Flashcards in Amendments to Dedicatory Instruments Deck (107):
If we are amending the Bylaws, Declaration, or Articles, where should we look first to see the requirements for amendment?
The document itself.
TX Biz Org Code 22.105
What is the process to amend an Articles of Incorporation if an Association is managed by a Board of Directors and its Members have voting rights (like almost all HOAs)?
1) Board must adopt a resolution that specifies the proposed amendment and directs the such proposed amendment be submitted to a vote of the Members at an annual or special meeting.
2) Written notice containing the proposed amendment or a summary of the changes must be given to each member in the meeting notice (10-60 days or 20-60 days prior to meeting). May transmit notice by mail or email.
3) An amendment to an Articles of Incorporation is considered a "Fundamental Action" under the Texas Business Organizations Code. As such, it will require the affirmative vote of at least 67% of all members within the Association.
1) Articles may require a greater percentage vote to amend.
2) If there are multiple classes of homeowners, then you must have at least 67% of each class.
How is the process to amend an Articles of Incorporation different if the HOA has no board of directors and is managed by its members?
There is not Board resolution. There only needs to be:
1) Written notice of the meeting in accordance with 209.0056 (10-60 days)
2) Vote of 67% of membership as it is a fundamental action.
If the Board and Association both vote and pass an amendment to the Articles of Incorporation, what must happen next?
Association must sign and file a Certificate of Amendment with the Texas Secretary of State
What are the requirements for a Certificate of Amendment of an Articles of Incorporation?
1) Name of filing entity
2) State entity is a Nonprofit entity
3) Any provision of the Articles that are added, deleted, or amended. If deleted, you simply need to state the section. If amended or added, then you need the text.
4) Statement that amendment has been approved in accordance with the governing documents of the Association and applicable Texas law.
Will an amendment to an Articles of Incorporation affect any existing claims or causes of action against the Association?
No pending lawsuit has to be abated or refiled because of a name change brought about because of an Amendment to an Articles of Incorporation.
With regards to amendment of Bylaws, what does Section 22.102 of the Texas Business Organizations code state?
Section 22.102(c) of the Texas Business Organizations Code. It states:
The Board of Directors may amend or repeal the bylaws or adopt new bylaws, unless:
1) The certificate of formation wholly or partly reserves the power to amend in the members;
2) The management is vested in the members; or
3) The bylaws expressly state that they may not be amended by the board of directors.
Section 209.00593 of the Texas Property Code provides that any board member who term has expired must be elected by members. Further, any board member may be appointed to fill a vacant position shall serve for the remainder of the unexpired term of the position. May a board unilaterally amend its bylaws to comply with that provision?
Yes. Per Section 209.00593(b), the board of a POA may amend the bylaws to provide for elections to be held in accordance with the provisions of 209.00593.
May a POA amend its bylaws in a manner that would cause them to conflict with the Declaration?
If you want to amend a condominium declaration, where should you first look?
The condominium declaration itself.
Per TPC 82.067, what are the requirements to amend a condominium declaration?
NOTE- this section is for Post-TUCA condos only.
A declaration, including plats and plans, may be amended only by the affirmative vote of 67% of the members of the association, or any larger percentage that the declaration specifies.
Exception- If the condominium is restricted to nonresidential use only the declaration may specify a smaller number.
What is the procedure to amend a Pre-TUCA condo per TPC 81.111?
Per TPC 81.111, a condominium declaration may be amended only by the affirmative vote of 67% of the members of the association.
What are the major differences in the amendment process between TPC 82.067 and TPC 81.111?
1) If the property is restricted to non-residential use, the declaration may specify a smaller percentage of the vote to amend. if it was filed post TUCA. PreTUCA does not have this exception.
2) TUCA associations must use the declaration amendment vote percentage if it is higher than 67%. Pre-TUCA associations must always use 67%.
3) TUCA associations may amend their declarations in limited circumstances without approval of the owners. Section 81 does not allow these amendments without approval of the owners. Examples include:
a) Reallocation of limited common elements and unit boundaries by owners.
b) Subdividing units
May Pre-TUCA owners reallocate their interest in the limited common elements or subdivided their units and record an amendment to the declaration (with only board approval)? May they do so without involving members?
No. They must involve the members.
TUCA unit owners may do so without involving the members.
How may an amendment to a condominium declaration be enacted under TPC 82.067?
Applicable to post TUCA only.
1) By written ballot that states the exact wording or substance of the amendment and specifies the date by which a ballot must be received;
2) At a meeting of the members after written notice of the meeting has been delivered to each member stating the purpose of the meeting is to consider an amendment to the declaration; or
3) Any other method permitted by the Declaration.
What is the statute of limitations to challenge an amendment to a TUCA condominium amendment?
1 year from the date the amendment is recorded.
May an amendment to a condominium declaration create or increase special declaration rights?
May an amendment to a condominium declaration do any of the following:
1) Increase the number of units?
2) Change boundaries of a unit?
3) Alter or destroy a limited common element?
4) Change a unit's allocated interest?
5) Change use restrictions on a unit?
Only if approved by 100% of the votes in an association or unless otherwise provided in TUCA (eg may change unit boundaries of TUCA unit upon owner agreement and board agreement)
May an amendment to a TUCA declaration increase or modify the obligations imposed by a declaration on a declarant or reduce or modify the rights granted by a declaration to a declarant?
No, not unless the declarant agrees.
What are some circumstances where a declarant in a TUCA association may record an amendment to the declaration without the vote of the member?
1) Curing a defect with a proper execution of the Declaration
2) Records new plats or plans for purposes of exercising a developmental right
Does the board need a vote of the members to record an amendment to the declaration upon condemnation of a portion of the condominium?
This is applicable to pre and post TUCA.
If allowed by the Declaration, may a Board of a condominium amend the declaration without a member vote in order to meet the requirements of FNMA, Federal Home Loan Mortgage Corporation, FHA, or VA?
Member approval is not needed if stated in the Declaration.
Before a condominium association may adopt a new dedicatory instrument or amendment to a dedicatory instrument, how must the association give notice of the amendment to the condominium members?
1) Give each unit owner a copy of the amendment or change that would be made.
2) It must be given to each member between 10-20 days prior to the meeting. It may be mailed or hand delivered to each owner (with receipt)
Post TUCA Only
Who must prepare and execute an amendment to a condominium declaration?
President of the association unless another officer is designated to sign by the board.
Is an amendment a dedicatory instrument per TPC 202 that must be recorded in the county clerks office?
It has no effect unless it has been recorded in the county clerks office in every location in which the property subject to the amendment is located.
Does TPC 209.0041 apply to a POA that is subject to Chapter 552 of the Texas Government Code?
What is the rule for amendment of a declaration of a Residential Subdivision pursuant to TPC 209.0041?
A declaration may be amended only by a vote of 67% of the total votes allocated to members entited to vote on the amendment.
If the declaration contains a lower percentage, then the declaration controls.
If the declaration is silent, then the general rule (67% control)
If a state or federal law requires governmental approval of an amendment to a declaration, must it be approved by that entity to be valid?
Does 209.0041 apply to a voluntary subdivision or non-residential subdivision?
Does 209.0041 apply during the developmental period?
What is the developmental period?
The period of time stated in the declaration during which the declarant:
1) Facilitates the development, construction, and marketing of the subdivision; or
2) Directs the size, shape, and construction of the subdivision.
Pursuant to TPC 209.0093, may a residential subdivision amend its declaration to include or remove the authority to foreclose a lien on real property for unpaid assessments?
It may do so by a vote of 67% of the members.
What percentage of members will it take to petition the association to hold a vote to remove or add foreclosure authority pursuant to TPC 209.0093?
If they obtain this number, a special meeting must be called to hold the vote.
To what is subdivisions is TPC 209.0093 (removal or adding FC authority) effective?
All subidivision associations.
Including those that are not residential subdivisions.
Also subdivisions that are subject to Chapter 552 of the Texas Government Code.
Subdivisions that are during and after their developmental period!
Most modern restrictions contain a provision for amendment, however, if there is no provision for amendment or statutory provision for amendment, what does it take to amend the restriction?
Under common law, it will take the assent of all affected property owners to modify or extend restrictions.
Are restrictions to be liberally construed to give effect of its purpose and intent?
Yes Per TPC 202.003.
Does a party have the unilateral right to terminate or modify restrictions if they created the restrictions?
What is the three part test under Hanchett on whether a party has authority to amend restrictions?
1) The instrument creating the restrictions establishes the right to amend and method of amendment;
2) The right to amend implies only those changes contemplating a correction, improvement, or reformation rather than a destruction.
3) The amendment is not illegal or against public policy.
May owners amend their restrictions to "single out" a limted area for special treatment?
No. They may not amend to discriminate.
May restrictions be amended to effectively terminate them?
No. The right ot amend implies only correction, improvement, or reformation.
What are the restrictions on declarant amendment of restrictions?
1) Declarant must maintain an interest in the land; and
2) Amendment may not be arbitrary, capricious, or discriminatory.
May restrictions be amended to establish limits on land use for the benefit of a neighboring piece of property (i.e. limitations on tenants)
To what areas is Chapter 201 applicable?
A residential real estate subdivision located in an area with:
1) City with a population of 100,000 or within the extrateretorial jurisication of that city
2) The unincorporated area of a county having a population of 3.3 mil or more.
3) The unincorporated area of a county having a population of 40,000 or more next to a county having a population of 3.3 million or more.
4) The incorporated are of a county having a population of 40,000 or more that is adjacent to a county having a population of 3.3 million or more.
If a subdivision is ever within one of these categories, it will always be subject to Chapter 201, even if the population changes.
Does chapter 201 apply if the restrictions automatically extend for long periods of time or by agreement of the owners?
No. Chapter 201 does NOL apply if the restrictions:
1) Provide for automatic exentsion for an indefinite number of successive periods of at least 10 years subject to a right of waiver or termiation by a specified percentage in the restrictions (percentage must be less than 50%); or
2) Provide for an indefinite number of extensions of at least 10 years by written and filed agreement of a specified percentage of owners (percentage must be less than 50%).
In essence, Chapter 201 only applies to subdivisions that have a declaration that is valid only for an initial period of time which does not automatically renew for successive periods by its own terms or impose a very high requirement to amend.
Does chapter 201 apply if the restrictions provide for their amendment by agreement of less than 75% of the members?
What is the purpose of Chapter 201
There are residential subdivisions with expiring declarations in areas where there is no zoning.
There are also residential subdivisions that have racial discriminatory provisions in their dedicatory instruments.
Chapter 201 provies a procedure for extending the terms of, amending, creating, or removing restrictions.
Chapter 201 allows to remove restrictions related to race, religion, or national origin that is void or unenforceable under US Law.
How are restrictions amended under Chapter 201 of the Texas Property Code?
1) A "Chapter 201 Petition Committee" is established under Section 201.005. It must have at least 3 members.
2) The Committee must file written notice of its formation with the county clerk's office.
What are the requirements of a Notice of a Chapter 201 Petition Committee filed with the County Clerk?
1) Statement that petition committee has been formed for extention of term, creation of, amendment, or addition to restrictions.
2) Name and address of each committee member.
3) Name of subdivision and reference to reference to real property property restrictions sought to be modified or amended.
4) General statement of matters to be included in the petition;
5) If creating a restricition is proposed, a copy of the proposed petition creating the restriction.
6) If amendment is proposed, a copy of the instrument creating the amendment.
7) Must be signed and acknowledged by each committee member.
If a petition committee member sells their property may they still be on the committee?
if there is a vacancy on the committee, the remaining committee members may appoint a successor by majority vote.
If a successor is appointed, must file written notice of such within 10 days with the county clerk.
May there be more than one petition committee at one time?
The committee that files first is the one with the power to act.
After a Chapter 201 Petition Committee has been formed, what is the next step in the process?
They msut submit a Chapter 201 Petition to the lot owners for approval.
What must be contained in a Chapter 201 Petition that is submitted to the lot owners for approval?
1) Name of subdivision
2) Reference to the public records. If amending a document, where the document is locating you are amending. If creating restrictions, the plat for the subdivision where you are amending your records.
3) Verbatim statement of extension of term or addition to a declaration
4) If being amended, text of proposed amendment
5) If created, text of proposed document being created
6) original acknowledged signatures of requisite number of lot owners
7) Check boxes next to each owners lot signature indicating they wish to be included or excluded from the restrictions.
8) Statement of right to file lawsuit to non-signing owners. Lawsuit must be filed before 181st day in which Certificate of Compliance is filed.
9) Statement that nonsigning owners may omit their lot from the operation of the Declaration by filing a "Statement of Exclusion" before the 1st anniversary after the date on which the lot owner receives notice of the filing of the Chapter 201 petition.
10) Legal description and street address of the lot of each signing lot owner beside or above the lot owner's signature. Must also have a statement next to their signature that they own the lot.
What is the timeline to file a Chapter 201 Petition after a committee has been formed?
1 year after notice has been filed.
What is the required number of owners that must sign a Chapter 201 Petition for it to be filed if the petition is to extend, renew, or create restrictions?
Must be signed and acknowledged by:
1) Majority of total number of lots; or
2) Majority of the square footage within all of the lots (excluding roadways)
What is the required number of owners that must sign a Chapter 201 Petition for it to be filed if the petition is to modify or amend restrictions?
75% of owners who own:
1) Total number of lots; or
2) Total square footage in subdivision (excluding roadways).
When is a Chapter 201 Petition considered effective?
1) Signed and acknowledged by the requisite number of lot owners;
2) Filed with the county clerk's office within 2 years of the Chapter 201 Petition Committee Filing
What if a Chapter 201 Petition is not filed within 2 years of the Chapter 201 Petition Committee filing?
The Chapter 201 committee is automatically dissolved by law.
If a Chapter 201 Petition Committee is dissolved, what may a new Petition Commiittee be created?
Not before 5 years after the date the previous Petition Commitee was dissolved.
You have to wait 5 years for a new commitee.
Court order otherwise.
What is the effect of a properly filed Chatper 201 Petition in the county clerk's office?
The restrictions contained become binding upon all of the lots in the affected subdivision, except those lots excluded under TPC 201.009.
Wyat is the effective date of a Chapter 201 Petition?
The date it is filed in the County Clerk's office or dtate specified in the petition, whichever is later.
When must the Chapter 201 Petition Commitee give notice of the Chapter 201 Petition filing to all affected homeowners?
Within 60 days of the filing of the Chapter 201 petition in the County clerk's office.
Who must be given notice of a Chapter 201 Petition filing?
How must they be given notice?
All persons who are then the owners of record of lots in the affected subdivision.
It must be sent to them via CM/RRR
What must be included in the notice to affected homeowners of the Chapter 201 Petition filing?
1) Name of subdivision
2) Copy of Chapter 201 Petition
3) Statement that proper number of owners have signed and verified the Petition
4) Date Petition was filed with county clerk
Must notice be sent to owners of public land or for utilities?
Must notice of the Chapter 201 Petition be published?
Yes. Once a week for two consecutive weeks in a newspaper of general circulation in the county where the subdivision is located.
What is a Certificate of Compliance?
It is a document that is prepared and filed by the Chapter 201 Petition Committee.
It must be prepared and filed in the county clerk's office after notice is given to all lot owners of the filing of the Chapter 201 Petition.
it must be signed and acknowledged by a majority of the Chapter 201 Petition Commitee.
A Chapter 201 Petition does not encumber what land?
1) Land for public use or a utility;
2) Lot owner elected to exclude himself in the Petition
3) Lot owner did not sign the petition and did not receive actual notice of the filing of the Chapter 201 Petition.
4) Lot owner who did not sign the Petition and filed a Statement of Exclusion w/in one year of the date of the notice of the filing of the Chapter 201 Petition
5) Lot owner was a minor or adjudicated incompetent person unless their guardian was served or it was served/signed before they were incompetent
6) A lienholder who did not sign a Chapter 201 petition is not subject to the petition if it was filed after the lien encumbered the property.
What happens if a lienholder files a lien, a chapter 201 Petition is filed, and then the lienholder forecloses?
If lienholder takes title at foreclosure sale-
The property is not subject to the restrictions in the Chapter 201 petition unless the lienholder signed the Chapter 201 petition.
If 3rd party purchased property-
3rd party is subject to the restrictions.
What is the proper method to challenge a Chapter 201 Petition procedure?
Declaratory Judgment action.
It must either:
1) Challenge the completeness of the procedures (181 statute of limitations on this one); or
2) Conditions of land use were incompatible with the restriction at time restriction was filed.
Are excluded lots in a Chapter 201 Petition subject to restrictions filed prior to the Chapter 201 Petition?
May an owner bring a claim challenging a Chapter 201 proceeding stating that the restrictiosn are not enforceable on the grounds that they are not applicable to all of the property in the subdivision?
Who may file a Declaratory Judgment action challenging a Chapter 201 Petition filing?
Owner who neither:
1) Signed the Chapter 201 petition; or
2) Signed a statement of exclusion.
Who are defendants in a declaratory judgment action challenging a Chapter 201 Procedure?
1) Final members of Chapter 201 Petition Commitee who are still lot owners; and
2) All lot owners in the subdivision, either individually or as a class.
What is the proper method to challenge the interpretation of any dedicatory instrument?
Declaratory Judgment action
Who are the necessary parties to a declaratory judgment action?
All owners of a restricted area must be parties to a declaratory judgment action seeing a court interpretation of restrictions. If you first raise an objection to jurisdiction of the trial court on appeal because all necessary parties were not joined then the objection is waived.
i. Excellent Way to Attack Case- file a motion to dismiss for failure to include all necessary parties. It will substantially increase their cost of litigation to join the entire neighborhood in the litigation.
What are restrictive covenants?
private, contractual covenants which limit land use. They are placed on real property by affirmative action of the owner for the benefit of the property with the typical intent to enhance its value.
May restrictive covenants have a stated term in which they expire?
What are the general limitations on restrictive covenants?
They must comply with law and public policy.
Do covenants apply to subsequent grantees?
Not unless they "Run with the Land"
What is the test to see if covenants "Run with the Land"
i. Touches and concerns the land;
ii. Specifically binds the parties and their assignees
iii. Intended by original parties to run with the land; and
iv. Successors to the land have notice.
What should you do prior to amending or modifying restrictions?
When tasked with amending or modifying restrictions, always review the restrictions. Never accept a summary. Always demand to see the original filed documents.
Are restrictions to be liberally or conservatively construed?
TPC 202.003 controls- “A restrictive covenant shall be liberally construed to give effect of its purpose and intent”
Are restrictions presumed reasonable or unreasonable?
TPC 202.004- an exercise of discretionary authority by a POA is presumed reasonable unless arbitrary, capricious, or discriminatory. This presumption may be overcome by a preponderance of the evidence.
What is the common law rule on the right of community association's right to enforce restrictions?
A community association does not have the right to enforce restrictions unless the right to enforce was created under the restrictions;
May a POA enforce restrictive covenants?
Yes- Per TPC 202.004, a POA or other representative designated by an owner, may initiate, defend, or intervene in litigation or an administrative proceeding affecting the enforcement of a restrictive covenant.
What is a POA?
i. Incorporated or unincorporated association;
ii. Members consist of the owners of the property covered by the dedicatory instrument;
iii. Regulated by owners or directors.
What are the damages for a violation of a restrictive covenant?
Court may assess civil damages for violation of a restrictive covenant no to exceed $200.00 per day.
Under what circumstances may a declarant of a residential subdivision amend the declaration?
i. Must be during the developmental period; and
ii. Amendment may not be arbitrary, capricious, or discriminatory.
Are Restriction "Modification Windows" and "Freeze out Periods" still applicable?
Many restrictions contain an initial term and then automatic renewals, generally every 10 years. They generally have a window wherein the restrictions may be amended. There is a Freeze Out period where it may be amended and a Window where it may be amended. TPC 209.0041 does away with the window and establishes a statutory basis for amendment at any time.
What is the voting process to amend restrictions pursuant to TPC 209.0041?
i. Notice- Written notice must be sent 10-60 days prior to vote.
ii. Ballot Requirements- Must be in writing and signed.
iii. Voting Methods- All of the below are allowed (though not necessarily required):
1. In person;
3. Absentee ballot;
4. Electronic ballot; and
5. Any other method allowed in dedicatory instrument.
To what areas is Chapter 204 applicable?
Chapter 204 applies to an incorporated or unincorporated residential real estate subdivision located in one of three counties: (Harris, Galveston, or Montgomery). It does not apply to condominiums.
Specifically, it applies to:
i. (Harris County)- County with population of 3.3 mil or more;
ii. (Galveston County)- County with population between 285,000-300,000 adjacent to Gulf of Mexico and county having population of 3.3 mil or more.
iii. (Montgomery County)- County with population of more than 275,000 that contains a national forest and is adjacent to county with population of 3.3 mil or more.
Under what circumstances should you use Chapter 204?
Chapter 204 provides a procedure to allow a neighborhood with restrictions, but without a POA designated in those restrictions, to modify its restrictions to designate a POA. You may also rely upon it for its rights for POAs under 204.010.
TPC 209.0041 does not pre-empt this process because restrictions without a POA are not subject to Chapter 209.
May residential subdivisions use Chapter 204 if their current restrictions require 60% or less to amend?
The current restrictions must require more than 60% to amend in order to use Chapter 204.
What must first happen to use Chapter 204?
A petition committee is formed.
What are the requirements of a Chapter 204 Petition commitee?
1. Must have at least 3 owners.
2. Each Petition committee member must sign and notirize
3. File written notice of formation w/ County Clerk. Notice Contents:
a. Statement that Petition Committee has been formed to create or modify restrictions;
b. Name and address of each Petition Committee Member; and
c. Name of subdivision
d. Reference to instrument amending or creating in real property records. (if creating- reference map/plat)
e. If creating- a copy of the proposed petition creating restriction.
f. A copy of the proposed restriction being created.
Once a Chapter 204 petition commitee has been formed, what is the next step?
Create a Petition. The sole purpose of the petition is to create a POA with mandatory membership, assessments, and equivalent voting rights.
Must you give notice to owners of a Chapter 204 petition?
Must deliver copy of Petition to all owners of property in subdivision. May hand deliver or deliver by mail.
What is the requirement to approve a petition under Chapter 204?
60% Required- Petition must be approved by owners of at least 60% of the property (not owners). Do not need approval of lienholders or owners of mineral interests. If multiple owners of a property, only need signature of one owner
How may owners vote for a Chapter 204 Petition?
Owners may vote in the following method:
a. Written ballot w/ statement of how to deliver and date;
b. Meeting of members;
c. Door to Door circulation of authorized person;
d. Any method allowed by current; or
e. Any combination of the above.
What is the effect of approval of a Chapter 204 petition?
i. The POA is created and binding on all property in the subdivision.
ii. It is not binding on commercial property, apartments, or condominiums.
What if the Chapter 204 petition fails?
If the petition fails, a new petition committee may immediately be formed.
What is the effect of passage of a Chapter 204 petition on lienholders?
The same affect as passage of a Chapter 201 petition:
i. If assessment lien is subordinate- lienholders are bound on all matters
ii. If assessment lien is not subordinate- lienholders not bound on assessment matters
iii. 3rd party purchasers at foreclosure sale are bound by all restrictions (not an exception)
Are there opt out procedures for owners in a Chapter 204 petition?
Under what circumstances should you use Chapter 201?
Do not use it to modify restrictions where a POA exists. Use TPC 209.041 for that.
Try first to use TPC 204 to create a POA and then use 209.0041 to modify because there are no opt out provisions under TPC 204. You may use 201 to modify restrictions, but there are opt out provisions.
The primary purpose of Chapter 201 is to reestablish lapsed Restrictions.
What are the different ways that an owner may opt out of a Chapter 201 Petition?
i. Petition- Signing the petition and affirmatively opting to exclude their property;
ii. Lawsuit- Suit filed challenging the petition process w/in 6 months after petition filing. If not filed w/in 6 months, then the owner may not challenge the petition process. He may only state that the property is incompatible with the restrictions. This is a very high burden.
iii. Opt out Statement- Filing a statement affirmatively electing to be excluded from the restrictions w/in one year of actual notice.
What is the effect of the passage and filing of a Chapter 201 Petition?
It is effective on all owners in the subdivision with the exception of:
i. Owners who opted out;
ii. Owners w/ no actual notice of the Petition process;
iii. Public Property;
iv. Minors & incompetents;
v. Lienholders who did not sign the petition.