serves my range top is in a "space" between my unit and one next door. IF I wanted to run the gas to my dryer 10 feet away, I would continue the run from the rangetop gas line

ok,,, i was super busy today,

the water valve is located at the back of the property,,not anywhere near my building.

the water valve serves all units.. as we have shared utilties and no way to turn off the water to just one unit or even just one building.

condominiums that are goverened under 82. do specify the limited common elements that serve only one unit are the responsiblity of the unit owner.

CONDOMINIUMS under 81. do not follow that provision.

going back to the washington case.

regarding the repair issue the association is charging an owner for.

the vertical drain pipe that is contained within the studs of a wall. my kitchen sink, the p trap fixture, is inside my unit. that is definitely my responsibilty. from the p trap the dirty water drains into a short horizontal pipe then behind the wall meets the main vertical stack.
the vertical stack in these building is cast iron. somewhere along the vertical drainstack the pipe was cracked which caused water to slowly leak into the downstairs unit.

I had no idea there was a leak, it didn't show up anywhere in my unit. the downstairs unit owner was out of town, when they returned, the drywall on the wall had signs of water damage. the association, went through the downstairs unit owners wall and ceiling and located the cracked drain stack. the damage to the stack was between the first and second floor. ALL WITHIN THE WALLS. . the association is trying to bill me for the repair because the drain only served my unit. THIS IS RIDICULOUS.. as the dover case states.. plumbing lines are all connected as are drain lines.

augustine, our declaration DOES NOT say a limited common element only serves one unit.. limited common elements are defined as something that is reserves for use by one or more than one but less than all.

see below.

E. "Limited Common Elements" means those common elements which are either limited to and reserved for the exclusive use of an owner of a condominium unit or are limited to and reserved for the common use of more than one but fewer than all of the condominium owners. The limited common elements shall be:
(i) the structural and other commonly used components of each building and the utilities, sewers, power, water and other common lines running through the walls, ceiling or floor of each unit and utilized only to service such unit; and
. (ii) where applicable, any parking spaces reserved for the exclusive use of a unit and any storage areas, stairways, balconies and patios reserved for the exclusive use of one or more units; such parking spaces, storage areas, stairways, patios, and balconies being shown on the attached Exhibit "B" wherein unit numbers shown on such parking spaces, storage areas, stairways, patios and balconies and followed by the letter "L" corres pond to the unit number or unit numbers for which such parking space, storage area, stairway, patio or balcony is exclusively reserved, each owner of a unit having an undivided percentage interest in such limited common elements as set forth on Exhibit "C" attached hereto.

I think John or someone else here is or used to be a plumber. They may be able to help identify more about how the plumbing situation works. I have plumbing experience but not near an expert level. I don't see where you think because you did not see any damage in your unit you would not be responsible for those who do? That logic not understanding.

It's like I am taking a shower but did not know the drain cover had shifted over time. It then is causing a leak to the downstair unit when I take a shower. The water if filling up the "gap" between the two floors. I would be responsible for fixing the drain cover to stop and prevent further issue. However, I would also feel responsible for the ceiling damage or mold ramifications for the issue. I don't see that as a HOA responsibility. The water would not be there if I had kept up with my maintenance.

A crack drain pipe in this situation would be the tipping point maybe... Otherwise I don't see it as not an owner responsibility whether they pt it on their insurance or not.