HOUSTON – We’ve received a flood of emails and phone calls from viewers with questions and concerns about HOA issues. We took some of your questions to Attorney David Kahne. He represents homeowners against abusive HOAs. The answers below are from his decades of experience dealing with HOA issues.
Q: My HOA sent me a violation notice about new lights on my patio. The letter says they “have received several complaints” about them. Do I have a right to know the names of the people who lodged the complaints?
A: You can ask, but they are not required to tell you. Some HOAs will take anonymous complaints. When they can prove what the complainant is alleging (example: The grass is too high.), it’s not an issue. It can become a problem if the HOA sends a violation notice for something that can’t be proven after the fact, like loud music or too much traffic at an alleged home-based business. If someone accused you of this, you probably want to know who heard the music or saw the traffic. While you may not be able to get the HOA to tell you, if your case goes to court, they would likely have to disclose the name of the person so you can fairly defend yourself.
Q: My HOA has sent three violation notices over the color of my front door. I have responded and requested a hearing with the HOA, but they seem to be ignoring my request. Isn’t the HOA required to grant a hearing?
A: Texas Property Code 209.007 says, “the owner has the right to submit a written request for a hearing to discuss and verify facts and resolve the matter in issue.” That hearing must be held within 30 days of the owner’s request, and the HOA must tell the homeowner when the hearing will be within 10 days of the request.
Under the current rules, these meetings can be very superficial. Even if you get one, you may not get the answers you are seeking. However, beginning September 1, 2021, under Property Code 209.00505, owners will be able to request a hearing before the HOA board (not just a subcommittee like an Architectural Control Committee) that has some very specific rules. The HOA will have to present its evidence first of your violation and explain what you can do to fix it.
Q: My HOA has decided to keep the pool closed again this summer, citing COVID concerns. The fees that homeowners are required to pay are not decreasing. I want to know how much money the HOA is saving by this decision. Can I get this financial information from my HOA?
A: Yes. Homeowners are entitled to financial information from the HOA, including information about pool operations and newly constructed facilities.
There are special statutes that help homeowners get such information if the HOA refuses. See Property Code 209.005. There is also going to be a similar law for condominium owners starting in September. See Senate Bill 318, and Property Code 82.114(b).
When homeowners call with such questions, I advise them to be part of a group. That makes it more likely to get the information, less likely to face retaliation (which is too often a risk), and - if they must go to court - more likely to win.
Q: I received a notice that I need to remove the weeds growing out of cracks in the sidewalk in front of my home. Can my HOA make me responsible for areas that I do not own?
A: In general the answer is “no,” you cannot be made responsible for areas that you do not own. Some HOAs disagree about sidewalks. Usually, those disputes concern uneven sidewalks. It may depend on your deed restrictions. I’ve had a couple of cases on this and, so far, they’ve settled favorably.
In this case, I would say, pull the weeds out of the cracks. But, I should note, some HOAs don’t enforce that rule fairly.
Q: There was a misunderstanding about how my fees were to be paid. The HOA got lawyers involved and now say I have to pay $7,200 in attorney fees for a $1,500 missed HOA fee. Can the HOA do this?
A: In far too many cases, HOA attorneys charge homeowners far too much in fees. The law requires all such fees to be both “reasonable” and “necessary.”
Homeowners face significant difficulties enforcing limits on attorney fees, however, because they cannot afford to fight over fees in court. Usually, there is no other practical way to limit what HOA attorneys demand in payment.
We have proposed legislation that would create a much simpler way to resolve such disputes, using Small Claims Court, also called Justice Court. Under our proposal, associations would get all the money they may be owed, and homeowners would not be forced to pay excessive fees.
JPs have expressed support for improving the better system. We will be trying again next session.
Homeowners who want to help on this issue, and many others, can contact the HOA Reform Coalition of Texas.