Category Archives: Records

2021 Legislative Changes that Impact HOA’s

Posted on by Posted in Governing Documents, Government News

On May 31, 2021, the Texas Legislature concluded the 2021 legislative session. Although there were a significant number of bills filed that could have had a dramatic effect on the laws governing Texas homeowners associations, only a few bills were ultimately enacted. The most significant is Senate Bill 1588, which ultimately evolved into an omnibus bill with 27 separate sections that add or modify 3 chapters of the Texas Property Code. Such new and modified statutory laws are summarized as follows:

HOUSE BILL 1659 – Reduced Application of Declaration Amendment Procedures under Chapter 209

House Bill 1659 modifies Section 209.0041 of the Texas Property Code, which establishes a statutory procedure for the amendment of a Declaration by a property owners association that administers a subdivision development. As modified, the Declaration amendment procedure under Section 209.0041 may not be used to amend a Declaration if the amendment will affect a portion of the subdivision development that is zoned for or that contains, or previously contained as specifically allowed under the Declaration, a commercial structure, an industrial structure, an apartment complex, or a condominium. This bill takes effect on June 15, 2021.

SENATE BILL 581 – Protection of Displayed Religious Items

Senate Bill 581 amends Section 202.018 of the Texas Property Code, which prior to 2021 prohibited a property owners association from adopting or enforcing a restrictive covenant that restricts an owner or resident from displaying or affixing a religious item on the owner’s or resident’s entry to their dwelling. Pursuant to such amendment, Section 202.018 now prohibits the adoption or enforcement of a restriction that would restrict an owner or resident from displaying a religious item anywhere on the owner’s or resident’s dwelling or property. Section 202.018 also permits a property owners association to adopt or enforce restrictions that restrict the display of religious items: (1) on common area or common element property; (2) that violate any applicable building line, right-of-way, setback, or easement; or (3) that are attached to a traffic control device, street lamp, fire hydrant, or utility sign, pole, or fixture. There are identical provisions for the protection of displayed religious items incorporated in Senate Bill 1588. This bill takes effect on May 31, 2021.

SENATE BILL 1588 – The Omnibus Bill

Senate Bill 1588 has 27 separate sections that add or modify statutory provisions in Chapters 202, 207 and 209 of the Texas Property Code, including provisions identical to those in House Bill 3571 (Protection of Security Measures) and Senate Bill 581 (Protection of Displayed Religious Items). Due to the size and scope of Senate Bill 1588, it shall be summarized in separate sub-parts by topic.

Senate Bill 1588 adds Section 202.022 of the Texas Property, which prohibits property owners associations from adopting or enforcing a restrictive covenant that restricts a property owner from installing on the owner’s property a swimming pool enclosure that conforms to applicable state or local safety requirements. Section 202.022 does authorize property owners associations to adopt and/or enforce rules regulating the appearance of a swimming pool enclosure, including limitations establishing permissible colors for a swimming pool enclosure, provided such limitations do not prohibit a swimming pool enclosure that is black in color and consists of transparent mesh set in metal frames. This provision takes effect on September 1, 2021.

Senate Bill 1588 modifies Section 202.006 of the Texas Property Code, which requires all Dedicatory Instruments of a property owners association to be recorded in the Official Public Records of the county in which its development is located. As amended, Section 202.006 restricts a property owners association from collecting a regular assessment if the Dedicatory Instrument authorizing the collection of such assessment is not recorded in the Official Public Records. This provision takes effect on September 1, 2021.

Senate Bill 1588 modifies Section 207.006 of the Texas Property Code, which governs the online publication of Dedicatory Instruments by a property owners association that administers a subdivision development. As amended, Section 207.006 only applies to a property owners association with at least 60 lots or that is managed by a management company and it now requires such applicable property owners associations to maintain an internet website and to publish its Dedicatory Instruments on such internet website. This provision takes effect on September 1, 2021.

Senate Bill 1588 modifies Section 207.003 of the Texas Property Code, which governs the production of resale certificates by a property owners association that administers a subdivision development. As amended, Section 207.003 imposes restrictions on the amounts charged for a resale certificate (no more than $375 for a resale certificate and no more than $75 for an updated resale certificate) and modifies the number of days to cure a failure to timely produce a resale certificate (5 business days instead of 7 days) before a property owner may sue the property owners association. Section 207.003 also now allows a court to award damages up to $5,000 (instead of $500) in such a lawsuit. This provision takes effect on September 1, 2021.

Senate Bill 1588 modifies Section 209.004 of the Texas Property Code, which governs the filing of a management certificate by a property owners association that administers a subdivision development. As amended, Section 209.004 now requires the management certificate to identify the recording data for the governing Declarations and all amendments thereto, the telephone and email address for the person managing the property owners association, the website address for the internet website on which the property owners association’s Dedicatory Instruments are published, and the amount and description of any fees charged by the property owners association related to the transfer of property. Section 209.004 now also requires the management certificate to be filed at the Texas Real Estate Commission and restricts a property owners association from holding a property owner liable for attorneys fees incurred in the collection of unpaid assessments or interest on the unpaid assessments if the property owners association has not timely recorded the management certificate in the county’s Official Public Records or filed the management certificate with the Texas Real Estate Commission. This provision takes effect on September 1, 2021, however, the Texas Real Estate Commission has until December 1, 2021, to establish the ability to electronically file management certificates and if a property owners association has already recorded a management certificate or amended management certificate in compliance with Section 209.004 on or before December 1, 2021, then it is not required to electronically file a duplicate management certificate or amended management certificate with the Texas Real Estate Commission until June 1, 2022.

Senate Bill 1588 adds Section 209.00505 to the Texas Property Code, which imposes new rules on the denial of an application by an architectural committee for neighborhoods with more than 40 lots and creates a procedure for appealing such a denial to the property owners association’s board of directors. Section 209.00505 also restricts members of the property owners association’s board of directors, and their spouses and household members, from serving on the architectural committee. This provision takes effect on September 1, 2021.

Senate Bill 1588 modifies Section 209.0051 of the Texas Property Code, which governs the meetings of a board of directors for a property owners association that administers a subdivision development. As amended, notices of a regular board meeting must be posted and sent to the registered email address of members of the property owners association at least 144 hours (instead of 72 hours) before the meeting. In addition, all amendments of the annual budget (instead of only those increasing the budget by more than 10%) have to be approved by the property owners association’s board of directors at an open board meeting. This provision takes effect on September 1, 2021.

Senate Bill 1588 modifies Section 209.0052 of the Texas Property Code, which governs the procedure for approving contracts by property owners associations that administer subdivision developments. As amended, Section 209.0052 requires property owners associations that propose to contract for services that will cost more than $50,000 to solicit bids or proposals using a bid process established by the property owners association. This provision takes effect on September 1, 2021.

Senate Bill 1588 modifies Section 209.006 and adds Section 209.0065 to the Property Code, which creates new due process procedures that must be performed before a delinquent account may be reported to credit reporting services by a property owners association that administers a subdivision development. Section 209.0065 also restricts a property owners association from charging a property owner fees associated with reporting a delinquent account to a credit reporting service. This provision takes effect on September 1, 2021.

Senate Bill 1588 modifies Section 209.063 of the Texas Property Code, which establishes a priority of payment schedule that must be followed by property owners associations that administer a subdivision development. As amended, payments received by a property owners association may only be applied to attorneys’ fees that are reasonable. This provision takes effect on September 1, 2021.

Senate Bill 1588 modifies Section 209.0064 of the Texas Property Code, which requires written notice of a delinquent account be sent to property owners by a property owners association that administers a subdivision development before the property owner can be made liable for the fees of a collection agent. As amended, the written notice must provide property owners with 45 days (instead of 30 days) to cure a delinquent account before further collection action may be taken by the property owners association. This provision takes effect on September 1, 2021.

Senate Bill 1588 modifies Section 209.007 of the Texas Property Code, which governs the procedure for conducting a hearing on a covenant violation by the board of directors of a property owners association that administers a subdivision development. As amended, Section 209.007 no longer permits the hearing to be first held by a committee appointed by the board of directors and it now requires the board of directors to designate a member of the board or other representative to present the property owners association’s case at the hearing. In addition, Section 209.007 also requires the board of directors to provide the property owner a packet containing all evidence of the violation to be presented at the hearing at least 10 days before the hearing and it extends the hearing date automatically if the board fails to timely produce the packet of evidence. This provision takes effect on September 1, 2021.

Senate Bill 1588 modifies Section 209.016 of the Texas Property Code, which prior to 2021 imposed limits on the type of information of a prospective tenant that may be turned over by a property owner to a property owners association that administers a subdivision development. As amended, Section 209.016 no longer requires redaction of sensitive personal information of a tenant from a lease agreement and authorizes a property owners association to require property owners who lease their property to submit to the property owners association contact information, including the name, mailing address, phone number, and e-mail address, of each person who will reside at a property under a lease and the commencement date and term of the lease. This provision takes effect on September 1, 2021.

Senate Bill 1588 adds Section 209.017 of the Texas Property Code, which authorizes property owners to sue a property owners association that administers a subdivision development in justice court for violations of Chapter 209 of the Texas Property Code. This provision takes effect on September 1, 2021.

HOUSE BILL 3571 – Protection of Security Measures

House Bill 3571 adds Section 202.023 to the Texas Property Code, which prohibits a property owners association that administers a subdivision development from adopting or enforcing any restrictive covenant that prevents a property owner from building or installing security measures, including but not limited to a security camera, motion detector, or perimeter fence. Section 202.023, however, does permit a property owners association to regulate the type of fencing that a property owner may install. There are identical provisions for the protection of security measures incorporated in Senate Bill 1588. This bill takes effect on June 15, 2021.

 

Source: Gregory S. Cagle. This 2021 Texas HOA Law Legislative Update Report provides brief descriptions of the most significant changes in Texas HOA law passed by the 2021 Texas Legislature; however, such brief descriptions are neither comprehensive nor exhaustive of all changes in the laws that may apply directly or indirectly to a particular homeowners association. As such, this report should be used for general informational purposes only and may not be construed as a legal opinion or legal advice.

Update to to Fine & Enforcement Policy

Posted on by Posted in Policies

The board of directors amended the Fine & Enforcement Policy in January to comply with case-law, which requires HOA’s to take action with statutory legal remedies when a non-compliant homeowner refuses to adhere to the promise(s) (AKA. Covenant(s)) made when purchasing a home in Quail Creek.  To view this policy, open this post and CLICK HERE on the hyperlink.

Reminder: Each Lot Owner is Responsible for the Drainage on Their Property…Including Easements!

Posted on by Posted in "Covenants" CC&Rs, Helpful Reminders, News & Notable

On June 22, 2018, Goodwin Harrison Management arranged for a civil engineering firm to inspect the drainage ditches at the front of each lot within the Quail Creek Subdivision. At that time, the primary area of concern was along the East side of Pheasant Hill. Several lots had standing water issues and Goodwin Harrison volunteered to initiate the inspection at no charge to the HOA.

The inspection report was emailed to the Homeowners on October 19th and discussed during the October 22nd HOA Regular Board Meeting. Although the report from SBSA included a bid for a grading and drainage plan for those lots of concern on Pheasant Hill, no scope of work was authorized, nor funds allocated by the HOA. This report may have been misleading to some homeowners that understood the HOA was going to pay for drainage repairs on those lots. The HOA is not responsible for maintaining the drainage ditch on each homeowner’s property. The CCR’s define the responsibility of each homeowner to maintain and repair the ditches to allow for unimpeded water flow throughout the neighborhood.

There has also been some question as to ownership of the drainage ditch (often referred to as an easement). As noted on the neighborhood plat, filed with Rockwall County, each lot runs to the street. Therefore, the drainage ditch is part of the owner’s lot. Some lots along the South side of Quail Creek, the South and East sides of Partridge Drive and the North and West sides of Pheasant Hill have a 15 ft. water line at the front of their property. Those lots would be subject to an easement to the water company. CLICK HERE to view the CC&R’s (a copy of the plat that is located on pages 27-29).

The unusually heavy rains this fall have made the drainage situation more prevalent and therefor the need for each homeowner to assess their lot more important. If you have water standing in your ditch, the Board asks that it be addressed and repaired according to Section 7.12 and 9.2 of the CCR’s. Also, be aware that if your neighbor has standing water, it may be because your lot is impeding their water flow, and this should also be addressed and repaired.

Warm weather will be here before we know it! Standing water is a magnet for mosquitos… Let’s all do our part to work together to keep our drainage ditches clean, flowing and free of standing water!

Read Goodwin Harrison Management Company Letter to Homeowners

 

Lawn Maintenance Policy Is Now Effective

Posted on by Posted in New Homeowners, News & Notable, Policies

To help ensure that the beauty of our neighborhood is not diminished by neglectful homeowners, the Board has enacted a Lawn Maintenance Policy that establishes basic standards. Most already go well above and beyond these standards but the new policy enables the Board to hold those who don’t accountable. To read the new policy, select from the main menu above “HOA Business”; submenus “Records & Documents”; “Policies.”

Homeowners Approve Amendments to CC&Rs & Bylaws!!!

Posted on by Posted in "Covenants" CC&Rs, Ballot Initiative, Board Related, Bylaws, Governing Documents, Property Code-Texas, Records, Voting & Elections

It’s official!  The Homeowners have spoken!

During tonight’s Board meeting, the votes in the Ballot Initiative were tallied and recorded resulting in at least sixty-seven percent (67%) of all homeowners in Quail Creek approving all amendments to the CC&Rs (Initiative #1) except for Amendments to Articles 4.8b, 4.8h, & 8.2.   Seventy-one percent (71%) of homeowners also approved the newly amended Bylaws (Initiative #2).  The amendment loosening the garbage can restriction (Initiative #3A) passed with sixty-nine percent (69%) support and the amendment to loosen the restriction on signs (Initiative 3B) also passed, capturing seventy-five percent (75%).

However, sixty-seven percent (67%)  of homeowners rejected the amendment loosening the trailer restriction (Initiative #3C), where it garnered just thirty-three percent (33%), or one-third(1/3) homeowner support.  Of the sixty-seven percent, twenty-seven percent (27%) voted to tighten the restriction with the rest preferring to keep the restriction as is.  What is clear from the vote is that the overwhelming majority of homeowners do not support the storage of trailers in Quail Creek.

State law dictates that for any amendment to a declaration to pass it must have 67% approval of all homeowners (not those who vote, but all homeowners).  Therefore, anyone that did not submit a ballot effectively voted to reject the amendments being proposed.

Remarkably, sixty-one out of the sixty-nine eligible members of the Association participated in this initiative including eleven of the twelve homeowners in Phase 1!

As part of the effort to protect and ensure the integrity of the process to tally the vote, all ballots were scanned & digitized.  Only the voter signature pages (that include the homeowner’s name and ballot ID number) will be kept from distribution (both the digital files & hard copies of these signature pages will be kept on file indefinitely).

The Board hopes to have the revised CC&Rs & Bylaws recorded with Rockwall County by the end of next week, which will make the instruments official.  Copies of the newly amended CC&Rs & Bylaws will be distributed to Homeowners soon.  They will also be made available to homeowners on the “HOA Records” page on the HOA website.

“Recount of Votes Policy” Adopted in Advance of Ballot Initiative Vote Tally

Posted on by Posted in Ballot Initiative, Board Meetings, Governing Documents, Policies, Property Code-Texas, Voting & Elections

Recount

A Recount of Votes Policy was adopted during Tuesday’s regular Board meeting to help ensure that the Association will not be responsible for the costs associated with such a request.  The policy mirrors Texas Property Code Section 209.0057(b), which requires any party making the request to pay all costs associated with a recount unless the recount changes the results of a vote, wherein the Association would then be responsible to reimburse the requesting party/parties.

This comes on the heels of a frivolous open-records request by a homeowner who was demanding that the Association (fellow homeowners) foot the bill for the time and materials invested for “all” records in the Association’s possession.  However, just days before the request the Board adopted the Records Reproduction & Copying Policy in accordance with Texas Property Code requirements, which would have cost homeowners several hundreds of dollars, had the policy not been in place.  After standing it’s ground to require payment from the homeowner in accordance with the policy and after a final threat of legal action by the homeowner against the Association, the Board closed the matter when the homeowner in question failed to respond within 30 days to a certified letter demanding prepayment.

The vote tally will occur during an open meeting of the Board where homeowners may come and observe.  The process to tally the ballots was reviewed during Tuesday’s Board meeting to help ensure that the process will be open and transparent to help alleviate the need for any homeowner to question the results.

Board Adopts New Fine & Enforcement Policy

Posted on by Posted in Board Meetings, Board Related, Policies

money

By unanimous consent, the Board adopted the first Fine and Enforcement Policy.  This policy establishes the guidelines for the Board when enforcing the CC&Rs against homeowners who are out of compliance as well as the rights granted to homeowners under the law.

Article 7.15(a) of the CC&Rs establishes that fines assessed may not exceed the then in effect annual assessment, per violation.  For homeowners, this means that beginning January 1, 2015, the maximum that any homeowner may be fined is $319 per violation, which is equal to the 2015 annual assessment.  This does little to motive those who wish to disregard the restrictions and pay the penalty instead.  This is why, the policy establishes that once the violator has reached the maximum allowable fine amount based on the set timetable, the immediate next step is for the Board to seek injunctive relief.

If successful, the non-compliant homeowner shall be accountable to the court from that point forward, for as long as they own the property.  Therefore, the decision for the Board to file with the court now becomes the non-compliant homeowner’s to bear.  Pursuant to the law, the homeowner will also be required to pay all legal costs associated with the case.

NOTE:  Beginning January 1, 2012, the Texas Legislature enacted new laws governing HOAs in the Texas property Code, which requires all HOAs to adopt a Fine & Enforcement policy, among others.  The Bylaws, under article 3.04, grant the Board the authority to adopt, publish and enforce rules and regulations (policies).  The law firm of Horton & Archibald provided the Board with a set of draft-ready policies for the Board to adopt, which is the template that was used for this policy.

View All Policies

Harvard Bus. Prof.: Faith’s Influence in Respect for the Law

Posted on by Posted in "Covenants" CC&Rs

 

Clay Christensen on Religious Freedom_640x480_MOV_00000

Click to view video

YES, this applies to our Quail Creek HOA!

Dr. Clayton Christensen highlights (in this short (1:39) video) the catalytic impact of religion in America to provide order.  He argues that as Americans abandon their faith, so too is the rule of law.

As in society today, most in our neighborhood abide by the “Covenants” voluntarily, not for fear of a Board that may enforce, but because their faith drives them to live in ways that demonstrates love & respect to neighbors.

Quail Creek’s system of governance by a Board comprised of neighbors, elected by neighbors, is established on the expectations that homeowners desire to live within the constraints of established written guidelines, memorialized formally at closing, by signing a “covenant,” or promise.  When it comes to these agreed and established guidelines then, the fundamental purpose of a governing body is simply to hold one another accountable to promises made, not to deny or suppress the rights of anyone.

For a Board to deny a person’s rights would mean that the homeowner never signed the governing instruments.  That someone may not have read, or fully understood the promises made upon signing is inconsequential to their responsibility to abide by the guidelines.  Therefore, when it violates its fiduciary duties by failing to uphold the governing documents, the Board denies and suppresses the rights of the majority in favor of the minority.

Following the logic of Dr. Christensen, that someone may insinuate that a governing instrument of the Association is somehow invalid &/or unenforceable, or argue that others are not held to account, would make little difference to a person of faith as a promise made is a promise kept.

Despite Christensen’s assertion that faith makes a difference in voluntary conformity of law, or in our case, “restrictions,” people of faith can still act defiantly by disregarding their promises made.  Whenever this happens, a homeowner is exhibiting disrespect and contempt to neighbors and for the guidelines that they committed to uphold.  Greater still, disregard for these promises can often communicate a great deal about a person’s faith or belief in, and about, God.

Driving Responsibly: A Resolution & Appeal

Posted on by Posted in Members/Owners, Resolutions

By unanimous consent, the Members of the Quail Creek Homeowners’ Association, on October 21, 2014 during the Annual Meeting plead for all members to consider the following resolution for the protection of our community.

A RESOLUTION FOR RESPONSIBLE USE OF A MOTOR VEHICLE INSIDE OF THE QUAIL CREEK SUBDIVISION

Whereas, Quail Creek is a family oriented rural neighborhood, which requires a “commuter lifestyle” for most;

Whereas, many Quail Creek families drive multiple vehicles in and out of the neighborhood several times each day;

Whereas, people of all ages walk &/or run as well as ride their bikes in and around the neighborhood;

Whereas, there are many children who are part of our community ranging in ages from newborn to high school;

Whereas, children sometimes play &/or congregate on our streets;

WHEREAS, children can run onto the street without regard or respect to oncoming traffic;

WHEREAS, studies demonstrate that children do not match adults in their ability to detect an automobile’s approach, where they cannot reliably detect a car approaching at speeds higher than 20 miles per hour and is why the third leading cause of death for children ages 5 to 9 years old is getting hit by a car, and children up to age 15 make up a disproportionate number of pedestrian casualties worldwide; [1]

Whereas, at various times of the day and night there are children on our streets that operate low profile, conveyance devices, like tricycles, pedaled and foot propelled cars & trucks while others operate motorized vehicles like golf carts, go carts, motorcycles, scooters, and many others that that lack motor vehicle visibility & safety standards;

Whereas, children that operate conveyance devices of any kind on our streets and driveways can exhibit erratic control and perform unpredictably;

Whereas, in violation of neighborhood restrictions, there are occasions where Quail Creek family pets run loose, on our streets into oncoming traffic;

Whereas, the homes in Quail Creek have large stone/brick mailboxes that can easily conceal the presence of a person or animal from an oncoming motorist;

Whereas, in an effort to ensure safety for all, the subdivision was established with a posted speed limit of 20mph to help ensure that motorists have ample time to react to changing conditions;

WHEREAS, excessive speed above 20mph can pose a danger to the safety and well being to anyone who is on or next to the streets;

Whereas, the combination of excessive speed and driver distraction is the single greatest contributor of motor vehicle fatality accidents against pedestrians inside of neighborhoods with posted speeds of 30mph or less;[2]

Whereas, pedestrians in Quail Creek expect motor vehicles to adhere to the established and posted speed limit;

Whereas, driver inattention and excessive motor vehicle speed can be common for families in Quail Creek whose schedules are hectic and where time is precious;

WHEREAS, distractions that come from inside a vehicle can further inhibit a driver’s ability to observe and react to unforeseen obstacles on a street;

WHEREAS, distractions include talking to passengers, eating, drinking, adjusting the radio, and most alarming of all is the use of mobile phone devices, especially texting, which requires visual, manual, and cognitive attention from the driver;

Whereas, some motorists in Quail Creek are observably inattentive or distracted and fail to obey the posted speed limit and/or stop signs;

Whereas, many neighbors have observed close calls that could have resulted in the injury or worse to people, other vehicles, and/or property;

Whereas, in a County as large as Rockwall, it is unlikely that local law enforcement can dedicate time to enforce the posted speed limits or stop signs; and

Whereas, for homeowners, honoring the posted speed limit and stops signs is less about adhering to the law and more about showing respect for neighbors as well as demonstrating care and concern for the safety and well being of everyone.

NOW, THEREFORE, BE IT RESOLVED, that we, as Homeowners and Members of the Quail Creek Homeowners’ Association, affirm our care and concern for the safety and well being of all who use our streets, especially the children who are vulnerable to being hit by a motor vehicle, and declare our commitment to drive responsibly as a demonstration of our respect to others while operating a motor vehicle on the streets of our neighborhood.

RESOLVED, we shall hold the members of our family who operate a motor vehicle inside of our subdivision to the same standard.

RESOLVED, when we observe our guests &/or visitors failing to meet these standards, we will encourage them to drive responsibly when operating a motor vehicle on the streets inside of the Quail Creek neighborhood.

 

[1] Reference: Why Kids Get Hit By Cars, by Wray Herbert; March 15, 2011, Association for Psychological Science. http://www.psychologicalscience.org/index.php/news/full-frontal-psychology/why-kids-get-hit-by-cars.html

[2] Reference: Distraction.gov, the official US Government website for Distracted Driving (http://www.distraction.gov)