Did your HOA Jump the Gun When it sued you? If so, you may be spared paying their Attorneys' Fees

Homeowners Associations are filing more lawsuits than they used to. I'm not sure of the reason for this, but the types of suits are as varied as are the subdivisions in Texas. In many instances the suits seek to collect upon unpaid assessments. In others, they are filed to enforce declarations/CCRs/restrictive covenants. In virtually all cases -- irrespective of the nature of the HOA's claims -- there is a request for recovery of attorneys' fees and court costs. It is important to note that HOAs are not automatically entitled to recovery of their costs and fees in every case. Further, many times HOAs are required to provide written notice prior to filing suit. If an HOA or its attorney fails to follow the strict procedure required by the Texas Property Code, costs and/or fees may not be recoverable.

Section 209.006 of the Texas Property Code generally mandates notice before an enforcement lawsuit may be filed by a Homeowners Association. It provides:

(a) Before a property owners' association may suspend an owner's right to use a common area, file a suit against an owner other than a suit to collect a regular or special assessment or foreclose under an association's lien, charge an owner for property damage, or levy a fine for a violation of the restrictions or bylaws or rules of the association, the association or its agent must give written notice to the owner by certified mail, return receipt requested.

Subsection (b) of Section 209.006 provides that the notice must: (1) describe the violation or property damage that is the basis for the suspension action, charge, or fine and state any amount due the association from the owner; and

(2) inform the owner that the owner: (A) is entitled to a reasonable period to cure the violation and avoid the fine or suspension unless the owner was given notice and a reasonable opportunity to cure a similar violation within the preceding six months; and (B) may request a hearing under Section 209.007 on or before the 30th day after the date the owner receives the notice.

It is important to understand that certain types of suits -- those seeking a Temporary Restraining Order or Injunctive Relief -- are not subject to the notice provisions. However, a party to such a suit may request that the Court compel mediation. See Section 209.007(d)

Written notice is also a prerequisite in those instances where an HOA seeks recovery of attorneys' fees or costs. Such claims are governed by Texas Property Code Section 209.008(a), which provides:

"A property owners' association may collect reimbursement of reasonable attorney's fees and other reasonable costs incurred by the association relating to collecting amounts, including damages, due the association for enforcing restrictions or the bylaws or rules of the association only if the owner is provided a written notice that attorney's fees and costs will be charged to the owner if the delinquency or violation continues after a date certain."

Many times, an Association and/or its lawyer will fail to issue the notice required by Section 209.008. In those instances, there is a good chance that an Owner or other person sued by an HOA can avoid having the HOA's fees and costs taxed against them.

Any time you are sued -- whether by an HOA or otherwise -- you should make a timeline of events leading to the suit. The Property Code is not the only provision of Texas law that requires notice before attorneys' fees can be recovered. A similar provision exists in contract disputes and other legal contexts. Knowledge is power, and it is higly advisable to consult with both the applicable law and an experienced attorney any time you are faced with litigation.

Perhaps one day HOA litigation will slow down - there are initiatives pending at the Texas Legislature which might curtail the filing of some HOA-related suits. Until then, read your CCRs, abide by the covenants, and remain ever-vigilant of your rights under Texas law.