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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 100991
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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I am being sued by my HOA a pool house and my mother in law

Customer Question

I am being sued by my HOA for building a pool house and my mother in law has spent the night there. Prior to construction a board member told me he did not care if my mother in law stayed there since he knew it was going to be nice. We have gone to trial and cannot reach a compromise, so the judge will rule. The board also did not follow the 72 hour notice rule and only the board voted to sue. They have also not filed bylaws W/ the county or management certificates etc. Now that i have studued the CCR i habe found that most restrictions are not being enforced. The one I'm questioning is the CCR states that the HIA fees are $75.00 per year, written in 1979. Our board enacted a policy to add $48.00 per month to each water bill. The CCR states the fee can be raised 5% per year if the board sees fit. If not, the fee stays at $75.00 per year or the amount of thevprevious year. Does the board have the authority to NOT follow the CCR and change how they collect as well as how much they collect without a vote of the membership ?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note:This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

Sorry, I am a little confused by your question. You mention that you are being sued for an improper building (right?), but then begin asking about fees and whether or not the HOA has the ability to set fees in violation of limits placed on it by CC&Rs. So I am a bit unsure of what you are actually asking here. Can you please clarify? Thanks in advance.

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Expert:  Ely replied 1 year ago.

Hello! Just touching base to see if you still needed an answer and if you could reply to my query. Thanks!

Customer: replied 1 year ago.
The law suit is not the issue. The Question is about the HOA fees
Expert:  Ely replied 1 year ago.

Thanks.

No. The HOA does not have the ability to "disregard" the limitations placed upon it in the declarations, covenants, or deed. The HOA must follow these limitations if they are there. As such, they cannot (or should not) create bylaws in violation thereof.

If they do, these bylaws are invalid, but of course saying this does not make it so. One would have to first attempt to overwrite them using the HOA's own administrative procedure. If this fails by not enough votes, etc, one can seek relief in District or County Court, which would be more costly (however, if one wins, reasonable attorney fees and legal fees can be attached to judgment).

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Expert:  Ely replied 1 year ago.

Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question. I am simply touching base. Let me know. Thanks!

Customer: replied 1 year ago.
Is there Texas case law to support this ?
Expert:  Ely replied 1 year ago.

Yes:

"The courts will not interfere with the internal management of a voluntary association [such as the HOA/COA] so long as the governing bodies of such association do not substitute legislation for interpretation, and do not act totally unreasonably or contravene public policy or the laws in such interpretation and administration." Harden v. Colonial Country Club, 634 SW 2d 56 - Tex: Court of Appeals, 2nd Dist. 1982.

Also see Brooks v. Northglen Ass'n, 141 SW 3d 158 - Tex: Supreme Court 2004 which discusses an Association's right to amend bylaws, but also touches on the fact that the Association cannot go beyond its power.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.