Category Archives: Newsroom

Marine’s lawsuit spurs one of new HOA laws in Texas

June 13, 2011, story by MIKE MORRIS, HOUSTON CHRONICLE

(a portion of the story appears below with a link to the complete story)

A Marine Corps veteran sued by his Cypress-area homeowners association over a 20-foot flag pole in his backyard is claiming victory as a bill protecting his display of patriotism awaits Gov. Rick Perry’s signature. [An explanation and text of the bill is here.]

The bill, spurred by the lawsuit against former drill sergeant Mike Merola, is one of several on the governor’s desk that would restrict the powers of homeowners associations. Others would increase transparency, bolster owners’ voting rights and prevent the groups from banning solar panels and small religious displays.

The most important reforms, real estate attorney Richard Weaver said, are those dealing with foreclosure and dues, including one that would introduce a “priority of payments” to ensure that payments from owners who have fallen into arrears would be applied to the past-due amounts first.

“In the past, the HOA might have used homeowner funds to pay attorneys instead of delinquent fees and still try to foreclose,” said Weaver, who has represented both HOAs and homeowners for seven years. “By paying the delinquent fees first, a homeowner may avoid foreclosure.”

HOAs also would be required to provide better notice before sending an owner’s account to a collection agency and before foreclosing, and would be forced to let homeowners pay their annual dues in installments over at least three months.

‘Not enough’

Weaver and real estate lawyer David Kahne, who has represented homeowners in suits against HOAs for more than a decade, said the reforms, though an improvement, are insufficient.

“The reforms that appear likely to pass are clearly not enough. Homeowners need more protection,” Kahne said.

“The Legislature has paid an increasing amount of attention to those homeowner associations that have been abusing their powers,” he continued. “By setting limits on some of those powers, the Legislature is directly protecting homeowners and sending a signal to all associations that they need to be more respectful of the rights of homeowners.”

Real estate attorney Bruce Schimmel, who has represented HOAs and homeowners for three decades, disagreed, saying lawmakers had “gone overboard,” though some proposals would clarify years-old legal questions.

“When the Legislature hampers associations’ collection of their fees and requires them to give additional notices and go to court, it adds layers of procedures that are very costly and very time-consuming and which, ultimately, end up being paid for by the delinquent owner,” Schimmel said.

Sen. Royce West, D-Dallas, whose interest in HOA issues began five years ago when his office was flooded with homeowner complaints, said the bills are sufficient to curb HOA abuses.

“We truly have provided a more democratic process for homeowners to govern” HOAs, West said. “What we have to do is just monitor the implementation of the reforms … to determine whether there were any gaps in what we did.”

For the complete article see: http://www.chron.com/disp/story.mpl/metropolitan/7607232.html

New Day for Texas HOAs: training for attorneys on new laws

This training is being put on for lawyers by lawyers, but I would think it possible for non-lawyers to access the training as well.  Contact TexasBarCLE here.

New Day for Texas HOAs: Overview of 2011 Reform Legislation for Condos and Owners Associations

LIVE VIA WEBCAST OR PHONE SEMINAR!
Thursday, June 30th
2:00 p.m. to 3:30 p.m. 

MCLE Credit: 1.5 hrs (.5 hrs ethics)
MCLE No: 901219435 

Registration Fee: $115

The 82nd Texas Legislature adopted sweeping new laws regulating residential property owners associations – new laws that protect homeowners and dramatically reform the environment in which HOAs operate. Getting a handle on the new laws is challenging because Texas did not adopt a single comprehensive act. Instead, we have a grab-bag of law changes which, collectively, spell an end to business-as-usual for HOAs in Texas. The same old advice, forms, and docs won’t work any more.

This 90-minute overview will identify:

  • New laws for HOAs that pursue delinquent assessments
  • New methods and requirements to foreclose an HOA’s assessment lien
  • Consumer protectionsNew laws regulating HOA elections, notices, and voting
  • Changes for resale certificates
  • Which new laws are already effective, which become effective September 1, and which become effective January 1, 2012
  • Which new laws apply to condos, and which don’t
  • Which new laws are “duplicates” with different effective dates.
  • Which new laws share the same section number of the Property Code, although dealing with different topics.

The written materials provide an indispensable roadmap to the law changes. No matter how your practice touches the world of HOAs – representing residential developers, individual homeowners, HOAs, managers, real estate brokers, title companies, residential lenders – you will find something essential in this overview.

The presenters have extensive experience with HOA law-making, co-presented the 2009 Legislative Update on this topic for the State Bar, and co-authored the “Statutory Evolution of Condominiums and Property Owners Associations in Texas,” published in 2002 by the University of Texas School of Law.

Speakers:
Roy D. Hailey, Houston
Butler|Hailey

Sharon Reuler, Dallas
Sharon Reuler, P.C.


REGISTRATION 

Registration is only available online and by using a credit card. Registrations by mail, fax, or phone will not be accepted.

We encourage early registrations for webcasts to give you time to verify that your system is webcast-ready. Our technical support lines are usually extremely busy on the day of a webcast, so please register and test your system a few days ahead of the broadcast date.

INSTRUCTIONS 

When you register for a webcast or phone seminar, instructions for accessing the seminar will be sent as part of your email receipt. We also send a final email which repeats these instructions about 30 minutes prior to the start of the seminar. Please contact us if you do not receive your receipt or if you have any questions.

CLAIMING MCLE CREDIT

The MCLE number will be provided to you at the beginning of the seminar, along with instructions on how to claim your participatory MCLE credit online.

ACCESS TO ARCHIVED SEMINAR 

About a week after the seminar, the content will be archived at TexasBarCLE.com. To access the archived seminar, select Your Purchases on the left-side menu of TexasBarCLE.com. All registrants will have up to 12 months to finish or review the seminar online, download MP3s of the seminar, and access any written materials online.

HOA Reform Coalition to Begin Implementation

During some or all of the 82nd legislative session, the Texas HOA Reform Coalition was comprised of concerned homeowners and organizations including:

The coalition was formed in 2010 with the intent of bringing a unified voice to the Texas Capitol.  Now that the 82nd Texas legislative session has ended, coalition members will begin the process of ensuring implementation of the reforms achieved and continue to work toward additional reforms and consider joining forces once again in 2012 for the 83rd session beginning in 2013.  For more information in the interim, contact or join the above organizations directly.

HB 2779 and SB 101 Passed — flags and military foreclosures

The 82nd Texas Legislature enacted HB 2779 (here) and SB 101 (here) relating to flags and military foreclosure procedure. For a listing of the majority of the HOA legislation considered and the status of each bill, go here.

IMPORTANT: This description is NOT intended to be legal advice.  You should review the law yourself or have an attorney review it for you before taking any action.  The law may have changed, may not apply to your HOA, or a court may have altered the meaning of the words.  This website attempts to summarize information concisely which will result in some inaccuracies.  Before investing a lot of money, or risking adverse action by your HOA, you should not merely read what is on any website including this one.  Get fully informed.

FLAGS

So HOAs have been messing with homeowners that have flags, even retired veterans.  Story here.  HB 2779 puts some limits on HOA regulations of homeowners who wish to fly flags on their own property, but there are plenty of ways the HOAs can still harass a homeowner.

Sec. 202.011.  FLAG DISPLAY. (a)  A property owners’   association may not, except as provided in this section, adopt or enforce a dedicatory instrument provision that prohibits, restricts, or has the effect of prohibiting or restricting an owner from the display of: (1)  the flag of the United States of America; (2)  the flag of the State of Texas; or (3)  an official or replica flag of any branch of the United States armed forces.

Tex. Prop. Code 202.011(a) (subject to effective date and governor review).

EXCEPTIONS

A property owners’ association may adopt or enforce reasonable dedicatory instrument provisions:

(1)  that require: (A)  the flag of the United States be displayed in accordance with 4 U.S.C. Sections 5-10; (B)  the flag of the State of Texas be displayed in accordance with Chapter 3100, Government Code; (C)  a flagpole attached to a dwelling or a freestanding flagpole be constructed of permanent, long-lasting materials, with a finish appropriate to the materials used in the construction of the flagpole and harmonious with the dwelling; (D)  the display of a flag, or the location and construction of the supporting flagpole, to comply with applicable   zoning ordinances, easements, and setbacks of record; and (E)  a displayed flag and the flagpole on which it is flown be maintained in good condition and that any deteriorated flag or deteriorated or structurally unsafe flagpole be repaired, replaced, or removed;

(2)  that regulate the size, number, and location of flagpoles on which flags are displayed, except that the regulation may not prevent the installation or erection of at least one flagpole per property that is not more than 20 feet in height;

(3)  that govern the size of a displayed flag;

(4)  that regulate the size, location, and intensity of any lights used to illuminate a displayed flag;

(5)  that impose reasonable restrictions to abate noise caused by an external halyard of a flagpole; or

(6)  that prohibit a property owner from locating a displayed flag or flagpole on property that is (A)  owned or maintained by the property owners’ association; or (B)  owned in common by the members of the association.

FORECLOSURE NOTICE UPDATE FOR MILITARY

In response to the HOA foreclosure of a homeowner serving in Iraq (story here), SB 101 was passed to make it clear that HOAs cannot foreclose on homeowners on active duty or nine months following active duty without a court order (unless waived), and improves the notice given to all property owners so military families might know their rights regardless of who intends to foreclose:

Assert and protect your rights as a member of the armed forces of the United States.  If you are or your spouse is serving on active military duty, including active military duty as a member of the Texas National Guard or the National Guard of another state or as a member of a reserve component of the armed forces of the United States, please send written notice of the active duty military service to the sender of this notice immediately.

New notice required by Tex. Prop. Code 51.002(i) (subject to effective date and governor review).

HB 1228 Passed – payments, collections, foreclosures

The 82nd Texas Legislature enacted HB 1228 (here) relating to payments, collections and foreclosures. The governor has yet to make his decision whether to sign it, veto it or let it become law without his signature.  For a listing of the majority of the HOA legislation considered and the status of each bill, go here.

IMPORTANT: This description is NOT intended to be legal advice.  You should review the law yourself or have an attorney review it for you before taking any action.  The law may have changed, may not apply to your HOA, or a court may have altered the meaning of the words.  This website attempts to summarize information concisely which will result in some inaccuracies.  Before investing a lot of money, or risking adverse action by your HOA, you should not merely read what is on any website including this one.  Get fully informed.

PAYMENT PLANS

The bill begins with reforms to payment plans.  This language is also found in HB 1821 which also passed. The text and a description of that bill can be found here.

PRIORITY OF PAYMENTS

This is probably the single most important issue that determines whether homeowners lose their homes to an HOA, and HB 1228 makes some improvement in this area, but does not fully protect homeowners appropriately.

Sec. 209.0063.  PRIORITY OF PAYMENTS.  (a)  Except as   provided by Subsection (b), a payment received by a property owners’ association from the owner shall be applied to the owner’s debt in the following order of priority:

(1)  any delinquent assessment;

(2)  any current assessment;

(3)  any attorney’s fees or third party collection costs incurred by the association associated solely with assessments or any other charge that could provide the basis for   foreclosure;

(4)  any attorney’s fees incurred by the association   that are not subject to Subdivision (3);

(5)  any fines assessed by the association; and

(6)  any other amount owed to the association.

Tex. Prop. Code 209.0063(a) (pending effective date and governor approval)

This language is a clear improvement if you are living in a subdivision with a HOA that is governed by Chapter 209 of the Texas Property Code, and possibly others depending on their governing instruments.  To understand why, you should know that a HOA governed by Chapter 209 cannot foreclose for fines assessed by the association or attorney fees incurred by the association to assess or collect those fines. Tex. Prop. Code 209.009 (current law).  (Condo HOAs subject to Chapter 82 of the Texas Property Code are prohibited from foreclosing on fines by Tex. Prop. Code 82.113(e) .)

So if you give the HOA money, under the language in the bill, the HOA first has to apply it to delinquent assessments, current assessments and any attorney fees.  In the past the HOA might have applied the money to a fine or the attorney fees associated with a fine you might be disputing, which would mean you still would be liable for assessments and attorney fees which the HOA can foreclose on.  The bill essentially prevents foreclosures for fines when coupled with the language in the current 209.009 or 82.113(e) (if either of those provisions apply to your HOA).

Note that the HOA governing documents may also restrict when a foreclosure is authorized and the priority of payments language in the bill will essentially give meaning to that intent because it limits how HOAs apply the money they get to any outstanding accounts.

THE EXCEPTION TO PRIORITY OF PAYMENTS

If, at the time the property owners’ association receives a payment from a property owner, the owner is in default under a payment plan entered into with the association:  (1)  the association is not required to apply the payment in the order of priority specified by Subsection (a); and (2)  in applying the payment, a fine assessed by the association may not be given priority over any other amount owed to the association.

Tex. Prop. Code 209.0063(b) (subject to effective date and governor review).

So the three month window to get caught up using a payment plan is even more critical.  Of course homeowners having trouble with their bills are much more likely to have a situation where they cannot pay their HOA everything the HOA claims is owed.  Instead of allowing a homeowner pay the assessments and the attorney fees first in order to prevent foreclosure as the first part of 209.0063 requires, HOAs, builders and others insisted on eliminating the priority of payments rubric when the homeowner most needs it – and the Legislature enacted what they demanded.  There is simply no logical explanation for this policy other than it gives HOAs the upper hand in these situations.  Still, even with this loophole, the priority of payments is a step forward for Texas homeowners to hopefully be built upon in the future.

THIRD PARTY COLLECTIONS

Some clear improvements were made in this area as well.

A property owners’ association may not hold an owner liable for fees of a collection agent retained by the property   owners’ association unless the association first provides written   notice to the owner by certified mail, return receipt requested, that: (1)  specifies each delinquent amount and the total   amount of the payment required to make the account current; (2)  describes the options the owner has to avoid   having the account turned over to a collection agent, including information regarding availability of a payment plan through the association; and (3)  provides a period of at least 30 days for the owner to cure the delinquency before further collection action is taken.

Tex. Prop. Code 209.0064(b) (subject to effective date and governor review).

A homeowner is also not liable for collection fees if the HOA pays the collecting agent based on how much is collected (a contingency fee); and to be liable for the fees, the agreement with the HOA must require payment of all fees owed to the collection agent be paid by the HOA. Tex. Prop. Code 209.0064(c).

The agreement between the HOA and the collection agent must not prohibit the homeowner from contacting the HOA board or the management company, and the HOA may not sell or otherwise transfer any interest in the HOA’s accounts receivables (other than for collateral for a loan). Tex. Prop. Code 209.0064(d)-(e).

FORECLOSURES MUST BE JUDICIALLY APPROVED

The bill makes a marked improvement in the law by requiring all HOA foreclosures subject to Chapter 209 to be judicially approved using the expedited foreclosure procedure currently used by lenders to foreclose home equity loans and tax loans (it is not a full blown lawsuit). For a description of the procedure currently in place, see II of article here.  Assuming the procedure stays the same, if a homeowner files a separate lawsuit contesting the right of the HOA to foreclose before the foreclosure order is signed, then the foreclosure case is dismissed.  The bill also allows a homeowner to waive his right to require court approval, if the waiver is obtained after the foreclosure is sought by the HOA, and so long as the waive is not required as a condition of the sale or transfer of the property. Tex. Prop. Code 209.0092 (subject to effective date and governor review).

REFERENDUM ON FORECLOSURES ALLOWED

The bill also allows a vote to be held to eliminate the HOA’s ability to foreclose if 67 percent of the total votes allocated to the property owners in the association agree.  Owners holding at least 10 percent of all the voting interests in the association may petition the HOA to require a vote on such an issue.  Homeowners concerned about foreclosures and abusive HOAs subject to Chapter 209 should consider this option.  Tex. Prop. Code 209.0093 (subject to effective date and governor review).

Lobby Watch: Bob Perry DNA all over death of SB 142

We don’t think the Senate version of SB 142 was “spineless,” but this article by Texans for Public Justice here is very interesting in investigating the money the industry threw at the members to kill the meaningful reforms sought by Rep. Solomons in his version of SB 142.  Ultimately, portions of the senate version of SB 142 were split up and added to other bills that passed and will improve the state of the law for Texas homeowners.

HB 1821 Passed — resale certificates, information, payment plans

The 82nd Texas Legislature enacted HB 1821 (here) relating to resale certificates, records, payment plans. The governor has yet to make his decision whether to sign it, veto it or let it become law without his signature.  For a listing of the majority of the HOA legislation considered and the status of each bill, go here.

IMPORTANT: This description is NOT intended to be legal advice.  You should review the law yourself or have an attorney review it for you before taking any action.  The law may have changed, may not apply to your HOA, or a court may have altered the meaning of the words.  This website attempts to summarize information concisely which will result in some inaccuracies.  Before investing a lot of money, or risking adverse action by your HOA, you should not merely read what is on any website including this one.  Get fully informed.

RESALE CERTIFICATES

The bill requires that an HOA provide a purchaser of a home with a “resale certificate” upon request.  The certificate must have been prepared not earlier than 60 days before delivery, at the expense of the purchaser.  (The cost of the resale certificate is unlimited and the amount of time the HOA has to prepare it has been extended.)  The bill adds to the items that must be disclosed in the certificate including any pending lawsuit that the HOA is a party to (excluding lawsuits by the government against a homeowner for unpaid property taxes) so purchasers can more easily find out problems the HOA is experiencing or inflicting on its members.  The bill also requires the certificate to include:

A statement of all fees associated with the transfer of ownership, including a description of each fee, to whom each fee is paid, and the amount of each fee. Tex. Prop. Code 207.003(b)(16) (pending effective date and governor review).

The Legislature considered but did not enact any limitation on the transfer fees charged by HOAs for merely selling your home.  So HOAs collect assessments, special assessments, late fees, fines, attorney fees, etc., and charge hundreds of dollars to prepare a simple disclosure telling the purchaser what he or she is really getting into when they buy (but not before they sign an earnest money contract) — and HOAs charge a fee for selling your home just for fun (HB 8 bans transfer fees and was also passed this session and subject to effective date and governor approval, but it carves out exceptions for HOAs).

HOAs REQUIRED TO DISCLOSE MORE INFORMATION

Sec. 207.006.  ONLINE SUBDIVISION INFORMATION REQUIRED. A   property owners’ association shall make dedicatory instruments relating to the association or subdivision and filed in the county deed records available on a website if the association has, or a   management company on behalf of the association maintains, a publicly accessible website.

Tex. Prop. Code 207.006 (subject to effective date and governor review).

The bill also defines most every instrument governing the HOA as a “dedicatory instrument” and that each has to be filed with the county deed records office before they can be effective including: restrictive covenants, bylaws, or similar instruments governing the administration or operation of a property owners’ association; properly adopted rules and regulations of the property owners’ association; and all lawful amendments to the covenants, bylaws, instruments, rules, or regulations. Tex. Prop. Code 202.001, 202.006 (subject to effective date, governor review).

What has been truly disturbing is how hard HOAs resist any effort to expose their practices, charges and policies until after you have bought the house.  (Reminds me of a pyramid scheme.) Resale certificates as described above cost hundreds of dollars, and still cannot be obtained unless the person provides the HOA “reasonable evidence that the purchaser has a contractual or other right to acquire property in the subdivision”. Tex. Prop. Code 207.003(a-1) (subject to effective date and governor review).  However, by requiring more documents to be filed in county records, and requiring information to be only HOA websites, this bill cracks the door open to allow more information to the public and prospective buyers before they sign.

PAYMENT PLANS

A property owners’ association composed of more than 14 lots shall adopt reasonable guidelines to establish an alternative payment schedule by which an owner may make partial payments to the property owners’ association for delinquent regular or special   assessments or any other amount owed to the association without accruing additional monetary penalties.  For purposes of this section, monetary penalties do not include reasonable costs associated with administering the payment plan or interest.  Tex. Prop. Code 209.0062(b) (pending effective date and governor review).

The payment plan is required to be filed with the real property records, and the minimum term is required to be three months.  The payment plan may not be longer than 18 months from the date of the request and the HOA does not have to provide a payment plan to a homeowner who failed to honor the terms of a previous payment plan (if the default was in the previous two years).  This is an improvement from the current law, but not by a lot.  HOAs are still going to charge bogus fees for these plans, and three months is hardly enough time for a struggling homeowner to get on his feet.  The feds bailed out banks, car companies and insurance companies, giving them over a year to work it out, but our Texas Legislature said if a Texas family has a problem with their HOA taxes (sorry “assessments”), they get three months to pay it all back “plus reasonable fees and interest”.

HB 1278 Passed – religious displays

The 82nd Texas Legislature enacted HB 1278 (here) relating to regulation of religious displays. The governor has yet to make his decision whether to sign it, veto it or let it become law without his signature.  For a listing of the majority of the HOA legislation considered and the status of each bill, go here.

IMPORTANT: This description is NOT intended to be legal advice.  You should review the law yourself or have an attorney review it for you before taking any action.  The law may have changed, may not apply to your HOA, or a court may have altered the meaning of the words.  Before investing a lot of money, or risking adverse action by your HOA, you should not merely read what is on any website including this one.  Get fully informed.

This bill was principally designed to encourage HOAs to allow homeowners to have a mezuzah on their door frame as apparently some HOAs either did not like Jews or found the symbol of the Jewish faith to be terrible and harmful to property values.  The bill is short, but as with most other HOA reforms, does have some exceptions.

Except as otherwise provided by this section, a  property owners’ association may not enforce or adopt a restrictive covenant that prohibits a property owner or resident from displaying or affixing on the entry to the owner’s or resident’s dwelling one or more religious items the display of which is motivated by the owner’s or resident’s sincere religious belief. Tex. Prop. Code 202.018 (pending effective date and governor review).

And here are the exceptions:

(1)  threatens the public health or safety;

(2)  violates a law;

(3)  contains language, graphics, or any display that is patently offensive to a passerby;

(4)  is in a location other than the entry door or door frame or extends past the outer edge of the door frame of the owner’s or resident’s dwelling; or

(5)  individually or in combination with each other religious item displayed or affixed on the entry door or door frame has a total size of greater than 25 square inches.

But if the law goes into effect, Texas will also authorize HOAs to enter land that is not theirs, and take property without a court order or anything else:

A property owners’ association may remove an item displayed in violation of a restrictive covenant permitted by this section.

So much for being a property rights state.  This bill attempts to help homeowners, but abusive HOAs will now have the power to take property of homeowners.

HB 362 Passed – solar energy devices and roofing materials

The 82nd Texas Legislature enacted HB 362 (here) relating to solar energy devices and roofing materials. The governor has yet to make his decision whether to sign it, veto it or let it become law without his signature.  For a listing of the majority of the HOA legislation considered and the status of each bill, go here.

IMPORTANT: This description is NOT intended to be legal advice.  You should review the law yourself or have an attorney review it for you before taking any action.  The law may have changed, may not apply to your HOA, or a court may have altered the meaning of the words.  Before investing a lot of money on a solar device, or risk adverse action by your HOA, you should not merely read what is on any website including this one.  Get fully informed.

SOLAR ENERGY DEVICES

The bill prohibits a HOA from including or enforcing a provision in its dedicatory instruments that prohibits or restricts a homeowner from installing a solar energy device (definition here). Tex. Prop. Code 202.010(b) (pending effective date and review of governor).

But there are MANY exceptions.  An HOA can prohibit a solar device that:

(1)  as adjudicated by a court:

(A)  threatens the public health or safety; or

(B)  violates a law;

(2)  is located on property owned or maintained by the property owners’ association;

(3)  is located on property owned in common by the members of the property owners’ association;

(4)  is located in an area on the property owner’s property other than:

(A)  on the roof of the home or of another structure allowed under a dedicatory instrument; or

(B)  in a fenced yard or patio owned and maintained by the property owner;

(5)  if mounted on the roof of the home:

(A)  extends higher than or beyond the roofline;

(B)  is located in an area other than an area designated by the property owners’ association, unless the alternate location increases the estimated annual energy production of the device, as determined by using a publicly available modeling tool provided by the National Renewable Energy Laboratory, by more than 10 percent above the energy production of the device if located in an area designated by the property owners’ association;

(C)  does not conform to the slope of the roof and has a top edge that is not parallel to the roofline; or

(D)  has a frame, a support bracket, or visible piping or wiring that is not in a silver, bronze, or black tone commonly available in the marketplace;

(6)  if located in a fenced yard or patio, is taller than the fence line;

(7)  as installed, voids material warranties; or

(8)  was installed without prior approval by the property owners’ association or by a committee created in a dedicatory instrument for such purposes that provides decisions within a reasonable period or within a period specified in the dedicatory instrument.

And even if you do fall into one of the many traps above, the HOA can still stop you from having a solar energy device if:

the association or committee, as applicable, determines in writing that placement of the device as proposed by the property owner constitutes a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities.  For purposes of making a determination under this subsection, the written approval of the proposed placement of the device by all property owners of adjoining property constitutes prima facie evidence that such a condition does not exist.

And of course, as with most of what little homeowners have to protect them from abusive HOA practices, there is an exclusion for builder controlled HOAs still in the developer period.  This is a huge loophole because a subdivision can remain in the developer period indefinitely.  The definition has no hard ending date so a subdivision can be in the process of development for 10 years or longer whenever the developer decides he is done:

“Development period” means a period stated in a declaration during which a declarant reserves:  (A)  a right to facilitate the development, construction, and marketing of the subdivision; and  (B)  a right to direct the size, shape, and composition of the subdivision.

ROOFING MATERIALS

HB 362 also has a small provision regarding roofing materials.  It is unclear if this provision will help because there are few definitions of the terms used, but hopefully more HOAs will allow homeowners freedom to select roofing materials of their choice.  The text of the provision (subject to the effective date and governor review) is here:

Sec. 202.011.  REGULATION OF CERTAIN ROOFING MATERIALS.

A property owners’ association may not include or enforce a provision in a dedicatory instrument that prohibits or restricts a property owner who is otherwise authorized to install shingles on the roof of the owner’s property from installing shingles that:

(1)  are designed primarily to:

(A)  be wind and hail resistant;

(B)  provide heating and cooling efficiencies greater than those provided by customary composite shingles; or

(C)  provide solar generation capabilities; and

(2)  when installed:

(A)  resemble the shingles used or otherwise authorized for use on property in the subdivision;

(B)  are more durable than and are of equal or superior quality to the shingles described by Paragraph (A); and

(C)  match the aesthetics of the property surrounding the owner’s property.

SB 142 dead, but fight not over

SB 142 was about to be amended by Rep. Phil King to strip out meaningful reforms. Rather than let that happen, Rep. Solomons postponed it to the end of the calendar. It will not likely come up again today, and if it does not pass today it is dead.

The influence of builders and developers, and the HOA management industry is vast, but eventually Texans will merely refuse to buy a home governed by a HOA or reduce the price they are will to pay for a home in a HOA. At present, HOAs and the builders and developers that often control these governmental bodies have unfettered power over Texas homeowners. We are hopeful that some reforms pass this session that can be built on in the future. Senator West has added reform language on core issues in other bills still capable of passage this session and we are hopeful both he and Rep. Solomons continue to put Texas homeowners ahead of government bureaucracies.

Robert Doggett
Texas Housing Justice League