Austin Attorney Tip: Working With an HOA Lawyer as a Board Member

When becoming a Board Member of a property association or neighborhood association, most members are volunteers that have never had a similar position before.  This can be a challenging endeavor, particularly since it is an unpaid position (not providing most folks with the time to learn sophisticated property management skills).

Over the next few weeks, LPV will be posting a series of blog entries describing how to work with an HOA lawyer in Texas from a lawyer's point of view.  Understand this is for Board Members and property managers, not a statement of how an individual with a complaint about their HOA should hire a lawyer.  That will be a different series.

This Board Member "Working with an HOA Lawyer" series will be divided into several topic areas, including (but not limited to) attempts at answering the following questions:

1. What lawyer or type of lawyer should our association retain?
2. What practice areas will we likely need to have a lawyer for a neighborhood association?
3. What are reasonable fees and charges for an HOA lawyer?
4. What is the difference between the duties of a board member, a lawyer and a property manager?
5. How should communication with the lawyer be handled?
6. Who should make legal decisions?
7. Should our lawyer attend meetings of the members?
8. Should I ask the HOA lawyer about my personal legal issues?
9. What should I expect for responsiveness of counsel?
10. How should our legal budget be set, and what should it include?


If you have additional question about how to work with a property owners' association lawyer, feel free to post it in comments.

Posted by Austin Attorney Marc Lippincott

Texas Requires All Governing Documents Be Recorded!

As has been widely discussed over the past year, the 82nd Texas Legislature made many changes to the laws affecting property owners' associations (including condominiums and single-family residential HOAs). Perhaps the most important legislative mandate from this session deals with how associations must disseminate their governing documents.

Prior to January 1, 2012, it was required that a property owners association provide copies of any informative documents regarding membership in the association. Additionally, owners must be provided with documents such as the property's Declaration, any Restrictions, Bylaws, Rules and Regulations, and any other documents that help govern the establishment, maintenance, or operation of any property under the association's control.

New Texas legislation requires that all governing documents be recorded with the relevant County's Real Property Records. Pursuant to Texas Property Code Section 202.006, any governing document that is not recorded with the appropriate county by January 1, 2012 will have no force or effect. If you are a property manager or board member, this means that you should check on whether your documents have been appropriately recorded.

New Changes in Texas POA Legislation - Solar Panels

The 82nd Texas Legislature made many changes to the laws affecting property owners’ associations (“POAs” or “Associations”). One such change relates to an individual owner's right to install solar panels on their home in Texas.

Pursuant to Texas Property Code Section 202.010, Property Owners Associations cannot prohibit or restrict an owner from installing a solar energy device onto their property. If such provisions are included within an Association’s bylaws, then those provisions will be considered legally void. There are, however, exceptions to this rule. In those instances, an Association can restrict or prohibit an owner from installing solar panels onto their property if it threatens the public health or safety, violates a law, is not properly installed onto the roof, or it was installed without prior approval from the Association or an affiliated committee.

Posted by Austin Attorney Chloe Love

What Happens to Tenants in Texas When a Property is Sold at Foreclosure Auction?

The Protecting Tenants at Foreclosure Act of 2009 (“PTFA”) is a section of what is popularly called the Helping Families Save their Homes Act of 2009. Specifically, PTFA ensures that tenants who are losing their residence to foreclosure will have a sufficient period of time before being forced to leave their home. If the tenant is living at their home either without a lease or with a lease terminable at will, the immediate successor in interest (the person or entity taking over the property post-foreclosure) must give the tenant at least 90 days notice to vacate the property. If the tenant does have a bona fide lease, the immediate successor in interest must recognize the terms of the original lease. In this case, the tenant cannot be forced out of the property until the original lease expires. If the purchaser is going to use the property as his primary residence, however, the lease can be terminated with a 90-day notice period. These notice periods are designed to be the federal minimum, so they do not trump state laws that provide more time for tenants to vacate the property.


This could affect both Texas property owners associations and Texas property owners in undesirable ways. Most of the time, if there is a property owners association in place, the tenant is going to have a bona fide lease because the POA is generally not going to allow residential leases without written agreement. As a result, it is going to be difficult for the Texas POA to remove a tenant when an owner is not paying his POA dues. Even if foreclosure on the property occurs, it will, at a minimum, be three months before the tenant can be removed. This could mean that the POA will have to go even longer without receiving dues from one of the properties it governs. The Protecting Tenants at Foreclosure Act of 2009 is scheduled to sunset on December 31, 2012.

Amending a Texas Condominium’s Declaration

The procedure for adopting changes to a Texas condominium’s declaration differs depending on the year the condominium’s declaration was recorded. Chapter 81 of the Texas Property Code governs if the declaration was recorded before January 1st of 1994, at which point Texas adopted the Uniform Condominium Act. For properties that recorded their declarations before this Act was adopted, the process for amending the condominium’s declaration is simpler. Section 81.111 states that any amendments to a declaration that was previously recorded with the county clerk must be made at an “apartment owners” meeting. (Under Chapter 81, “apartment” means an enclosed space within a building that has direct exit to a thoroughfare or common space. Today the same parcels of a building would typically be called “condominiums” or “units”.) The amendment needs to be supported by at least 67% of the ownership interest in the condominium.


Chapter 82 of the Texas Property Code, which is the Texas Uniform Condominium Act (“TUCA”), is applicable to any condominium that recorded its declaration with the county clear after January 1st of 1994. According to § 82.002, it also applies if a condominium that recorded its declaration before January 1st of 1994 either puts a provision in its declaration saying that this Act would apply when adopted or if its declaration is amended to say that this Act will apply.


The process to amend a declaration is more involved under Chapter 82. According to § 82.067, support of 67% of the ownership interest is still required, but the amendment can be adopted by written ballot or an owner’s meeting that all owners have been informed of in writing. If an amendment is adopted, it must be recorded in every county where part of the condominium sits.


Section 82.067 also specifies certain amendments that require 100% of the votes. These amendments include, but are not limited to, changing special declarant rights, increasing the number of units, and changing unit use restrictions. Even with 100% owner support, an amendment may not increase or otherwise modify the obligations or rights of a declarant without the declarant’s agreement.


The association’s board must further designate an officer to prepare, execute, record, and certify any amendments made. If the board does not do so, the president of the association may take on the role of officer. The declaration can be amended by the association to allow the board to evict a tenant for not following the association rules, for not paying for damage he caused to the condominium, or for being at least 60 days delinquent on rent payments.


While the Texas Property Code sets specific requirements for amending a condominium’s declaration, it is important to remember that these are not the only rules governing such amendments. Condominiums can place different rules or procedures directly into the declaration itself. If this is the case, the rules set out in the declaration are valid unless they are in direct conflict with the language of the Texas Property Code.


***This article was prepared by Rachel Robinson and edited by Austin Attorney Chloe Love.

Texas Laws Governing Condo Associations

Although condominium associations in Texas are private entities governing developments, this does not mean that they are outside the reach of public law. Of the many rules and regulations that condominium associations must abide by, federal law is the strongest. Regardless of their status as a private entity, associations may not do anything that goes against a federal law, and as federal law changes, so must the practices of condominium associations. All condominium associations must respect laws like the Helping Families Save their Homes Act of 2009, the Fair Housing Act, and the Americans with Disabilities Act.

The next set of governing restrictions comes from Texas state law. Just as Texas associations must abide by federal law, associations cannot take any action that is outside the realm of what is allowed by Texas law. The Texas Property Code, with acts like the Uniform Condominium Act, can directly control what actions condominium associations are allowed to take. Finally, condominium associations are governed by the local ordinances, codes, and regulations of the city or county in which they are located. This means that what is legal is Austin may not be legal in Houston. Because the associations are governed by these laws, it is important that property owners boards stay familiar with the current laws and how they are changing.

Texas Condominium associations are also governed by any documents relating to the property that are properly adopted and recorded with the county real property records. The recorded documents that govern are usually created by the individual developments. These typically include the recorded declarations, CC&R’s, articles of incorporation, and bylaws – in order of superiority. The bylaws must be in line with the articles of incorporation, which must be in line with the declaration, for example. The key to this is that the document that created the development, whether that be a declaration or a CC&R, will always rule (as long as it is within the legal limits set out by public law). These documents created by the developments are recorded with the county and treated as official legal documents, and the condominium associations must give them that level of reverence.

The final, and weakest, governing power on condominium associations are the policies and practices of the condominium association board. When the board makes a rule or implements a policy, it must be respected as long as it complies with all public law and recorded documents.

***This article was prepared by Rachel Robinson and edited by Austin Lawyer Chloe Love.

TUCA: Where do liens come from?

Amongst condo-dwellers and their property management (to a lesser extent, single family home-owners subject to an owners’ association), I frequently hear the phrase, “Let’s just file a lien.” This is often mentioned when an owner and member of the association has failed to make timely payment of their regular monthly assessments. However, “filing a lien” is not really an accurate statement of how the Association should perfect it’s interest in the property.

Under the Texas Uniform Condominium Act (“TUCA”), which applies to all condos in the State of Texas that were formed on or after January 1, 1994, the Association already has a lien against delinquent owners, without the need of any filing. TUCA Section 82.113 provides that an assessment levied by an association against a unit or unit owner is a personal obligation of the unit owner and is secured by a continuing lien on the unit and on rents and insurance proceeds received by the unit owner and relating to the owner’s unit. Emphasis added.
Furthermore, the association’s lien has priority over many other types of liens. Typically, the governing documents for your condominium will echo the statement from §82.113 of TUCA, further stating that a continuing lien in favor of the association exists whenever an owner is delinquent in payment of his/her assessments.

Usually, once I provide this explanation, condo board members follow up with a very good question, “If the lien already exists, why are we filing anything in the real property records?” The answer to that question is simply one of logistics. For sake of explanation, let’s say Bad Neighbor owes the Association $10,000 in past due assessments. Let’s further assume that Bad Neighbor has indicated that he has no intention of ever paying his assessments, because he disagrees with the management decisions that have been made by the Board. If Bad Neighbor then chooses to sell his unit to Innocent Purchaser, there would be nothing to indicate to the innocent purchaser that there are any current amounts owed to the Association. However, if the Association has chosen to file a “Notice of Lien” in the real property records, potential purchasers and title companies will be able to see that Bad Neighbor owes money to the Association. Typically, a title company will require that all liens be cleared before they will issue title insurance, which will likely result in the Association being paid. Therefore, filing a Notice of Lien may just be the lowest-cost method of collection past due assessments. (However, beware of first lien holder foreclosures, as has been discussed previously in this blog)