Full question:
Our home is in a trust. We belong to an HOA. My father is administrator of the trust. He has assigned me (his daughter) to represent the trust with the HOA. As the representative, I feel I should have all rights of any homeowner such as being on the board or holding an officer position. What statute should I use to force the board to accept the representative of this property with all homeowner rights? Also, if the board does not accept this representative, do we have to pay homeowners dues? (Taxation without representation?)
- Category: Real Property
- Subcategory: Homeowner's Association
- Date:
- State: Texas
Answer:
The answer depends on the terms of the governing documents, bylaws, and contracts of the association involved. We suggest you read the terms of the bylaws, covenants and restrictions, and other governing documents carefully for procedures related to representation of homeowners. It is possible the bylaws provide for placing dues in escrow in the event of a dispute, but the liability for dues is a contractual obligation separate from the right to hold a position on the board.
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?
The following TX statute applies to condominiums:
§ 82.110 PROP. Voting and Proxies
§ 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.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
