I hear that residents are still getting letters. That’s unfortunate. We may need to go with the 4.13 route.
This is a copy of the email (Update # 2) that went out a few weeks ago to everyone that is signed up to support the Amendment. I am publishing it here for anyone that hasn’t had a chance to read it yet.
UPDATE 2:
Valley Lodge Amendment Update and much more
It’s been one week since the HOA meeting and presenting the Amendment to the board.
We have a lot to talk about in this UPDATE.
First, we will discuss what transpired in the HOA meeting this past Wednesday evening. But then we are also going to do a bit of a deep dive into the current Valley Lodge deed restrictions regarding vehicle storage, including the Texas Statute of Limitations on enforcing deed restrictions – which may be relevant to many, if not most, of our sudden violation notices.
DISCLOSURE!
The most important thing to keep in mind: I AM NOT AN ATTORNEY AND THIS IS NOT LEGAL ADVICE. I have ZERO hours of legal training! Zero. Nada. Zilch!
Why am I telling you this? Because after I cover what was said in the meeting regarding our amendment, I want to touch on some of the court cases and statutes that may or may not have a bearing on the enforceability of the current interpretation. These are things that you should discuss with your attorney if you have any legal questions in regards to any of this stuff, especially if you feel you are being unfairly targeted by any HOA, none of this is legal advice, because I’m not an attorney! I will include a direct link to any court case I mention, along with links to any other publication mentioned.
Okay, now that that’s out of the way, let’s talk about the meeting Wednesday night.
First, a great big, giant THANK YOU to everyone that could make it out! I know that it’s not easy to take off a couple of hours like that on a weeknight, most of us are busy with work, kids, chores, or with things a heck of a lot more entertaining than sitting (or standing) at our city hall listening to people complain. Nevertheless, in a meeting that generally has an attendance of 5 or 6 people, these last two meetings have been packed, all seats were taken and standing room only in the back. It was impressive. This, if nothing else, should make a serious statement to the board. If they all listen to that statement may be anyone’s guess, but I hope they do though.
After calling the meeting to order, the first order of business was for the Board to announce, and formerly appoint, Jay Gootee for the vacant spot on the board. Jay was a former president of our board and we believe has the best interests of the homeowners in mind. The Open Session was then announced and first up was homeowner Susan LaDart and she started things off by requesting that ALL available board minutes be posted as downloadable links from CIA Services. This is important so that we can all see discussions of the HOA Directors and often their votes, and most importantly we will have a record of them. The board said they would consider it. As it is now, they have added a few, but there are many to go. This is very important for transparency and accountability, thank you Susan for requesting this.
You can view or download a number of those minutes here:
https://www.ciaservices.com/cia-community-documents.php?id=479
Next was me. I had printed out about 30 or 40 copies of a two-page PDF – the first page was the amendment in what I believe is its final iteration. The second page was a very short synopsis titled “Why Is This Amendment Needed”. I gave each of the HOA directors a copy and gave one copy to the CIA liaison. The remaining copies were taken by volunteers to hand out to homeowners in the audience.
After a quick introduction as to what we were all holding in our hands, I simply stated that after speaking with the CIA representative over the last few weeks, we had both come to the agreement that it would be in everyone’s best interest if we had the Board’s support and therefore the CIA’s resources, for doing a proper mail-out ballot to all of the owners in Sections 2 and 3 for a simple Yes/No vote to the amendment. We did mention that although we agreed that this would be the smoothest process, we were also quite willing to move forward without them, however, we believed that taking that route had the danger of creating animosity where none was wanted.
Here is a link to the exact PDF we handed out:
https://valleylodge.fm1093.com/wp-content/uploads/2023/05/Amendment-to-HOA-as-presented.pdf
I asked the board to discuss this proposal and to let me know their decision. I should also mention that one of the board directors was absent, Karl Chapman was unable to attend. We really need all 7 directors together for a fair discussion.
After much chatter between the directors and the homeowners, Kelli Matula (the current president) informed me that the board would consider the amendment as we had presented it, but that they themselves may want to reword it or even rewrite it before considering sending it out for a vote, and that they may consult us for our opinions.
I reminded the president that we have overwhelming support from the homeowners with the current wording of the amendment and any more changes risk alienating that support.
Also, by the way, the exact Board Meeting Minutes in which the following quote can be found is:
https://www.ciaservices.com/docs/VLPOA/2021-06-23.pdf
Excerpted from Valley Lodge Minutes June 23rd, 2021:
“Deed Restriction opinion provided by Ralph Troiano the President of C.I.A. Services and one of the first managers for Valley Lodge on RVs etc.
Ralph advised on RVs, campers etc. the documents state screened from view means behind the front face of the house. The documents don’t say how many you can own so the only thing that is enforceable would be if not parked behind the face of the house.”
It is on the very first page.
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That about wrapped up the direct discussion of the Amendment, but there was some more discussion to follow that was not only relevant to our cause, but I felt was quite disturbing as well.
“Deed Restrictions in general tend to be vague so that we can just make stuff up.”
Okay, that may not be the exact quote, and it may have a tiny bit of hyperbole written into it, but not too much. You tell me. I am going to show you the exact quote from an email in just a moment, typos and all, from CIA Services to a homeowner in Section 1.
If you’ll recall, Section 1 has no deed restrictions that mention parking of vehicles/trailers/campers, etc. That’s why we have made this amendment we’re working on particular to Sections 2 and 3.
So a little background on this email I’m about to show you. I received a call last week asking me if I had heard if Section 1 deed restrictions had been changed. No, I had not heard of anything like that. Why, I ask. Well, it would seem that this homeowner in Section 1 purchased a new RV in 2016 after the first flood. She showed me a photo of it on the property, it’s a good lookin’ 5th wheel model with a well-maintained appearance and nicely cut lawn surrounding it. It is parked well beyond the rear of her home near the back of the property line. It is clearly visible from the road, and it looks absolutely fine.
Then, after 7 years in its location, she just received a letter from CIA requesting that it be removed, she responded to the CIA and requested the deed restriction they were referring to. Here’s where it gets interesting.
I am redacting personal information, but here is the main body of the email sent to her from CIA Services:
“Thank you for reaching out.
Regarding your RV, Deed Restriction in general tend to be vague (this is purposeful). Additionally, it is an unreasonable expectation that every single type of violation be specifically listed in the deed restrictions. You will find no community restrictions that encompass all violations. C.I.A. Services is charged with the enforcement of the restrictions at the direction of the Board of Directors. In this particular case the Association is relying upon the ‘Nuisance Clause’ in the Section 1 restrictions as it’itss basis for enforcement.
(7) No noxious or offensive activities shall be carried on upon any lot or tract, nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood
Now you tell me, does that not sound exactly like:
“Deed Restrictions in general tend to be vague so that we can just make stuff up.”
That’s what it sounded like to me. And I am pretty sure it flies in the face of Texas contract law.
Anyway, during the meeting, this email quote was read out loud, and then questions arose. The CIA representative seemed to agree with it completely, and although none of the present HOA Directors vocally agreed with it, I was watching them closely and the body language of at least two and maybe a third certainly seemed to agree with it also. I find this very disturbing, and quite possibly the underlying cause of all of the hubbub we’re suddenly having regarding campers, boats, cars, and trailers.
It seems that in their mind, this isn’t so much about what the restrictions say, or even how they have been enforced over the decades. But it would seem that a few key players truly believe that they can just change the interpretation at will. I find this wholly unacceptable. It was this discussion that prompted me to write this update to include some of the legal issues that I have had the opportunity to read about in the last few weeks.
Again, I am not an attorney and this is not legal advice (see disclaimer up top!)
In the following paragraphs, I will discuss a few topics that have a direct bearing on the enforceability of a deed restriction.
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Statute of Limitations of a restrictive covenant
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Ambiguity in a covenant
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Interpretation of Restrictive Covenants
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Abandonment and Waiver of a restrictive covenant
I am also going to touch base on the Valley Lodge BYLAWS, specifically paragraph 4.13 where we have a straightforward remedy in place for removing one or more board members. A fairly simple process was put into place for the protection of the homeowners.
Let’s now go to the Texas Homeowners Association Law book. You can get your copy here: https://www.amazon.com/Texas-Homeowners-Association-Law-Associations/dp/1631299301
The “Statute of Limitations” is a statutorily created time period within which a party must bring a lawsuit against another party for an existing cause of action.
I am now just going to quote directly from pages 529 through 532 of the aforementioned book:
“The Statute of Limitations period to bring a lawsuit to enforce a Restrictive Covenant is four (4) years from the date the cause of action for breach of the Restrictive Covenant accrues”
The book then goes on to explain this in more detail:
“A cause of action for breach of a Restrictive Covenant accrues upon the actual breach of the Restrictive Covenant by the Homeowner. If a lawsuit to enforce a Restrictive Covenant is not brought within four (4) years of the Homeowner breaching such Restrictive Covenant, then such cause of action will be “time-barred” by the Statute 0f Limitations, and the Homeowners Association will not be able to enforce the Restrictive Covenant against such Homeowner as to that specific violation.”
“If, however, the existence of a restrictive covenant violation is undiscoverable or was fraudulently concealed, then the four-year Statute of Limitations period will not start running until the violation is, or reasonably should have been, discovered. This circumstance is referred to as the “Discovery Rule,” and it is applicable in “cases where the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable.” An injury is considered to be inherently undiscoverable if, by its nature, it is unlikely to be discovered within the prescribed Statute of Limitations period despite due diligence. In the context of Restrictive Covenant enforcement, the Discovery Rule may become applicable if a restrictive covenant violation is inherently undiscoverable because it is shielded from public view, such as behind a privacy fence. In such circumstances, the accrual of the cause of action for breach of the Restrictive Covenant, which starts the running of the four-year Statute of Limitations period, is deferred until the Homeowners Association knows of, or in the exercise of reasonable diligence should have known of, the restrictive covenant violation. In such event, a lawsuit to enforce the Restrictive Covenant must be brought within four (4) years of the date the Homeowners Association knew of, or should have reasonably known of, such restrictive covenant violation.”
“A second circumstance that delays commencement of the Statute of Limitations period is known as the “Doctrine of Fraudulent Concealment.” Similar to the Discovery Rule, the Doctrine of Fraudulent Concealment also defers the accrual of a cause of action until the plaintiff discovers, or should have discovered, the deceitful conduct or facts giving rise to the cause of action. The Fraudulent Concealment Doctrine defers the accrual of a cause of action because “a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations have run.” For the Doctrine of Fraudulent Concealment to apply, a Homeowners Association must prove that the defendant-Homeowner: (1) had actual knowledge of the restrictive covenant violation; (2)intended to conceal the restrictive covenant violation; and (3) did conceal the restrictive covenant violation from the Homeowners Association and the other Homeowners in the community.”
Your big question: Has your (fill in the blank) been parked in your driveway for at least 4 years in the same spot and you’re just now getting a violation notice?
The book goes on to cite the various court cases and statutes that support this chapter. Your attorney, if he or she deals with HOAs, will most certainly have a copy of this book and access to those court cases.
Now let’s move on to Abandonment and Waiver.
This topic covers about 6 pages of text in the same book, see pages 531 through 536. I’m not going to go into too much detail here, but it has some serious implications on the ability of an HOA to enforce a restriction if they have made a long-standing habit of not enforcing it in the past. Ask your attorney about this.
I will give this one paragraph from the section:
“In order to establish abandonment or waiver, the offending Homeowner bears the burden of proving that the other Homeowners in the applicable Subdivision or Condominium Development and/or the Homeowners Association have voluntarily and intentionally relinquished their right to enforce the applicable Restrictive Covenant.92 To satisfy this burden, the offending Homeowner must prove that the violations then existing were so extensive and material as to lead an “average person” to reasonably conclude that the subject Restrictive Covenant had been abandoned.93 Among the factors to be considered by the “average person” are the number, nature, and severity of the then existing violations, any prior acts of enforcement of the Restrictive Covenant, and whether it is still possible to realize a substantial ·degree of the benefits intended through the Restrictive Covenant.”
The last thing regarding the restrictive covenants I want to address is the questionable idea that an HOA can interpret the restrictions any way they see fit or according to a personal agenda.
This time I just want to give you a complete quote, with some key points highlighted in bold by me, from the Analysis page from the Texas Court of Appeals, Third District, Austin. This is from HICKS v. FALCON WOOD PROPERTY OWNERS ASSOCIATION
ANALYSIS
Hicks brings three issues on appeal. In her first issue, she challenges the district court’s judgment awarding relief based on jury findings that she kept an RV on her property “without an approved septic system” or “without . . . being hooked up to an approved septic system.” In her second issue, Hicks complains of the judgment awarding monetary and injunctive relief for her “failing to complete” her house “as to exterior finish and appearance.” Assuming we sustain either or both of these issues, Hicks argues in her third issue that we should reverse the award of attorney’s fees to FWPOA.
Standard of review
Several of Hicks’s appellate complaints turn on construction of the Restrictions. During trial, some of the FWPOA officers who testified expressed the view that the association’s board of directors have discretion to “interpret” the Restrictions as they see fit to “benefit the community.” Whatever value the goal of “benefitting the community” might have when resolving land-use disputes through neighborly diplomacy, if courts end up getting involved, we must construe restrictive covenants according to contract-law principles. Pilarcik v. Emmons,966 S.W.2d 474, 478 (Tex. 1998); Owens v. Ousey,241 S.W.3d 124, 129 (Tex. App.-Austin 2007, pet. denied). We construe restrictive covenants as a whole in light of the circumstances at the time they were enacted, giving effect to every sentence, clause, and word of a covenant, and avoiding constructions that would render parts of the covenant superfluous or inoperative. Pilarcik, 966 S.W.2d at 478; Owens, 241 S.W.3d at 129. Our primary concern is to ascertain and give effect to the true intention of the drafters as expressed in the covenants. See Gulf Ins. Co. v. Burns Motors,22 S.W.3d 417, 424 (Tex. 2000); Owens, 241 S.W.3d at 129. We focus not on the drafters’ subjective intent, but on their objective intent, as it is reflected in the written covenants. See Lopez v. Munoz, Hockema & Reed,22 S.W.3d 857, 861 (Tex. 2000);Tien Tao Ass’n v. Kingsbridge Park Cmty. Ass’n,953 S.W.2d 525, 528 (Tex. App.-Houston [1st Dist.] 1997, no pet.); Travis Heights Improvement Ass’n v. Small,662 S.W.2d 406, 410 (Tex. App.-Austin 1983, no writ). When terms are defined, those definitions control our construction of the covenants. See Provident Life & Accident Ins. Co. v. Knott,128 S.W.3d 211, 219 (Tex. 2003). If terms are not defined, they “are given their plain, ordinary, and generally accepted meanings” unless the instrument itself shows them to be used in a technical or different sense. See Valence Operating Co. v. Dorsett,164 S.W.3d 656, 662 (Tex. 2005). Construction of restrictive covenants—and whether particular facts constitute a violation—presents a question of law, which we review de novo. Owens, 241 S.W.3d at 129; Indian Beach Prop. Owners’ Ass’n v. Linden,222 S.W.3d 682, 705 (Tex. App.-Houston [1st Dist.] 2007, no pet.).
If a restrictive covenant has a definite or certain meaning, it is unambiguous as a matter of law and it should be construed liberally to effectuate the parties’ intent. Tex. Prop. Code Ann. § 202.003 (West 2007); Pilarcik, 966 S.W.2d at 478; Owens, 241 S.W.3d at 129. However, to say that an unambiguous restrictive covenant is to be “liberally construed” does not mean that it necessarily restricts the land use in dispute—the covenant, properly construed, may unambiguously state otherwise. See Owens, 241 S.W.3d at 130 (restrictive covenant provisions authorizing amendments or extensions could not be “liberally construed” to permit amendments or extensions after expiration of express 25-year term). Also, if the covenant is ambiguous (i.e., subject to more than one reasonable interpretation), doubts are to be resolved in favor of the free and unrestricted use of the property, and any ambiguity must be strictly construed against the party seeking to enforce it. Wilmoth v. Wilcox,734 S.W.2d 656, 657 (Tex. 1987). A party seeking to enforce a restrictive covenant has the burden of proof at trial to show that the restrictions are valid and enforceable. Gillebaard v. Bayview Acres Ass’n,263 S.W.3d 342, 347 (Tex. App-Houston [1st Dist.] 2007, pet. denied).
This case can be found here:
https://hoapulse.com/component/k2/item/11294-hicks-v-falcon-wood-property-owners-association
Lastly, for now, I want to mention that our deed restrictions do give us another option whenever we find it is needed, for whatever the cause.
We must remember that our HOA Directors are elected or appointed as individuals, and sometimes just two or three individuals can have an undesirable impact on the whole group.
Section 4.13 of our Bylaws
4.13 Removal. Any Director may be removed, with or without cause, by the vote of a majority of the Members of the Association at a special meeting of the Members called for that purpose. In addition, at any meeting of the Board of Directors where a quorum is present, a majority of the Directors may remove any Director who has had three (3) consecutive unexcused absences from called Board meetings prior to the meeting at which the vote is taken.
This UPDATE is so much longer than I intended it to be, but there is a lot of food for thought I hope.
One last time, I am not an attorney and this is not legal advice!
Let me know your thoughts!
~Johnny Q