What Can I Do if the HOA Doesn't Follow Proper Procedures?
Full Question:
Answer:
All homeowner associations are subject in some way to the rule of due process. Due process analysis typically applies where the action taken has allegedly deprived an individual of a right affecting life, liberty or property without adequate and appropriate legal process and procedures. There is a distinction between a right and a privilege. Due process issues typically arise in the context of a homeowners association when the property owner is facing a fine or other penalty or the association isn't following the procedures and rules outlined in its bylaws.
In some court decisions, the following test has been used in order to determine whether or not the action of the association meets the basic legal requirements of reasonable due process:
1. Is the action taken or proposed clearly within or reasonably related to the purposes of the association?
2. Is the action clearly within or reasonably related to the association's powers?
3. Is the action taken reasonable with respect to its application and the scope of its application?
4. Has the association acted with reasonable due process in carrying out the action?
Whether the action or proposed action is reasonably related to the purposes of the association and is within the power of the association can normally be decided from a review of the association's legal documents. Whether the action is reasonable in application and scope depends on the circumstances in each case. Whether the association has acted with reasonable due process depends upon whether the association has reasonable rules, and has followed those rules.
Please see the information at the following links:
http://resources.lawinfo.com/en/How-To/Real-Estate-Laws/Federal/how-to-fight-a-citation-from-your-homeowner-s.html
http://www.realtimelaw.com/new_page_2.htm
Procedural due process requires fairness in the methods used to deprive a person of life, liberty or property. The answer will depend in part on whether state action is involved. Bad faith may also be a factor. There may also be claims against association for breach of contractual obligations and for breach of fiduciary duty. Statutory provisions may be violated. I am prohibited from giving a legal opinion, as this service provides information of a general legal nature. The Association may not act in contravention of its governing documents. If it does so, such an act is ultra vires and without effect, and a court may review and enjoin such an act. I suggest you consult a local attorney who can review all the facts and documents involved.
For further discussion, please see:
http://www.communityassociations.net/cacondoguru/archives/elections_in_ca/
http://www.seganmason.com/downloads/CommunityAssociation.doc
http://definitions.uslegal.com/u/ultra-vires/
Please see the following TX statutes related to condominiums:
§ 82.103 PROP. Board Members and Officers
(a) Except as provided by the declaration, bylaws, or this chapter, the
board shall act in all instances on behalf of the association if in the
good-faith judgment of the board the action is reasonable. Each officer
or member of the board is liable as a fiduciary of the unit owners for
the officer's or member's acts or omissions. All acts of the association
must be by and through the board unless otherwise provided by the
declaration or bylaws or by law.
(b) The board may not act on behalf of the association to amend the
declaration except as permitted by this chapter, to terminate the
condominium, to elect members of the board, or to determine the
qualifications, powers and duties, or terms of office of board members.
The board may fill a vacancy in its membership for the unexpired portion
of a term.
(c) Subject to Subsection (d), the declaration may provide for a period
of declarant control of the association during which a declarant, or
persons designated by the declarant, may appoint and remove the officers
and members of the board. Regardless of the period provided by the
declaration, a period of declarant control terminates not later than the
120th day after conveyance of 75 percent of the units that may be created
to unit owners other than a declarant. Transfer of special declarant
rights does not terminate the period of declarant control. A declarant
may voluntarily surrender the right to appoint and remove officers and
members of the board before termination of the period, but in that event
the declarant may require, for the duration of the period that the
declarant would otherwise control, that specified actions of the
association or board be approved by the declarant before they become
effective.
(d) Not later than the 120th day after conveyance of 50 percent of the
units that may be created to unit owners other than a declarant, not less
than one-third of the members of the board must be elected by unit owners
other than the declarant.
(e) Not later than the termination of a period of declarant control,
the unit owners shall elect a board of at least three members who need
not be unit owners. The board shall elect the officers before the 31st
day after the date declarant control terminates. The persons elected
shall take office on election.
(f) An officer or director of the association is not liable to the
association or any unit owner for monetary damages for an act or omission
occurring in the person's capacity as an officer or director unless:
(1) the officer or director breached a fiduciary duty to the
association or a unit owner;
(2) the officer or director received an improper benefit; or
(3) the act or omission was in bad faith, involved intentional
misconduct, or was one for which liability is expressly provided by
statute.
(g) Subsection (f) does not diminish a limitation of liability provided
an officer or director of the association by the declaration, bylaws,
articles of incorporation of the association, or other laws.
§ 82.110 PROP. Voting and Proxies
(a) If only one of the multiple owners of a unit is present at a
meeting of the association, that person may cast the vote or votes
allocated to that unit. If more than one of the multiple owners is
present, the vote or votes allocated to that unit may be cast only in
accordance with the owners' unanimous agreement unless the declaration
provides otherwise. Multiple owners are in unanimous agreement if one of
the multiple owners casts the votes allocated to a unit and none of the
other owners makes prompt protest to the person presiding over the
meeting.
(b) Votes allocated to a unit may be cast under a written proxy duly
executed by a unit owner. If a unit is owned by more than one person,
each owner of the unit may vote or register protest to the casting of
votes by the other owners of the unit through a proxy duly executed by
the unit owner. A unit owner may not revoke a proxy given under this
section except by giving actual notice of revocation to the person
presiding over a meeting of the association. A proxy is void if it is not
dated or if it purports to be revocable without notice. A proxy
terminates one year after its date unless it specifies a shorter or
longer time.
(c) Cumulative voting is not allowed.