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This thread has gone a distance since I have last visited.

Somebody before asked if a HOA was private, and if I do recall, it is a private organization. The homeowners pay dues to be part of this private organization, and the members (homeowners) of said organization are the beneficiaries of the HOA, for things such as a common house, club house, pool, weight room, etc. A private club {501c(7)} is operated by the members and for the members in most every case I can find. If you don't want unjust rules and regulations, get on your board. I've dealt with some rogue HOA's full of MDA types and such, who loved to send me letters for anything and everything. According to the HOA, popping my hood and filling my windshield wiper fluid is in violation of their rules, which "clearly" states we cannot work on any automobiles in the street, in our driveway, in our yard, or in our garages.

I will never live in an HOA again, and I have made sure to relocate to the country where I now reside, and enjoy my privacy, my hunting, and my flock of chickens. If I can ever avoid it, I will never live in suburbia again.

I am curious about the "club rules" and such in regards to 2a rights. I believe that they can deny any right they choose to, so long as they word it right and cover it up.

This is not a slam against anyone, but I will never, ever, ever live in a HOA. I have owned three houses in my adult life and before purchasing each one, the first question I asked was is it or will it ever be in a HOA. I understand the concept of a HOA and I'm sure if run properly it can be a positive, but mostly all I have ever heard are horror stories from living in a HOA. My home now is not HOA, but we do have a "neighborhood association". It is totally optional and only cost $15 a year. They do things like block parties, group garage sales and will donate time and money to help each other with different things like painting houses and yard work for the older neighbors, etc.. But they don't tell you that you can't build a shed in your backyard or dictate how many plants you can have in your flower bed like some HOAs I have heard of. YMMV

EEllis wrote:

Charles L. Cotton wrote:

jamminbutter wrote:As a private organization which may own land such as parks, pools, etc... the HOA may be able to post 30.06/30.07 signs. There will be an agenda item at our next HOA board meeting to post 30.07 within the common areas but to still allow concealed carry.

There was a recent Texas case dealing with HOAs and guns, but I don't recall the full style. The defendant was Chiarini or something like that. He was arrested and convicted of openly carrying a handgun in the common areas of his condo project. The conviction was overturned because all homeowners were also owners (joint tenants in common) of the common areas, thus he did not violate TPC §46.02.

This is not directly on point, but I question whether an association can adopt rules that deny owners of the ability to engage in legal activities on their own property. The case certainly indicates that a 30.07 sign would not be enforceable against a property owner. Getting one arrested could well result in a successful civil suit against the HOA and individual Board members for malicious prosecution.

Chas.

How would something like "house rules" work in a situation like that? By that I'm thinking dress codes, alcohol, extreme behavior? It would seem taken to the far end if there is an office or clubhouse you couldn't charge any homeowner for breaking into it because they "own" part of it. Seems confusing and not totally practical. Or maybe I'm just missing something. That's been known to happen.

That's a great question and I wish I had an equally great answer. My gut tells me that a homeowner who breaks into or vandalizes the neighborhood's "community center" would be charged with a criminal offense, but you make a good point about ownership. I think the answer lies in the fact that common areas in condominium projects are owned by all homeowners in what is known as joint tenants in common. This is a form of shared ownership. Even then, however, a joint tenant in undeveloped land can enter the property and conduct any lawful activity, so even the JTC status doesn't fully answer the question.

I'm going to post this is a separate post, but I read our Deed Restrictions and I was wrong about ownership of the common areas in our neighborhood. It is not a condominium project, so it's not subject to the Texas Condominium Act. The common areas are actually owned by our HOA that is chartered as a Texas Corporation. The common areas and amenities are held by the HOA for the use of homeowners/members and their invited guests, so the HOA cannot arbitrarily bar a Member. However, this would take care burglary and vandalism scenario. Our Deed Restrictions authorizes the HOA to make "reasonable rules" for operation of the common areas and amenities, so it may be possible to post an enforceable §30.07 sign on common areas. I say "may" because self-defense and the carrying of handguns triggers constitutional issues that loud music and glass containers do not.

Chas.

I read our Deed Restrictions and I was wrong about ownership of the common areas in our neighborhood. It is not a condominium project, so it's not subject to the Texas Condominium Act. The common areas are actually owned by our HOA that is chartered as a Texas Corporation. The common areas and amenities are held by the HOA for the use of homeowners/members and their invited guests, so the HOA cannot arbitrarily bar a Member. Our Deed Restrictions authorizes the HOA to make "reasonable rules" for operation of the common areas and amenities, so it may be possible to post an enforceable §30.07 sign on common areas. I say "may" because self-defense and the carrying of handguns triggers constitutional issues that loud music and glass containers do not.

Chas.
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txglock21 wrote:This is not a slam against anyone, but I will never, ever, ever live in a HOA. I have owned three houses in my adult life and before purchasing each one, the first question I asked was is it or will it ever be in a HOA. I understand the concept of a HOA and I'm sure if run properly it can be a positive, but mostly all I have ever heard are horror stories from living in a HOA.

You're smarter than many people. However, when I bought my first home, it was in an area with an HOA. I knew there were restrictions, didn't violate them, but still had problems. Only after I got angry enough to get myself elected did I begin to understand how much damage a bad HOA can do.

And it's not like you can easily pick and choose. The reality is that the vast majority of new homes in Texas come with an HOA. There is no opt-out option. There is no 1:1 option to by a non-HOA home. Most non-HOA homes are older, often more central in established neighborhoods - meaning more expensive. My 2nd home, non-HOA, was a price increase of about 250% over the first one and doubled my commute. Perhaps there were other options, but none in the same price range as the original or anywhere near that condition.

And for condo communities - an HOA is essentially required. You have common structures, you can't avoid an association.

I've had GREAT experiences with a POA, which exists not to enforce restrictions but just maintain common property (pools, lakefront, etc) - but you still have to deal with with the fact that people just wont agree on everything.

jimlongley wrote:OK, here's a twist.

When my bride and I bought our first house in TX, I, as a ham, specified to the real estate agent that, among other things, there would be NO HOA or CC&Rs attached to the property. On closing day, as we were signing papers, we were presented with the HOA membership to sign, and I refused. This led to a "sidebar" conversation between real estate agents and the person running the closing, and I was not asked to sign it a second time....

Interesting, Jim. When the wife and I relocated to Texas (I had been born here many years ago) we first lived in the country where the residents had probably never heard of HOAs. When we moved to another home in the suburbs of a city the subject of deed restrictions or HOA never came up in the process, not even at the closing. Some months later (much too late) when casually reading our deed for another reason I saw a reference to deed restrictions, and where they were recorded, by reference to book and page number in the deed book at the courthouse. I went down to the courthouse to see what the restrictions said, finding the records to be microfilmed. After some kind help by a clerk I did indeed find the restrictions, which ran with the land.

These restrictions, as noted above by others, typically are the basic foundation of a HOA, if any.

Having bought homes in other states during my employment travels I had been accustomed to being given a copy of any such restrictions by either the seller or his agent no later than at the closing. Like the plumber whose faucet always leaks, at this late date I then contacted my real estate agent for the purchase of the home, asking why I had to go down to the courthouse to learn what deed restrictions applied to my property. Her response was that while some states require notice of restrictions to be given to a buyer, in Texas this was not required unless the buyer explicitly requested same from the seller before the sale, and that the buyer was put on notice that there were restrictions by their citation in his deed, so it was his responsibility to inquire further if he chose. She explained that this was not a matter of state law, but rather was a "rule" established by a body overseeing the ethical requirements applicable to realtors.

As the ancient restrictions in our case were quite acceptable, other than for one which limited ownership to only members of the white race (which I of course knew to be unenforceable), to me the issue was moot (other than for my personal embarrassment for having, in effect, agreed to the unenforceable restriction), and I never bothered to look further into what I considered to be a weird situation, so to this day I cannot say with assurance whether or not I was correctly advised by my agent.

However, her advice (some 30 years ago) may have received a bit of confirmation when we purchased our current home some 7 years ago, when the agent for the seller had to herself go down to the courthouse to obtain a copy of the applicable deed restrictions, which, in this case, also set up an HOA and enumerated its powers, and, shocking to me, she had sold several homes in our subdivision in the past, never being required to provide a copy of the restrictions to prospective buyers.

In any event, as usual I have used a bunch of words simply to suggest that, regardless of whether or not there is such a requirement, prospective home-buyers raise the question of deed restrictions and HOAs prior to but no later than closing.

(In view of the unenforceable deed restriction I am sure you can guess that that home was, and is, located in deep East Texas).

Jim

b322da wrote: In any event, as usual I have used a bunch of words simply to suggest that, regardless of whether or not there is such a requirement, prospective home-buyers raise the question of deed restrictions and HOAs prior to but no later than closing.
Jim

I had no idea and that certainly wasn't as it was when I was elsewhere. Good to know, and will keep that in mind when I start looking for a house!

Glockster wrote:

b322da wrote: In any event, as usual I have used a bunch of words simply to suggest that, regardless of whether or not there is such a requirement, prospective home-buyers raise the question of deed restrictions and HOAs prior to but no later than closing.
Jim

I had no idea and that certainly wasn't as it was when I was elsewhere. Good to know, and will keep that in mind when I start looking for a house!

I've bought and sold a lot of homes as well with and without HOA's, and been president, vice president, and treasurer for two HOA's. Just to be clear, the following is not legal advice - it's what I have learned through experience.

If the standard TREC (Texas Real Estate Commission) contract documents are used as they are in most cases in Texas, there is a section (or a form, I forget which) in the current set that says there is or isn't an HOA or a set of deed restrictions. If there is, you'll want to make sure you review the documents during the 10 day option period (that costs $100) during which time you can back out for any reason. Most HOA's also have a property transfer process that includes providing a copy of the deed restrictions to prospective buyers. A good real estate agent will make sure you get those documents in plenty of time to make a good decision.

Closing time is too late because you've probably already sold your present home and have movers waiting in the driveway. You'll lose your deposit if you don't go through with the sale, and possibly expose yourself to having to pay for additional costs the sellers incur as well.

Excaliber wrote:

Glockster wrote:

b322da wrote: In any event, as usual I have used a bunch of words simply to suggest that, regardless of whether or not there is such a requirement, prospective home-buyers raise the question of deed restrictions and HOAs prior to but no later than closing.
Jim

I had no idea and that certainly wasn't as it was when I was elsewhere. Good to know, and will keep that in mind when I start looking for a house!

I've bought and sold a lot of homes as well with and without HOA's, and been president, vice president, and treasurer for two HOA's. Just to be clear, the following is not legal advice - it's what I have learned through experience.

If the standard TREC (Texas Real Estate Commission) contract documents are used as they are in most cases in Texas, there is a section (or a form, I forget which) in the current set that says there is or isn't an HOA or a set of deed restrictions. If there is, you'll want to make sure you review the documents during the 10 day option period (that costs $100) during which time you can back out for any reason. Most HOA's also have a property transfer process that includes providing a copy of the deed restrictions to prospective buyers. A good real estate agent will make sure you get those documents in plenty of time to make a good decision.

Closing time is too late because you've probably already sold your present home and have movers waiting in the driveway. You'll lose your deposit if you don't go through with the sale, and possibly expose yourself to having to pay for additional costs the sellers incur as well.

The key concept here is the "good real estate agent." They exist in theory, and may exist in reality but they are rare, few and far between. It is not that they are bad people, but are not trained to do what they claim to do and what you rely on them to do. Agents are trained to market property, close sales. They are not appraisers, builders, plumbers, electricians, landscape architects, interior decorators or lawyers, although they often pretend to be. They may be acquainted with some of the information that these other experts have, but lack the experience that is the foundation of judgment. What the best ones are are glib, pleasant, personable salesmen who get paid when a deal closes.

I question the idea of losing the deposit by waiting until closing to object. The contract ought to provide that you will have a chance to approve the title report which sets forth everything that will affect your title, plus the items that will be removed at the closing, such as the sellers' loan(s), etc. I would expect that the buyer would review that report and approve, or object at that time. If an item pops up at the closing undisclosed prior, then the buyer would have every right to object, cancel and get the deposit returned as well as perhaps recover any expenses incurred in the failure to disclose an encumberance on title. OTOH, if you were lulled by smooth blandishments into signing off on things without really knowing what you were doing, by the agent, then you have a gripe with the agent and broker.

In 40 years as a lawyer, and 35 of those as a licensed RE broker in the PRC, I was involved in one way or another in thousands of RE transactions. It never ceased to astonish me how people conduct, in many cases , the most complex transaction involving more money of any in their lives, without the slightest idea of what they are doing, in detail. The conference room table in my office was stained with the tears of quite a few who guessed wrong, relied on the wrong agents, and lost. Agents would rather be marinated in sheep poop than have a party hire a lawyer to guide them through all these complexities.

I have a question. In a typical "HOA" environment, who pays the legal fees arising from a law suit against or by an "HOA"?

JALLEN wrote:Agents would rather be marinated in sheep poop than have a party hire a lawyer to guide them through all these complexities.

After we purchased the above mentioned house, with the HOA that had been specified as unacceptable sprung on us at the closing, as well as CC&Rs that were not supposed to exist, we also found out that the was a major problem with the plumbing in the kitchen, which we were later told was due to a lightning strike, which we were also never told about (some disclosure!), we also found that the CATV wiring was inoperable due to the previous owner cobbling the wiring up to use an antenna instead of cable. When I mentioned getting an attorney involved in order to get these undisclosed issues resolved, she trotted out a plumber, an electrician (who couldn't fix the CATV, so I did it myself and charged the agent the same fee the electrician did) and a person to repair the brick on the front of the house when it had to be torn down to get at the plumbing with the lightning holes in it.

And it still kind of rankles that she failed to follow my express wishes.

K5GU wrote:I have a question. In a typical "HOA" environment, who pays the legal fees arising from a law suit against or by an "HOA"?

The HOA pays its attorney fees and costs of litigation from the dues collected from homeowners. The person being sued by or that is suing the HOA pays their attorney. Depending upon the nature of the lawsuit, the individual may be ordered to reimburse the HOA for reasonable and necessary attorney fees and costs of litigation.

Chas.

K5GU, Comes from the HOA membership dues. If it is something that is insured against such as a GL or E&O claim, the insurance company pays if they have coverage. The premiums are paid from membership dues.

[quote="JALLEN"]...Agents would rather be marinated in sheep poop than have a party hire a lawyer to guide them through all these complexities./quote]
So very true, Jim. I once sold a house to a lawyer. What a lengthy process that was. Frustrating. My agent nearly went bananas. The buyer read every punctuation mark 6 times, and had questions after questions. It took half a day to close, when normally it is a routine and quick process.

But -- in thinking about it, I realize that he was using his knowledge, schooling and experience in furtherance of his interests, which was his right and his duty, whereas so many RE agents, but not all, are interested in only their own economic interest. My agent said to me privately afterward that this was the last time she would voluntarily recommend a client's sale to a lawyer -- particularly an "Aggie lawyer," as my buyer was. This validates your "sheep poop" observation. It was even worse in this case, as this was a brand new lawyer, just admitted to the bar, possibly anxious to display his knowledge. I avoided possibly embarrassing him by never revealing to him that I had practiced law longer than he had lived.

(In jest, you Aggies and you lawyers out there. My three sons are Aggies, two of them being very competent and successful lawyers.)

Jim

The standard forms are written by attorneys, for the Texas Real Estate Brokers outfit, designed to facilitate closings, not protect parties. If you actually read and understood all the language in all the documents, few real estate deals would ever close. The brokers have to smooth over and neutralize your fears and anxieties to get you to the closing.

This lawyer who read everything probably drove everybody nuts. He may have been the only person to have actually read everything until I came to town and did so. If he had a great deal of experience, then there should not have been so many questions, assuming good faith. He may have been still negotiating, figuring on gaining some small concessions just to shut up. There are also folks out there who believe that signing a contract is the signal to let negotiations commence.

The people who handle real estate transactions get paid to close them, not necessarily to make sure everyone lives happily ever after. No closing, no fees. In recent years, I have noticed an increase sloppiness on the part of escrow and title personnel, borne most often of ignorance and inexperience rather than malevolence. The banks provide that.

"A man who doesn't read has no advantage over a man who can't." Neither does the man who doesn't know what he is doing.