From AHRC News: Homeowners Fight CAI/TCREA Lobbyist TUPCA Legislation (click this title link for more)--
Just in from the AHRC multi-million hit national website on Texas TUPCA battles:
Texas Advocates oppose TUPCA - the Texas UCIOA
Exposing CAI's view of homeowner advocates on recent Common Ground cover
October 03, 2006
By George K. Staropoli (View author info)
Austin, Texas -
I'm told by Beanie Adolph that the Texas advocates really put on a show before the Texas Legislature, holding up the cover of CAI's Common Ground magazine that ridicluled homeowner advocates, and watching the jaws of the legislators drop. A personal copy was given to each legislator after holding up 15" posters.
Congratulations to all y'all Texas advocates. Job well done!!
As I was informed, the speaker at the time was an advocate who argued that TUPCA was prepared by the special interests and CAI lawyers, and that there was no input from homeowners. She then added, "Here's what CAI thinks of homeowners," the cue to unveil and distribute the posters of the CAI cover page.
She said the legislators looked stunned, since CAI is behind TUPCA and had spoken at the meeting earlier this year (2 hours of DVD are available by StarMan Publishing), including a former CAI president. A committee member then told the attendees to rest assured that homeowner input will be heard. After the session, Beanie was approached by an attorney supporting TUPCA, quite upset and informing Beanie that she was not CAI.
The importance of the demonstration cannot be overstated. CAI was exposed in a very striking manner. No longer will CAI feel it's secure at the Texas Legislature, just as we took care of CAI in Arizona. CAI will now have to defend itself, and answer why the TUPCA supporters have hidden their affiliation with CAI. This carries over to everything else CAI is pushing -- loss of credibility.
Now, it is an example of standing up and being counted. I am urging others in other states to act accordingly. Read and study the Rules of Engagement found on my web site. It works! Every state needs leaders who understand the Rules and are able to put in to work in their state.
The tide is turning against CAI at a fast pace. We are winning, but we must continue to take decisive action before the legislatures and government agencies. They are defending the indefensible! Here are 3 simple steps to take, and steps 1 and 2 must be accomplished before step 3 can occur.
1. Expose CAI for what it truly is.
2. Expose the supporters of pro-HOA legislation as being affiliated with CAI -- the lawyers, the management firms and associations of associations.
3. Position your demands in terms of fundamental principles and force the government to choose between supporting private organizations that deny homeowners thier constiutional rights, or the US Constitution. They will choose the US Constitution, or explain why authoritarian private governments are a legitmate objective of a government interest. They will choose the Constiution.
As for those states facing UCIOA legislation -- New Jersey for example -- read Part II of The Truth About the Emergence and Quiet Acceptance of Planned Communities and Homeowners Associations, found on my web site. IT discusses CAI's role as the national lobbyist and its objective to create UCIOAs in every state, all as a result of CAI influence and control. In my opinion, CAI is setting itself up to be the national agency for the regulation of these private governments across the country -- the federal super agency that it will control because, who else is there? BEWARE!!!
Read Part I of The Truth to understand where all these provisions in the CC&Rs, the state laws and the UCIOAs come from, and why.
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Comment: Contact your legislative rep. today and tell them to vote NO on this industry insider bill!
See these related links for more:
http://www.petitiononline.com/homeback/petition.html -- Petition US Gov’t to stop unconstitutional HOA Foreclosures by special interest attorneys.
http://pages.prodigy.net/hoadata/ -- Website on HOA foreclosure filings by attorneys. See if your HOA attorney is on this list!
http://www.stoptexashoaforeclosures.com/ -- Homeowners advocacy website (see TUPCA legislation info). THAG website. (Home of TUPCA Review)-
posted by responsible_dvlpmnt at Monday, October 09, 2006
12 Comments:
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AHRC comments:
1. Watching the jaws of the Texas legislators drop.
Subject: Cover of Common Ground displayed before Texas cmte on UCIOA, TUPCA
I'm told by Beanie Adolph that the Texas advocates really put on a show before the Texas Legislature, holding up the cover of CAI's Common Ground magazine that ridicluled homeowner advocates, and watching the jaws of the legislators drop.
A personal copy was given to each legislator after holding up 15" posters.
Congratulations to all y'all Texas advocates. Job well done!!
More to come!
2. NOT ONE homeowner friendly bill was passed in the last Texas Legislation session.
Thanks very much - we try. The proof is in the poodin'. NOT ONE homeowner friendly bill was passed in the last Texas Legislation session.
As Arnold says" "We'll be bachk!" The patron saint of Texas Homeowner Advocates is Sissyphus. BIG rock to push up the hill against a lot of money!!!! TUPCA is a BIG rock! -
J.T.
Yogi says it ain't over till it's over.
3. CAI lossed of credibility in Texas...
As I was informed, the speaker at the time was an advocate who argued that TUPCA was prepared by the special interests and CAI lawyers, and that there was no input from homeowners. She then added, "Here's what CAI thinks of homeowners," the cue to unveil and distribute the posters of the CAI cover page.
She said the legislators looked stunned, since CAI is behind TUPCA and had spoken at the meeting earlier this year (2 hours of DVD are available by StarMan Publishing), including a former CAI president. A committee member then told the attendees to rest assured that homeowner input will be heard.
After the session, Beanie was approached by an attorney supporting TUPCA, quite upset and informing Beanie that she was not CAI.
George Staropoli
Posted Oct 3 2006 6:10PM EDT
4. Does anyone know where I may obtain a copy of this CAI publication?
I would love to get a copy of this CAI publication.
Does anyone know where I may obtain one? I am in Alabama and things are heating up here. This would be a wonderful tool for my personal arsenal.
Thanks.
Sid Williams
Alabama
PROFILE: Disgruntled resident of socialist neighborhood ruled by small group of thuggish busybodies.
5. Here's the contact information for the editor of this CAI publication:
Here's the contact information for the editor of this CAI publication:
• Chris Durso - Common Ground - Community Association Institute's (CAI)
Chris Durso - Common Ground - Community Association Institute's (CAI)
Alexandria, Virginia 01102-3094
Phone: 703-797-6249 Fax: 703-684-1581
Trademember: CAI
Rank: No ranking.
Summary: Chris Durso writes misleading propaganda for the CAI foreclosure lawyers.
For earlier MCC coverage of this controversial bill see TX senate session at:
http://missouricitychatter.blogspot.com/2006/10/listen-to-senate-hearings-on-tupca.html
TexasWatch.org reported that only 15-18% of TX. Sup. Ct. cases went against corporations and that the court over the last decade has rarely supported consumers/voters/taxpayers in their decisions.
See:
http://www.texaswatch.org/media/release100506.htm
Here's the authors website who wrote this AHRC article:
http://pvtgov.blogspot.com/
TUPCA Review Article Critique:
OBJECTIONS TO TUPCA BY THE TEXAS HOMEOWNERS ADVOCACY GROUP
Homeowners are not going to watch CAI attorneys and industry advocates eat away at our constitutional and property rights
March 21, 2006
By Harvella Jones - THAG (View author info)
Auston, Texas -
The following is the test of the Texas Homeowners Advocate Group's (THAG) objection to TUPCA, a homeowner association bill proposed by a group of real estate and homeowner association lawyers. Harvella Jones, the president of THAG made the objections at a public hearing by of the Texas House Committee on Business & Industry and the Texas House Committee on Land & Resource Management on March 21, 2006
To: The Honorable Rep. Helen Giddings, Gary Elkins, Armando Martinez, Kevin Bailey, Dwayne Bohac, Burt R. Solomons, Larry Taylor, Hubert Vo , Bill Zedler, Anna Mowery, Linda Harper-Brown, Joseph Pickett, Roy Blake, Jr., Robert Cook, Juan M. Escobar, David Leibowitz, Sid Miller, Rob Orr
The Texas Homeowner's Advocate Group, a homeowner's advocate group is against the passing of the Texas Uniform Planned Community Act (TUPCA) and cite as its reasons for this position as follows:
SOCIAL IMPACT
This act puts apples (two-to-four family dwellings) with oranges (single-family houses). Sec. 83.003 (22) (A) (i). Single-family houses do not share any utilities generating from their home with other houses. These houses are purchased with the understanding that they are independent of other homes in the area. Common area entitles, such as greenbelts, esplanades, etc. should never be placed as a pro-rata share with another single-family house. This is time-share mentality that will create a nightmare to sort out as homes are bought and sold that will make having a management company mandatory. (Sec. 83.053 (9) These master-planned communities for the most part are ran by volunteers who are not trained for basic management least of all this type of management. This also suggests hi-tech slave-plantation mentality that counters what a homeowner is seeking when they purchase a home.
CONSTITUTIONAL IMPACT
Article 16, Sec. 50, of the Texas Constitution forbids homeowner association maintenance fee foreclosures. This has not changed since the first time my husband and I testified regarding this issue in 1993, and other advocates since then, yet in TUPCA, under Sec. 83.116 (a) it states "the association has the right to foreclose the association's lien judicially and under (b) nonjudicially.
Under what authority can owner's, property, homeowner (whatever name they are being called) associations foreclose if the Constitution does not say they can foreclose? The law that associations are foreclosing under is done through a case law called Inwood vs. Harris 736 S.W.2d 632 (Tex. 1987) which created a contract relationship that runs with the land prior to homestead designation by the buyer at closing. Does this case law violate the Texas Constitution? Yes. Should it be repealed? Yes. Is that the job of our legislators like yourself? Yes. Instead of focusing more attention on the wrong for homeowner association advocates, homeowner advocates suggest attention is focused on correcting the wrong.
Last year several legislators, such as Rep. Harold Dutton with HB 927, attempted to do something about this Constitutional violation by stopping and eliminating homeowner association foreclosures. This bill died in your committee after this group and other advocates clearly stated to you how necessary it was to pass it to right the wrong being done to our Constitution. Now we are looking at a far bigger statute than any this group or other homeowner advocates have ever contemplated. If a little bitty bill could not pass last session, what is suppose to happen to this huge proposed bill?
Sec. 83.160 in which a new phrase has been created "private power" in the same sentence as nonjudicial foreclosure is chilling. The creation of this special power is outside current law.
BANKING AND TITLE COMPANY INDUSTRY IMPACT
With the changes noted in TUPCA under Sec. 83.116 (e) and (f), if this committee successfully pass this Act, it will create a housing nightmare that will rival the savings and loan scandal years' ago. If the banking industry and title companies become involved in this trafficking of titles on real estate, then they should be investigated right along with any other individual involved in this attempt to legalize selling homes in master-planned communities in which the non-profit association can buy the house it forecloses on, pay a price below what is owed on the house to the lender and then tell "a court" they "may not set aside a sale under this section solely because the purchase price at the foreclosure sale was insufficient to fully satisfy the former owner's debt to the association."
If a house has a mortgage on it when it is foreclosed and the association that buys the house refuses to assume the mortgage, there is no law currently that can make them do the right thing, so the "title" that is created under Sec. 83.116 is not a legal title that will be recognized by lenders and it is appalling to think that the banking and title industry would support this proposed act.
ETHICAL IMPACT
Advocates from this group are well known in Austin as we trek there every session to support or not support good or bad homeowner bills. We put all our cards on the table and spell out in detail what is wrong in our community and seek help from legislators like yourself and others with zero success. Now we are alarmed that any legislator serious about their job would consider passing a constitutionally flawed proposed act such as TUPCA that was created and given birth to by CAI (Community Association Institute) attorneys and their support team consisting of management companies, developers, associations and other special interest groups.
They say they sought the advice of homeowners and advocates. There is no one in my group who was consulted. Any advice the CAI received was information taken from all the testimony given over the years by advocates during live testimony in Austin or any other location. While legislators may not have been listening to us, it appears CAI was and every hole we could escape into has been plugged up in TUPCA. Associations have the right and ability to litigate against homeowners. Homeowners must also retain their right and ability to litigate as well. This is the right of a democratic state such as we have here in the United States.
If this brutal attack, through TUPCA, on homeowners across this state passes, there will be an increase in violence in the community. Homeowners are not going to sit back and allow their homes to be lost through foreclosures or for every thing they do to be nitpicked. They will not tolerate additional power being given to their neighbors who happen to serve on the homeowner association board to pass laws in the community or enforce laws in the community in such a way as to cause them to lose their homesteads when they are supposed to be protected by the Constitution. We have seen some form of violence in the past five (5) years in some communities in Texas and there will be more if this thing becomes law. If any of you have ever studied psychology or taken a course in social science, I believe you will agree with me that when you
deal with one's largest purchase in life--their homes--you really need to be a good steward .
IMPACT ON DEMOCRACY
In order to continue to uphold democracy in our country, certain activity must be allowed to continue. Choice is one of those things that we must always be able to exercise in order to continue to consider ourselves a democratic country. When you start telling homeowners during their purchases that they "are obligated to be a member of an owners association" as is stated in Sec. 83.204 in the Notice of Membership in Planned Community Concerning the Property .....,this immediately puts a real estate purchase into another category that we will have the proper authorities look into for possible racketeering.
THE WRITERS OF TUPCA
In their own words, Community Association Institute attorneys admit "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." (Refer to Texas TUPCA drafters,
http://www.tupca.org/history.html)
Under the Texas College of Real Estate Attorneys referred to on the website http://www.tupca.org/terea.html , it was noted one of the members of the TUPCA Steering Committee is an attorney I have personal knowledge of that involves himself and his law firm in litigating for homeowner associations with questionable business practices toward its members when there is an insurance liability involved. In fact, I just recently was involved in a lawsuit against my homeowner association, which I initially filed to obtain viewing of their books and records, in which Attorney Marc Markel's law firm represented them. One of his attorney's Clayton Hearn threatened to file a lawsuit against me during the taking of my deposition and since the rule state that I am entitled to see the books and records of the association, it is unclear as to why he wanted to file a lawsuit against me unless it is the fact I am an avid advocate for homeowners and have been for sixteen (16) years. (Harvella Jones vs. Villages of Town Center Owners Association, Inc. Cause No. 05-CV-140570)
TUPCA drafters have been "working together (as volunteers) since 1989 on legislation affecting condominiums and homeowner associations" (Texas TUPCA Drafters http://www.tupca.org history.html), which is two (2) years' after CAI attorneys helped the association foreclosure law become effective through Inwood vs. Harris by flooding the Austin Supreme Court with special interest Amicus Curiae (friend of the court) briefs.
The writers of TUPCA are cottage-industry attorneys who are benefiting from the creation of this boiler-plate document driven electronic extortion tool created to suck money from unsuspecting homeowners.
What is most appalling is the death-ear of the majority of our legislators who have intentionally chosen to ignore the complaints of homeowners and their advocates over the years in regard to this industry. While legislators have risen to the occasion of protecting every other consumer but property consumers, it leads one to believe that many of these legislators are themselves benefiting from this industry.
What other industry would legislators allow, who are financially benefiting from their cottage industry, to actually draft beneficial self-serving legislation to feed further this thriving industry at the expense of the taxpayer, the home buyer and the voters of this state?
Would legislators allow murderers, rapists, child molesters, bank robbers and cocaine dealers to write and present their own beneficial legislation? No, they would not, and it should not be done in this industry.
Even though legislators meet every year in Texas, legislators are responsible for doing the right thing for homeowners every year.
ALARMING PROPOSED CHANGES IN TUPCA TO CURRENT LAW
• Categorizing interest, late fees, fines, charges as part of assessments or maintenance fees for the sole purpose of foreclosure language (Sec. 83.003 (3)(B)(C)).
• Seven-year period (if not specified) after community finished that a developer can still control what happens in that community - this is too long a period (Sec. 83.003(15)(B)).
• Power for the developer to expand in seven (7) years additional common area and existing buyers would get additional fees for any unknown annexations (Sec. 83.003(16).
• Creates a new assessment called "individual" assessment which violates Federal laws where an association of this nature must be uniform in its fee structure; will also create potential civil rights violations if any minority is targeted for "individual" assessments plus it violates the one case law that allows forecloses by attempting to expand the foreclosure language from maintenance fees to include interest, late charges, collections fees and attorney fees. (Sec. 83.003(19))
• Creates a new common area called "limited" common area that could be prejudicial to a small segment of homeowners that would violate Federal laws where an association of this nature must be uniform in its use. (Sec. 83.003(21)
• Mixes oranges with apples by trying to stretch the rubber band around every piece of property lived in this state except apartments, condos and ranches. (Sec. 83.003(22)(A)(i)
• Includes a developer and builder as a lot owner, which can be significant during elections. (Sec. 83.003(23).
• Includes previously excluded condominiums in "Master association" and suggests there may be two associations in one community if there is a master association. (Sec. 83.003(24)(25)).
• Creating a litigation nightmare when among the definitions is the sentence "A planned community may or may not have a common area." Why is an association needed in an area in which there is no common area? (Sec. 83.003(26).
• Non specific disclosure references. (Sec. 83.003(27))
• Creates the terminology "Publicly recorded" which could set up the homeowner for litigation if there is a misunderstanding about the homeowner being noticed for something. (Sec. 83.003 (29))
• Creates a generic "rules" which could lead to ambiguous interpretation of documents and misunderstanding about homeowner rights. (Sec. 83.003(32)).
• Creates a term "special declarant rights" which will be a future problem for the homeowner in regard to future changes in the community. It gives the developer and builders an opportunity to have a long-term foothold on the community (Sec.83.003(33)).
• Creates an open period of declarant control when it is stated "during any period of declarant control" (Sec. 83.003(33)(G)) There should not be any general time constraints.
• Destroys the legal use of power of attorneys created to protect the handicap and other individuals who cannot act on their own behalf. (Sec. 83.005(b)).
• Created a fence of protection regarding the public recording of lots as if in anticipation of future litigation against the associations (Sec. 83.006(a thru d)).
• Created a smoke screen concerning the location of a planned community in regard to recording a declaration in anticipation of future litigation against the associations (Sec. 83.007 (f)).
• Creates a release of local government responsibility to do the work it is supposed to do and nullifies the tax dollars homeowners are paying to their local governments as well as creates a cottage industry for association appointment companies that do work for the associations. (Sec. 83.008 (c (3)).
• Created a new order of business called "condemnation" and "allocations" that allows the association to "publicly" record an amendment reflecting the reallocations and then create a new way of creating a new "sharing of property" outside the common area and to "condemn" property without homeowner voting (Sec. 83.009 and Sec. 83.115(b)(2)).
• Constructed as an indestructible piece of legislation. (Sec. 83.011)
• Constructed a clause that forbids the amendment or limitations of any chapter that would restrict coverage to less than the entire state and reaches out to include other "states enacting substantively identical law" (Sec. 83.012)
• Creates an entire section that destroys a homeowner's right to choose or not choose homeowner association membership. Choice is a fundamental right in our democratic society (Subchapter B, Sec. 83.051).
• Creates a mandatory clause that "the planned community is subject to this chapter" when in fact individual homeowner association's deed restrictions enumerate their own authority (Sec. 83.053, (2)).
• Creates a time-share rule for common property. (Sec. 83.053 (8) (9)(A)(B)).
• Creates two new rights (reserved and special) for developers/declarants. (Sec.83.053(15)(16)).
• Creates a potential minefield for homeowner associations when it creates "allocation of votes and common expense liabilities" that appear to be condo-like in nature. It is a potential civil rights and Federal Class problem as well as a financial accounting nightmare that would make hiring a management company mandatory as you are dealing with untrained volunteers in most owners/homeowner associations (Sec. 83.054, 83.055 and Sec. 83.056 (h)).
• Gives a blank check to the developer/declarant by stating "the declaration may reserve development rights for the declarant without describing specific real property to which the rights apply" (Sec. 83.056).
• Gives the developer/declarant the "development right of withdrawal" which is a future abuse of power waiting to happen. Bad idea indeed. The developer should not still have that kind of power over a homeowner's property once he or she has received money for that property (Sec. 83.056)).
• Automatically allows "development rights and special declarant rights reserved in the declaration" to be "applied automatically to real property added to the planned community." Nothing should ever be automatic in an homeowner/owner's association (Sec. 83.056 (g)).
• Creates a block against disturbing or removing developer/declarant's rights when it states "rights reserved by the declarant in the declaration and other governing documents for the duration of the development period are not affected by termination of the delcarant control period, whether the termination is voluntary or by operation of law"(Sec. 83.056 (i)).
• Creates an unspecified "development period" in which the developer/declarant "may share the easements and rights under this section with one or more builders. How is this going to affect trespassing on property already built and occupied? How long is the development period? (Sec. 83.059 (c ).
• Creates a way to amend deed restrictions that do not have amendment capability written in them. This overrides the wishes of the homeowners (Sec. 83.061(a)(b)).
• Creates controversial "electronic" polling or voting, written ballot, petition, any other method permitted by the governing document to cast votes. Electronic voting would be difficult to challenge if there were a problem (Sec. 83.061 (d)). (This also appears in Sec. 83.108 (Voting and Proxies).
• Creates a blank check for board members to amend documents with or without the homeowner's vote when it states "without a vote of the lot owners or approval of the association, the board or declarant may amend the governing documents in any manner necessary to meet the requirements of an institutional lender to qualify the planned community for purchase money mortgage loans on lots." No document should have this kind of language in it. Must remember it is the homeowner's money that is the asset in an association (Sec. 83.061 (e)(i)).
• Creates a blank check to remove homeowner's rights by giving the court the right to do so when it states, "a court may excuse compliance with a provision in a governing document if the court finds that the provision unreasonably interferes with the association's ability to manage or maintain the planned community, to administer the association, or to carryout any other function required by the governing document, and that compliance with the provision in the governing document is not necessary to protect the legitimate interests of the members of the association or lenders holding security interests in the planned community..." This section is too broad. It is a potential discriminatory practice and this section undermines any deed restriction (Sec. 83.062).
• Creates a back door for the board to extend the declaration when it stated, "if a declaration states a term of limited years and does not provide for renewal or extension of the declaration term, the term of the declaration may be extended or made perpetual, if (1) the board adopts a resolution recommending that the term be extended or made perpetual" (Sec. 83.063 (b)(1).
• Gives board members the ability to stop the termination of a planned community, when it states, "an agreement of lot owners to terminate a planned community must be evidenced by a termination agreement that (1) is signed and acknowledge by at least two officers of the association who certify that the termination agreement was approved or
• ratified by the required number of lot owners"; and to be effective, the rescission agreement must (3) "be signed and acknowledged by at least two officers who certify that the rescission was approved by the required number of lot owners".(Sec. 83.064(b)(1),(g)(3).
• Gives the banking industry an opportunity to step in the way of homeowners' rights in operating their associations, when TUPCA states in ambiguous language that "the declaration may require that, as a condition of the effectiveness of certain actions, all or a specified number or percentage of the mortgages or beneficiaries of deeds of trust encumbering lots approve those actions of the lot owners or the association, except that a requirement for approval may not operate to...." This is a potential problem because it allows bankers and mortgage companies to interfere with the rights of homeowners through interpretation of documents and gives the financial community an opportunity to usurp some of our ability to operate our associations (Sec. 83.065).
• Creates power to associations, their boards and developers to consolidate large land masses not physically connected as a lead association that would make it almost impossible to determine who is in charge. It is a deliberate scrabble and confusion ploy to make it difficult to litigate against these associations (Sec. 83.066).
• Gives the association a re-enforcement ability to "create" any and all kinds of homeowner infractions that is currently fueling the pocketbook of management companies across the state. This one sentence--"The provisions of a governing document shall be liberally construed to give effect to the document's purposes and intent." Has help fuel this cottage industry's bank account. Homeowners are currently being fined for grass in driveway expansion joints, weeds in their gardens, failure to cut your grass (and I am not talking about high grass), garbage can not removed, any and all kinds of day to day activity that occurs about the outside of your home. How soon will it be before, the association is inside your home telling you what to do? This phrase gives the association an opportunity to increase areas for fine opportunity, which means based on TUPCA that there could be future litigation in the form of foreclosure for failure to cut your lawn (even if the failure is due to you being ill). This is one of the most troubling areas of an association that has a high degree of abuse by the board members. Many communities in Houston are annexed to Harris county and the function of the association is redundant and maintenance fees should be lowered if not eliminated all together as there is nothing common. Many associations are enforcing the rules discriminately either harassing certain homeowners or targeting types of "violations" they will enforce as opposed to others. Homeowners are being educated that they can call their local city hall and attain faster service than through the associations that are basically harassing their members as oppose to helping them (Sect. 83.067(a).
• Creates another meaning to "a majority of owners" which opens up the majority rule to owners of multiple properties, which oftentimes is the developer or wealthy homeowners able to buy several properties. It would create an imbalance in property control. This terminology is connected to voting quorum issues and should not be given an "either or" meaning but should be firmly placed in the hands of the members to whom maintenance fees are being collected (Sec. 83.067 (c ).
• Have placed "articles of incorporation" in a higher position than the "bylaws" of the association. Why is it in a higher hierarchy position than the bylaws? (Sec. 83.067(f).
• Creates the ability of the owners/homeowners association to be for "profit" as well as nonprofit and also removed power of control from the state when it states "if the association is incorporated, loss of a corporate charter or corporate name does not affect the existence or legitimacy of an association that derives the association's authority from the governing documents and this chapter. No owners/homeowners association should be for profit. This would only increase commercial and dangerous activity in the community in regarding to foreclosing and buying and selling members' homes which would increase financial liability for the homeowners that live there (Sec. 83.101).
• Creates a potential volatile litigation nightmare that can turn into a discriminatory action against the associations if litigation by the association can be on the behalf of "two or more lot owners" on matters affecting the planned community or the association, which can turn into a vendetta against certain homeowners considered to be troublemakers in the community (Sec. 83.102(5)).
• Creates a rising above collection laws already set by the state and not controlled by individual associations when it is stated association may "adopt and amend rules regulating the collection of delinquent assessments and the application of payments" (Sec. 83.102(14)).
• Creates a practice that has been utilized for years in homeowner associations and that is suspending the voting rights of delinquent homeowners by stating "suspend the voting privileges of or common area use by an owner who is more than 30 days delinquent in the payment of assessments." Voting privilege should never be compromised. It is a democratic right to vote. Voting rights should never be compromised under any circumstances (Sec. 83.102(15), Sec. 83.155(e)(3) and Sec. 83.166).
• Creates the use of the word "reasonable" in connection with assessing fines and making copies of documents. A set fee should be uniformly set for fines and what the limit should be as well as a set fee for copies should be set with a cap (Sec. 83.102(17)(18)). While it is suggested, the fines should be capped, the word "reasonable" is still used under Sec. 83.154, protection from fines. (Sec. 83.170, Sec. 83.202(c) ).
• Creates a high percentage for a "declarant control period" of 75%. Usually it is 66% or lower (Sec. 83.103(g)).
• Creates a "replacement of the owner's lot" under Sec. 83.106 that is ambiguous and vague in nature as to what is to be replaced and under what circumstances.
• Creates a possible quorum problem when it states "to cast at least 50 percent of the votes" as opposed to 51 percent (Sec. 83.107).
• Creates multiple votes per lot, which is a potential voting nightmare waiting to happen during election time with those monitoring the honesty of an election being unable to verify a correct vote. There should only be one vote per lot regardless of lot size and
• price of lot/house and would encourage discrimination (Sec. 83.108)(a)(b) and Sec. 83.175).
• Bans "cumulative voting" as not being allowed. This is a practice that is currently being used in association. Many proxies have a year's shelf life and are counted with other proxies collected over the ensuing months after the initial meeting. This would be a controversial change for the association's that currently use this practice (Sec. 83.108(d).
• Circumventing the Texas Non-Profit Corporation Act or any statute currently in place regarding the retention of association records by time kept and type kept. Conspicuously missing are voting records which are the most sought after records (Sec. 83.109).
• Creates the "association as trustee" when it states "a third person dealing with an association in the association's capacity as a trustee may assume, without inquiry, the existence of trust powers and the proper exercise of those trust powers by the association." This should never be done as it would be an avenue for more mayhem. This is only another avenue of removing the association from any harm in the event a homeowner seeks litigation against it. Some associations should be eliminated. Not all associations are good. It is called checks and balances and that is what makes this country different from others (Sec. 83.110).
• Creates an ambiguous percentage to be utilized when determining whether or not fee increase will be accumulated. It states "a majority of the votes present in person or by proxy" as opposed to a certain percentage of votes present in person or by proxy. A majority could mean one or two people (Sec. 83.114(c ) (Sec. 83.171).
• Creates discriminatory clause in the same association when it states, "different types, conditions, or locations of lots are subject to different rates of assessment." Lots in the same association and location should have the same assessment or there will be problems (Sec. 83.114(e)(1).
• Creates discriminatory clauses in the same association when it states "any common expenses or portion of a common expense benefiting fewer than all of the lots must be assessed exclusively against the lots benefited. Currently everyone shares in common expenses and should stay that way. This would open the door to discriminate (Sec. 83.114(e)(3).
• Creates a double dipping affect for the homeowner that is already paying for insurance to cover litigation costs, etc., by stating "assessments to pay a judgment against the association may be levied against only the lots in the planned community at the time the judgment is entered, in proportion to the lots' common expense liabilities (Sec. 83.114(f) and Sec. 83.168).
• Creates a micro-management of the assessment fees by stating "if common expense liabilities are reallocated, common expense assessments and any installment of common expense assessments not yet due must be recomputed in accordance with the reallocated common expense liabilities. This will be an accounting nightmare and requires uneven, confusing mail outs to homeowners who are billed annually thinking
• they are done with paying their fees for the year. This proposed procedure will create the necessity to hire management companies to manage this as well as take away the method best sought by the individual association (Sec. 83.114(h)).
• Creates an "unspecified period" for holding accumulate reserve funds, when it states "an association may accumulate reserve funds for an unspecified period to provide for any anticipated expense of the planned community. Associations should be able to refund accumulate reserve funds if they so vote on it at the end of the year (Sec. 83.114(k).
• Creates a new type of lien, one that further violates art. 16, sec. 50 of the Texas Constitution and compounds the original lien running with the lien that is in violation of the Constitution as well. It states in TUPCA that "an assessment levied by the association against a lot or lot owner is a personal obligation of the lot owner and is secured by a continuing statutory lien on the lot and on rents and insurance proceeds received by the lot owner that relate to the lot. (Sec. 83.115(a).
• Creates two new discriminatory assessments called "neighborhood" and "individual assessments". The "neighborhood" assessment, if authorized by the declaration, levied against a section of lots in the planned community for common expenses or services that are particular to the section and "individual assessments" for common expenses that benefit fewer than all of the lots and that are equitably paid by each lot according to benefit received. These additional assessments ensure the need for management companies and guarantees confusion and discriminatory practice to homeowners already overburdened with maintenance fees (Sec. 83.115(3)(4).
• Creates an open-checkbook for homeowners to pay when it states, "any other fee or charge permitted or required of lot owners by this chapter or the governing documents. Liens are to be specific and fees should not be used in the same sentence with the words "any other" or "charge permitted" (Sec. 83.115(b)(5).
• Creates and includes an unknown lien that appears to be reinforcement of the Art. 16, Sec. 50, Texas Constitution violation reference when it is stated "a lien or encumbrance recorded before the declaration is recorded" (Sec. 83.115(c)(2).
• Solidifies land grab tactics that permit perfecting a lien without recordation and that is a preliminary step to an unconstitutional foreclosure in violation of art. 16, sec. 50 of the Texas Constitution (Sec. 83.115(d).
• Creates second generation creation of a forecloseable lien on property abandon after January 1, 2006, which continues to perpetuate the violation to our Texas Constitution under sec. 16, art. 50. (Sec. 83.115(e).
• Creates survival of the unconstitutional forecloseable lien if a tax lien attaches to the lot. The assessment lien is unconstitutional due to forecloseable nature and is extinguished by the tax lien, which is constitutional, yet TUPCA is continuing to perpetuate this wrong (Sec. 83.115(f).
• Continues to perpetuate forecloseable liens very clearly under Sec. 83.116, when art. 16, sec. 50 of the Texas Constitution clearly does not allow this type of foreclosure. This is a highly debatable subject and is being investigated by many because it will be stopped.
• Seeks legality to the practice of homeowner associations selling and purchasing member's homes and have set forth language that may be considered racketeering by many. This practice should be investigated under the RICO Act (Sec. 83.116(a)(b)(c)(d)(e)(f)). This practice is creating a title problem for this state when associations fail to comply with the rules of auction purchases and cause additional defaults, which are placed on the homeowner who has originally lost the home.
• Creates an unusually long limitation period that allows the association to continue to accrue and harass the homeowner for a long period of time. Seven (7) years is beyond any legal statute of limitations. Generally four (4) years is the debt limit (Sec. 83.159(b)). In the last section of this, a ten-year limitations period to collect a debt was given. (Sec. 16.0048) Four years is sufficient. This is an attempt to reach back and drag in all the homeowners who may have old outstanding debts dating back ten (10) years.
• Creates "protection" against nonjudicial foreclosure that has been already won and granted through a lawsuit called Geneva Kirk Brooks vs. Northglen, Texas Supreme Court, Cause 02-0492. It is stated in TUPCA that "an association may not use a nonjudicial foreclosure to foreclose a lien for a debt consisting solely of fines, late fees, interest, attorney's fees or a combination of these." Also, compelling in this section, is TUPCA's reference that "an association has a private power of nonjudicial foreclosure under the declaration." This is a total disregard for the Constitutional rights of the homeowners in this state. Needs fixing. (Sec. 83.160).
• Creates language to report a foreclosure occurred that should not pertain to a homeowner's association as it is unconstitutional to foreclose on a homestead in this state and also created language for the "right of redemption after foreclosure", which puts the homeowner in a situation they should never have been in the first place. (Sec. 83.161 and Sec. 83.162).
• Giving the board the power to deny a homeowner's his or her right to confidentialty during a hearing should be granted and not at the discretion of volunteer board members to which they were elected. To give these volunteers discretionary rights is wrong. These are not judges and they have no discretionary rights. They are stewards of our money and do not have the option to refuse to do anything we ask.
• Creates a Notice of Membership that is so offensive, it is troubling to me that it would even be considered. Along with previous and subsequent comments made regarding the "obligation" to join or you don't get your property (and by the way, where else are we supposed to move when developers are grabbing up all the property and slapping master planned communities on them and CAI are moving through the neighborhoods like roaches updating deed restrictions), also troubling was the statement, "if the lot is located in a planned community within a master-planned community, the seller must give the purchaser a notice for each planned community in which the lot is located." What is that all about?
• Creates language reaching out and enveloping existing planned developments and stating that only three (3) owners could convert a planned development or subdivision. This was among the most ludicrous that I read. (Sec. 83.253)
TUPCA BENEFITS AND PROTECTION
The Association Duties under Section 83.152 is about one-half page in comparison to the lengthy benefits and protection reserved for the associations. As an example of how worthless this TUPCA act is from a homeowner's perspective, consider this fact, as mentioned earlier I was personally involved in a lawsuit against my association because they would not allow me to see
the books and records. The attorney (Clayton Hearn) that threatened to sue me personally while
taking my deposition is a member of one of the TUPCA writer's law firms Marc Markel. (Harvella Jones vs. Villages of Town Center Owners Association, Inc. Cause No. 05-CV-140570) Do I believe any of the Association Duties will be complied with when Sec. 83.152(4), has already
been violated in my personal lawsuit? My answer is, of course, no.
CLOSING STATEMENTS
Tupca is attempting to make one act fit all types of housing arrangements in this state,excluding apartments. One size will not fit all. Texas is a large state, with many types of housing situations.
One act will not be able to regulate all the various types of housing in this state without violating current Constitutional, Federal and State statutes. Many changes proposed changes existing debt laws, lien and foreclosure laws, state and Federal laws. It proposes to place the banking industry in a different position presently held. It is trying to make its illegitimate baby TUPCA, legitimate.
TUPCA is perpetuating the "forced membership" concept which is against our basic property rights and Constitutional rights to choose. This is a democratic society and we have the right to choose. We should not be forced to be a member of a homeowner association, even if we are personally obligated to pay the fees and there should not be any foreclosures even if the fees are not paid. This is a debt and nothing more. Associations should not be given more rights than any other debt collector. It is wrong to take someone's home because of nonpayment of maintenance fees and we are asking you to correct and change it next session. We have been patient long enough.
It is alarming and disturbing that legislators would even consider this act as it crosses the line in so many areas. One can only think about what happens when homeowner advocates present their side of the picture and the reaction that is given to us. We barely get three (3) minutes to explain our position at the hearings.
We suggest you take this piece of garbage called TUPCA and send it back to the trash where it belongs and let the CAI cottage industry know by passing bills to stop and forever eliminate homeowner association foreclosures of any kind in this state. It is time, legislators, to be morally obligated to the needs of the voters who put you in office to protect our Constitutional rights as well as any and all rights we are legally entitled to. It is time to stop judging what you will do every other year based on what the CAI allows you to do or how much money was donated to your campaign. It is time to start investigating law firms that continue to foreclose on homeowners' property in violation of art. 16, sec. 50 of the Texas Constitution and then turn around and write laws to ensure they can continue to do so. (www.hoadata.org)
Advocates want to know from legislators, why are you allowing these foreclosures when they are not only unconstitutional but unnecessary? If maintenance fees are not paid and there is a legal lien that has been created, it can be placed on the home and it will affect the homeowner's credit rating making it difficult to get credit and this alone will encourage a homeowner to pay their fees as well as when the home is sold, associations will get their money. The bottom line is to protect the Constitution at all costs.
Homeowner associations are different. Homeowner associations have different amenities. The money collected is generally sufficient. If it is not, there is usually a management problem and not a homeowner problem.
Homeowners across this state are going to be informed as to who is doing what for them and who is not because we believe that no legislator should hold a job that he or she does not deserve.
Homeowners who know what is going on are tired of being disrespected when they try to tell you what is wrong in their neighborhood. Homeowners are tired of good bills that are presented to you to pass do not pass. We are tired of being treated like second-class citizens. We are going to make sure focus will be placed on what happens to TUPCA and who is doing what to pass it.
If for one moment, you think, homeowners are going to continue to sit and watch CAI attorneys and other industry advocates eat away at our Constitutional and property rights, you are wrong again.
Homeowners are being encouraged to seek help above this state and bring attention to what is happening with our property rights in this state through whatever method is necessary. Some homeowners do not need to be encouraged, they have already begun to fight back through their own methods. Next year, if homeowners see TUPCA any where in anyone's committee, it will not be a very good political future for any and all legislators that is a part of it.
So my final suggestion--do your job and stop wasting taxpayers' money with this type of TUPCA trash. Support some real bills. Obey the Texas Constitution, Art. 16, Sec. 50 and repeal Inwood vs. Harris to stop forever homeowner association foreclosures. Setup regulatory field offices through legislator offices already in place across the state and receive complaints and solutions for homeowners. (Sen. Jon Lindsay's idea). Stop looking away and pretending these violations do not exist in your constituency base. It is time to start helping homeowners and not the CAI Industry. Stop treating homeowners like a bunch of complaining, annoying slackers. We are the
reason you have a legislative job and we will be the reason you get fired from it!
Ck this Mo-City neighborhood HOA election dispute out from the FBStar. Sounds a great deal like the Silverlake HOA dispute which is also in court:
http://www.fortbendstar.com/101106/n_Meadowcreek%20residents%20at%20odds%20with%20leadership.htm
Meadowcreek residents at odds with leadership
Dissident residents wants home owner association board to fire law firm
By Barbara Fulenwider and B.K. Carter
It started about three years ago and built to a crescendo this year when homeowners in Missouri City’s Meadowcreek subdivision decided to remove eight of its nine board members and their lawyers via a special election.
The momentum built, according to the disgruntled who petitioned for an election to remove board members, because too many people were receiving much higher bills if they were delinquent on paying their annual $180 homeowner’s association dues plus an $80 user fee for the neighborhood’s tennis courts and swimming pool.
If the original bill of $180 annually is not paid, it can increase dramatically over just 90 days. Statements are mailed to homeowners in November and the bill is due by Jan. 1. Chip Smith, a lawyer with Holloway Jones law firm, which represents Meadowcreek Homeowners Association, said if there’s a failure to pay the assessed dues on time, his firm then sends out a demand letter, which costs $150 in attorney fees. There’s also an $18 late fee added (10 percent of the assessment). As the dispute progresses, attorney fees and court filing fees are added.
He also said that when a court suit is filed against a homeowner for not paying dues, the homeowner is offered a deal. “We do cut attorney costs but not what’s owed to the HOA,” Smith said. On average, 12 percent of the houses in Meadowcreek are delinquent in paying their HOA dues by March and even though some of those homeowners may be filed on, “one house a year is foreclosed on” and is usually sold back to the owner within six months, according to Smith.
Board opponents say the $80 is an unenforceable fee, yet when HOA bills arrive the additional fee is not shown as voluntary. One homeowner, who brought copies of his payment and subsequent cashed check to the Star’s office, said, “In 2004 I had been sued and I looked at it and said this was wrong because I’d paid my maintenance fees.
“They were trying to assess the illegal enforcement of the $80 fee. I said I wouldn’t pay it because it was in violation of the covenant.” He said the HOA lawyers sued him, he counter sued and “I began contacting other neighbors to see if they had been treated that way and many had.
“They ( HOA lawyers) came back and said the board has offered to waive the $3,000 in attorney fees. I could have just given in and paid nominal court costs and the $80. I told them to go take a hike.”
Another homeowner, Tommy Blankenship said, “The original assessment of $180 was in place when I moved here in 1983. The $80 fee was suppose to be voluntary but that was never made common, public knowledge. In 2005 it showed up on invoices and they were stamped “partial payment not accepted.” The bills are showing a debt that’s not valid and they (the board) are hoping people just pay it.”
Blankenship pointed out that home owners can not sell their property while lawsuits are pending, and some people just pay the huge fees in order to move on. “We are not trying to take away our ability to sue a homeowner for non-payment, but we are wanting to look at ways to work with the community.
Blankenship cites the case of a stroke victim who is paying the law firm every month because she was hospitalized and incapacitated during the time she received various dunning letters.
What this resulted in was a petition calling for a special meeting of the homeowners and board at which homeowners would vote to keep or oust eight of its nine board members, per HOA bylaws, and most likely fire the law firm of Holloway Jones. The vote came at a meeting on Sept. 30 and board members kept their volunteer positions.
According to vote totals provided on the web site, Petitions for a Better Community (PFABC.com), there were a total of 1,456 votes for keeping the eight board members and 1,273 votes cast to remove them. Each board member was voted on separately.
Now the election may be disputed. Petitioners are displeased with the results because the votes were counted by two board attorneys and one non-interested third party. One Meadowcreek homeowner, after the ballots were counted, said the board “wouldn’t allow us to do a recount, which violates the ethics of elections.”
Smith attended the Sept. 30 meeting and counted votes. He said all of the proxies were turned over to Joseph Pedigo, a lawyer for some Meadowcreek homeowners who are in dispute over their HOA bills. Smith said the proxies counted had to be verified as being from homeowners in good standing with the association -- paid up and not in dispute over their HOA bill -- and they had to make sure there were no duplicates counted.
According to attorney Pedigo, he has not received the promised proxies, only the proxies submitted by the disgruntled group. “There was never any doubt about those proxies. We have petitioned to see all of them,” he said.
Smith said out of 714 homeowners in the Meadowcreek subdivision, 380 voted in the re-call election in person or by proxy. Because some homeowners had turned in more than one proxy, Smith said the one with the most recent date on it was counted and that 100 homes out of 700 are in dispute.
After the vote was announced, a homeowner who favored replacing the board, said, “We believe it (the election) was rigged. There were a host of violations we are going to talk about in a court suit.
“This board has been in place umpteen years. They are the residual of the old Meadowcreek subdivision and they remember how it was in the 70’s and they can’t get over that the demographics have changed and they still want to hold onto those same values.”
There were five police officers at the meeting, paid for by the HOA, as it seems the officers clearly expected trouble. As one homeowner said afterward, “If that many people wanted me to quit, I believe I would.”
The regularly scheduled election for board members will be held in January.
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