Attention all Homeowners Associations: Are You Compliant?
Not long ago, the Texas Legislature passed a series of laws which significantly alter the rights and responsibilities of homeowners associations. While some associations or HOA’s have complied with these new rules, many still have not, probably because they are unaware of them.HOA’s need to be aware of these new laws, however, because a failure to follow them can prevent the HOA from exercising its rights and enforcing various restrictive covenants against its members.
- If it isn’t filed, you can’t enforce it.
The laws now in effect prohibit HOA’s from enforcing against homeowners certain provisions in their “dedicatory instruments.” Dedicatory instruments are the documents which govern the establishment, maintenance, or operation of an HOA. They include the HOA’s restrictive covenants, rules and regulations, by-laws, etc. The new laws require HOAs to file all dedicatory instruments in the county’s property records. The laws provide that dedicatory instruments have “no effect” until they are filed. Consequently, HOAs seeking to enforce rules or restrictive covenants against one of its members must make sure the instrument has been filed before it can enforce the rule or restrictive covenant. HOAs are now also required to post on their or their management company’s website copies of all dedicatory instruments.
- Notice of Member and Board Meetings
The new laws also contain specific requirements regarding HOA meetings and board meetings. Open board meetings are now required, and members of the HOA must be given written notice of the meeting at least ten days (but not more than sixty days) prior of the meeting. Specific methods for notifying the homeowners are set forth in the new provisions, and board meetings without notice can be held in only limited circumstances. However, a board cannot without prior notice to members consider or vote on: (1) fines, (2) damage assessments, (3) initiation of foreclosure actions, (4) initiation of enforcement actions, excluding temporary restraining orders or violations involving threat to health or safety, (5) increases in assessments, (6) levying of special assessments, (7) appeals from a denial of architectural control approval, or (8) a suspension of a right of a particular member before the member has an opportunity to attend a Board meeting to present the member’s position.
Similar notice requirements exist regarding meetings of the HOA where an election or vote will take place. The new laws provide various methods for casting votes, but explicitly require that all such votes be in writing and signed by the member, except in uncontested races. Annual meetings are also now required; otherwise, a homeowner has a right to call an election meeting.
- Open Books; Records Production and Copying Policy
With certain exceptions, HOAs are now required to make available to their members the HOAs’ books and records. Each HOA board must adopt a “records production and copying policy” which sets forth the charges for compiling, copying and producing the information which has been requested. This policy must also be filed in the county property records.
For HOA’s comprised of more than 14 lots, the requirements become even more onerous. HOAs of this size must adopt a record retention policy which meets certain requirements. They must also adopt reasonable guidelines for establishing an alternate payment schedule for delinquent assessments. These, too, must be filed in the county records.
- Certain Restrictions Prohibited
In addition to specifying what HOAs must do, the new laws also outline what HOAs cannot do in terms of enforcing various restrictive covenants. With certain exceptions, the new laws prevent HOAs from enforcing provisions which prohibit: satellite dishes one meter or smaller, certain rooftop antennas, certain composting measures, installation of rain barrels or rain harvesting systems, implementing efficient irrigation systems, using drought resistant turf, installing solar energy devices, limiting the display of the American flag, installing certain roof shingles, and displaying or affixing religious symbols on the entry to the member’s dwelling.
- Enforcement Actions and Related Notices
Some of the most significant changes in the new laws pertain to enforcement actions. Before an HOA may suspend an owner’s right to use a common area, file suit against an owner other than to collect a regular or special assessment or foreclose under an association’s lien, charge an owner for property damage, or levy a fine for a violation of the restrictions or by-laws or rules of the HOA, the HOA or its agent must give written notice to the owner by certified mail, return receipt requested. The notice must give the owner a reasonable period of time to cure the violation, inform the owner that the owner may request a hearing before the board within 30 days, and advise that the owner may have special rights or relief under federal law, including the Service Members Civil Relief Act, if the owner is serving on active military duty.
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