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I live in a townhome/condominium in Houston with a

Hi, I live in...

Hi, I live in a townhome/condominium in Houston with a Homeowners Association, and the back fence on our building of 8 homes came down with the winds during Hurricane Harvey. Four of the homes had a 10 foot fence (including ours), and 4 of the homes had an 8 foot fence. I found out today that they decided to put back an 8 foot fence for all 8 homes. We back up to another property and their second floor windows look directly into our property, so for privacy reasons, and home value reasons, we expected no less than another 10 foot fence. What leverage do we have as homeowners to get what we had prior to the Hurricane?

Lawyer's Assistant: Because real estate law varies from place to place, can you tell me what state the association is in?

Texas

Lawyer's Assistant: Has any paperwork been filed?

Not by me, the homeowner

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Just the information above

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Customer reply replied 7 months ago
I should add that although our homes "look" like individual townhomes (versus a multi level condominium complex), they are technically considered condominiums. Also, when I stopped by the office today to ask the status on the fence (as there has been no communication since the fence blew down 6 weeks ago), the HOA manager (who is paid but does not have voting rights, only the "volunteer" board members are able to vote), she mentioned that the contractors should start on it in the next few weeks. When I asked the "height" of the fence, she was very hesitant, almost nervous to tell me what was decided. At first she said she couldn't remember and would "have to look", and when I told her I could wait, a few minutes later she said she remembered, and that it would be 8 feet (knowing ours used to be 10 feet). Considering we bought this home in 2015 with a 10 foot fence, it only seems justified that the new fence should be the same height...at least for the 4 homes that already had a 10 foot fence. I should note that aside from our building backing up to another property with 2nd story windows that look directly into our patio (privacy issue), there is also a corporate parking garage that was built behind our building, and the 10 foot fence obstructed the view of that garage. An 8 foot fence would not obstruct that view, would make our property harder to sell, and would impact how much we could sell it for. Ultimately I'm looking for input on my rights as a homeowner who bought this property with a 10 foot fence, and what I should expect from the HOA, who is ultimately responsible for rebuilding the fence. Shouldn't it be the same height as it was before, and not 2 feet shorter? Any and all advice is appreciated. Thank you. ***** and other applicable documents.
Customer reply replied 7 months ago
Adding Articles of Incorporation
Customer reply replied 7 months ago
Also I was told that the fence will not be paid for by insurance, as the deductible is higher than the cost to rebuild the fence. Therefore the cost of the fence will be coming from the general fund. Our HOA dues are $400 a month.
Answered in 5 hours by:
10/7/2017
Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Real Estate Law
Satisfied Customers: 21,712
Experience: B.A.; M.B.A.; J.D.
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Hello: This is Phillipsesq. Welcome to JustAnswer! I am reviewing your post, and I will post my response very shortly. Thank you for your patience.

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You have a right to demand that the fence be rebuilt as before. You have excellent reasons for insisting on the 10 ft fence: privacy, was purchased with 10 ft fence, property value, etc. So, you should state ALL those reasons when making your demand for the fence to be replaced. If the HOA refuses, then you and the affected homeowners should file lawsuit against the HOA to force them to do the right thing here.

Goodluck with your case,

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Customer reply replied 7 months ago
Thank you very much for your feedback. Are there specific Texas real estate laws that I can reference in my discussions with the HOA, that speak to the right of the homeowners in this type of scenario?
Customer reply replied 7 months ago
Also I should note that I already sent an email to the HOA exactly as you stated 3 weeks ago, including all data points, and they still decided to proceed with an 8 foot fence. There has been no communication whatsoever to any of the affected homeowners on the status of the fence or the decision made. Had I not gone over to the office to check on the status, they likely would have not told me the decision, but rather just had a crew start working one day on the 8 foot fence, and I would have found out then. If you could let me know of any specific laws that would be applicable in this case I would appreciate it.

Thank you for the information.

I am sorry for the delay in getting back to you. I was offline when your response came in.

Kindly give me a few minutes to review the information that you have provided and prepare my response.

Thank you for your patience.

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After diligent search I could not find any specific section of the Texas Property Code Title 11, Chapters 201 to 209 dealing with your situation.

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Customer reply replied 7 months ago
Does that mean we wouldn't have a case? Let me know your honest opinion. I suspect that I could have a property appraiser give me a report of the difference in property value with an 8 foot versus 10 foot fence. Honestly the decreased property value is my biggest concern. I don't feel is justified for the lower fence to be to our detriment.

No, it does not mean that. I infact find merit in your arguments. I just could not find the specific section of the Texas Property Code dealing with it. I find that quite odd.

Do you know if your Association organized under a different law? You would find this information from looking at the HOA documents. If you find the information, kindly provide me the information. I can then check again. Most Association laws generally have the rights of the Associations and homeowners with regard to repairs. But for some reason, this Title of Texas Property Code does not have them.

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Customer reply replied 7 months ago
I looked through the Articles of Incorporation document (also attached above) but I don't see a specific law mentioned, although I'm not sure exactly what to look for. If you happen to see it in that document let me know. All of the published HOA documents are attached, but if you think there should be a document with a different name that would have this information let me know. I know looking through all the documents is probably more than you are expected to do at this point. I'm glad you still feel there would be a case. It just doesn't seem right, they are making the decision based on sheer cost, but that is not appropriate given the circumstances.

Okay. Let me doublecheck and get back to you.

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Your HOA is governed by Texas Condominium Act, Texas Property Code Title 7 Chapter 81 instead of Texas Residential Property Owners Protection Act, Texas Property Code Title 11 Chapter 209. See your Bylaws Article IV subsection 3(a). You can cite the Bylaws Article IV subsection 3(c) in your letter to the Association regarding the fence.

Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Real Estate Law
Satisfied Customers: 21,712
Experience: B.A.; M.B.A.; J.D.
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Customer reply replied 7 months ago
Hi, I have a follow up to this question. Does the Condominium Act of the State of Texas, Chapter 82, Section 82.163 (which was updated in 1994) take precedence over the original Condominium Declaration for our townhome community that was created in 1974? There is a clause in the original 1974 Declaration that says in case of destruction, the property and general common elements need to be restored to "substantially the same condition as it was before the damage". However the subsection of the Condominium Act of the State of Texas which I referenced above says repair "to a conditional compatible with the remainder of the condominium". The 1974 declaration states that the developer "desires to establish a condominium regime under the Condominium Act of the State of Texas. So my question for you is, what document holds greater precedence, the original townhome declaration or the Condominium Act of the State of Texas and the section 82.163 updates from 1994? I'm trying to determine if the clause from the original declaration is enough to support our case for the fence to be restored to 10 feet (as it was before the damage), or if section 82.163 of the Condominium Act of the State of Texas overrides the original document. Any assistance you could provide on this would be appreciated. Our meeting with the board is tomorrow night at 6 p.m. central time. Thank you

Thank you for the information.

Kindly give me a few minutes to review the information that you have provided and prepare my response.

Thank you for your patience.

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Does the Condominium Act of the State of Texas, Chapter 82, Section 82.163 (which was updated in 1994) take precedence over the original Condominium Declaration for our townhome community that was created in 1974?

Response: No. Your condo documents control. Chapter 81 applies to condos created before January 1, 1994 and Chapter 82 applies to condos created after January 1, 1994. Unless your condo docs have been amended to be governed by the Uniform Condominium Act (Chapter 82), your Condo Association is still governed by the Condominium Act (Chapter 81). See Texas Property Code Title 7 Chapter 82 Section 82.002:

"Sec. 82.002. APPLICABILITY. (a) This chapter applies to all commercial, industrial, residential, and other types of condominiums in this state for which the declaration is recorded on or after January 1, 1994. A condominium for which the declaration was recorded before January 1, 1994, may be governed exclusively under this chapter if either:

(1) the owners of units vote to amend the declaration, in accordance with the amendment process authorized by the declaration, to have this chapter apply and that amendment is filed for record in the condominium records in each county in which the condominium is located; or

(2) a declaration or amendment of declaration was recorded before January 1, 1994, and the declaration or amendment states that this chapter will apply in its entirety on January 1, 1994.

(b) An amendment to a declaration under Subsection (a)(1) that implements a vote of the unit owners to be governed by this chapter may not affect the rights of a declarant or impose duties on a declarant that are greater than or in addition to the declarant's duties immediately before the date of the vote or amendment."

I'm trying to determine if the clause from the original declaration is enough to support our case for the fence to be restored to 10 feet (as it was before the damage),

Response 2: Yes.

or if section 82.163 of the Condominium Act of the State of Texas overrides the original document.

Response 3: No.

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Customer reply replied 7 months ago
Thank you for your feedback. I do not see an amendment to the original declaration indicating that the association will be governed by section 82. There was a document recorded in 2001 indicating a new dedicatory instrument that governs the association, and within that document there are Architectural Standards that still do not specify the height of the fence. There is reference to section 82 within that document specifically, however I don't see an amendment to the 1974 declaration stating section 82 is the new governing authority. Hopefully the reference to section 82 within the new Architectural Standards in 2001 does not mean that the entire initial declaration is now governed by section 82. As I mentioned, even within the Architectural Standards, there is no specific reference to the fence height....it actually doesn't talk about the fence at all.
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