From FortBendTalk.com: If You Own A Home Then Oppose TUPCA (Contact your local representative)—
(click title link above for FBT piece)
If You're A Homeowner in Texas You Will Want To Vote Against This Bill!!!
Jul 2006 - 02:52 PM
This independence day remember that democracy starts at home, literally! Did you know that the Texas Uniform Planned Community Act (TUPCA), created by special interest attorneys and industry lobbyist (CAI, etc.), has made its way to our state legislature and that if it passes homeowners rights to their own properties could be seriously curtailed.
Read more at the "The TUPCA Review" and contact your legislature today. Even one of the original author's, legislator David Leibowitz, is refusing to sign this anti-democratic bill which, according to some advocates and independent lawyers, violates the Texas constitution. This power grab must stop and this lobby group must be opposed!
See: http://www.thetupcareview.com/ or http://stoptexashoaforeclosures.com/
Side note: Some of the special interest lawyers who helped shape this legislation are on the all time Harris County HOA foreclosure filings list. See the list at http://pages.prodigy.net/hoadata/attyhoa.html. You can cross-check this list via Fort Bend County filings at http://courtcn.co.fort-bend.tx.us/pls/public/ck_public_qry_main.cp_main_idx .
Stay informed and keep in touch!!!
posted by responsible_dvlpmnt at Thursday, July 06, 2006
21 Comments:
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visit http://www.stoptexashoaforeclosures.com/TUPCAHEARING.html for more--
another related site:
http://texas.ahrc.com/
Ck this piece out:
A Culture of Lies
Homeowner Associations - the New Colonialism in America
April 23, 2006
By Ed Bentley
Washington, District of Columbia -
One of the more incongrous sights of the 20th. century was that of a skinny old man walking along the streets of Delhi every morning, clad only in a loin cloth. After his 4 miles walk, he would climb up the ornate steps of the British royal palace, pass the uniformed guards standing unflinchingly to attention, and then sit down with the Governor of India for hours negotiating the emancipation of India from British rule.
And he succeeded!
The man, of course, is Mahatma Gandhi - the lawyer, religious leader, saint and politician all combined in one, who led Einstein to assert that it is hard to believe that such a man ever walked the face of the earth.
When he was asked in 1931 by an American reporter what was the secret of his success, he replied "soul-force". "What is that?" asked the reporter. Gandhi replied in two words - "love and truth".
Homeowners who live in homeowner associations are analogous to the Indians whose country was taken by a colonial power. (For approximately 250 years, this colonial power was actually a private company - the British East India Company)
In homeowner associations, the colonial powers are the lawyers and other vendors who take over the citizens' homes with the connivance of politicians and other government leaders.
Homeowners are swaddled and suffocated with rules, laws, regulations, statutes, codes and the infamous CCRs. The colonial power levies fines, fees, assessments, penalties. Homeowners are put in architectural straightjackets so that they can be put in financial prisons, and the sword of foreclosure hangs perilously over each homeowner's head.
Homeowners have to know that they are surrounded by a sea of lies - from lawyers, the politicians(their lackeys), managers, gardeners, maintenance people, city officials.
Lying is a way of life for them. From ordinary every day conversation to court filings, the lies roll off their tongues and their computers as if they were well-greased skids. Their immune systems have become immune to the truth. Lying is ordinary, as natural as the polluted air.
Gandhi knew all this.
But he also knew that truth, like water, is the only way to cleanse filth, and that eventually, even the mightiest cliffs tumble to the waves, as did the British empire.
Homeowners can both learn from and be inspired by what Gandhi did. He did not sit idly by. He pushed and poked and prodded and marched until the British recognized the inevitable.
Homeowners, likewise, must push and poke and prod and march until the lawyers realize that homeowners will not allow them to live in their homes, either literally or figuratively. Homeowners can parade outside lawyers' offices, call the media, and hound them down the nights and days with complaints to the bar and the judicial council.Homeowners can run for office, either on the local, state or national level.
Is it worth it? The answer is contained in another question - is freedom worth it?
The answer has to be a resounding yes.
Truth will win. If a nagging little voice has any doubts, remember who coined the phrase "You cannot fight city hall". City hall, of course. If they can get you to believe that victory is not possible, they have won.
Gandhi won. So can homeowners. Let the march begin!
Here's one from a Katy homeowner doing battle with her HOA board from AHRC:
Katyland HOA Homeowners Battle
April 17
By Barbier
Houston, Texas, - This is to everyone.
Well, they are finally fighting to save their foreclosure power! After we ousted the board...which I might add we did & did it right in accordance to our covenance, they have chosen to "lie" low, excuse the pun.
We have them scared to death & hesitant thanks to the ruling of Mrs Blevins.
The annual meeting is set for Monday night as you all know. We have been collecting proxies & some have mailed them to me from here in the community & out of town or state. Isn't that a great encouragement to all you newbies. I've only been at this a year, but have in actuallity been fighting them alone for 5 years.
Bless you Wendy, Harvella, Beanie, Shu, Jan, Rico & everyone.
Once again I need guidance. They apparently went down to the Court house to file for a petition committee only to find I did it in Oct '01, in fear they might pull such in accordance to Tx Prop Code & sit on it for 2 years. Not to bad for someone with a high school degree I might add.
Since they found out to their demise it was to late, they have begun a petition to get 25% sigs to contest our petition, which is in accordance to the Tx Prop Code. hahahaha Also, that means people have not been sending in those rediculous proxies to them that they mailed out to homeowners to mail back to them to use for what-ever purpose they intended. Fantastic!
This shall be the evidence I will produce at the meeting to show how they intend to hold on to that foreclosure power, come hell or high water they will not let that "cash cow" get away. Also, to prove they are planning "Foreclosures".
What I need now is help or rather suggestions on how to prepare myself for this annual meeting.
I need info such as $ that are involved in all this. I need correct & accurate info that will hurt their money belt. At this time I know you guys have been sending all that info & I have been keeping it to put on the sight. But Joe is running slow on our Website & I do not at this point have the time to go back & research my info. I need brief outline or whatever. Something I can use quickly for cheat notes.
All help is appreciated & I know I'm asking alot, so if you can great, if you can't that's fine also, because I for one definately understand.
Do not worry, this will not be a so&so said so&so, I will take the time to double check what I recieve. I've gone to far to use wrong info.
tks
bb
Katyland
Hi All,
We just got another one of those threatening letters from John Keville, lawyer for Johnson Development Co. of Houston (Larry Johnson, Pres), demanding we agree to their lame Nov. '05 offer or they are going to file for "summary judgement" with the court. I wonder what happened to their earlier confidence in a trial by jury?
Our counsels response was very polite: "Dear Mr. Keville, Thanks for the nice letter of June 29, 2006. We do not intend to voluntarily dismiss our counterclaim. I hope you have a nice 4th of July." Jeff Singer
_____________________
Comment: I would have to say that Mr. Singer was much more polite than I would have been (with a touch of humor too). As we have repeatedly told Goff, Larry Johnson, Keville, etc..if they want our cannons (metaphor for speech rights), as well as our home, then they have to come and take it!!! We're not going to volunteer them away--
In the words of Winston Churchill in some of the darkest moments in WWII:
"We shall fight on the beaches"
"We shall fight on the beaches. We shall fight on the landing grounds. We shall fight in the fields, and in the streets, we shall fight in the hills. We shall never surrender!" Speech about Dunkirk given in House of Commons June 4, 1940."--Churchill
"This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning." Speech given at the Lord Mayor's Luncheon, Mansion House, London, November 10, 1942. -Churchill
The speech was made 29 October 1941 to the boys at Churchill's old public [private] school, Harrow--not Oxford or Cambridge:"Never give in--never, never, never, never, in nothing great or small, large or petty, never give in except to convictions of honour and good sense. Never yield to force; never yield to the apparently overwhelming might of the enemy.''
. . . how's that for a response!
Ck out this "conflict of interest":
http://www.hobb.org/index.php?option=com_content&task=view&id=974&Itemid=197
(Perry home builders give big to TX Attorney General on eve of setting up TRCC). Get more above.
Catch this chronicle piece on the ever expanding land fill near Missouri City & Fresno and how this mega-corp. keeps local and county officials approving their requests for expansion:
http://www.chron.com/disp/story.mpl/nb/fortbend/news/4024939.html
"Landfill expansion proposed near Fresno
Willowridge High School hosts townhall meeting Thursday
By ZEN T. C. ZHENG
Copyright 2006 Houston Chronicle
A state environmental regulatory agency and a waste disposal company are holding a townhall meeting Thursday to ask for residents' opinions on plans to expand a landfill near Fresno.
Blue Ridge Landfill TX, a partnership formed by BFI Services/Allied Waste Services, is requesting approval of the Texas Commission on Environmental Quality to expand the company's Blue Ridge Landfill, 2200 FM 521 south of McHard Road and one mile north of Fresno in southeast Fort Bend.
The public meeting set for 7 p.m. at Willowridge High School, 16301 Chimney Rock in Houston, is required by the state to allow the community to air its views on the project to be presented by company officials.
State officials will take the comments back as part of the consideration of the company's application for the expansion permit.
"The application is still in technical review, so it will be some time, a month or more, before that is finished," said Terry Clawson, a commission spokesman. "After that, if the executive director recommends approval, the permit will go before the TCEQ commissioners, who will entertain requests for contested case hearings, if any, and act from there."
If the commission's executive director so recommends, the application can go before commissioners late this year or early next, Clawson said.
For information, contact the Texas Commission on Environmental Quality at 1-800-687-4040
Raymond Franks, BFI's Houston region manager of business development, said the company plans to expand the 599-acre landfill to 1,345 acres toward the north and west to enlarge the company's solid waste disposal capacity because of the population growth in the county and surrounding areas.
Vertical expansion
According to the application, 784 acres out of the 1,345 acres would directly be used for solid-waste disposal to a height of 235 feet above mean sea level or about 170 feet higher than the property's current elevation.
"The expansion will allow us to provide a long-term disposal option for the citizens in and around Fort Bend County," Franks said.
The expanded landfill would accommodate waste accumulated for 40 years, he said.
Even if the expansion is approved by the state commission, the company will continue to use the existing fill area until new sectors are needed, Franks said.
The project would not harm the environment because the company has a plan to establish a ground-water monitoring system, to set up a buffer zone and to contain gas from decomposing trash, Franks said.
BFI's landfill has been a matter of controversy, sometimes drawing protests from the surrounding community and local authorities.
Government agreements
The company first reached a settlement with the county in February 1991 to operate the facility. To pacify the concerned community, BFI agreed to give the county a "host community fee," also dubbed a tipping fee, to be used toward any improvement of the area surrounding the landfill.
The fee, which started at a rate of $.125 per cubic yard of garbage disposed at the landfill, has gone up to $.179 per cubic yard, which has generated about $3.1 million for the county over the past decade, Franks said.
In December 2001, as BFI threw out the idea of doubling the size of the landfill, it reached another agreement with the county and pledged to hike the tipping fee to $.3 per cubic yard once the company receives an expansion permit from the state commission. The county, in turn, will not oppose the proposed expansion under the agreement.
County Commissioner Tom Stavinoha last week reiterated his support for the landfill expansion, citing the company's contribution to the community including footing the electric bills for about 500 street lights in the Fresno area.
"We're OK with it. We won't fight it," Stavinoha said. "BFI has been a good neighbor, and the most community-minded garbage company I've seen."
Elsa Malakoff, a spokeswoman for Missouri City, said City Council also reached an agreement with the company in which BFI promised not to use several roads in the city to access the landfill and the city will not oppose the landfill expansion."
zen.zheng@chron.com
related release from http://www.window.state.tx.us/news/60123trcc.html :
Strayhorn Finds TRCC Functions as Builder Protection Agency
Builders Failed to Fix Confirmed Defects
(Austin)--Texas Comptroller Carole Keeton Strayhorn today found that the Texas Residential Construction Commission functions as a homebuilder protection agency and lacks the authority to enforce its own building standards.
"It is clear that the Texas Residential Construction Commission functions as a builder protection agency," Strayhorn said. "I am deeply troubled by what I found in my review of the Texas Residential Construction Commission.
"In a homeowner survey conducted by my office, I found that 86 percent of homeowners who responded said their builder failed to fix construction defects in their homes. And that was after going through the mandated State Sponsored Inspection and Dispute Resolution process that verified the defects."
The Texas Residential Construction Commission was created during the tort reform movement of the 78th Legislature as a mechanism to resolve disputes between homeowners and builders without the expense of costly litigation. However, contrary to the agency's mission statement, Strayhorn found the agency has no authority to resolve disputes.
"My research found no evidence that the Texas Residential Construction Commission has had a favorable impact on the homeowner," Strayhorn said. "If our standard is giving all Texans a fair shake, then this agency falls far short of that goal. Homeowners are disappointed and angry that the costly and bureaucratic Texas Residential Construction Commission process does not get their construction defects fixed. Their only recourse is to go to binding arbitration, as required by most builder contracts, or go to court - precisely the outcome the agency was created to prevent.
"To balance the needs of both the homeowner and the homebuilder, Texas Residential Construction Commission should at least have statutory authority to make builders fix defects confirmed through its process. At the very least, the agency should not shift builder fees to the homeowner, should not allow public members of the commission to have ties to the construction industry and should enforce builder registration laws.
"In fiscal 2005, the agency spent $3.7 million on its operations. That same year, the agency collected $6.6 million from builders and homeowners," Strayhorn said. "As a result, the agency transferred $2.9 million to the general fund, effectively helping balance the general state budget on the backs of homeowners.
"In the next two years, the agency is estimated to raise about $9.7 million a year from its fees and spend only $4.2 million a year, meaning that the agency will be putting more money in the general budget than it does into doing its job.
"For these reasons, if it were up to me personally, I would blast this Texas Residential Construction Commission builder-protection agency off the bureaucratic books," Strayhorn said.
Strayhorn's review of the Texas Residential Construction Commission was initiated at the request of Rep. Todd Smith, R-Euless, who last August asked the Comptroller's office to research, analyze and report on the impact of the agency on Texas homeowners and the economy.
____________
The actual report:
The Honorable Todd Smith
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910
Dear Representative Smith:
In August 2005, you requested my assistance in researching the Texas Residential Construction Commission (TRCC) and its impact on Texas homeowners and the Texas economy.
As you are a member of the House Committee on Appropriations and a member of its Subcommittee on Government Efficiency and Operations, I can fully appreciate your interest in the matters about which you have inquired. As Texas Comptroller, I have carried on the tradition and practice of responding to all requests from members of the Texas Legislature for assistance that has long existed at the Comptroller’s office, and I appreciate the confidence that your request exhibits in the abilities of my staff to assist you. I have completed this research and enclose the findings.
The review indicates that TRCC was created during the tort reform movement in the 78th Legislature in 2003 as a mechanism to resolve disputes between homeowners and builders without filing an expensive lawsuit.
In a homeowner survey conducted by my office, I found that 86 percent of homeowners who responded said their builder failed to fix construction defects in their homes. And that was after going through the mandated State Sponsored Inspection and Dispute Resolution process that verified the defects.
According to TRCC, 93 percent of its inspections confirm at least one construction defect, yet they have no statutory authority to hold builders accountable for shoddy building practices.
The majority of homeowners who responded to my survey are disappointed and angry that the costly and bureaucratic TRCC process does nothing to ensure their construction defects are fixed. Thus, their only recourse is binding arbitration, as required by most builder contracts, or go to court, precisely the outcome the act was created to prevent. It appears that the act and TRCC rules simply create additional roadblocks for homeowners seeking relief.
I am concerned that mandatory registration of builders does not guarantee quality building and in fact may give homeowners a false sense of security by making it appear that the state is somehow endorsing registered builders. The act’s mandated limited state warranties are tied to performance standards that were not implemented until June 2005. It is too soon to determine their impact on homeowners, but according to engineering experts, the standards adopted by the builder-dominated commission are “overly lenient” and “need fine-tuning.”
After reviewing TRCC and its enabling statute, it is clear that the agency functions as a builder protection agency. It is doubtful TRCC will significantly impact the Texas economy. But the economic impact on the homeowner with a defective home can be devastating.
To balance the needs of both the homeowner and the homebuilder, TRCC should at least have statutory authority to make builders fix defects confirmed through its process.
At the very least, the agency should not shift builder fees to the homeowner, should not allow public members of the commission to have ties to the construction industry and should enforce builder registration laws.
In fiscal 2005, the agency spent $3.7 million on its operations. That same year, the agency collected $6.6 million from builders and homeowners. As a result, the agency transferred $2.9 million to the general fund, effectively helping balance the general state budget on the backs of homeowners.
In the next two years, the agency is estimated to raise about $9.7 million a year from its fees and spend only $4.2 million a year, meaning that the agency will be putting more money in the general budget than it does into doing its job.
For these reasons, if it were up to me personally, I would blast this TRCC builder-protection agency off the bureaucratic books.
Should you have any questions, please contact Ruthie Ford, my Special Assistant for Expenditure Analysis, by e-mail at ruthie.ford@cpa.state.tx.us or by phone at 463-4263, or you can call me directly at 463-4444.
Thanks for all that you do for our great state. Please do not hesitate to call on me if I can assist you in the future.
Sincerely,
Carole Keeton Strayhorn
Texas Comptroller
Go to http://www.window.state.tx.us/trcc/trcc.pdf for the entire report. . .
Mo-City legislative contacts for opposition to the TUPCA bill:
Contact dora.olivio@house.state.tx.us (we've found Dora very helpful on consumer issues like this, but not senator Janek -- see his campaign finance reports for more) and/or janek@senate.state.tx.us .
Latest Court Filings in Johnson Development SLAPP-suit (small portion of actual filings--most recent through July 3rd):
06-JUN-2006
01:00 PM MOTION FILED SIENNA/JOHNSON DEVELOPMENT LP,
Entry: AND DOUGLAS GOFF PLAINTIFFS' MOTION TO COMPEL THE DEPOSITION OF COUNTER-PLAINTFF AMY CALVIN WITH CERTIFICATE OF CONFERENCE, CERTIFICATE OF SERVICE, AND EXHIBITS
06-JUN-2006
03:21 PM NOTICE FILED GOFF, DOUGLAS
Entry: NOTICE OF ORAL HEARING WITH CERTIFICATE OF SERVICE
07-JUN-2006
10:06 AM PAYMENT RECEIVED
Entry: A Payment of -$2.00 was made on receipt DCHC150045.
08-JUN-2006
01:51 PM MOTION RETURNED/NO ACTION
Entry: [PROPOSED] ORDER ON PLAINTIFFS' MOTION TO COMPEL DEPOSITION OF COUNTER-PLAINTIFF AMY CALVIN 1 PAGE
09-JUN-2006
04:18 PM AMENDED/SUPPLEMENTAL PLEADING CALVIN, CHRIS
Entry: FIRST NOTICE OF ORAL HEARING WITH CERTIFICATE OF SERVICE
09-JUN-2006
05:06 PM PAYMENT RECEIVED
Entry: A Payment of -$6.00 was made on receipt DCHC150678.
12-JUN-2006
02:07 PM RESET REQUESTED-CASE PENDING
Entry: none.
12-JUN-2006
04:32 PM RESPONSE FILED CALVIN, CHRIS
Entry: RESPONSE TO MOTION TO COMPEL WITH CERTIFICATE OF SERVICE
13-JUN-2006
02:16 PM MOTION GRANTED
Entry: ORDER ON MOTION TO QUASH 2 PAGES
30-JUN-2006
02:22 PM MOTION RETURNED/NO ACTION
Entry: ORDER 2 PAGES
03-JUL-2006
03:45 PM PROCESS RETURNED MCCLURE, MARY
Entry: SUBPOENA ISSUED: 06-29-06 SUBPOENA SERVED: 06-29-06 NOT ISSUED BY DISTRICT CLERK
Ck this case out:
CAI: New Jersey Appellate Court Hands Down Significant Constitutional Ruling
Thanks to Don Nordeen for this link. The Community Associations Institute has now revised their earlier reaction to the Twin Rivers decision, which I linked to some time ago. Now they have a more detailed legal analysis of the case that emphasizes the ways BODs are still allowed to wield enormous power over residents, even with the constitutional limits on infringing expressive liberties. The lawyer who wrote it, Michael Karpoff, correctly points out that the business judgement rule still applies to non-expressive conduct.
He also emphasizes that "there is no need for governing boards to panic" over the decision. Think about that. If boards had to respect the New Jersey Constitution, they might panic? Why aren't New Jersey's municipal officials in a perpetual anxiety attack? They have been respecting the state Constitution ever since it was written.
Karpoff concludes with this: "Moreover, the Twin Rivers defendants plan to appeal the appellate court's decision to the New Jersey Supreme Court, so the final word on members' speech rights still has not been spoken." So, CAI is still hoping that the New Jersey Supreme Court will silence these disobedient association members for good and all, and put their expressive liberties at the mercy of their board of directors as nature intended. I imagine CAI will drag out the usual parade of horribles that will ensue if HOA members are allowed to display political signs, use their community meeting room, and have fair access to the association newspaper.
I can add one more item to Karpoff's list of reasons for HOA boards not to panic: it's an appellate court decision, and boards frequently disregard those anyway. :-)
Isn't the Sienna Plantation Resident's Association mgmt hired by the developers and not the residents here? Aren't they CAI affiliates too?
This release is from the lobby that drafted this TUPCA bill. Two of the members from Houston show up on the list of lawyers most often filing HOA foreclosures (located at http://pages.prodigy.net/hoadata/attyalpha.html --- do a search). I would be willing to bet the others listed below would show up in a similar search in their counties)
Q&A quoted from the lobby Pro-TUPCA site (these are HOA lawyers, not homeowner attorneys):
Q: WHO ARE THE "TUPCA DRAFTERS"?
A: The TUPCA Drafters are a group of dedicated Texas real estate attorneys who generously volunteer their time and talent to improve the legal environment in Texas for planned communities. The core members of the group have been working together (as volunteers) since 1989 on legislation affecting condominiums and homeowner associations. As an ad hoc committee, they re-drafted the Texas Uniform Condominium Act that was enacted in 1993. Since 1997 they have constituted the Committee on Property Owners Associations of the State Bar's Real Property, Probate, and Trust Law Section. They are also active members of the Texas College of Real Estate Attorneys. Although some of the TUPCA Drafters are also active in special interest lobbying groups, their work on the State Bar's POA Committee and through the College is purposefully neutral.
---They were very humble don't you think?
Now do a search of the Houston members at http://pages.prodigy.net/hoadata/attyalpha.html --both appear on the all time list.--Interesting huh!
Here's the lobby committee list:
The TUPCA Committee of the College is chaired by Sharon Reuler (Dallas), who is also a College director. The TUPCA Steering Committee is comprised of College directors W. Austin Barsalou (Houston), Thomas I. Davies (Austin), and Sharon Reuler (Dallas), and College members Amy McLin (San Antonio), Marc Markel (Houston), and Cecilia Thomas (Fort Worth).
Ck this story out:
http://www.hobb.org/index.php?option=com_content&task=view&id=815&Itemid=197
You all might like this article from a homeowner attorney:
Remove Foreclosure Powers of Homeowner Associations
Access to this Home Equity Attracts Specialty Law Firms to a Volume Business
January 16, 2002
By Wendy Laubach
Houston, Texas -
I'm a lawyer, so I hope no one will think I'm engaged simply in lawyer bashing when I make this observation.
There is a common denominator in the most horrible HOA abuse stories that have been hitting the media in recent years.
That common denominator is legal fees: legal fees in the thousands of dollars.
Legal fees that dwarf the size of the original dispute.
The average HOA foreclosure involves less than $1,000 in dispute. The average legal fees awarded exceed $1,000.
Cases are frequently reported in the media in which a few hundred dollars in late dues turns into thousands of dollars of legal fees and results in the loss of a home.
How to fix this problem?
The number one best fix would be to remove the foreclosure power altogether.
After all, what is it that attracts specialty law firms to a volume business in HOA foreclosures?
What attracts them is access to the value of home equity.
Shut off that fuel valve, and you quench much of the fire.
Others today will speak more, I’m sure, about why the foreclosure power is not needed.
I will only observe that my neighborhood civic association has operated for 50 years without a foreclosure power.
We enjoy stable and increasing property values as well as neighborhood harmony.
I think you also will find from the comments today and your independent research that the most successful HOAs find a way to function without actually foreclosing.
They understand that exercising their foreclosure powers is a good way to create an adversarial neighborhood atmosphere, if not expose themselves to ruinous lawsuits.
I have some suggestions for partial cures if the foreclosure power cannot be done away with.
If there must be a lien on homesteads to secure HOA dues, confine the lien to the payment of dues.
Don’t extend it to the collection of penalties or fines, particularly the statutory $200/day fines that some HOAs routine impose for trivial covenant violations such as oil stains on driveways or mildew on garage doors.
If you find that there must be a lien to secure penalties as well as dues, then at least don’t extend the lien to legal fees.
In the American system, the parties typically pay their own legal fees.
It’s a good way to require them to be rational about when they use the expensive court system.
People should not be running up thousands of dollars to fight over hundreds of dollars in dues, just because they can reverse the charges.
It’s an invitation to lawsuit abuse.
Another suggestion is a change to one of the protective provisions in the new HOA law that took effect a few weeks ago.
The new law provides that the HOA must hold a hearing before taking certain enforcement actions, but it makes an exception for a suit to collect dues or a suit to foreclose a lien.
The exception should be removed.
Many suits to collect dues or foreclose liens could be avoided altogether if the parties were just required to talk to each other first.
The law requires that, when a hearing must be held, no legal fees can be run up until it’s finished.
That’s particularly appropriate before a collection or foreclosure suit is filed.
It would prevent the extremely common fact pattern of a dispute over nonpayment of a trivial amount of dues that balloons into a big lawsuit because a lawyer instantly sends out threatening letters and charges $150 a pop.
Pretty soon the suit becomes more about the fees than the dues.
The new law provides what sounds like a limitation on legal fees, but on closer examination it proves to be inadequate to the task.
The law allows the GREATER of $2,500 or 1/3 the amount in dispute.
First, the average amount in dispute is between $500 and $1,000, so $2,500 in fees is way too high a limit to do much good.
Second, the amount in dispute may not be simply the amount of unpaid dues.
It may not even be the actual cost of remedying some specific covenant default, like an unmowed lawn or unpainted garage door.
The statute unwisely allows HOAs to charge $200 a day for even the most trivial of covenant infractions, and HOAs routinely do charge it.
HOAs will be asking for legal fees equal to 1/3 their penalties.
The fees should be limited to 1/3 the unpaid assessments or 1/3 the actual out-of-pocket cost of fixing a problem, with no $2,500 alternative.
The new law says that HOAs can’t foreclose merely over fines or legal fees, which is a good change.
But there’s a problem with how the protection is supposed to work.
First, HOAs frequently attempt to foreclose over a trivial covenant violation, relying on their statutory right to charge $200/day.
It should not be possible to foreclose over anything less than a very serious covenant violation that seriously threatens the neighborhood.
This would exclude the typical HOA case that alleges a cracked flower pot on the front porch, a stain on the driveway, mildew on the garage door, an unmowed lawn, and so forth.
The statute should empower the court to sanction an HOA and its law firm for bringing a foreclosure action that is deemed, after trial, not to rise to a very high level of neighborhood safety and impact.
Second, when homeowners get behind in dues and try to catch up, HOAs routinely apply the payment first to fees and penalties, leaving some or all of the dues unpaid.
If HOAs were bound by the Federal Fair Debt Collections Practice Act, or the Texas equivalent, they would be required to apply payments to the actual debt rather than to penalties or legal fees.
The statute should be modified to make clear that HOAs must do so.
Otherwise, lawsuits will continue to be filed against homeowners who have cured their delinquency but have not paid huge sums in legal fees.
The new law allows foreclosed homeowners to redeem their property, which is a step in the right direction. However, there is a problem.
The statute provides that part of the price of redemption is to pay “any debt” then owing to the HOA.
I predict that HOAs will not permit homeowners to pay simply the amount they were sued over, plus the fees awarded by the court, which is bad enough.
HOAs will tack on any additional debt they believe can be imposed under their bylaws for additional or ongoing disputes.
The homeowner will never catch up, and the redemption right will prove illusory.
Finally, I have some comments about what needs to be done to ensure that HOAs function democratically.
HOAs are often touted as democratic institutions, and courts often are reluctant to interfere in their governance on the theory that HOAs are quasi-governments in which the homeowners have the right to express their wishes within their association’s own bylaws.
But those rights are routinely taken away by covenants and bylaws that would never pass muster in a real government.
HOA members need an HOA bill of rights.
Homeowners lack freedom of speech within their associations.
Homeowners who start alternative website or circulate flyers are harassed.
They are denied access to the HOA newsletters for which their own dues have paid.
The HOA law should guarantee freedom of speech and assembly.
The franchise needs to be protected.
The basic right of homeowners to vote is threatened by the standard form of bylaws used by most Houston HOAs.
Typical bylaws provide that homeowners cannot vote if an at time the board deems them in violation of any rule.
In the North Glen subdivision, citation letters went out to nearly 2/3 of the neighborhood just before an election.
This is particularly scary when you consider that the HOA law allows changes to the covenants themselves by a mere vote of a majority of members whenever a quorum is present, which may be a tiny fraction of the total property owners.
The HOA law should guarantee that no homeowner can lose his right to vote as long as he owns property in the neighborhood.
Homeowners are threatened with unreasonably vague covenants that serve as the basis for taking away their homes.
In a recent case reported by the Houston Chronicle, a foreclosure suit was filed over an oil stain.
The HOA covenants didn’t prohibit oil stains openly.
What they prohibited was “nuisances.”
No homeowner could possibly have imagined that he could be exposed to foreclosure merely for having an oil stain on his driveway, based on the “nuisance” language in the recorded covenants.
The HOA law should provide that foreclosure actions brought under unreasonably vague standards are void.
Certainly the law should provide that HOAs cannot be awarded their legal fees in cases of this kind.
Finally, the playing field for amending covenants needs to be level.
Currently, the law implies that the statute overrides the majority voting rule required for amending its covenants if it is voting to CREATE an HOA.
It should be equally clear that the vote required for an amendment is overridden by the statute if the neighborhood is voting to DISBAND the HOA and return to a voluntary civic association without liens.
Similarly, residents should have a periodic autmoatic chance to change their minds about whether the HOA regime is right for their neighborhood.
There should be a sunset law for HOAs unless a strong majority of the neighbors vote to keep them periodically.
The period for triggering the sunset law should be shorter for HOAs that have filed foreclosure actions on more than a small percentage of their members in any one year.
http://utahplannerscorner.blogspot.com/2006/02/foxes-in-henhouse.html
More comments on the second Wal-Mart (3+ miles from the first in Mo-City--Clinton Wong, #1 campaign contributor to Mayor Owen 99-05, was involved with the land deal that Mr Graff, the Mo-City EDC rep., finally shared with us 6-8 months after the fact, according to the FBN report.---who pays this guy anyway?):
This will be Wal-Mart’s second super center in Missouri City – the first is at 5501 State Highway 6, near Riverstone Blvd. In Fort Bend County, Wal-Mart also has stores in Sugar Land, Richmond and Stafford.
1 FBC Resident - Jun 30, 09:11 pm
Wow, just what we needed – more shopping. I’ve been wondering where I was going to go to do all of my shopping, since there doesn’t seem to be very many retailers along Highway 6 through Sugar Land and Missouri City. Isn’t there a Walgreen’s at this same location that’s been ready for nearly a year but can’t open until there’s a traffic light installed at the entrance to Lake Shore Harbor? I just wonder how much retail busness our economy can support…
2 fourthwheel - Jul 4, 09:57 am
Another one? How unfortunate.
3 Sienna Resident - Jul 5, 10:16 am
Want to stop Wal-mart from their obnoxious expansion? Shop at Target!!!!!!!
4 fourthwheel - Jul 5, 10:12 pm
Good point, Sienna Resident. I agree completely. Some will undoubtedly say that WM is cheaper, but there’s better service elsewhere for only slightly more money.
5 Vicksburg Residence - Jul 8, 11:48 am
Why would Wal Mart build another store when they already have a store 3 miles north on Highway 6. The traffic will be horrible and it will increase crime in the area!
6 redneckgirl - Jul 8, 01:55 pm
I agree with all of you. Even though we do have to travel a bit to and from stores, I do not feel that we need another Walmart in that location. 288 and Hwy 6 maybe.
Read this: http://www.ahrc.com/new/index.php/src/news/sub/pressrel/action/ShowMedia/id/697
For JK and associates:
How many lawyers does it take to change a light bulb?
"How many can you afford?"
It only takes one to change your bulb...to his.
-Two. One to change it and one to keep interrupting by standing up and shouting "Objection!"
-Three. One to do it and two to sue him for malpractice.
-Three. One to turn the bulb, one to shake him off the ladder, and the third to sue the ladder company.
-Three. One to sue the power company for insufficiently supplying power, or negligent failure to prevent the surge that made the bulb burn out in the first place, one to sue the electrician who wired the house, and one to sue the bulb manufacturers.
-Fifty four. Eight to argue, one to get a continuance, one to object, one to demur, two to research precedents, one to dictate a letter, one to stipulate, five to turn in their time cards, one to depose, one to write interrogatories, two to settle, one to order a secretary to change the bulb, and twenty-eight to bill for professional services.
-How many lawyers does it take to screw in a light bulb?
None, lawyers only screw us.
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