HOA Board wants to fine without authority (recommendation, 2013, foreclosures)

[Teddiegough]

I live in a townhome under an HOA (fee simple) in San Antonio, Texas. For 40 years this HOA has not fined. How we are in a lawsuit with the HOA. And one of the opposing council tactics (one of the largest CAI firms in Texas) is pushing the Board to initiate fining.

There is nothing in the CC&Rs, or other declarations about fining (but the Board is adding fining to the Rules & Regulations (R&Rs), as the R&Rs do not need a 2/3s approval vote by the residents for changes).

I sent an e-mail to the HOA board and HOA mgt co (also a member of the CAI) and then a flyer to all the residents stating that there was no authority to initiate fines. But the board said a section in the By-Laws gave them the power to fine. However, when I read this section, "Power of the Board", there was nothing about fining. (And I ran this question by my attorney.)

So, the Board is proceeding with their fining schedule as well as adding "crimes" to the R&Rs. The Board is also initiating a "damage schedule". I assume for damage residents do to their own property (fee simple properties.) One "damage" will probably be for installing DirecTV on your own property. The Board keeps repeating that you must "consult" them before installation, and then you are told you can only put the dish on a pole on our interior patio.

The Board keeps meeting in unannounced "executive sessions" to develop the fine and damage schedules and additions to the R&Rs.

Homeowners have never been asked for approval or even comments.

Any ideas?

[Me007gold]

Sounds like a questionn for the real estate forum, not the San Antonio forum.

[cully]

Came across this on my usual peek at "hoa" on CD.

I know there was a big reform in Texas hoa law very recently. Was it 2013?

More may be coming. Or you directors are picking up on past reforms or concern for the future and decided to enact some new things.

My last hoa also said things were a certain way when it was not so. The BOD also sent out letters making statements that were blatant lies but sounded so good and some people believe heads of groups knowing what they are talking about and take their word.

It can be a lot to fight against.

Can you ask the board to state exactly where the rule about fining is? I do know some boards try to go around things in a sneaky way.

There is someone from TN who talked about this on CD lately. (type hoa into the search box and you might get some interesting stories.) The association said they were doing something enacting a old part of the original CR&R. Something about the residents not being able to attend monthly bod meetings; the meetings being closed. Having heard other stories along these lines (there must be some kind of underground of some HOAs on how to trick homeowners since some follow a similar pattern) and residents in a HOA I know concerned about the same, it looks like they took the CR&R statement to have an annual meeting and twisted it to use for having all other meetings closed.

You could also take a look into media attention. Check out the Houston Chronicle and your local paper and see if you feel there is a growing interest in HOAs in Texas. Kind of looks like it to me from what I get from a family member there. You could tap into that. Your story could be a good one for the local paper. In some places there's a tv station in relationship with the local paper. Go to the tv. See if you can catch the attention of a consumer reporter.

HOAs are corporations so they should be licensed as such with the state. And corporations have a body overseeing their actions. In some places it's the State Attorney's office.

[Bo]

Originally Posted by Teddiegough

The Board keeps meeting in unannounced "executive sessions" to develop the fine and damage schedules and additions to the R&Rs.

Hire your own lawyer to compare what they're doing to state laws that were passed in the 2011. It's almost certainly not legal. Executive session can be part of a publicly-announced meeting, but it can't be the entirety of a meeting. Decisions passed in an illegal meeting aren't binding. IANAL, but you need to hire one to make this point to the HOA.

Homeowners have never been asked for approval or even comments.

That part is perfectly legal. It's not good governance, but it is legal.

Can't you talk to a board member about what problem they're trying to fix by adding fines? It sounds to me like they've got a member (or multiple members) who's not complying with the notices they're sending, so they're setting up fines because it's cheaper than hiring a lawyer to request civil action in court.

[Bo]

Originally Posted by cully

I know there was a big reform in Texas hoa law very recently. Was it 2013?

New HOA laws were passed in the lege's 2011 session. And we don't need more movement in that direction, because all it did for HOAs that are run well is make it more cumbersome to operate. The OP's HOA sounds like it is not well-run, if its board is meeting in secret. Someone needs to remind its board of the existing laws.

[Bo]

Originally Posted by Me007gold

Sounds like a questionn for the real estate forum, not the San Antonio forum.

I disagree. HOAs are regulated by the state. The OP needs a local recommendation for an attorney who can get her HOA operating in compliance with the law

[need4speed2012]

HOA's have the authority to put fines in place without the consent of the homeowners, however these fines must be recorded and documented at the courthouse or they are useless.

The board members of the HOA must have a meeting and these meeting are always open to all of the homeowners plus they must inform the homeowners by mail, email, website or posted on your information board that should be located either on the entrance or exit to your unit.

If you decide to attend you can voice your opinion but again the board members will have the final say so.

If they never did the above by notifying all residents or by having this recorded at the courthouse then anything that was voted in and changed is voided.

[cully]

Is there a new president or HOA attorney or manager or something? Something is spurring this on suddenly.

In our last one, someone just got a wild hare and one of the head guys had certain over reaching restrictions from his daughter's HOA hours away in a bigger city and decided to enact them. They hired a manager saying his salary was in line with that state salary for that position. Turns out, on further research, that state salary was based on a gigantic wealthy metro area, not the small place hours away the HOA was in. They needed someone who would keep their secrets and they got him.

Hey, what's the lawsuit you're talking about? Is this about initiating fining or something else?

I have always heard the Dishes must be allowed by Federal Regs.

[Teddiegough]

I know there was a big reform in Texas hoa law very recently. Was it 2013?
The big reform were in 2011, and there were a few more changes in 2013.

More may be coming. Or you directors are picking up on past reforms or concern for the future and decided to enact some new things.
During the next session there will probably be many new bills introduced regarding HOAs.

My last hoa also said things were a certain way when it was not so. The BOD also sent out letters making statements that were blatant lies but sounded so good and some people believe heads of groups knowing what they are talking about and take their word.

It can be a lot to fight against.

You are absolutely right, each blatant lie is not so blatant and takes research to time to show what the Board's statements are blatant lies.

Can you ask the board to state exactly where the rule about fining is? I do know some boards try to go around things in a sneaky way.

Actually, the Board's June Meeting minutes referenced Section 7.1 of the ByLaws (Power of the Board) as their authority for fining. However, when I read section 7.1, it had nothing to do with the power to fine.
Furthermore, By-Laws should not deal with the power to fine, this is reserved for the CC&Rs.
The CC&Rs do NOT give the power to fine.

There is someone from TN who talked about this on CD lately. (type hoa into the search box and you might get some interesting stories.) The association said they were doing something enacting a old part of the original CR&R. Something about the residents not being able to attend monthly bod meetings; the meetings being closed. Having heard other stories along these lines (there must be some kind of underground of some HOAs on how to trick homeowners since some follow a similar pattern) and residents in a HOA I know concerned about the same, it looks like they took the CR&R statement to have an annual meeting and twisted it to use for having all other meetings closed.

Something similar is going on here. There have been no open meetings or announcements of the meetings on the Board's Power to Fine. Incidentally, the CC&Rs state that if you change either of the 2 types of assessments which are allowed per the CC&Rs, Annual & Special Assessments, you must announce the meeting between 10 to 30 days before the meeting and you must have a quorum (defined as 10% of the homeowners) present at the meeting.

You could also take a look into media attention. Check out the Houston Chronicle and your local paper and see if you feel there is a growing interest in HOAs in Texas. Kind of looks like it to me from what I get from a family member there. You could tap into that. Your story could be a good one for the local paper. In some places there's a tv station in relationship with the local paper. Go to the tv. See if you can catch the attention of a consumer reporter.

Good idea. There is a growing interest. The problem I am having is stating a complicated subject simply so people understand me.

HOAs are corporations so they should be licensed as such with the state. And corporations have a body overseeing their actions. In some places it's the State Attorney's office.

You hit upon one of the biggest problems with HOAs in Texas. In Texas, and most states, the only real remedy homeowners have is to sue, which is outrageously expensive and time consuming----takes multiple years--at least. Virginia did initiate a system of a ombudsman review of HOA disputes, however, the Community Association Institute (CAI) packed the reviewers with members of the CAI and not even one HOA homeowner.

[Teddiegough]

You hit the nail on the head with the hammer when you asked has something happened lately to spur the fines.
Oh yes, the HOA hired one of the largest and most aggressive CAI law firms in Texas and they hired a CAI, and in my opinion unscrupulous, HOA management firm, which seems to really like foreclosures.