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Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 3853
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Without making my story too long, I asked my HOAs management

Customer Question

Without making my story too long, I asked my HOA's management company to forward a request to the board to waive a late fee. I then asked them to tell me when the board was scheduled to meet to review the request. I didn't get an answer on the meeting request, and instead, got a letter saying my request was denied. I then made a request (as instructed by my HOA rules) through the mgmt co. to review board meeting minutes, and was told the board had to approve this, and would meet to review. I asked to be notified when this board meeting would take place. Over a month has passed and I've not heard from the board regarding my document review request, or when the meeting is scheduled (which should have been in May). I'm pretty positive that these are violations of the TX Property Code, and I'd like to sue in small claims court for monetary damages. Is this the right avenue, or do I need an attorney and a different suit/court?
Submitted: 2 years ago.
Category: Legal
Expert:  LawHelpNow replied 2 years ago.
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QUESTION: "Is this the right avenue, or do I need an attorney and a different suit/court?"

ANSWER: I am sure sorry for your past difficulties but hope things are soon looking brighter for you. Here is how this works. Small claims is just fine, subject to two limitations. First, your monetary award (damages) is limited to $10,000.00 or less. Secondly, the Court cannot order the return of property or command a party to engage/not engage in a certain act, etc. In other words, you are looking at purely legal as opposed to equitable relief. As long as you are seeking monetary damages in an appropriate amount, though, you are indeed filing in the right Judicial forum.

I truly hope all works out for you. After you rate my answer (look for smiley faces and/or stars plus possibly a green "Submit" button), our conversation need not end. I would be happy to continue our dialog, without further charge, until you are fully satisfied. I promise to check back periodically for any updated posts from you each time I return to this online venue.
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Customer: replied 2 years ago.
I understand that Small Claims Court can only award monetary damages, and can't compel my HOA to open its documents or notify me of meetings. I'm a little fuzzy on the "appropriate amount" of damages. Texas Property Code Chapter 202, Section 202.004 (Enforcement of Restrictive Covenants) states that a court may assess civil damages for the violation of a restrictive covenant in an amount not to exceed $200 for each day of the violation. Since the HOA's policy regarding document review is filed with the county as a dedicatory instrument, can they be fined for violating their own policy?
Expert:  LawHelpNow replied 2 years ago.

Hello again,

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It was a pleasure interacting with you. I would like to wish you all the best and truly hope you see this matter resolved.

Take care and thanks again for choosing JustAnswer®!

[Please do not reply to this post as doing so will delay handling of your inquiry.]

Expert:  Zachary replied 2 years ago.
Hi,

I'm going to pick up where the other expert left off.
First of all, he is right about the jurisdictional limitations of small claims court. That being said, lets start out with some more basic positions.

I need to know, are you a tenant or an owner?
Customer: replied 2 years ago.
I am the owner. My property is part of a condominium association, with a declaration filed prior to January 1, 1994.
Expert:  Zachary replied 2 years ago.
I think your better recourse, instead of suing for violation of the property code (it is questionable whether a disclosure by-law is technically a restrictive covenant that qualifies under the section you cited), is to threaten the HOA to sue for breach of the HOA agreement, which incorporates the bylaws. If they are not following the procedures in the by-laws and are refusing to give you notice of meetings or diclose documents that are due to you, then you have a cause of action for breach of the agreement, and to request specific performance of that agreement, and payment for associated attorneys fees.
Customer: replied 2 years ago.
Technically, the HOA's policy for document disclosure isn't in the HOA by-laws itself; it's been filed as dedicatory instrument, as one of the the rules of the HOA. Would that make a difference?

Also, if I'm requesting "specific performance of that agreement", that takes me out of small claims court. Not to sound greedy (because, effectively, suing my HOA is suing a portion of myself), but I was hoping for a small monetary settlement, which I could do myself in small claims court, and not have to get an attorney for a case in another civil court.

Besides, even if the record review policy isn't a restrictive covenant (defined in the Code as "any covenant, condition, or restriction contained in a dedicatory instrument, whether mandatory, prohibitive, permissive, or administrative"), the Property Code still states that the records have to be made reasonably available to me (Ch 82, Sec 82.114), and make me aware of meetings when I request that they do so (Ch 82, Sec 82.108).

I've drafted a letter to the HOA, laying the above paragraph points out, then asking for a small settlement ($300) in return for me no longer pursuing the issue. But I'd like to include my intent to file a formal suit if they don't comply, and list an amount of monetary damages to compel them to take the settlement. How would I need to prove those damages if, indeed, I ended up in small claims?
Expert:  Zachary replied 2 years ago.
The first question I have is whether Section 82.108 of the Property Code is applicable to your situation. Do you know when the Declaration (HOA agreement) was entered into and when the Rules were filed?

If it was after January 1, 1994, the Section 82.108 does not apply.

Nevertheless, lets assume that Chapter 82 is applicable and go from there.

Section 82.108 regards XXXXX XXXXX You said you asked to be provided notice of the meetings, but the board did not give you notice. However, this does not necessarily mean that the board has violated the rules. You declaration/by-laws will state how notice of meetings is given. The board does not have to give you any sort of special or personal notice, as long as notice is given in the regular manner. So you may want to check that provision in the declaration/by-laws to see how notice is given in general for each meeting. If they did not provide that notice, then I agree that there is a violation of this section. That is true unless you sent a written request for notice of the meeting, in which case they are supposed to personally inform you of the meeting time. Assuming you did send a written request, and they failed to give you notice, then I agree that there is a violation.

You are also correct that 82.114 provides you with a right to access the HOA minutes upon reasonable request. Since the HOA has denied this request, I agree they have violated this provision.


However, Chapter 82 also provides you with a mechanism for enforcing the violations, which is the same as what I outlined in my previous response. To wit:
§ 82.161. EFFECT OF VIOLATIONS ON RIGHTS OF ACTION AND
ATTORNEY'S FEES. (a) If a declarant or any other person subject to
this chapter violates this chapter, the declaration, or the bylaws,
any person or class of persons adversely affected by the violation
has a claim for appropriate relief.
(b) The prevailing party in an action to enforce the
declaration, bylaws, or rules is entitled to reasonable attorney's
fees and costs of litigation from the nonprevailing party.

This section does not provide you with a monetary award in the form of penalties. So unless you have suffered economic damages as a result of their violation, you wouldn't be able to recover any award under this provision except attorneys fees and costs.



You are seeking enforcement of these rights under Chapter 202 as a restrictive covenant. I agree that the HOA declaration and the rule which was filed is a dedicatory instrument under 202.001. Further, the procedure for notification (and access to records if that is also part of the declaration) would be covenant which qualifies as a restrictive covenant under 202.001. Accordingly, you are correct that a court "may" assess $200 damages for each day that the violation continued. A general warning, this leaves the penalty as a discretionary act for the court to use. It does not say "shall" and does not direct the court to do it upon the showing of a violation of a restrictive covenant. Thus, there is no guarantee that if you seek this penalty in small claims court that the court will give it to you.

So far, your plan is good. Now we come to your question regarding proving monetary damages. The simple question you have to ask yourself is, "what money have I lost as a result of the HOA's breach of the agreement." You can only recover economic loss. Other than the discretionary penalty award, damages for intangible harm (ie, mental anguish) are not available under this type of cause of action. To show economic harm, you have to show actual evidence that you either lost money as a result of the HOA's actions, or that you incurred some unnecessary expense because of its actions.

Please let me know if you have further questions.
-Zachary D. Norris
Customer: replied 2 years ago.
I really appreciate the depth and details of your response. The sections I referred to in Ch 82 (82.108 and 82.114) do apply to my condominium association, even though its declaration was filed prior to January 1, 1994, as I understand § 82.002(c) and § 81.0011(b). If you believe I'm reading this incorrectly, please let me know.

My last question involves your closing statement regarding showing economic harm. The root of this issue was a total of $80 in returned payment and late fees assessed to my account. My payment was not actually returned by my bank, and I felt the error was with the managing agent's payment processor. (My requests to the payment processor for assistance have gone unanswered.) Because I was notified of the returned payment after the late payment date listed in the HOA's collection policy, I was also tagged with a late payment fee.

My intent was to appear before the board to fully explain the reason behind the returned payment, and argue that I was informed of the return after the late payment date, but without knowing when the Board meetings took place, I couldn't do so. After getting the refusal letter, I then wanted the Board meeting minutes to see if waivers have been granted in the past.

I've never requested a fee waived in the time I've lived here; when I've made a late payment in the past, it's through my own fault and I've always paid the fee. The only written item in the HOA's Collections Policy (also a recorded instrument) is "Waiver of late and collections fees can only be granted by the Board of Directors. Waiver of these charges shall not constitute a waiver of future late fee assessments".

Does there need to be a specific rule in place by the HOA about how they decide to waive fees? And do I have a case for the $80 being a "monetary loss" (keep in mind, it's possible I could have appeared before the Board, and they still could have denied my request)?

Again, many thanks for your assistance so far.

Expert:  Zachary replied 2 years ago.
If the declaration was filed prior to January 1, 1994, then yes, it does apply.

In regard to the HOA late fee, waiver of that fee is discretionary. So their refusal to waive could not be part of the violation of a restrict covenant.

Because they did not give you notice of the meetings and therefore you did not have an opportunity to show up and contest the wrongful application of the late fee or returned payment fee, then I think you could arguably say that this is a consequential damage caused by their breach of the HOA rules.

Sounds like you've got a nice small claims case. Go for it!
-Zachary D. Norris
Zachary, Attorney
Category: Legal
Satisfied Customers: 3853
Experience: Lead trial/International commercial attorney licensed 11 yrs
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