Texas. 2012. I always had faith, that one day somebody would improve the current HOA laws and put an end to a lot of the homeowner’s problems. New laws putting an end to unjust foreclosures, rigged elections and last but not least rogue boards who forget they work for the association and are in it to personally profit from their positions as board members. Until that day I knew I would have to keep a close eye on my HOA board, knowing what they were doing but unable to stop them. Between myself and a neighbor I knew, we had both exhausted all efforts short of a civil suit. We both knew we would be suing ourselves basically and that was not an option.
Sam, my neighbor and I had been friends for years but even though he was right next door to me, we did not live in the same community and each had our own separate HOA to deal with. We used to laugh at the similarities between the two HOA's and swore we must have the same board running both of our HOA's We both had out of control boards that were running the property in the ground. They have been on the board for years by using all the proxies to keep it that way.
When January 1, 2012 arrived and we both read about new HOA laws, we knew getting the association back in the hands of the homeowners again was going to happen. We each made copies of the new laws and went our separate ways to spread the word to our own association members. When my board caught wind of what was going on they went to our association lawyer to try to work around the laws. If you ever have to deal with an association attorney, you will quickly learn that even though they say they work for the association, which would be the homeowners, that is not true. The association attorney always works under the direction of the board and the majority of the time that would be against the homeowners.
They are good at pointing ways to get around the laws that govern us. That didn’t slow me down because my neighbor had already talked to his attorney and was assured that now there were ways to get things done without going to civil court. My board laughed when they informed me that only two of the new laws (solar panels and harvesting rainwater) pertained to our association and that’s when I ran face first into that same brick wall I had run into several times in the past. When I read the laws that did include condo associations I realized I should stop worrying about condo owner’s rights and start worry about the entire state of Texas as a whole and who was running it.
HB 362 is one of the two laws passed that mentioned condo associations, and if I ever decide that I want to install solar panels on my roof, than I can do it and the board cant stop me. Of course to do that I would have to do the entire roof since most condos are similar to apartment buildings and there are several units under one roof. The roofs are also owned and maintained by the entire association no individual homeowners. Than there is HB 3391 this bill would allow us to put rainwater barrels out to collect rainwater. Well since the association owns and maintains all the extremities of the complex just like the roofs, where would we put rain barrels? Most units either have a small patio or balcony that they maintain. I barely have room for a table and chairs on my patio.
How could this happen? My neighbor and I lived in the same neighborhood, we both paid around $300,000.00 for our individual residences and both had the exact same HOA issues so how could I not be protected by the same laws that homeowners were. I guess there is one important fact I might have forgotten to mention. I just happen to live in a condominium; therefore I do not have the same protection that my next door neighbor has because condominium associations and housing communities are not the same. The only similarities are the guidelines set by the state to follow, the same issues, same aggressive boards, same everything.
Since January first my neighbor has a whole new board with members that are there for the community and not themselves. My association is still being run by a board president that writes all the checks, and nobody sees the financial reports. They do all this while hiding behind the attorney that defends them against everybody. She needs money; she just writes herself a check.
Condominium associations normally pay dues monthly, whereas most housing communities pay once or twice a year. My particular HOA has 68 units with average dues about $168.00 a month that’s about $130,000.00 a year in dues, and this alone makes us more vulnerable to embezzlement and other crimes. I have asked for answers and got none, so I will ask them in person in Austin next Legislative Session 2013, commencing January 1, 2013. Why should I suffer the consequences for someone else’s ignorance, when they are the ones getting paid by us to protect us from this type of nonsense?
For years we have had two different laws that governed how Associations operated The Texas Residential Property Owners Protection Act for Housing Communities and The Texas Uniform Condominium Act, for Condo Associations. These 2 laws were very similar when they covered how the association was set up and how it was run by a board of directors. They each laid out the rules for voting for Boards, along with rules the board must follow. Most association bylaws are written to comply with the 2 laws. I have always been familiar with both laws since I was an HOA Property Manager for years; however, the one thing I did not know about these 2 laws is that the majority of each law is as worthless as the paper it was written on.
I went to the District Attorney’s office about my own association because our board is not following the guidelines of the TUCA or our bylaws. I took a copy of the TUCA (Texas Uniform Condo Act) along with proof of their illegal activities for him to review. He read the law, looked at the proof and told me I definitely had cause for concern. It was at that time he told me something that made me lose all faith in our state lawmakers in Austin. He than gave me a brief explanation about laws and what they must contain in them to be enforceable. Every law written, in order to make it enforceable, must have a remedy along with it. He than explained, after carefully reading the TUCA law, that even though it sounds good and has proper guidelines to follow, the bill is worthless. That is because there is only one section out of the entire law that can actually be enforced. That is the section that discusses dues collections and foreclosure which basically says “if you don’t pay your dues we have the authority to foreclose on your property.” It has a remedy or defines how to enforce it. That is why for now the only way to stop my board’s illegal activities is to file a civil case against them. That’s all because most of the TUCA law does not specify what can be done if they don’t abide by the individual laws. Now what makes me so different from all of the homeowners? They now have SB 472 which has ways to prevent illegal election and boards controlling of proxies. That law would prevent my board president from using all the proxies as she has done for the last six years and get her and her friends replaced.
HB 2761 states that a person can not be a board member if they have been convicted of a felony. I think that is an important issue but what I think doesn’t matter because it does not apply to me anyway. If a homeowner wants to get copies of financials, they can go to JP court and force a board to disclose them or if they want to go to a meeting, they can. I have to file a civil lawsuit or sneak in the back door if I want to attend a meeting. During the last legislative session Rep. Ruth Jones McClendon had drafted a bill HB 2328. This bill included all of the different types of HOA’s and covered what most of the new laws covered but it never made it to the floor. That really makes me wonder, did her bill not make it because it was bad or did it not make it because it included all the different types of associations?
This error was not just an oversight or done by accident, it was done for a reason and I have every legal right to find out what that reason was. Could it be due to the fact that one of our Senators owns a string of management companies and some of these new laws are putting restrictions on ways for him to profit from the associations. How he makes his money is not my concern unless it affects me. This affects me in a huge way so any involvement he has making or changing HOA laws is now my concern. Its time we started reminding these lawmakers that they work for us, we don’t work for them. This is a huge injustice and I personally have to suffer because of it. It is not morally right and if somebody really did some digging into it, would probably find that it’s not legally right either. I just want my association out of the hands of a bunch of out -of- control hoodlums and back into homeowner control. When laws are written, they are supposed to be written for the good of the people not for the good of a person. For years I always heard about living the American dream-- you have a job, own a house, go to an occasional baseball game and eat apple pie. I guess I only lived part of that dream because I bought a condo instead.
I hope this helps to let people know the fight is not over yet and we need as much support as we can get from all associations. I am new to this going to Austin and standing up for my rights and don’t know all the ins and outs of it yet but I am going to give it my all because one thing I have learned during this entire ordeal that those people that we elected and also pay to go to Austin to stand up and fight for our rights, well they just aren’t doing it.
By Gary Stone, a Condo Owner 2012. All rights reserved. The National Homeowners Advocate Group, LLC.