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Press Release
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VOTE NO ON TUPCA BY CAI
A plea to Texas lawmakers from Texas Homeowners
July 14, 2006
By
We The People - Texas
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Judith,
There is going to be a battle royale in the Texas legislature starting this spring when CAI tries to have its legislation thrust upon everyone. I encourage you to watch and participate in the hearing process. Ask to be a witness if you want to be able to participate.
With respect to your property, you might want to check the county clerk's office to see if the senator's minions surreptiously recorded a "priority of payment" document that you and potential purchasers are not informed about. Frankly, I would be most interested if this is the case since it is yet more evidence of the deceipt practiced upon homeowners in these subdivisons and will be excellent fodder for the upcoming legislative battle. There are subdivisions that have been around for 30 years that are suddenly adopting this approach recommended by the CAI management company (in one recent case "Select Management Company" and the "Preston Highlands Homeowner Association").
As far as an act of Congress to permit flying the flag, you might note that if you read the full statute, CAI lobbyists ensured a provision that permits associations to place "reasonable" restrictions pertaining to the time, place, or manner of displaying the American flag necessary to "protect a substantial interest" of the association. The substantial interest is usually "property values", but I look forward to watching the first challenge to such a restriction. I'm sure CAI will submit numerous "friends of the court" briefs in an effort to keep the ability to generate collection fees going.
I disagree with you in some respects on the centralization of the subject matter of the Act. CAI would love to have a simple target, but they have not been successful at controlling various aspects that have been distributed across multiple code sections. CAI, for example, would like to fight the non-judicial foreclosure and non-public sale once and have it apply to all "multi-residential" developments. I think there is a significant difference between housing subdivisions and condos and there is no way this practice should be permitted in non-condo developments.
Posted Aug 1 2006 11:17PM CEST
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Username withheld
, Texas |
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First of all, I am not one of the Senator's constituents. But the one I have is not much better, although he does not have a vested interest in association legislation. The development I live in is not managed by the Senator's company although I own property in one that is.
The fact that I have Consitutional rights and privileges gives me little comfort when the courts have consistently upheld the idea that I contracted those rights away. It gives me little comfort when my property rights are trampled on by a small group of people with dictatorial powers who can control every aspect of my home's appearance. It gives me little recourse when I am forced to support TLAC through my assessments.
Have homeowners groups been successful in addressing the imposition of unreasonable guidelines? Forced political donations?
Where are those constitutional rights you say I have? We needed an act of Congress to allow flag flying, we needed an act of the state legislature to allow political signs in our yards despite a decision under the first amendment by the US Supreme Court many years ago. There are even homeowners who are so afraid of retribution when expressing their opinions, that they withhold their names.
TLCA will be submitting changes to TUPCA. Anyone who has constructive, specific changes to this legislation, should send them to the TUPCA steering committee and/or to Rep. Helen Giddings and others on her committee. And post them on this site so that others might also voice their support for needed changes.
As homeowners, we cannot continue to try a piecemeal approach to legislation concerning associations. It has been woefully ineffective. The impression I am getting is that no part of TUPCA is any good, if for no other reason, than CAI/TLAC members had a hand in drawing it up. While there is a certain amount of discomfort in that, if legislators - certainly not the Senator - who are willing to listen get that impression, it could be a real turnoff to them.
One other comment regarding having a developers maintaining control forever. What does the current law allow? Oh, forever.
Posted Aug 1 2006 2:59PM CEST
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Judith Watkins
, Texas |
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Judith:
The proposed legislation has been gamed by CAI from day one. You are led to believe, for example, that you cannot be foreclosed upon based on a debt consisting solely of fines, late fees, interest, attorney's fee or a combination of these.
Are you aware that the very senator that promulgated such legislation in Texas simultaneously uses a "priority of payment" scheme to administratively re-direct and recharacterize payments made for assessments to fines, late fees, interest, attorney's fees, etc. where his management companies are involved? The theory is that you aren't being foreclosed upon for fines, late fees, etc. - you are being foreclosed upon for failure to pay your regular assessment because the management company refused to apply the monies you paid in to assessments ! Do you now see the gaming aspect?
By the way, there is no realistic regulation as to what the fines (arbitrary), late fees (arbitrary), attorney's fee (you aren't the client so you can be sure that unconsionable fees are routinely charged to non-clients), etc. are.
The section D comments you refer to are merely perfunctory statements intended to disarm the reader. Each lot owner already has the rights, benefits, and privileges guaranteed by the United States. CAI's position is that you knowingly contracted away
many of these "rights" when you bought your property. Much of the legislation is directed to preventing you from having your day in court (an American tradition) when the Board or Management Company engages in outrageous behavior or otherwise breaches the obligations to you.
If you examine TUPCA you will notice that CAI doesn't want their ability to extract money from homeowners to be limited by a failure to record governing documents. They would also like homeowners to be unable to have a day in court by saddling the homeowner with binding arbitration or some other method of alternative dispute resolution. Of course, if the HOA itself isn't happy with the result or the process, the HOA is permitted to seek judicial review.
The Homeowner's Protection Act (actually the Residential Property Owners Protection Act) you refer to is actually a Management Company Protection Act. When the affected senator was unable to amend anti-priority of payment scam legislation (the legislation passed the Texas senate), he had a cohort sink the legislation based upon a procedural point of order in the Texas House a few days before the end of the Texas legislative session. Are you trying to tell me that this senator has any interest in protecting homeowners?
You might also note the requirement for a "management certificate" in the Property Owners Protection Act (Tx Prop Code §209.004). Of course the HOA gets charged for filing the certificate, but any liability to the management company for failure to file or incorrect filing, etc. is noticeably missing.
Moreover, our management company (owned by the same senator) has no qualms about posting the wrong CCRs despite charging us for the privilege of recording the management certificate (i.e., they are supposed to be "certified" and "specialists", and despite being owned by the senator promulgating the legislation they continue down the path of hiding the facts from potential purchasers and current owners).
If you really recognize what is going on, you will note that the management certificate is nothing more than a tool that the senator is using to force the competition to identify itself. This certificate is used to identify potential candidates and economic value for purposes of acquisition. He now owns something like 60+ of these companies, adding at least 6 since the beginning of the year. Let's see - do you think he is interested in a) protecting his income stream off of the management companies, or b) protecting the homeowners who are compelled to pay the management companies via collection fees, fines, etc. ?
Most recently he has started a company to act as the middleman between homeowners and electric power providers.
How would you like to have deregulation end up with the decisions relating to choice of electric power provider to your home lying with the HOA at the subdivision level rather than on an individual consumer basis as was the purpose of de-regulation? It has already happened in my subdivision with respect to cable, water, and propane.
The same lobbying group (CAI) strived to achieve the monopoly effect in the context of telecomm deregulation during the 90s. The companies getting access to subdivisions of course had to pay the middleman a kickback. Electric power is the next gig. Guess what committee the senator is currently a member of in the Texas legislature?
I'm guessing from your comments that you are one of the senator's constituents. If you want to start fixing the problem impose a fiduciary accountability on the management company.
Doctors, lawyers, accountants and other professionals are accountable to their clients. Management companies handling bookkeeping, accounting, assessment receivables, etc. of these associations should similarly be held accountable as a fiduciary to the HOA shareholders.
The Board is accountable and the management company is supposed to be an agent of the Board. I think that this one simple little fix will significantly impair the never-ending management company attempts to bilk the shareholders through self-dealing and practicies that I can only describe as extortion.
Posted Jul 31 2006 11:46PM CEST
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Username withheld
, Texas |
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Judith and other TUPCA supporters.
I think it would be an awful mistake to support such a lacking piece of legislation. See the TUPCA review piece by THAG administrator and homeowner lawyer linked below and I might suggest looking at the court case samplings here at AHRC.
TUPCA is not an improvement. Not when it is a hijacked bill by the very lobby group that benefits from this industry. See the review link below (and keep an open mind):
OBJECTIONS TO TUPCA BY THE TEXAS HOMEOWNERS ADVOCACY GROUP - Homeowners are not going to watch CAI attorneys and industry advocates eat away at our constitutional and property rights - March 21, 2006 - By Harvella Jones - THAG
Additionally you may want to consider the impact the current Texas constitution has had on this CAI take-over (almost none--so why add more of the same). Anytime a lawyer lobby/spec. interest group writes legislation you can bet they have added all the needed safety nets for their group. Why weren't the homeowners groups and lawyers included in this bill and why would one of the founding original authors/legislators bow out claiming it had been hijacked???
Make the right choice and then call your local legislator. I have no desire to let a developer continue to control my community for almost a decade after build-out with the misinfo we have been exposed to lately. Better legislation is a must, not some faustian compromise (possibly planted here by CAI operatives). Let's stop mandatory membership practices and foreclosure. Lets make communities neighborly again!
Posted Jul 29 2006 6:39PM CEST
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responsible development
(View Profile)
, Texas |
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I don't have an "affiliation." The development I live in is developer controlled and has been for over 10 years. The management company is heavily involved in CAI and I am forced, through the use of my assessment, to make an annual donation to TLAC - and over my protests.
Every time we get near the 75% sell-out the CCRs require for a turnover of control, the developer adds to the subdivision. This has been going on for years. Perfectly legal - not moral by any stretch.
The rumor is that the developer is getting ready to turn over control to homeowners. And from what I hear from some homeowners, that scares the .... out of me. Last year, a group of homeowners, appointed by the developer, drafted guidelines which were put on hold because of the outrage of some homeowners. Not only did these guidelines try to control every aspect of the houses exterior, they had a set of guidelines for birdhouses! What will they come up with after they have dictatorial authority? Additionally, we do not even know what all our common areas are, what our obligations will be, what liabilities we will assume, and if our assessment was held artificially low while the developer sold its lots.
A group of us are in the process of trying to get information from a developer and management company that have been less than cooperative, and certainly not forthcoming, in the past.
I have a personal stake as well as a philosophical stake in better law governing homeowners associations and am well aware of the real and potential abuses both developer controlled and homeowner controlled associations can and do perpetuate.
As I said, TUPCA is NOT perfect. But homeowners groups have been unsuccessful in passing any meaningful legislation. This legislation does recognize that those living in associations have rights and privileges under US Constitution and the laws of the state. That is a giant step forward, one homeowners have not been able to accomplish. That provision means a lot to me personally. That provision also provides potential arguements against abuses that we presently don't have since courts have consistently held that disputes with associations come under contractual law.
TUPCA also provides better protection for potential buyers by requiring the sellers to notify buyers of the association and provide a lot more information, information that had I been privvy to, I would have reconsidered buying here, information homeowners in my association still don't have and are trying to get.
Many of the provisions of TUPCA are merely restatements of existing law and change nothing. Many of the new provisions do favor homeowners.
You say we should hold out for more meaningful legislation. Hold what out? We have nothing to bargain with. Our votes? Come on. This is a corporation dominated, buyer beware state whose legislators are in deep with lobbyists. I am all for taking what we can get now and continuing to work for a better tomorrow.
And let's keep in mind that not ever difference in opinion is a difference in principle.
Posted Jul 28 2006 2:41PM CEST
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Judith Watkins
, Texas |
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Re: I agree TUPCA is not perfect
Re: Proposed Texas Uniform Planning Community Act - Judith Watkin
Judith,
I'm not sure what your affiliation is or who you work for but I live in a CAI dominated neighborhood and have one of the many CAI lawyers who helped shape this legislation that gives developers years to control the HOA board after build out. I talked with one of the original legislators involved with the bill and he said that this bill was hijacked long ago by this lawyer lobby group. He is no longer supporting the tainted bill. Nor are most homeowner advocates in Texas (see THAG, THA and this site for example). We need to hold out for "real" legislation not this special interest garbage.
See an example piece on the powers really running this state and pushing for TUPCA:
OP/ED: Johnson Development Corporation of Houston Drops SLAPP-suit Against the Committee for Responsible Development (Still targeting family)-
Johnson Development Corporation of Houston, mega-developers of Riverstone, Sienna Plantation, Silver Lake and many other master-planned communities (Larry Johnson, President) dropped part of their lawsuit against the committee of homeowners who protested against up to 2700 apartments being brought to this community by them (but continues to target another Sienna family).
This strike case tactic, so common with developers involved in NIMBY (not in my back-yard) protests, tracks back to early last year when 40-50 residents, representing 7 area HOAs and thousands of independent homeowners, organized and merged several petition drives garnering over 1100+ signatures and presented them, along with a city ethics complaint violations against Mayor Allen Owen of Missouri City, for accepting nearly 60% of his campaign contributions over the previous 5 year period from Houston mega-development companies doing business in this area and not recusing himself when voting on the controversial apartment plan. These actions, by the banker/mayor Owen, lead to his being challenged in the '06 mayoral race for the first time in over a decade by Greyling Poats of Missouri City with many of these issues playing as central themes in the election.
A little over a week following the local media coverage of the July '05 city council session, Johnson Development Co. (JDC) and their senior vice president Doug Goff, filed what legal experts call SLAPP-suits (Strategic lawsuits against public participation). These are suits meant to target and silence critiques of unpopular development projects and cripple them financially (Canen & Pring, 1996).
This case has thus far resulted in the deposition of many area homeowners and spun off another protest against the strike suit itself as it enters its second year. The senior vice president, Goff, was also deposed in late May after 3 attempts to schedule it through the courts. Last Thursday the JDC lawyers of Howry LLP, a large Houston litigation law firm pushing this case since spring of last year, suddenly dropped the committee from the lawsuit. This turned out to be a sigh of relief for many Sienna area residents whom had been involved with the petition drive and a small victory of sorts.
Of course with this good news comes the intensification and focus of the case on the remaining targets/defendants in the suit. JDC still faces a counter-suit from the remaining targets/defendants claiming Fraud, Trade Deception, Harassment and Negligence for their actions leading up to the SLAPP-suit.
For background on this case visit:
http://www.fortbendnow.com/news/317/fight-over-apartments-could-restrict-free-speech-on-the-web
http://www.fortbendnow.com/news/487/sienna-plantation-developers-sue-community-activist-for-defamation
http://www.fortbendnow.com/news/645/texas-supremes-side-with-siennajohnson-deny-bid-to-seal-deposition
http://www.fortbendnow.com/news/719/activist-slaps-back-in-countersuit-against-sienna-plantation-developer
and for a topper: http://www.fortbendstar.com/Archives/2005_3q/070605/n_Tree%20huggers%20vs.%20developers%20in%20Mo%20City.htm
We will update this as the need warrants. STAY INFORMED AND KEEP IN TOUCH!
posted July 26, 2006
Posted Jul 27 2006 4:57PM CEST
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responsible development
(View Profile)
, Texas |
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I agree TUPCA is not perfect. I also have problems with nonjudicial foreclosures and several other issues.
But TUPCA is much better than the laws we have now. Many of the powers of the association are the same as presently exist. TUPCA consolidates these into one statute.
But the differences are NEW AND CRITICAL. Section D, Protection of Owners, is a giant leap forward. It states, "Each lotowner in a planned community in this state has the rights, benefits, and privileges guaranteed by the consitution and laws of the United States and this state. The rights listed in this subchapter are in addition to all other rights that lot ownershave and are not exclsuive or intended to limit the rights guaranteed by the constitution and laws of the United States and this state."
To be, this is of fundamental and monumental importance. Once that is the law, we have more power to change those provisions we do not like.
Section D also requires associations to set a maximum amount on accumlation of continuing fines and requires an association to establish standards for payment plans and it "must accet a plan that meets the standards."
It prevents nonjudicial foreclosures on a lien for a debt consisting solely of fines, late fees, interest, attorney's fee or a combination of these.
I will continue to study and research this proposal, but so far it is the best deal I have seen with the best chance of passing. Attempts to change the Property Owners Protection Act and other laws affecting associations have been piecemal and mostly unsuccessful. If this law does not pass, we will be in the same position we are in now. This law improves that position.
Posted Jul 17 2006 2:17PM CEST
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Judith Watkins
, Texas |
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