Duties of Management Company
In Texas, homeowners associations (HOAs) and condominium associations (COAs) often hire management companies to handle the day-to-day operations and administrative tasks associated with running the community. These companies act as agents of the association, working under the direction of the association’s board of directors. Below are some of the core functions a management company might perform for an HOA or COA in Texas:
Administrative Services
- Communications: Managing communication with residents, including newsletters, announcements, Notice of fines, Deficiency notices for unpaid annual dues or special assessments.
- Record-Keeping: Maintaining the association’s records, including minutes of board meetings, financial records, contracts, and correspondence.
- Meeting Coordination: Organizing and facilitating association meetings, including preparing agendas, setting up meeting spaces, conducting annual elections, annual meetings, conducting special assessment meetings, and distributing meeting notices and materials.
- Compliance: Ensuring that members of the Association comply with the community’s governing documents and restrictive covenants.
Financial Management
- Accounting: Managing the association’s finances, including accounts payable and receivable, aiding in financial aduits, and producing financial statements and reports
- Dues Collection: Collecting monthly or annual HOA fees from homeowners, managing delinquencies, and, if necessary, initiating collection actions in accordance with the governing documents and state laws.
Property Management
- Maintenance and Repairs: Overseeing the maintenance and repair of common areas and amenities, including hiring and supervising contractors and vendors.
- Inspections: Conducting regular inspections of common areas and, in some cases, individual units (particularly in COAs) to ensure compliance with the community’s architectural standards and maintenance requirements.
- Contract Management: Negotiating and managing contracts for services such as landscaping, pool maintenance, security, and other services required for the community.
Enforcement of Rules and Regulations
- Rule Enforcement: Implementing the community’s rules and regulations, including notifying homeowners of violations and working with the board to address non-compliance.
Legal Compliance and Advisory
- Legal Liaison: Acting as a liaison between the association and legal counsel on matters requiring legal attention, including litigation, document review, and compliance issues. Move often than not, the management company will supply the legal counsel for the HOA or COA.
It’s important to note that the management company’s role is to implement the decisions of the COA or HOA board of directors, not to make those decisions, though this line becomes grey in many situations. The board retains the ultimate authority over the association’s governance. Bad Management companies will overly enforce compliance issues with the members and create contentious issues with the Board of Directors and Community members at large. It is normal to sue both the management company and the Association if litigation is necessary.
Julian Nacol
Nacol Law Firm P.C.
Dallas HOA Attorney
(972) 690-3333
Texas Homeowner’s Association: Appealing HOA Fines and a Realistic Result
Texas Homeowner’s Associations can be difficult to deal with. If an individual needs to file a suit due to arbitrary or capricious actions, it is important to know your rights prior to filling any suit.
Texas Property Code § 209.007 allows for dispute resolution and appeal to the board of directors if there is an improper fine due to an alleged offense of the Rules and Regulations of a residential residence.
The HOA shall conduct the hearing not later than 30th day after the date the Board receives owner’s request for a hearing.
At the hearing an individual will have the opportunity to verify the facts and allegations actions that lead to the fine or violation. Furthermore, the homeowner will have an opportunity to rescind the fine, justify any action, or ask for clemency.
This is a convenient and cheaper way to attack an unlawful or improper fine, but usually it is unhelpful.
If a Board or a management company, which is normally an agent of the Board, fines an individual then an appeal will be a waste of time. Likely, Board members will not care enough, nor listen to a homeowner’s complaints regarding violations. Texas Property Code § 209.007 was passed by Texas Legislature in a misguided attempt to promote resolution as an alternative dispute process.
HOA Boards and HOA Management companies do not entertain appeals and the appeal is usually worthless. It is a waste of money to hire an attorney to represent you in this ordeal because the judge and jury are the Board Members that fined you in the first palace. Usually, the President of the HOA board is a “Karen” that has nothing better to do than get involved in other people’s business.
Filing an appeal, though worthless does have one added benefit. It gives you time to find a lawyer before the fine becomes permanent. It is not needed to hire a lawyer to represent you in the appeal and anything you say at the appeal will likely be recorded by the HOA and used against you if a suit is filed. HOA Board members usually do not know the law, procedure, or the property code, thus these appeal hearings are shams to give the illusion that you are being heard.
If you are being fined by the management company or HOA best thing to do is file suit or send a demand letter.
Dallas Texas HOA Attorneys
Nacol Law Firm P.C.
(972) 690-3333
HOA Fines: How Your HOA Can Seek Recourse
It is assumed for the purposes of this article that the fines levied by the HOA referenced herein are proper, valid, and do not violate the Texas Property Code or other applicable statutes. This article is in relation to residential subdivision homeowner’s associations governed by Texas Property Code Chapter 209.
There are three principal (though not the only) ways an HOA may remedy the fines on a homeowner’s account: (1) file a lien against the property; (2) report the delinquency of an owner to a collection agency; and (3) file suit on the homeowner.
Liens
After an HOA has placed fines on your account, they may seek to place a lien on your property in order to secure payment when the property is sold. Pursuant to Tex. Prop Code Sec. 209.009:
“A property owners’ association may not foreclose on a property owners’ association’s assessment lien if the debt securing the lien consists solely of:
- Fines assessed by the association;
- Attorneys fees incurred by the association solely associated with fines assessed by the association; or
- Amounts added to the owner’s account as an assessment under Section 209.005(i) [records reproduction requests] or 209.0057(b-4) [charges to a homeowner for vote recounts].
While Texas law does not automatically grant HOAs the authority to create liens, the HOA can create that authority if it is granted in their governing documents. The documents should specify (if any) which types of charges may be subject to a lien (e.g., past-due assessments, fines, attorneys fees, etc.).
Collections (see Tex. Prop. Code. Sec. 209.0064)
An HOA may also seek recourse by reporting delinquencies to a collection agency. An HOA cannot hold a homeowner liable for fees incurred by the HOA for retaining a collection agency to collect the outstanding balance unless the HOA sends the homeowner notice via certified mail that:
“(1) specifies each delinquent amount and the total amount of the payment required to make the account current;
(2) if the association is subject to section 209.0062 or the association’s dedicatory instruments contain a requirement to offer a payment play, 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 45 days for the owner to cure the delinquency before further collection action is taken.”
Filing Suit
Lastly, an HOA may seek to enforce a restrictive covenant and obtain monetary damages from a homeowner. Pursuant to Tex. Prop. Code Sec. 202.004(b)-(c):
“(b) a property owners’ association or other representative designated by an owner of real property may initiate, defend, or intervene in litigation or an administrative proceeding affecting the enforcement of a restrictive covenant or the protection, preservation, or operation of the property covered by the dedicatory instrument.
(c) a court may assess civil damages for the violation of a restrictive covenant in an amount not to exceed $200 for each day of the violation.”
If an HOA files a suit of this nature, they are typically seeking specific performance, meaning they are asking the court to force the owner to do or stop doing a specific action in order to comply with the governing documents. However, as stated in subsection (c) above, the HOA can also seek payment of fines in the amount of $200 for each day of the violation.
In conclusion, while this list is not comprehensive, there are a variety of ways an HOA can seek to collect overdue fines on your homeowner’s account. If you have any concerns about the actions of your HOA, please contact us.
Dallas HOA Attorneys
Nacol Law Firm P.C.
(972) 690-3333
Disclaimer: The information provided in this article is in no way intended to constitute legal advice. The information provided is merely an overview of the relevant law. Do not act on this information. Always consult an attorney for legal advice.
Airbnb / Vrbo : Amendments to Your HOA’s Governing Documents
For those who own property within an HOA, the idea that an HOA can frequently amend its restrictions on the use of property in the community can be disconcerting, especially for those property owners seeking to list their property on Airbnb, Vrbo, or other similar short-term rental sites. With the growth of Airbnb in recent years, there has been a corresponding growth in HOAs restricting the use of property within their communities for short-term rental purposes. This leaves many property owners and potential property owners wondering if an HOA can restrict the use of their property for short-term rental purposes AFTER they have already begun short-term renting them. In short, the answer is yes, and here is why:
As this specific area of law is relatively new, there is little case law to reference to specifically as it regards to Airbnbs, however the little that exists seems to be where courts will lean in the future because of its correspondence to basic legal principles. A great summary of how courts will likely view restrictions on short-term rental property use comes from a 2022 Texas Court of Appeals case—Adlong v. Twin Shores Property Owners Association:
When buyers purchase property subject to a declaration capable of amendment if certain procedures are followed, they are “on notice that the unique form of ownership they acquired when they purchased their property was subject to change through the amendment process, and that they would be bound by properly adopted amendments.” So, property owners that purchase property that is part of a valid existing HOA “know in advance that the rules might change and that they are often subjecting themselves to the will of the majority” in the HOA.
Essentially, the court stated that homeowners should know that buying a home within an HOA could mean that the restrictions governing their property use could change, and in effect they are consenting to those changes. This makes logical sense, too—if each homeowner was only subject to the restrictions that were in place when they moved into the HOA, it would be nearly impossible for an HOA to determine who is subject to which restrictions and would render future amendments virtually meaningless. If an HOA’s restrictions were treated as such, there could exist a theoretical community where half of a community can only paint their homes purple, and another half can paint their homes any color other than purple, simply because one half moved into the community after the other half. While this is a juvenile example, this appears to be Texas courts’ logic when it comes to this issue.
In conclusion, if you are looking to use your property for short-term rental purposes or are looking to buy a property for the same reason, it may be in your interest to look at homes not controlled by an HOA.
- Adlong v. Twin Shores Prop. Owners Ass’n, 2022 Tex. App. LEXIS 1970, *23
Julian Nacol
Nacol Law Firm P.C.
Dallas HOA Attorney
(972) 690-3333
Architectural Control Committee
In Texas, like in many other states, Homeowners Associations (HOAs) commonly have an Architectural Control Committee (ACC) tasked with maintaining the aesthetic and structural standards of the community. The ACC plays a powerful, if not tedious, role in ensuring that any modifications, improvements, or construction activities within the HOA comply with the community’s governing documents, including the Declaration of Covenants, Conditions, and Restrictions (CC&Rs), bylaws, and any applicable design guidelines. Though many members of the ACC Board strive to be fair and reasonable, that is seldom the case, and the ACC power is more often than not abused. Here’s an overview of the ACC’s function, authority, and processes, particularly as they pertain to Texas:
Function and Authority
- Establishment: The ACC’s authority and function are typically established in the HOA’s CC&Rs or bylaws. These documents outline the committee’s role, powers, and the procedures it must follow when reviewing and approving or denying homeowners’ requests for architectural changes. The procedures and guidelines are normally contained with the CC&R’s that detail the exact procedure used to affirm or deny a request.
- Review Process: Homeowners wishing to make exterior changes to their property, including landscaping, additions, renovations, or new constructions, must usually submit a detailed request to the ACC for approval before commencing work. This process helps maintain visual harmony and property values within the community.
Guidelines and Standards
- Design Guidelines: Many ACCs have specific design guidelines that provide homeowners with clear expectations about the types of changes that are likely to be approved. These guidelines can cover aspects such as color schemes, materials, fencing styles, and landscaping requirements. It is common to have an structural plans developed by an architect, bids, and materials submitted to the Architectural Control Committee to obtain approval prior to beginning any alterations of the property.
Decision Making
- Timeliness: Texas law may specify timelines within which the ACC must make a decision after receiving a request. If the ACC fails to respond within the designated time frame, the request may be deemed approved, depending on the HOA’s governing documents. Though if a response is not forthcoming, the CC&R’s may stipulated that it is deemed denied, thus reading the CC&R’s are pivotal.
- Appeals: The HOA’s governing documents often outline a process for homeowners to appeal Architectural Control Committee decisions. This process allows for reconsideration of denied requests under certain conditions. If no procedures are contained within the governing documents, then Texas Property Code Sec. 209.00505 applies.
- Compliance with State Law: In Texas, the operation of ACCs and the enforcement of architectural standards must comply with state law, including any statutes that regulate the duration of deed restrictions and the powers of HOAs. Tex. Prop. Code Sec 209.00505 details qualification of board members, appeal process, and notice requirements for the ACC pursuant to Texas Law.
- Fairness and Non-Discrimination: The ACC must operate in a manner that is fair, consistent, and non-discriminatory. Decisions cannot be arbitrary and must be based on the guidelines set forth in the governing documents. Arbitrary and Capriciousness is a primary affirmative defense for a Homeowner to any alleged violation that the ACC alleges pursuant to its final decision.
Challenges and Disputes
- Dispute Resolution: Disputes between homeowners and the ACC are not uncommon. Many HOAs have dispute resolution procedures, which may include mediation or arbitration, to address conflicts arising from architectural control decisions. Though these are common in new CC&R’s, these dispute resolution procedures are lacking in older HOA Subdivisions.
- Legal Action: Homeowners who believe their requests have been unjustly denied may consider legal action. This is often the case because of the appeal Architectural Control Committee abuse and ignorance of the current procedures and police conferred by Texas Law.
The ACC is a police component of community governance within an HOA, attempting to dictate the community’s aesthetic standards and property values pursuant to the subjective beliefs of whoever is on the board of the ACC at that time.
Julian Nacol
Nacol Law Firm P.C.
Dallas HOA Attorney
(972) 690-3333
NACOL LAW FIRM P.C.
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972-690-3333
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
