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Dwayne B.
Dwayne B., Attorney
Category: Real Estate Law
Satisfied Customers: 32154
Experience:  Began practicing law in 1992
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In Texas: Our "community" was developed over 40 years ago.

Customer Question

In Texas: Our "community" was developed over 40 years ago. It has 12 separate sections each with their own deed restrictions. The developer did not establish a POA. A POA was established by some owners years later without changing the deed restrictions, i.e., stating that the POA had the authority for collecting dues, fees, filing liens etc. Payments were all voluntary. Currently there is a move by the "POA" to legitimize/legalize the organization and incorporate all properties into the association. Each sections deed provisions are silent on a POA and require a "majority vote" by the property owners in the section to modify. If no modifications are proposed and approved, the existing restriction automatically renew for 10 year.
The question is: Can the "POA" impose mandatory "membership" (for the lack of a better term) on all property owners without having each section vote for approval? Our county is small so the big county provisions do not apply and we are not inside the city limits of any city.
Submitted: 4 months ago.
Category: Real Estate Law
Expert:  Dwayne B. replied 4 months ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts. 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.

Are you talking about for people who already own their property?

Also, by POA are you referring to a Property Owners Association but is more commonly known as a Home Owners Association (HOA)? I assume you are but POA can also stand for other things.

Customer: replied 4 months ago.
people already own property and many have for a long time, POA/HOA. Yes. The existing HOA was not sanctioned by ded resritctions or established by the original developer. I t kind of "morphed" into an association and at some time did incorporate. But all of this was done without owners agreeing to have it be a controlling organization of the development.
Customer: replied 4 months ago.
Over the years, the organization did collect dues from owners to maintain roads and common areas but this was voluntary. When it attempted to file liens, lawyers rejected them due to the lack of authority over the properties. Now a new "BoD" has taken charge and have said they hired a lawyer who is a specialist in HOA law. While many of us don't object to the HOA becoming mandatory, we question whether or not it can just be enacted without gaining approval of the owners and changes in deed restriction.When ask by what authority they can do this, they refuse to answer.
Expert:  Dwayne B. replied 4 months ago.

There are a lot of variables in Texas dealing with HOAs. Those include deed restrictions and provisions, plat plans, contractor plans on file, etc.

However, as a general rule if a property owner doesn't have a requirement for an HOA in their deed or any other paperwork and they already own the property then they can fight the requirement to be a part of it. It may take a lawsuit but forcing someone who has owned/purchased property with no hint that a HOA might become an obligation can argue that forcing them to do so is an "unconstitutional taking". That is even with a vote so doing so without a vote is even less likely to work.

Expert:  Dwayne B. replied 4 months ago.

I have seen this scenario played out before and the judge said you can't force them to join if they weren't aware it was a possibility when they purchased. It also violates the "ex post facto" (after the fact) laws. You may have heard it referred to as "grandfathering".