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Richard
Richard, Lawyer
Category: Real Estate Law
Satisfied Customers: 55314
Experience:  32 years of experience as lawyer in Texas. I'm also a Real Estate developer.
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My HOA says that hardwood floors cannot be installed unless

Customer Question

My HOA says that hardwood floors cannot be installed unless you are "grandfathered" in (of course all of the board have hardwood floors) and the CCRs were amended to say that you cannot use hardwood flooring. I have found out that the board did this illegally without taking a vote with all of the homeowners (previous to when I bought the condo). Last year, there was a foreclosure on the unit next to mine and because the original owner 15 years ago had installed hardwood floors, the new owner (a developer who resold) was able to put down new hardwood floors. That doesn't seem right to me. Either they are allowed or not. The unit next to mine is not owned by the original owner. Is there anything I can do? This "grandfathered" business seems a little sketchy to me unless the original owner had it and still lives there.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Richard replied 1 year ago.

Good afternoon. My name is ***** ***** I look forward to helping you.

You are absolutely correct in your suspicions. One, the board serves at the pleasure of the owners; not vice-versa. Two, the board has a fiduciary duty to the homeowner and have a clear conflict of interest here. Three, the board cannot be arbitrary and capricious in their actions. Although a HOA generally has the right to enforce the restrictions in the CC&R's, they cannot unilaterally impose additional restrictions without the vote of owners;a and even where there are valid restrictions, there are two circumstances where this right is lost...i) where the restrictions have been ignored in the past, and/or ii) where the restrictions have been selectively enforced. If, in spite of the restrictions in the CC&R's, if there are other instances where the situation exists that should fall within the restriction, then one of the foregoing must have occurred, and thus the HOA cannot then legally enforce the restriction against you. Your board has run afoul of all the foregoing in trying to enforce this restriction.

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