Texas Condo Laws: TUCAn or TUCAn’t? Jon Anderson Breaks Down Condo Association Laws

Condo columnist Jon Anderson, like Bob Odenkirk of 'Better Call Saul,' is not a real lawyer. But he can read, so there's that.

Condo columnist Jon Anderson, like Bob Odenkirk of ‘Better Call Saul,’ is not a real lawyer. But he can read, so there’s that.

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.

READ THEM

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)! sharewithjon@candysdirt.com

18 Comment

  • Important to know when this document was written since legislature has changed some of the statutes particularly in 2015.

  • We have a small HOA. I am the treasurer. We have been self managing for more than a year. Because we don’t have a property manager, I learned as much as possible from our last “assistant” and have been calling all the vendors and taking the responsibility of managing as far as the repair and maintenance concerns. A few months ago, the board voted to begin paying me for this job which was far more time consuming than just the job of treasurer. When we had our meeting, I was told by an owner that she read in the governing documents that a person cannot be an officer and a “manager.” Does anyone have experience with this? I am not claiming to be a property manager since it is my understanding that such a person or company needs to include a real estate agent.

  • Hello Jon and Candy — My HOA’s annual meeting is this coming Monday and I found your Condo Law post very helpful, especially since our board at Sable Ridge in Dallas is VERY CORRUPT. 🙁

    You’ll be shocked by this video I produced in 2014 to try an get legislative help. It’s titled: HOA Hell
    https://www.youtube.com/watch?v=t8YveThMHEM

    My Question: At our board’s 3rd qtr meeting they went into executive session and gave NO announcement of what would be discussed. In that meeting, they secretly appointed 2 additional board members (cronies).
    Is that allowed? I wish Chapter 209 applied to condos because it’s now illegal for Subdivision HOAs.
    –Thank you 🙂

  • Clarification to my initial question:
    Our HOA has a 3 person board and (according to our bylaws) can have up to 5.
    Our board appointed 2 additional board members in an executive session. With NO announcement prior that this would be done. Can they do this?

    • Like all things condo/HOA related. They can do whatever owners allow them to get away with. Your only recourse is to sue. There is no government body charged with enforcing or mediating disputes. HOAs are essentially another country.

  • Thanks Jon — That’s very depressing. This may be naive on my part, but why do you suppose our state lawmakers allow their constituents to be subjected to the wrath of out-of-control HOAs??
    There are so many other laws that protect us from lesser offenses, yet like you said, an HOA can operate like a whole other country…thus contrary to the unalienable rights from our Declaration of Independence.

    • mm

      Crystal ball: You’re going to enjoy tomorrow’s post. There are many states who do not provide any enforcement of what condo/HOA laws/regulations they have. Some claim that there wouldn’t be enough complaints to warrant it, but as it would likely be buried out of sight, I think it wouldn’t be busy because no one could find the agency responsible.

  • WOW I will definitely read your post! And I can see that…”Enforcement, who the heck do I call??” lol
    btw I need to trade in my Magic 8 Ball for a Crystal Ball !!

  • I have a real issue. During Harvey I noticed my floor were bleeding water. The very next day tje buckled. After 4 weeks of trying to fund the source. I had tje drywall removed and found the foundation wasnt poured completely. Years if damage below my floors. Now my Hoa/board members do not want to cover or share tje damage.. what can i do?

    • mm

      We just replaced buckled or “cupped” floors. It took months for the damage to occur, and we had to remove floors, felt, subflooring and let the slab dry out. I do not understand why there was drywall under your floors? This seems like something you would address with the builder/developer. What do mean by “completely” — not dry, not to the edge of the wall?

  • For condo associations, the Texas statue seems clear that we may view attorney invoices, but our new BOD and the attorney representing them (and us) says they are privileged. Our prior counsel said the opposite and we used to provide these, with redaction when necessary. I can’t find any case law that states this. In fact for POAs, the exact opposite is clarified, that invoices are NOT subject to privilege. But I cannot find anything for Condo Associations.

  • I live in a condo community where we all have stand-alone homes not attached to other homes. At our appraisal district all lots are listed with the exact same square footage even though each lot has different square footage. This is used to set our value. My lot happens to be smaller than many other lots. Can anyone tell where I can find the Texas condo law stating this is OK to do. Is there anyway to fight it?

    • mm

      The best place to start is DCAD to see if they can manually alter your lot size. If not, I don’t think this is a TUCA issue, it’s from when the community was first platted.

  • This may sound like a late April Fool’s joke but here goes: I am president of a condo HOA in an historic building with 24 residences and one commercial space on the first floor; I’ve held this position for almost three years. We have a fantastic group of owners and a board that works together to get things done, including lowering operations costs, getting insurance over payments from TWIA refunded, etc. This is like heaven compared to so many of the horror HOA stories posted.

    The current board thinks one of most significant long-term benefits we could offer the HOA is to somehow even the odds IF at some point there were rogue board members who went crazy, as apparently happens often. I can shut off water and/or file a lien if someone is in arrears 90+ days…but no can touch me unless they hire a lawyer out-of-pocket to stop me from breaking our Rules or terms of contract in our Declarations as it stands now.

    My question: Do you, or any reader here, have any suggestions how we can change the rules of the game so that the lack of enforcement of TUCA statutes does not mean owners have to resort to personally hired lawyers to enforce the HOA’s defined responsibilities? How would we go about making sure–as much as humanly possible–that rogue officers/directors in the future would have to face consequences that automatically kick in when they break the rules, just as owners do now?

    Any thoughts appreciated…

  • Can you refer me to your blog site? OR recommend one for Texas condo owners. My email is NJL2B@aol.com