Texas HOA, Record or Not Record?

Good Afternoon,

My apology for the large excerpt that follows. It is the subject of the current disagreement I have with our management co.’s rep.

In 2022 our members approved an increase to our assessment fee, effective Jan. 1, 2024, from $350 to $450.

This change, which I believe is considered an amendment to a Dedicatory Instrument (term used in Tex. Prop. Code 202.001), is required to be recorded in our county’s public records to become effective (Tex. Prop. Code 202.006).

Our newly hired management co. Rep.advised our board, at the last board director’s meeting, that recording is only required if a rule is changed.

Due to other questionable applicable law comments, later clarified through links sent to the rep.from the Texas Law Library…

Does the increase of our assessment fee required to be publicly recorded? Any help will be greatly appreciated! TIA!

This is the current CC&R, the amended portions in 2016:

WHEREAS, subsequent thereto, a Maintenance Assessment Increase for x Subdivision, Section Four (4), Section Five (5) and Section Six (6), was executed and caused to be filed for record on July 11, 1988 under Harris County Clerk's File Number L751147 in the Real Property Records of Harris County, Texas, wherein, the owners of more than eighty percent (80%) of the owners approved an increase of the annual maintenance charge for each lot in all sections of x to be Three Hundred Fifty and No/100Dollars ($350.00); and,

WHEREAS, the Texas Property Code Section 209.0041, enacted ni 2011, clearly establishes that a property owners association has the authority to amend a declaration by a vote of at least sixty seven percent (67%) of the total votes in x and subsection (e) sets forth that this section applies to a dedicatory instrument regardless of the date on which the dedicatory instrument was created and subsection (f) expressly supercedes any contrary requirement in a dedicatory instrument and subsection (q) sets forth that to the extent any conflict exists with any other provision of this the Texas Property Code, Section 209.0041 of the Texas Property Code prevails.

NOW THEREFORE, the undersigned Owners of at least sixty seven percent (67%) of the total votes ni x hereby adopts this Amendment of Restrictions, Covenants, Conditions and Maintenance Charge for x pursuant to the specific authority ofTe x a s Property Code Section 209.0041,and it shall expressly amend the provisions stated herein by the hereinafter stated language which shall wholly substitute and amend the Restrictions, Covenants, Conditions and Maintenance Charges; provided, however that except as amended hereby, the Restrictions, Covenants, Conditions and Maintenance Charges for all of x and all previous amendments thereto, are hereby ratified and confirmed and continue in full force and
effect. This Amendment of Restrictions, Covenants, Conditions and Maintenance Charge for x shall run with the land and shall be binding upon all parties having or acquiring any right, title or interest therein or any part thereof, and shall inure to the benefit of each owner thereof and shall be amended upon the filing of this Amendment and the signatures that are attached, by the following clause set forth hereafter

Karen,

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I hear you. And I know I have seen Declarations specifying an exact dollar figure several times in the past.

I amend my earlier post.

This site is very plain vanilla, old school. Which I think is great, for as long as it lasts. In consequence of the simple web site format, only PDF attachments of less than 200 kilobytes are allowed. You might have to break up your PDF file using, for example, one of the many free, online PDF splitters.

KarenR17, thank you for providing the 2016 amendment. I will assume it was properly passed. To get to the point:From the attachment you provided, the aforementioned "following clause" is this:

ANNUAL ASSESSMENT RATE
An increase in the Annual Maintenance Assessment above the prior year assessment rate, shall require a majority vote of a quorum of members present, represented by proxy, or absentee or electronic ballot at a duly called meeting of members to establish the maintenance assessment rate at least thirty (30) days in advance of the of the next year.

My reading of this is that the Annual Maintenance Assessment may be changed every year pursuant to "a majority vote of a quorum of members present...," as given in the 2016 amendment. When the members so vote, no amendment to the Declaration is occurring. Instead, the members are simply exercising the power expressly given in the Declaration, as amended in 2016.

Perhaps the 2016 amendment could be slightly better written. But if I were an owner there, I would be satisfied that the Annual Maintenance Assessment could be lawfully increased without amending the Declaration.

Let's see if anyone else thinks differently. This forum has pretty good daily (or bi-daily) participation.

In my opinion, the paper trail that gives buyers notice is first, the 2016 amendment that says the assessment can be changed by a vote of the owners, and second the Minutes.

The way I read it any increase over $60.00 per year must be approved by 51% of all owners. Keep the increase at $60.00 or less, no need for owner approval.

I think something got lost in translation. I do not support recording, with the county, either the vote or the ballots.

Again, because of what the 2016 amendment says, the membership is free to raise the assessment without an amendment.