Real Estate & Property Law

Three Steps to Minimizing Insurance Premium Hikes

Posted on November 16, 2009
As a follow up to our last article, this entry details a few things that homeowner associations can do to manage their insurance policy premiums -- especially as annual policy premiums continue to spiral upward.(1) Consider taking a higher deductible...

Bad Weather Can Wreak Havoc on Association Insurance Policy Deductibles

Posted on October 21, 2009
As I sit here and stare out the window at the large droplets of rain pelting my office window, I am reminded of the critical role that insurance policies play in community association operations.Of course, here in the Gulf Coast region of the United States weather is always a topic of discussion - regardless of the season - since we are never more than an hour or two away from a massive deluge from the skies above...

Do's and Don'ts for Association Fining Systems

Posted on October 12, 2009
I dusted off this article from June 2002, but the information is as timely as ever. Especially with the sagging economy, more homeowners now more than ever might be letting their maintenance accounts slip or the conditions of their properties slide (because we all know that upkeep costs money, something that's in short supply these days)...

$100-Million Condo for One?

Posted on August 03, 2009
Amidst the bevy of economic horror stories in the news assaulting our daily lives, comes a strange tale of the $100-million condominium project in Fort Myers, Florida where one solitary family lives in a 32-story, 220-unit highrise. The original link to the story can be found here, from a story by the Associated Press that originally appeared over the weekend in Yahoo News...

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One Part "Sigh of Relief" Mixed with One Part "Caution Ahead"

Posted on June 08, 2009
That's what you call the recipe for the Texas 2009 Legislative (regular) Session (although the folks who tracked, lobbied and arm-wrestled with State senators and reps over the record number of POA-legislation might invoke some more colorful metaphors to describe this session!)...

Baked Alaskans

Posted on April 21, 2009
Forgive the play on words in the title, but this article originates from an Alaska Supreme Court case and highlights the notion that Associations shouldn't necessarily interfere in "neighbor v. neighbor" disputes, nor do they have the duty to do so under the deed restrictions in most cases...

Covenants Survive the Developer's Demise

Posted on March 09, 2009
I came across this Washington state appellate court case and felt that the message, while off-jurisdiction, was nonetheless still worthy of repeating here.The dispute in this case centered around a denied ACC application for the subdivision of two residential lots...

Deny it within 30 Days, Or Live With it Forever

Posted on February 17, 2009
This article goes out to all of those homeowners who are civic-minded, vigilant, or crazy enough to serve on their HOA's Architectural Control Committee (ACC). If your Declaration of Covenants, Conditions and Restrictions (the "Declaration") sets forth a time limit for approving or denying homeowner improvement applications (usually a 30-day window), then by all means DON'T IGNORE IT and make sure that the ACC has taken some form of action (and reduced it to writing or some format calculated to reach the applicant) -- or else that charteuse-marbled electric-neon stereophonic bird bath may become a permanent fixture in your neighbor's yard...

Excess Proceeds and Subordinate Liens

Posted on January 12, 2009
One of the Association's primary tools in collecting delinquent maintenance assessments from its homeowners is the enforcement or foreclosure of the lien against a homeowner's real property securing the indebtedness. However, when a superior lienholder such as a taxing entity, a purchase-money lender, or *gasp* the IRS, comes a calling, their lien enjoys "priority" over the Association's lien...

General Guide to Restrictive Covenant Enforcement

Posted on December 09, 2008
It's always good to periodically revisit old practices and check against established norms to confirm that your Association runs a sound deed restriction enforcement program.Generally, and in most cases, it is the Board of Director's (the "Board's") fiduciary duty to enforce the deed restrictions on behalf of the Association membership...

Associations Avoid Getting a "Bad RAP"

Posted on November 12, 2008
Mention "RAP" to legal practitioners and they may audibly groan as they recall their days in law school when the sometimes confusing "Rule Against Perpetuities" was taught in their respective property law classes. The Rule Against Perpetuities, or RAP for short, states that "[a property] interest is not valid unless it must vest, if at all, within 21 years after the death of some life or lives in being at the time of the conveyance...

PART 2: No Duty* to Halt Perceived Nuisances OUTSIDE of the Subdivision

Posted on October 21, 2008
*Ahem. Well, most of the time there's no duty for the Association to thwart nuisance conduct outside the bounds of the Subdivision. But as alluded to in last week's article, there are some scenarios where the Association may have the ability to enforce the deed restrictions and some scenarios where the Association is required to do so...

No Duty* to Halt Perceived Nuisances OUTSIDE of the Subdivision

Posted on October 14, 2008
*part 1 of a 2-part article that explores the duty that {generally} does not attach to property owner associations for nuisance conduct or incidents occurring outside the Subdivision's boundaries; part 2 will examine at least one scenario where the "no duty rule" does not apply to nuisances external to a subdivision's boundaries...

$15 Million for a Pool Drain? You bet!

Posted on August 25, 2008
On December 17, 2007, President Bush signed into law a little-known piece of legislation that could have far-reaching and potentially crushing liability effects on community associations that operate pools as part of the recreational amenities for their membership...

Can a Fence Be held in Contempt?

Posted on May 12, 2008
No, but the homeowner who built it can. Homeowners can be held in contempt of court for acting in bad faith and/or for failing to comply with a Court's order to remedy a deed restriction violation. Even if the violation is as ordinary as an improperly-erected fence...

Put Executive Sessions in their (Proper) Place

Posted on May 05, 2008
Executive Sessions can be effective management tools when used judiciously by the Board of Directors; on the other hand, when misused or even abused, executive sessions can lead to trouble for the Board.Executive Sessions can be used to foster conversation amongst the community association leadership without fear of any reprisal by the non-directors in attendance at a meeting...

If you're going to buy Foreclosure Properties, don't forget that there's a RIGHT OF REDEMPTION

Posted on April 27, 2008
I'm writing this article because of a recent run-in with an ignorant prospector of real estate after she purchased a property at a local county constable's sale. This property belonged to a homeowner who had fallen several years behind on his maintenance assessments to the community association, and simply could not come up with the necessary funds to rescue his home from the clutches of foreclosure...

Timing Isn't Everything

Posted on February 01, 2008
"Timing, degree and conviction are the three wise men in this life."-- R.I. FitzhenryI don't usually write about condominium issues, but I thought that the following article may be beneficial to those readers who are living in condos now, or are contemplating doing so in the near future...

The Tax Code Giveth and the Tax Code Taketh Away...

Posted on December 28, 2007
One of our clients recently suffered the misfortune of having to pay delinquent property taxes on a reserve of land that was essentially gift-deeded to them by a former developer of the Subdivision many years back. This Association had no idea that the property given to them by the former developer still had unpaid assessments on it -- to the tune of SEVEN years' worth of taxes, penalties and interest -- until the taxing authority, in this case, the County, filed suit against the unsuspecting Association in district court...

When in Doubt... PUT IT IN WRITING!

Posted on December 26, 2007
Seasons' Greetings dear readers! A few moons have passed since my last blog entry -- partly due to a chronic malady known as the "human condition" -- it seems that as long as people are people, a lawyer's work is never done. Although life can get hectic at times, the holiday season always provides a measure of respite to reflect on the year that was and, also to catch up on my journal reading (so that I can impart any wisdom gleaned from such articles to my loyal readership)...

Intrinsic Threat: Who's Minding the HOA "Store"? PART TWO

Posted on September 05, 2007
This week's article concludes what I started last week -- talking about how associations can guard against "embezzlement schemes, financial scamming by trusted fiduciaries, and even outright theft by vendors and/or board members." Part Two of the "Intrinsic Threat" covers items 6 through 10 on the association's checklist of conduct to be wary of or actions to take to minimize the risk of directors'/vendors' unscrupulous actions...

Intrinsic Threat: Who's Minding the HOA "Store?"

Posted on August 28, 2007
I recently came across an article in a national community association magazine that was germane to a current client matter that I'm dealing with -- regarding board members misbehaving in their roles as fiduciary to the association under which they serve...

Enforcing Restrictive Covenants Means Exercising Vigilance

Posted on August 21, 2007
A recent case handed down by the Texas Court of Appeals confirms what most of you already know: properly enforcing the deed restrictions in your community requires constant vigilance. In that case, Girsh v. St. John, the defendant homeowners successfully won their appeal when the appellate court ruled that the statute of limitations had run out on the deed restriction violation...

Another Legislative Year Bites the Dust...

Posted on June 15, 2007
I wanted to take a few moments to reflect on the recently-departed entity that was the 80th Regular Session of the Texas Legislature. Every two years, Community Association managers, board members, legal counsel and lawmakers, friends and foes alike, gather 'round the "water cooler" (and the various committee podiums) to debate, craft legislation, and vote about issues of power, control, architectural guidelines, fine systems and homeowner foreclosures, to name a few...

Serving Two Masters: Developer-run Associations

Posted on May 15, 2007
In every Subdivision's infancy, the Developer most often has to take control as the de facto leader of the Board of Directors for the Homeowners Association -- a reality that can create a conflict of interest for the Developer. Developer-appointed Directors are often caught in a dilemma: who do they serve? the Association for which they were appointed, or, the Developer from whom they derived the appointment (with all presumed loyalties attached thereto)? And what about "self dealing?" When are actions taken for the Association really for the betterment of the Association? The Developer-led Association treads a slippery slope when it comes to liability avoidance and justification of its actions...

Don't Be A Nuisance!

Posted on March 13, 2007
It's midnight and the rhythmic sound of drums and a screeching guitar blare out from some youngster's speakers parked outside your home. That's the third time this week. You bury your head in the pillow and hope that the noise will cease, but you are granted no relief...

Beware the D&O Policy Exclusion!

Posted on March 05, 2007
Well folks, it's been awhile since I last posted and I wish I could say that it was owing to a fabulous winter vacation or some other recreational hiatus; the truth of the matter is that business has never been busier, which means that now I have an abundance of new issues and tips to bring to you, the interested public, regarding community and homeowner associations...

PART TWO: How to Spot and Fix 15 Contractor Overbilling Errors

Posted on November 17, 2006
Ok, so we've recovered from the first seven contractor overbilling errors as outlined last week, now as promised, I am filling out the list and telling you about errors # 8 through 15.(8) Use of non-essential personnel. As a rule of thumb, you shouldn't have to pay for your contractor's on-the-job training of new hires, or for personnel that didn't directly affect your community's services or projects...

How to Spot and Fix 15 Contractor Overbilling Errors

Posted on November 06, 2006
No matter how hard we try to avoid them, accidents can and often DO happen. Just ask the stork. Or the auto-insurance adjuster. Or the IRS auditor. A community association is just as susceptible to these unwanted occurrences as any other person or organization...

Painting the Town (Community Common Areas) Red

Posted on September 25, 2006
Here are four simple tips to heed when it comes time to paint the common areas in your Community:(1) Don't let the contractor supply the paint. The Association is much better off supplying the paint for a variety of reasons -- (i) no delays while waiting for paint to arrive on the jobsite; (ii) better control over where and how the paint is applied (and whether all the paint earmarked for your community gets USED in your community - not always a given); (iii) ensure paint quality...

Crime-proofing Your Community's Landscaping

Posted on September 21, 2006
Crime-proofing your Community's landscaping doesn't have to mean expensive overhauls to existing foliage or the uprooting of trees and hedges; rather, crime-proofing simply means that you take steps to eliminate those hiding places that criminal elements may use to their benefit when attempting to commit a crime within your community...

Lifeguard Liability 101

Posted on August 21, 2006
If your Community Association does not use a third-party Pool Management company but instead hires its own lifeguards, be careful for liability pitfalls that can put your summer swim season (and the community's legal status) in financial jeopardy. When hiring lifeguards, the Association needs to ensure that it hires only those qualified individuals that possess a certain minimum level of skills and certifications necessary to provide competent supervision at the Association's pool facilities...

Don't Serve a "Liability Cocktail" at Your Next Association Social Activity

Posted on August 02, 2006
Pool parties, cookouts, and holiday gatherings are all a part of the summer landscape for most community associations. These events often bring the membership together and serve a beneficial purpose: to foster and reinforce the power of community. However, if alcohol is served at any of these community functions, it can be a recipe for liability if proper precautions aren't taken first...

Group Re-Lamping: A "Lights Out" Way for Your Association to Save on Maintenance Costs

Posted on July 14, 2006
Group Re-Lamping refers to the practice of replacing all the bulbs or "lamps" in the Community's common areas on a scheduled basis. Since most light bulbs have a reasonably accurate life expectancy, it should be fairly easy for the Association's Maintenance Superintendent to create a replacement schedule based on this benchmark...

Is Your Association Wilting from High Utility Bills? then AUDIT them!

Posted on June 23, 2006
It's mid-June in Houston and the thermometers here already have heatstroke (just wait until August!) But enough waxing poetic about our weather woes here in the Bayou City, what I wanted to shed some light on during these overheated times is this: a Community Association needs to be wary of overcharging on their utility bills especially during times of high usage (like the summer months)...

Here Comes the Sun... Remember Sports Court Rules to Avoid Summer (legal) Heat

Posted on May 22, 2006
Summer is fast approaching, so I thought it pertinent to discuss some rules regarding sports court usage and management.Most Communities have a common area with some type of sports court -- whether it be for tennis, basketball, volleyball, or something else -- that prove to be a source of value and recreation for its membership...

How Can the Association Force You To Comply With Your Community's Rules?

Posted on April 13, 2006
It's simple. You GAVE the Association that right when you signed the contract for deed on your humble abode. Under Texas statutory law, as well as the Declarations on file for a community, Homeowner Associations typically have the right to restrict use of lands that fall under their scrutiny and assess penalties and other curative measures to ensure that deed restrictions are enforced...

To Warn or Not To Warn...

Posted on March 20, 2006
That is the question that should be haunting board members as more publicity is aimed at the identity and locale of registered sex offenders that may reside in your own community.Does an Association have the duty to notify its residents that a sex offender lives among them? Current caselaw says no, but, this fact doesn't completely render the Association immune from liability...

A 'March Madness' of a Different Kind

Posted on March 13, 2006
Ok, so I'm not talking about the upcoming basketball tournament, but rather, a "madness" (tongue-firmly-in-cheek) of a different sort -- that time honored tradition of volunteering for your homeowners association. Why do I mention this now? Well, since many Associations will be holding their annual meetings in the coming months, we need to be reminded why people volunteer in the first place, and to use those motivations to the Community's advantage so that participation levels in much-needed neighborhood projects maintain sustainable levels...

Dust off the Cobwebs on your Community's Security Policies

Posted on February 22, 2006
It's been awhile since I've posted, so I figured it would be germane to share with you some information gathered while on was on hiatus from my online alter ego, specifically, regarding security issues and potential liability that your Association may encounter...

A Simple Rule to Guide Your Board of Directors

Posted on January 20, 2006
The Board of Directors for any Community Association really has a singular duty to its members: make (the right) decisions on behalf of the community. Of course, that's just stating the obvious really. What standard or guideline can the Board utilize as a template for what to do when taking action on Community issues? It's called the business judgment rule...

Another New Year, Another Assessment

Posted on January 04, 2006
As the New Year tolls and the memories of the holiday season slowly fade into our collective rearview mirrors, Community Associations must focus on assessment collections -- the lifeblood of subdivisions -- that substance which allows the Association to maintain operations for the remainder of the year...

A Stocking Stuffer that Delivers Piece of Mind

Posted on December 14, 2005
So I was perusing the latest Law Technology News and tickling my inner-IT geek fancy when I came across an article regarding micro-sized data storage devices -- these little pack-of-chewing-gum-sized hard drives can be downright lifesavers if you are ever faced with a desktop or laptop crash and there's no tech support available to deliver you from the clutches of mass hysteria and several days' or weeks' worth of data recovery...