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Under Texas HOA law, can the Board use fines to enforce

Customer Question
Declaration restrictions and rules if...
Under Texas HOA law, can the Board use fines to enforce Declaration restrictions and rules if the restrictive documents don't actually use the word "fines" when stating that the Board has the right to enforce the provisions of the Declaration and any rules made thereunder and to enjoin or seek damages from any Owner for violation of such provisions or rules? As the document says that the Board may enforce the provisions "and" enjoin and seek damages, I assume they can fine in addition to filing a suit to enjoin or seek damages, but the word "fine" is not used in the document.
JA: Because real estate law varies from place to place, can you tell me what state the association is in?
Customer: texas
JA: Has any paperwork been filed?
Customer: no - Just want to know if the Board, after giving notice, can use fines to enforce Declaration provisions and/or rules promulgated
JA: Anything else you want the lawyer to know before I connect you?
Customer: No
Submitted: 1 year ago.Category: Real Estate Law
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Answered in 6 minutes by:
11/11/2016
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago
Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 102,773
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
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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.

The answer is a little "mixed."

No, the HOA cannot fine an owner unless the declarations, CC&Rs, or bylaws specifically state that they would be fined. See Tex. Prop. Code Ch. 209.

However, the HOA can seek legal remedy such as enforcement, injunction, etc. In doing so, the HOA can ask the Court to award it legaland attorney fees in seeking the judgment under Tex. Civ. Prac. & Rem. Code Chapter 38. The Court may agree.

In addition, if the HOA argues successfully that the action was intentional, fraudulent and malicious, it can request exemplary damages under Tex. Civ. Prac. & Rem. Code Chapter 41.

So while no specific fines are allowed unless under declarations, CC&Rs, or bylaws, the HOA can still get a monetary judgment per above.

Note that the site has a promotion for a free phone call from an expert. If you want this - let me know or select it from your screen, an another expert will then call you.

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Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago

To sum up, for your convenience:

1) The HOA cannot fine unless declarations, CC&Rs, and/or bylaws state they can; but

2) They can seek other means of monetary judgment (such as legal fees) if they file in court for an injunction or to force a specific action.

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.

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Customer reply replied 1 year ago
What subsection and provisions of TPC section 209 are you referring to above?
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago
Did you see my original answer? Just in case:
No, the HOA cannot fine an owner unless the declarations, CC&Rs, or bylaws specifically state that they would be fined. See Tex. Prop. Code Ch. 209.
However, the HOA can seek legal remedy such as enforcement, injunction, etc. In doing so, the HOA can ask the Court to award it legaland attorney fees in seeking the judgment under Tex. Civ. Prac. & Rem. Code Chapter 38. The Court may agree.
In addition, if the HOA argues successfully that the action was intentional, fraudulent and malicious, it can request exemplary damages under Tex. Civ. Prac. & Rem. Code Chapter 41.
So while no specific fines are allowed unless under declarations, CC&Rs, or bylaws, the HOA can still get a monetary judgment per above.

There IS no statute in Ch. 209 that states that fees may be automatically attached. So this is what I mean - since the verbiage is missing from that chapter, the HOA cannot. Nothing states that they can. There is no law that an HOA can automatically slap a fine on an owner in Texas statutes, and the HOAs rely on declarations, CC&Rs, or bylaws (also binding) to justify the fine, if this is provided in the eclarations, CC&Rs, or bylaws.
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.
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Customer reply replied 1 year ago
First, can we switch to email? Second, the Declaration clearly says that the Association can enforce its rules. Would not fines be a form of enforcement? I assume there is nothing in chapter 209 that pertains to this either way, correct?
Real Estate Lawyer: Ely, Counselor at Law replied 1 year ago
My apologies for the wait.
I am sorry, but I only am able to communicate via this medium. I have no ability to send email.
Second, the Declaration clearly says that the Association can enforce its rules. Would not fines be a form of enforcement? I assume there is nothing in chapter 209 that pertains to this either way, correct?
Correct. Ch. 209 does not define "punishment" or "enforcement."
Unless the rules specifically state "fine," a fine is simply not part of the rules.
The applicable documents are:
1) Ch. 209 (no mention of fine, so no way to enforce a fine under purely Ch. 209, but Ch. 209 states that any of the three below may be enforced)
2) Declarations (fine if possible if mentioned)
3) CC&Rs (fine if possible if mentioned)
4) Bylaws (fine if possible if mentioned)
So if you are with the HOA, you may wish to amend the bylaws to include a fine. And then it is enforceable.
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.
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