West Oaks Estates HOA and Builder File Suit Against Non-Member Residents Seeking to Compel Them to Join HOA

On November 16, 2008, the West Oak Estates Homeowners Assocaition, Inc. ("HOA"), and McMillin Texas Development (a susidiary of McMillian Homes) filed at least 15 lawsuits in Bexar County District Court against families residing in Unit 2 of San Antonio's West Oak Estates subdivision. The suits, which are identical, were served upon the residents in the days immediately proceeding Thanksgiving -- putting a damper on the holiday spirits of may of the residents of the West Oak Estates subdivision. San Antonio attorney Trey Wilson has been retained to represent 12 of the families, and several others who were not sued, but who are similarly-situated to the Defendants. Wilson has represented homeowners associations and those individuals adverse to them in a variety of lawsuits.

The West Oak Estates HOA lawsuit arises from the fact that the Defendant households are not members of the homeowners association because they purchased their homes prior to the time that McMillin annexed Unit 2 into the Restrictive Covenants. That is, McMillin sold at least 19 homes in the subdivision BEFORE it recorded its Declaration of Covenants, Codes and Restrictions ("CCRs") with the Bexar County Clerk. "Because these homes were sold prior to the developer recording the CCRs (on May 26, 2006), these properties are not burdened by the CCRs, and my clients are neither bound by the CCRs or subject to mandatory membership in the HOA" said Wilson. "it is unfortuante that the HOA and builder have resorted to litigation, as these type of suits generally result in discord between neighbors and a loss of tranquility and goodwill among neighbors." In 2007 Wilson filed suit in Medina County, Texas against the developers of the Valentine Ranch subdivision on grounds that their property owners association was not formed or incorporated until after many of that development's residents purchased their properties and began payment of POA dues and assessments. The 2007 lawsuit was settled at mediation, and resulted in the issuance of Amended CCRs, a Supplemental Declaration, and several changes in the composition of the POA Board.

McMillin recognized its error as far back as July 2006, and began a campaign of letter writing and negotiations seeking to recruit the non-members to voluntarily join the West Oak Estates HOA. When these negotiations failed, it resorted to litigation, and filed suit seeking to have the Court declare that the non-members are subject to the CCRs and subject to mandatory HOA membership. Although the HOA is a named Plaintiff in the suit, the association remains under developer control, and 2of its 3 Board Directors are McMillin employees. The other Board member is a subdivision resident who was appointed by McMillin. The HOA has claimed in the lawsuit that it is a "beneficiary of the contract bewteen Defendants and McMillin."

Wilson maintains that, in addition to several defenses to the builder and HOA's lawsuit, the non-members maintain several affirmative claims against both the HOA and the builder arising from broken promises, breach of the CCRs, and illegal collection of dues and assessments from the non-members. "These claims will be addressed by way of the non-members' counterclaims against the Plaintiffs, and a third-party claim against the HOA's management company."

More to follow as the suit progresses...