The Frequently Asked Questions and other materials included on Holt & Young, P.C.’s website are intended for informational purposes only and do not constitute legal advice. You should not act upon information contained on this website without first engaging legal counsel.
1. Declaration – the Declaration is the initial document along with the subdivision plat that provides for the creation of a subdivision. A normal Declaration includes:
- a) a description of land included in the subdivision;
- b) the name of the Association;
- c) establishes assessments and provides how assessments are to be calculated;
- d) deed restrictions setting forth what may be constructed, where construction may occur, and the permitted use of land described in the subdivision plat;
- e) creates an Architectural Control Committee and empowers it;
- f) establishes the types of Membership allowed by the Association; and
- g) provides an easement permitting use of the common areas by all owners.
2. Bylaws – the Bylaws set forth management and procedural rules for the Association. A normal set of By-Laws will include:
- a) procedures for noticing and conducting annual and special meetings of the members;
- b) basic rules related to voting, quorum requirements and using proxies at meetings of the members;
- c) procedures for noticing and conducting board meetings; and
- d) powers and duties granted to directors and officers of the Association.
3. Articles of Incorporation – the Articles of Incorporation (titled Certificate of Formation for recently formed associations) are filed with the State of Texas and create the Association. The Articles of Incorporation include:
- a) the official name of the Association;
- b) the corporate address;
- c) the name and number of the initial directors of the Association; and
- d) describe the basic powers given to the Association.
Despite the above-referenced information, a Board of Directors may not consider certain topics without giving notice to the members. More specifically, the Board of Directors must give notice to members if it will consider or vote on: fines, damage assessments, initiation of foreclosure actions, initiation of enforcement actions (excluding temporary restraining orders or violations involving a threat to health or safety), increases in assessments, levying of special assessments, appeals from a denial of architectural control approval, or a suspension of a right of a particular owner before the owner has had an opportunity to attend a Board meeting to present the owner’s position, including any defense, on the issue; lending or borrowing money; the adoption or amendment of a dedicatory instrument; the approval of an annual budget or the approval of an amendment of an annual budget that increases the budget by more than 10 percent; the sale or purchase of real property; the filling of a vacancy on the board; the construction of capital improvements other than the repair, replacement, or enhancement of existing capital improvements; or the election of an officer.
However, when the Association is in the developer control period, the only items that need to be considered or voted on in an open meeting are: adopting or amending the governing documents, including declaration, bylaws, rules, and regulations or the association; increasing the amount of regular assessments of the association or adopting or increasing a special assessment; electing non-developer board members of the association or establishing a process by which those members are elected; or changing the voting rights of members of the association.
- a) some Associations are authorized to assess fines without filing a lawsuit;
- b) the Association may file a lawsuit seeking a court order that requires the violating owner to correct his/her deed restriction violation and pay fines;
- c) most Associations are authorized to hire a contractor to cure deed restriction violations related to a lot’s appearance, such as forced mows; and
- d) most Associations are authorized to suspend an owner’s right to use common areas.
A recount must be conducted by a person who is otherwise allowed to tabulate ballots for the Association, and who is a current or former county judge, county elections administrator, justice of the peace, county voter registrar, or other person agreed to by the Association and the member requesting the recount. The recount must be paid for by the member requesting the recount; but if the recount changes the result of the election or vote, then Association must reimburse the member for the cost of the recount.
- (1) the owner whose records are the subject of the request gives the Association written permission to provide the records to the other property owner and
- (2) a court orders the Association to provide the records.
Expedited foreclosure occurs when the Association files an application to obtain a court order allowing the Association to foreclose its lien against property in the subdivision through a Trustee sale. After obtaining the court order, the Association appoints a Trustee (usually its attorney) to sell the property at a public auction for the purpose of satisfying the unpaid debt. The Association must provide lawful notice to the property owner prior to selling property at a public auction.