HOA Question

[Urbannomad]

Hopefully, someone can help me out here. It's kind of a long question because I have to set it all up for you but here goes.

I live in a new development of 15 homes in Shady Acres, single-family but kind of townhome-ish. If you've driven around the Heights you problem know what I am talking about. My house and four others face the street and we share a private driveway in the back with 5 other homes that face other homes opposite them. We technically are in a subdivision because the developer had to file a plat to subdivide the old lot into multiple new ones, but we have no playgrounds, open-space, signs, etc just a typical new development around the heights.

My question is since we have never paid any dues to an HOA, nor have we ever met to elect officers, or received any documentation at closing about what the HOA can and can't do etc, do we technically still have an HOA since we are officially a "subdivision?" I ask because we have the shared driveway and some homeowners want to install a security gate and others do not. However, the ones that want to do it have threatened to resurrect an HOA they say the developer started and is president of to force everyone to pay for it. I understand a developer doing something like this as a technicality to control the area while he is building, but if we have never done anything as an HOA or collected dues is it possible for these homeowners to now "activate" and enforce this HOA? Is it even a true HOA? Again, this is in the city not the suburbs so it's not a subdivision in the traditional sense where there are common facilities, open space, signage, etc to maintain; I don't know if that makes a difference or not, but basically the city does everything for us and we individually maintain everything within our fences.

I'm mostly curious because I did not receive anything about the HOA and it responsibilities, fees, etc at closing and up until now it has never come up as an issue. So can they just do that or would there have to be some kind of vote among the homeowners, and if so, would it be a majority or consensus vote at this point? If anyone can help me out with this ,or point me in the right direction, I would really appreciate it. Thanks!

[musicman]

Hopefully, someone can help me out here. It's kind of a long question because I have to set it all up for you but here goes.

I live in a new development of 15 homes in Shady Acres, single-family but kind of townhome-ish. If you've driven around the Heights you problem know what I am talking about. My house and four others face the street and we share a private driveway in the back with 5 other homes that face other homes opposite them. We technically are in a subdivision because the developer had to file a plat to subdivide the old lot into multiple new ones, but we have no playgrounds, open-space, signs, etc just a typical new development around the heights.

My question is since we have never paid any dues to an HOA, nor have we ever met to elect officers, or received any documentation at closing about what the HOA can and can't do etc, do we technically still have an HOA since we are officially a "subdivision?"

many subdivisions don't have HOAs, civic clubs, etc. without seeing what the restrictions were prior to the replatting, etc, it's difficult to give you a definitive answer. i know the city will state that if there were restrictions on the property before, replatting won't get rid of the restrictions.

I ask because we have the shared driveway and some homeowners want to install a security gate and others do not. However, the ones that want to do it have threatened to resurrect an HOA they say the developer started and is president of to force everyone to pay for it. I understand a developer doing something like this as a technicality to control the area while he is building, but if we have never done anything as an HOA or collected dues is it possible for these homeowners to now "activate" and enforce this HOA? Is it even a true HOA?

you should try looking in the texas property code (starting with chapter 201) for definitions of what a HOA is, how it is organized, what they can enforce, etc. it is a complicated process, not something that can be done over a weekend. most organized ones require regular payments which leads me to believe that you don't have an HOA. not receiving ANY deed restrictions, etc at closing reinforces my previous comment.

Again, this is in the city not the suburbs so it's not a subdivision in the traditional sense where there are common facilities, open space, signage, etc to maintain; I don't know if that makes a difference or not, but basically the city does everything for us and we individually maintain everything within our fences.

I'm mostly curious because I did not receive anything about the HOA and it responsibilities, fees, etc at closing and up until now it has never come up as an issue. So can they just do that or would there have to be some kind of vote among the homeowners, and if so, would it be a majority or consensus vote at this point?

if one isn't officially setup, one can be setup but again it is a lengthy process and each homeowner will have a say on whether to participate. state dictates the process.

If anyone can help me out with this ,or point me in the right direction, I would really appreciate it. Thanks!

[rbarz]

You don't need to go to the Texas Property Code just yet. You need to find out if you actually have an HOA. It does not matter if you have never formed a board or collected dues, the HOA can still be in place. From what you are saying, It sounds like you do not have one since you are suppose to receive the deed restrictions at closing (or in the mail out with all of your closing documents). However, the title company might not have included it when it should have been. The only way I know to find it for sure is to go the downtown and search the property records. The easiest chain to follow is looking your sale up, then looking the plat up, and then the deed restrictions that will be attached to or referenced by the plat. The deed restrictions will have to say something about the HOA for there to be one. (The neighborhood that surrounds your redevelopment in all likelihood has nothing to do with your new subdivision)

Many small developers in the past have not messed with the time and cost to form an HOA, even though you are eventually going to need one. What happens if the shared drive is cracked and needs repair or replacement? If there is an HOA then it should layout how a decision is made in your subdivision. It will tell you if everyone has to agree or just a majority, it would state who the original president/board is (the developer) and how to elect a new one, it would state if there are dues and how to collect them. If you do not have one then there is NO way (legally) for anyone to put up a gate without everyone's signed permission. There is NO way for any owner to force another to agree or force place an HOA.

[RedScare]

You don't need to go to the Texas Property Code just yet. You need to find out if you actually have an HOA. It does not matter if you have never formed a board or collected dues, the HOA can still be in place. From what you are saying, It sounds like you do not have one since you are suppose to receive the deed restrictions at closing (or in the mail out with all of your closing documents). However, the title company might not have included it when it should have been. The only way I know to find it for sure is to go the downtown and search the property records. The easiest chain to follow is looking your sale up, then looking the plat up, and then the deed restrictions that will be attached to or referenced by the plat. The deed restrictions will have to say something about the HOA for there to be one. (The neighborhood that surrounds your redevelopment in all likelihood has nothing to do with your new subdivision)

Many small developers in the past have not messed with the time and cost to form an HOA, even though you are eventually going to need one. What happens if the shared drive is cracked and needs repair or replacement? If there is an HOA then it should layout how a decision is made in your subdivision. It will tell you if everyone has to agree or just a majority, it would state who the original president/board is (the developer) and how to elect a new one, it would state if there are dues and how to collect them. If you do not have one then there is NO way (legally) for anyone to put up a gate without everyone's signed permission. There is NO way for any owner to force another to agree or force place an HOA.

Bingo.

Check your deed records. If there is a legal HOA, you had to be noticed in the sale. It will be in your deed. Also, when the subdivision was created, the HOA provision would have been included in that recording. If you don't find it in either of these places, it doesn't exist. The deed record people can help you look for it.

If it does exist, the by-laws of the HOA will tell you how these issues must be dealt with.

[Urbannomad]

Thank you all for your helpful replies.

I have looked at all my paper work from closing and I also did a search on courthousedirect.com to see what all had been filed. All I found were the warranty deeds where the developer sold the homes, an easement deed granting easements to the utilities companies, and last and possible most importantly a document labeled "Declaration of Covenants, Conditions and Restrictions." However this document is only 3 pages long, with one 1 page of definitions broken down into 4 very brief sections. The other two pages being a page with the legal description of the subdivision and then a page of signatures.

The only mention of an HOA is in Section 4, it states, "...common Area to be maintained by Home Owners Association." And that is the only mention. It does not go into any detail about how/when the HOA is established, the bylaws, etc. Basically none of the stuff I would assume a legal document would need to establish a true HOA.

Hopefully I can get to bottom of this HOA thing, but it seems pretty murky with everyone I've talked to. Silly me assumed that you would agree to/sign something at closing to pretty much locked you into an HOA in a black and white manner... "this is the HOA and here is how it will work."

Thanks again for the great replies!

[rbarz]

You have gotten to the bottom of it.

You have an HOA that does not exist!

The documents outlining the function and process of the HOA don't exist, which means that someone has to draw them up with the rules and regulations (with the help of an attorney), but EVERY ONE of the Deed holders has to sign them for it to be valid. There is no way for anyone to form one by themselves or with the developer and proclaim themselves King of your subdivision.

[Urbannomad]

Thanks rbarz and everyone else. What took me almost two full days of researching and asking questions to figure out was answered in just a few replies at HAIF!

I spoke with a real estate attorney at work today, and his opinion was the same as those here... we do not have any hoa and it would be very difficult to establish one.

Thanks again everyone for your help!