C.I.A. Services, Inc. · C.I.A. Services, Inc. ... Our registration and tabulation procedures are...

June 2015

C.I.A. Services, Inc.

part of the C.I.A. Services Seminar Series for community volunteers

The 84th Texas legislative session was relatively quiet from a property owners association (POA) standpoint.

One good, big bill made it into law along with several small bills. The big bill had nearly 30 parts which mostly cleaned up provisions from the massive 2011 reform laws. However, it also took the opportunity to add some new laws.

Fortunately, a few bad bills did not pass. There is no need to discuss them. RIP.

Overall, this was a good session for POAs.

(c) 2015 C.I.A. Services, Inc. 2

The Association and an owner may agree on an alternative method of providing notices from the method prescribed by law. In other words, an owner could request to receive notice by email instead of regular mail or certified mail.

An Association is not obligated to provide alternative methods. The owner must affirmatively agree to an alternative method. The Association cannot force an alternative method on owners.

There may be ramifications of using alternative methods such as notices not reliably getting to the recipient.


Effective 09/01/15

A 2011 law prohibited any person from serving on a POA Board who has been convicted of a felony or a crime involving moral turpitude. There is no requirement that a POA conduct background searches. If the POA is presented with information from a law enforcement database, the person is immediately and permanently prohibited from serving.

This 2015 amendment indicates that a person is no longer prohibited from serving on a POA Board 20 years after the conviction.

In a highly unlikely scenario, there is no requirement that the person must have completed their sentence and have been released.


Effective 09/01/15

For Associations with more than 100 lots, notice must be provided to all members soliciting candidates for the Board. The notice must be distributed at least 10 days before the ballots are mailed.

The notice must be (a) mailed to each member or (b) posted and emailed. These are the same options for announcing Board meetings.

Any eligible person requesting to be on the ballot must be placed on the ballot.

In many of our communities, we send postcard solicitations for candidates. As a minimum, we will begin posting a solicitation on our website and sending an eBlast to all owners for which we have an email address.


Effective 09/01/15

They are back! After the 2011 law which disqualified advance votes if the proposal changed at the meeting, we stopped taking nominations from the floor. We wanted to protect the right of those owners to have their votes count.

Since nominations from the floor are often needed to fill the slate, we got around it by allowing write-in’s who were introduced as candidates but not “officially” added to the slate which would have changed the “proposal”.

Now, “a nomination taken from the floor in a Board member election is not considered an amendment to the proposal for the election”.


Effective 09/01/15

A 2011 law provided POAs to allow members to vote (1) in person, (2) by proxy, (3) by absentee ballots or (4) by electronic means.

This 2015 amendment clarifies that, unless the governing documents require otherwise, a POA is not required to offer more than 1 method of voting as long as, at a minimum, an owner may vote by absentee ballot or by proxy.

Most Bylaws provide for voting in person or by proxy. We will continue to provide all four methods of voting to

owners as a convenience and to encourage owner participation.


Effective 09/01/15

The law has changed to allow secret ballots in some circumstances.

Ballots cast at a meeting no longer need to be signed. An Association may adopt rules to allow secret ballots as long

as the Association can ensure a member cannot cast more ballots than they are entitled to and that all that member’s vote are counted.

Our registration and tabulation procedures are very secure so secret ballots would be no problem for those attending in person or represented by proxy. Absentee and online ballots are not secret under the law in order to verify the member’s identity.


Effective 09/01/15

Candidates may now name one person to observe the count on their behalf. The observer may not be disruptive and may not be able to read the name of the person casting the ballot.

Stronger language has been added that those tabulating ballots may not tell anyone how someone voted.


Effective 09/01/15

A 2011 law established a procedure by which a member could demand a recount of any election or members vote. Under the law, the owner pays for the cost of the recount. If the result of the vote changes, the Association must reimburse the member. The law has a detailed procedure for the recount.

Note that the “result of the vote” is who got elected or if the proposal passed – not the actual tally.

This 2015 amendment clarifies that the recount does not start until the owner has prepaid the cost estimated by the Association.


Effective 09/01/15

A 2011 law required that Board meetings be open to members. It also allowed meetings by electronic or telephonic means.

This 2015 amendment provides guidance as to how members may participate in an online or conference call meeting.

Owners must be able to hear all Board members. Owners must be able to connect using the same method as any Board member. The meeting notice must provide the connection details.


Effective 09/01/15

Meeting on open

meetings is closed

With the 2011 legislation, we began officially taking email votes from Board members and ratifying the decisions at the next called Board meeting. The purpose of the ratification has been to get the decision into minutes which are available for member inspection.

We relied on the law’s language that each board member should be able to “hear and be heard” to allow an email vote outside of a meeting. That was a stretch since email votes were really “read and write” instead of “hear and be heard”.

The law has now been clarified to specifically allow decisions by electronic or telephonic means as long as each Board member is given a reasonable opportunity to express an opinion and vote.


Effective 09/01/15

The 2011 legislation specified certain Board decisions that could only be made at meeting announced to and open to members.

The list of Board votes that must be taken at an announced meeting has gotten larger. These are new items that must be decided in the open:o Electing officerso Filling a vacancy on the Boardo Adoption or amending a dedicatory instrumento Approving annual budget or amending to increase more than

10%o Approving construction of new capital improvementso Purchase or sale of real propertyo Lending or borrowing money


Payment plans may now be longer if the Association desires. The wording has changed from an Association “may not” have a payment plan longer than 18 months to “is not required to”.

Since 2012, owners who have defaulted on a plan are not entitled to another for two years after the default. Now, owners are also not entitled to more than one payment plan in any 12 month period.

Here is a big one. When we send our 209 letter by certified mail, the owner has 30 days to “cure the delinquency” (i.e. pay). If the owner does not pay within 30 days, they forfeit their right to a payment plan.

We will continue to try to get owners on payment plans.


Effective 09/01/15

POA foreclosure rights have been narrowed over the last several sessions. This year foreclosure rights actually got better.

Some Associations had non-judicial foreclosure powers. Those rights were taken away in 2011 but an expedited process was developed to keep things fast and less expensive.

Other Associations had language requiring a judicial foreclosure – file a lawsuit, get a judgment, execute by having the Constable sell the property. The new law says if you have any foreclosure rights, you have the non-judicial rights and can use the expedited process.


Effective 09/01/15

A new term has been added to the law: “verified mail”. This has replaced “certified mail return receipt requested” in several parts of the TPC. Verified mail is any method of mailing for which evidence of mailing is provided by the USPS or any common carrier.

This opens up the use of FedEx, UPS or hot-shot deliveries for urgent items.

It is unclear whether this will have any impact in practice. Certain deadlines are now changed from “within 30 days of

receipt” to “within 30 days of mailing”.


Effective 09/01/15

Recap of existing lawo An Association must give an owner notice before it:

1. Suspends an owner’s right to use a common area,2. Files a lawsuit for anything other than collections,3. Charges an owner for property damage, or4. Levies a fine for violations of restrictions or rules.

o The notice must 1. Describe the issue,2. Provide a reasonable period to cure the violation and avoid the fine

or suspension,3. Offer a hearing in front of the Board, and4. Provide notice of special rights to active duty military personnel.


Effective 09/01/15

o Notice is not required if a notice was issued for the same violation within the last six months.

o Notice is not required for a temporary suspension of a person’s right to use common areas if the temporary suspension is a result of a violation that occurred in a common area and involved a significant and immediate risk of harm to others in the subdivision. The temporary suspension is effective until the Board makes a final determination on the suspension action.

Changes in the lawo If the violation is cured before the end of the cure period provided

in the notice, no fine may be assessed.o We must only give the owner time to cure if the violation is

“curable” and not a threat to public health or safety.


o We now have the concepts of “curable” and “uncurable” violations – unfortunately the definitions are a bit confusing.

o A violation is considered uncurable if the violation has occurred but is not a continuous action or a condition capable of being remedied by affirmative action. The non-repetition of a one-time violation or other violation that is not ongoing is not considered an adequate remedy. Examples of uncurable acts are: (1) shooting fireworks,(2) an act constituting a threat to health or safety,(3) a noise violation that is not ongoing,(4) property damage, including alteration of landscape, and(5) holding a garage sale or other prohibited event.


o The following are examples of curable acts:(1) a parking violation,(2) a maintenance violation,(3) a failure to follows ACC approved plans & specifications, and(4) an ongoing noise violation such as a barking dog.

To recap, we do not have to provide a “reasonable period to cure” for uncurable violations or health or safety threats. We can say “stop this immediately”.


TPC 209.0041 provides that a declaration may be amended with approval of 67% of the owners (or a lower percentage if so stated in the Declaration).

This 2015 clarification makes it clear that it is a maximum of 67% of the owners entitled to vote on the amendment. This applies, for example, where there is a supplemental declaration that only applies to a portion of the community such as a gated section. Only those living in the gated section need to approve the amendment and not all owners in the community.


Effective 09/01/15

A 2011 law does not allow a POA to prohibit solar energy devices but allows the POA to regulate them to the extent provided in the law by preparing and recording guidelines.

The law allowed a developer to prohibit such devices during the development period.

This 2015 amendment limits the developer exclusion to subdivisions of less than 51 residential units.


Effective 09/01/15

This new law does not allow a POA to prohibit permanent standby electric generators but allows a POA to regulate them to the extent provided in the law by preparing and recording guidelines.

Guidelines may address the generator’s installation, maintenance, placement, screening and exercise times. The guidelines may limit use to power outages or periods of unstable power.

Applications for installation may be required but approval may not be unreasonably withheld if all requirements are met.

In any hearing held to consider compliance with the POA guidelines, the person asserting non-compliance bears the burden of proof.


Effective 06/22/15

A 2011 law allowed a POA to place “speed feedback signs” on streets under its jurisdiction (i.e. within the community boundaries).

The POA must receive consent from the City or County that maintains the street – no municipal approval is need on private streets maintained by the POA.

This 2015 amendment extends the right to install “solar-powered light-emitting diode (LED) stop signs”.

The POA must pay for the installation andmaintain the sign.


Effective 06/22/15

Board Member OrientationAdvanced Topics for Board Members

Meetings & Records – The Legal RequirementsUnderstanding Collections & Financial Reports

Practical Deed Restriction ManagementThe Essentials of Architectural Control

The Super-Budgeting ProcessCommunity Website Administrator Training

www.ciaservices.com


C.I.A. Services, Inc. · C.I.A. Services, Inc. ... Our registration and tabulation procedures are...

Documents

Transcript of C.I.A. Services, Inc. · C.I.A. Services, Inc. ... Our registration and tabulation procedures are...