Chapter 209 Information Request in Texas

In Texas, information requests to your HOA follow Property Code §209.005.

• The clock starts on the day the HOA receives the request.
• The first deadline is 10 business days. If the HOA needs more time, it can extend up to 15 more days, but only if it notifies the owner before the 10-day mark.
• The HOA can charge for reasonable production costs. It can require pre-payment of estimated costs (with a final invoice later) or wait until completion to bill the actual amount. If an owner refuses to pay, §209.005 allows the HOA to assess the costs to the owner’s account.

Here is the gray area:

• §209.005 does not set a deadline for sending an estimated cost invoice.
• If an HOA claims that deadlines do not begin until pre-payment is received, then, without any statutory deadline for sending the estimate, requests could be put on hold indefinitely.

That interpretation would make the statutory deadlines meaningless. Courts generally avoid readings that produce absurd results. The Legislature clearly knows how to make timing depend on payment when it intends to, as shown in §209.0057 (vote recounts), where deadlines only run after payment is received. No such language appears in §209.005.

Owners can enforce their rights in justice court, and if successful, recover attorney’s fees and court costs. That remedy only makes sense if the deadlines are real and enforceable.

Questions for the community:

• Is the HOA’s interpretation of §209.005 correct such that the HOA can stall, perhaps indefinitely, an information request by delaying the delivery of an estimated cost invoice?
• Has anyone here had an HOA claim that the 10-day period does not start until pre-payment is received? How did you handle it?

Here is a link to that code (you will have to scroll down to the proper section):

https://statutes.capitol.texas.gov/Docs/PR/htm/PR.209.htm

To understand why owners are making 209 information requests, some background on how the HOA operates is needed.

The HOA employs a grey area tactic, utilizing workshops that property owners can’t attend, to deliberate on topics before voting. No votes are taken in workshops to avoid having the workshop classified as a board meeting, but shortly afterwards, in hours, email votes are sent out. I’d estimate that over 80% of votes taken are in the form of e-votes with those e-votes NOT requiring unanimous written consent.

The “grey area” is that neither Texas Law or the HOA’s governing documents expressly authorize nor prohibit the use of workshops. Legal advice is against using workshops unless there is a special need, as owners will likely interpret them as doing business behind closed doors. These workshops are held weekly, with most lasting 2 or more hours.

Most of what owners are asking for relates to them trying to understand the board’s decision-making process. For example: how many bids were received and why a vendor was selected, or the details of e-votes, such as who voted for and against a motion, as e-votes only report with something like “passed with a 3 to 2 vote”.

The HOA is relatively young and nearly all records are stored digitally. Any paper records are stored in one location easily accessible by the management company.

The HOA claims this is how HOA's in Texas operates so requests for better or clearer policies can be brushed aside as not needed.

One reason for asking forum members about the topic is if other Texas HOA handle 209 requests in the same manner.

Ok, more questions ensue.

Regarding "workshops that property owners can't attend" - what are the subjects? A presentation by the association attorney on best practices when addressing delinquent homeowners who are declaring bankruptcy isn't a state secret, so I don't see why homeowners couldn't attend to listen to the proceedings. I'd tell everyone that this is an educational workshop for the board, so there won't be any votes or discussion on specific owner issues. No questions or comments will be taken from the floor so the presenter can complete the program, but you can write your questions down and they will be addressed and published by the next board meeting. Or you can hold a brief Q and A at the end of the meeting. Obviously discussion on specific homeowner issues like delinquencies or CCR violations should be left to executive session and you should be familiar with how those should be announced and conducted.

I don't like the email votes either. I understand for emergencies, but if there haven't been any, what have they been voting on, and why isn't there a discussion and formal voting process during an OPEN board meeting? Have you or anyone else asked them? If not, go to the next board meeting and speak up. Take your neighbors with you so they can hear.

As for who voted for a motion or not, the board could do a roll call vote so you'll know who voted for or against, but what really matters in the end is whether the motion passed or not. That's what will be listed in the board meeting minutes, which are official legal documents. A blow by blow account of who said what isn't necessary and if someone says something really crazy, yelling about defamation will ensue, and possibly lawsuits and that messiness. If the issue was controversial, it's enough to say "there was a lengthy discussion on the reserve study's funding recommendation, after which a motion was made to accept them. The motion passed 3-2." Some minutes will say who voted how, others will state who voted no or who abstained from voting - for the abstainers, I'd want to know why (e.g. conflict of interest).

You said owners have asked about how many bids were received for a project - that's fine and you should know. That said, each board member might have a slightly different reason as to why he or she liked contractor A's RFP as opposed to the rest, and they're not required to think like you or anyone else. If you don't like the decisions made, you can vote them out at the next board election. In the meantime, you should be able to get a copy of the RFP that was sent to all the bidding companies and the contract from the company that was selected. After that, focus on the contractor's performance - if they did a good job at a competitive price, it won't matter what the other bids said.

In the end, your community is relatively young, so I suspect the board can use some training on best practices for meetings, records retention and all sorts of HOA stuff. I always suggest visiting the CAI website to see what education materials they have (and there are a lot of them). There may be local chapters in your area who sponsor in-person trainings, and board members can meet people from other communities and learn from them. I think there may also be some webinars board members can review on demand to learn about best practices that can be adapted to your community. They might also pose your questions to the association attorney and property manager on establishing a records request, retention and destruction policy so everyone will know what to expect. BE sure to bring your master insurance carrier into the mix because the policy might also have some requirements on what it will cover and under which circumstances.

Today somewhere in the USA an HOA board is walking the common areas and discussing landscaping. I suppose you can call it a workshop or a closed board meeting if you like. The reality is HOA boards need these fact finding functions to operate effectively.

Re-phrasing: Should a board violate the law? No, especially regarding records requests. Legislators and the courts consider the law on corporate record transparency to be highly important. When it comes to records requests, and with some caveats (like confidential information), the courts tend to favor owners/shareholders.

Is it appropriate to make it difficult for owners to view records, while still respecting the law? It might be. E.g. a chief complaining officer is actually trying to harass the board with his/her records requests.

If the board appears to be violating the law on records inspections, take the HOA to court.

The alternative would be to step up and run for the board with people who feel as you do; get out the vote; and with your cohorts win a board majority. Why? Because possession is "9/10ths of the law." Meaning the board might not cave easily to giving you and yours a time to inspect the records in the HOA's possession. You could file a lawsuit. Go through the timeline of such litigation. And the day before the first hearing (weeks later), the board might set a time for you to view records.

Yea, those roses needing replaced in the northwest bed requires lots of public deliberation.