Over many years, I have heard several frequently asked questions. If I sound cautious, it is because I have seen too many homeowners get hurt by associations. Please do not forget my disclaimer.

  • 1.General Questions
  • Is there a hierarchy of what laws and documents govern HOAs?
    David Kahne13-11-2015

    Sort of. In general, federal law is made supreme by the Constitution. There can be complexities when interpreting supremacy, because courts have various doctrines (such as abstention) when sometimes it can seem like state law is more important, or that state law influences how federal law is applied. Generally, the next most important is state law, followed by local statutes (City and County Codes, for example). But, there can be confounding issues here too. There are multiple (sometimes conflicting) principles that can be argued to decide which statute is more important, if they conflict. Among governing documents, a plat or plan can be the most important, followed by the declaration (also known, e.g., as CCRs or deed restrictions), which is more powerful than the the articles of incorporation (AKA certificate of formation), which is more powerful than the bylaws, which are more powerful than rules. But, there is at least one circumstance where bylaws can be more important (concerning the number of directors) than the articles of incorporation (because of state law).

     

    Unfortunately, the more difficult question can be to determine whether there is a conflict between laws (including common law) and/or governing documents. The alternative is that, in some cases, the courts try to harmonize potentially conflicting laws and/or governing documents. Some laws have limited applicability (determined either by geography or time of creation). Also, lack of clarity is a significant part of what gives lawyers work, and often the resolution of disputes depends on how courts interpret whether there is ambiguity, conflict, or some or issue affecting different interpretations. Ultimately, the resolution of disputes often cannot be determined by abstract application of general principles, but instead depends on facts and circumstances involved.

  • My HOA is not doing what it should because .... [many different reasons]. Should I pay my annual or monthly assessments?
    David Kahne09-08-2015

    I almost always advise homeowners to pay their assessments. If you do not, you can be sued. If you are sued, and lose, in addition to the assessment (which may be modest in amount), you typically will be forced to pay attorney fees -- which can be large.

    If you want to challenge the association’s wrongdoing – including, but not limited to unauthorized assessments -- I urge you to get a group together. You are then more likely to persuade the board or, if you must go to court, you have more owners who can persuade the Judge or Jury, and more people to share costs. If you are alone, you can become the next target (as in Whack-a-Homeowner).

  • My HOA is cheating, maybe even stealing money. What government agency will help me?
    David Kahne30-08-2015

    Probably none. None are required to help. I have, only a couple times that I recall, heard of a Texas District Attorney looking into allegations of fraud, including one prosecution that succeeded. In other states, notably Nevada, there have been prosecutions. So, there's no harm trying to interest them, if you have supporting facts.

    Unfortunately, some government lawyers feel it's their job to support associations and condominiums. Too often, they sue homeowners. This is one of the many inequities in the "system" today. To change this, we need to educate public officials to protect homeowner rights.

  • I don't have much money. How can I get a free lawyer?
    David Kahne30-08-2015

    If you qualify, you may be able to get a free lawyer from an organization on the Texas Legal Aid Programs List or from a local law school clinic. The State Bar’s Legal Access Division recently launched TexasLegalAnswers.org, a free online legal advice clinic where low-income Texans can log on to get their civil legal questions answered by volunteer attorneys. There also are places for reduced-rate lawyers. If you learn of places to recommend, please click here to let me know.

    If you make too much money for legal aid, it is still possible that a private lawyer would take a case without charging you, or for a reduced rate. I have done such pro bono work, as have other lawyers, where a group of homeowners get hurt particularly badly – but this is rare. Most of my volunteer work is on efforts to improve laws for homeowners -- no one pays for my work at the Texas Legislature. I earn my living by asking clients to pay for my time.

  • How do I get documents from my association?
    admin12-09-2015

    You ask, usually best done in writing, using certified mail. There are several different statutes that can be involved, described here. If the association refuses, you may need to sue. I know that's not fair, and creates a real barrier to homeowners getting information they deserve to know. The associations know that too, especially about the barrier.