Let me caveat this by saying that, unlike a woman discussed in last week’s post, I’m not a lawyer nor do I play one on TV. That said, I can read.
Texas condominium associations formed after January 1, 1994 are governed by the Texas Uniform Condominium Act (TUCA) which falls under Chapter 82 of the Texas Property Code. Originally proposed in 1980, TUCA was trapped in the state legislature for 13 years. It replaced the old Chapter 81 Texas Condominium Act (TCA) dating back to the legalization of condos in Texas in 1963.
TUCA is a more encompassing document than the old TCA. While associations prior to 1994 are not subject to TUCA (unless they vote to be), there are 14 TUCA provisions that all Texas UCA condos must also adhere to.
The reason it’s been TCA/TUCA and not UCA is “Texas.” There is a second-generation “model” Uniform Condominium Act dating back to 1980 written by the National Conference of Commissioners on Uniform State Laws. Texas couldn’t leave well enough alone and fiddled with an estimated one-third of the new statutes. Some good, some really bad.
Overall, TUCA is an encompassing (long) document covering all facets of the creation, operation and dissolution of condominium properties. The bad news for many condo dwellers is that their HOA board members have either never read it or willfully ignore key parts of it.
The even worse news is that in true Texas political form, one of the changes Texas made was to strip TUCA of any state enforcement power. TUCA clearly states that the only recourse for condo owners is a (self-funded) civil suit. This makes TUCA toothless legislation protecting HOA boards by placing enforcement on individual owners’ heads.
Think about it: Regardless of who’s right or wrong, enforcing state statute falls on the individual condo owner to hire and pay for a lawyer to file a lawsuit. Imagine the same burden for theft or negligence? The victim has to find the perpetrator, hire a lawyer, file criminal charges and pay for it to wind its way through the courts. It’s dumb.
But that’s what Texas has done. In a state with one of the highest property taxes in the country, condominium owners have to do the state’s work for them. And in doing the state’s work, an owner is essentially suing themselves and their neighbors – a recipe for unpopularity in addition to the expense – a lose-lose proposition.
Many states use the unaltered UCA condo laws and statutes. Of the states I’ve reviewed ONLY Texas has failed (since the TCA beginning) to create a regulatory agency where owners can take complaints to be investigated and, if worthy, prosecuted. There are also no penalties for an HOA’s failure to comply with any TUCA statute. In fact, Texas went so far that when the TUCA was updated in 2002, they didn’t just ignore enforcement, they specifically excluded the enforcement provision.
Where things often go wrong
In last week’s column, I highlighted stories from condo owners and their experiences with their HOAs. The complaints centered around secrecy, fiscal mismanagement, and crazy people (it’s hard to legislate for crazy). Based on that, there are portions of TUCA that discuss HOA meetings:
§82.108. Meetings (UCA §3-108)
Open Meetings. TUCA adds (b) requiring open meetings and permitting closed executive sessions. However, TUCA is very specific how closed executive sessions are held and what topics can be discussed.
(b) “Meetings of the association and board must be open to unit owners, subject to the right of the board to adjourn a meeting of the board and reconvene in closed executive session to consider actions involving personnel, pending litigation, contract negotiations, enforcement actions, matters involving the invasion of privacy of individual unit owners, or matters that are to remain confidential by request of the affected parties and agreement of the board. The general nature of any business to be considered in executive session must first be announced at the open meeting.”
TUCA is saying that closed executive sessions are permissible but only under specific circumstances, covering specific topics and only AFTER the executive session is announced at an open meeting.
And remember, (a) “… meetings of the association may be called by the president, a majority of the board, or unit owners having at least 20% of the votes in the association.” So if an HOA board is being secretive, 20% of owners can force a meeting.
Meetings and particularly meeting notices are important to understand. Owners need to know how HOA meeting dates and times are communicated. This may be spelled out in the HOA documents, but TUCA also offers a baseline requiring owners be notified individually. So if a condo announces meetings by taping a sheet of paper to the side of a washing machine, there may be bigger issues afoot. Properly-run HOAs should err on the side of over-communicating. They should send out an agenda with meeting notice and promptly supply meeting minutes after the each meeting.
Aside from state statutes, there are also HOA-specific documents that are provided at the time of purchase. These can supersede some of the TUCA rules (where TUCA specifically bows to HOA Bylaws). But mostly, the building-specific bylaws and rules cover topics specific to each building – noise, renovation, behavior (e.g. swimming pool rules), etc.
If you’re the owner of a condo who isn’t communicating well, perhaps reminding (or likely educating) them about the state statutes will help change things.
All prospective condo owners must take the time to read the “boring” condo documents to understand their rights and building rules. I know this is NOT common because for every condo I’ve ever owned, management was stunned that I’d actually read every shred of paper they sent. In one building, this gave me an interesting historical window into the original land conveyance by the King (the monarch, not Elvis)! In another building, water rights were detailed in case of drought or changes in borders.
You may need a glass of wine to get through it all, but forewarned is forearmed.
Remember: Do you have an HOA story to tell? A little high-rise history? Realtors, want to feature a listing in need of renovation or one that’s complete with flying colors? Shoot Jon an email. Marriage proposals accepted (as soon as they’re legal in Texas)! firstname.lastname@example.org