9-year-old boy’s fort causes a stir with the neighbors -- Austin

Nicholas Aarsvold, 9, built this wooden play fort between two shrubs on a strip of grass that separates his driveway from his neighbor’s. The Summerwood Homeowners Association wants the structure dismantled because it breaks homeowner rules. Nicholas’ mother, Ramona Aarsvold, is refusing to take it down.

Read the full story in the Austin American Statesman:

9-year-old boy’s fort causes a stir with the neighbors

Covenants Restricting Solar Panels Are Unenforceable in Texas

San Antonio HOA Lawyer Trey Wilson wrote:

Solar energy has been used by humans for thousands of years. Scientists have discovered evidence that Greeks and Romans use burning mirrors to light torches for religious purposes as early as the 3rd century B.C.

In 1977 the U.S. Department of Energy launcheed the Solar Energy Research Institute
“National Renewable Energy Laboratory,” a federal facility dedicated to harnessing power from the sun. Fortunately, San Antonio, and our very own CPS Energy are solar industry leaders.

Yet, despite the historic and modern patterns of embracing solar energy, many restrictive covenants in Texas still expressly prohibit the installation of solar panels on homes and business.

I'll admit, solar panels are ugly.
Solar energy is also a somewhat esoteric topic. But, as our population grows solar energy is becoming an essential alternative to traditional energy sources. Thus, it was time that covenants prohibiting solar energy panels were addressed. That is exactly what happended during the last Texas legislative session.

House Bill 362 was adopted on June 17, 2011, and became effective on that day. The Bill __, and provides, in relevant part:

...a property owners’ association may not include or enforce a provision in a dedicatory instrument that prohibits or restricts a property owner from installing a solar energy device.

As usual, there are certain exceptions, and there is a specific definition of "solar energy device." The effect of the law, however, is clear -- to void a provision violating the general prohibition on CCR provisions that ban the installation of a solar energy device and roofing materials that meet certain criteria.

In my opinion as a lawyer with an active HOA litigation practice, the Legislature got this one right, as this was a law whose time had come!

Commercial Tenants Should Review Restrictions Before Signing Lease

San Antonio HOA Lawyer Trey Wilson wrote:

Restrictive covenants and Property Owners Associations that enforce them are generally associated with residential communities. However, many commercial developments, including strip centers and office complexes have a condominium ownership arrangement. Even where a multi-unit commercial development is owned by a single individual or entity, there usually exist shared "common areas," available for non-exclusive use by all tenants. Frequently, these commercial developments are governed by Restrictive Covenants (or a "Declaration") which limit the types and scope of activities permitted by Owners and Tenants in the development.

Properly-recorded Restrictive Covenants usually "run-with the land" and are applicable even where a Tenant has not been provided a copy. Commercial tenants sometimes enter into leases that expressly authorize them to conduct activities or engage in practices that are prohibited by the applicable covenants. While this situation sometimes arises as the result of unscrupulous acts by a Landlord, most often, the Lessor, himself, is unaware of the language of the Declaration -- especially if the landlord is simply an investor who has never occupied the property. Imagine the surprise of the Tenant who receives notification from the POA or a neighbor that their use of the leased premises is unauthorized and/or expressly prohibited by the Declaration!

To avoid this situation, commercial interests should insist on receiving and reading a copy of all applicable Restrictions PRIOR TO entering a lease, or investing in the build-out of a commercial property. The provisions of a lease will almost NEVER trump valid Restrictive Covenants, and ignorance of the contents of the Covenants is no excuse. To be sure that the intended use is not prohibited, a wise commercial tenant will contact an experienced lawyer to review the terms of the commercial lease, and to identify any prospective problems with applicable restrictions.

Colored Christmas Lights Draw Fine - Video from CNN

WOMAN BATTLES FOR COLORED CHRISTMAS LIGHTS
A woman was fined $400 by her HOA for putting up colored Christmas lights last year, and she's at it again. Watch the video on CNN.

The Legality of Transfer Fees in Texas

Imagine owning a property, then selling it, but retaining the right to collect a percentage of the sales price each time the property is sold in the future. Sound too good to be true? It isn't. The concept -- formally called a "fee for future conveyance of property," but commonly referred to as charging a "transfer fee" -- is becoming increasingly popular in Texas real estate.

Transfer fees are essentially deed restrictions placed upon a property by an owner (who is later a seller), which make a percentage of the sales pice payable back to the original seller EVERY TIME the property is sold in the future. That is, the person who places the restriction on the property earns a fee (some percentage of the sales price) each time ownership of the property is transferred, no matter who owns the property at the time of the subsequent sale, or when it is sold. This is the case because restrictions are covenants that "run with the land," irrespective of ownership at any given time.

Transfer Fees were addressed by the Texas Legislature, when it added Section 5.017 to the Texas Property Code in 2007. Contrary to popular belief, however, this statute -- which became effective on September 1, 2008 -- does not bar transfer fees, but only prohibits restrictions which would require the BUYER ("transferee") to pay the such fees. There is no prohibition against restrictions which would require the SELLER (transferor) to pay a transfer fee. Additionally, this prohibition applies only to residential property, and there are no limitations on transfer fees which might be charged upon the sale of commercial or rural properties.

There also exist exceptions to the "buyer can't pay" Rule, including in those instances where the restricted residential property is situated within a platted subdivision, and the fee is payable to a Property Owners Association, a 501(c)(3) charity, or a governmental entity.

Moreover, in those instances where transfer fees are permissible, the statute does not limit the number of such fees (multiple restrictions) which can be placed on any particular tract, or the amount of the fees (as a percentage of the sales price) that can be assessed. For this reason, and many others which are beyond the scope of this post, transfer fees are controversial.

However, transfer fees are a valuable tool, and could provide an enterprising property owner with a passive income stream, or serve as a pitfall to an un-suspecting owner/purchaser of land to which such fees are attached.

When considering placing any restrictions on property, or determining the legal effect of existing restrictions, Texans would be wise to contact an experienced real estate lawyer.

HOA Votes to Ban Smoking

It's not just indoor public places in Eau Claire where lighting up is prohibited. Now residents of a south side, owner-occupied housing complex will have to snuff out smoking in their homes, the most recent sign of public anti-smoking sentiment.

Members of the Fairfax Parkside Homeowners Association on Wednesday voted to outlaw smoking inside residences that are part of the 34-unit development. The ban also prohibits smoking in shared spaces, such as porches and garages, but does allow it in yards and on patios.

Of the 19 association members who voted on the issue, 15 favored the anti-smoking regulation proposed by association President Dave Hanvelt, while four argued that residents should be allowed to smoke in their homes.

"This doesn't restrict a smoker from living here," Hanvelt said of the smoking prohibition. "It just means that there are restrictions on where they can smoke."

Fairfax Parkside is believed to be the first Eau Claire development in which homeowners aren't allowed to light up indoors. "I'm not aware of any other instances where that is the case," said Julie Marlette, coordinator of the Tobacco Free Partnership of Eau Claire County.

The adoption of the indoor anti-smoking rule likely won't impact many Fairfax Parkside homeowners, as Hanvelt said he doesn't know of any smokers in the development. But it does restrict future homeowners there from smoking, and visitors also won't be allowed to smoke inside.

"You don't want to have to worry about your non-smoking neighbor moving out and a smoker moving in," he said.

Hanvelt proposed the regulation earlier this year because homeowners in the development own twin homes, or each side of a duplex-style home. Because of their close proximity, smoke from one unit could flow into the one next door.

"If we all lived in separate units, this wouldn't have been necessary," Hanvelt said, noting homeowners association members made sure to allow outdoor smoking so as to not be too restrictive.

The Fairfax Parkside regulation marks an extension of non-smoking rules from public places to private residences. Last year the Eau Claire City Council approved a controversial ban on smoking in indoor public places, including taverns.

The issue prompted heated response from people on both sides of the issue, and opponents were concerned that the ban could open the door to prohibitions on smoking in people's homes.

Word of the smoking restriction enacted at Fairfax Parkside has some people fuming.
"We worried that this might happen, and now it appears that it has," said Sally Jo Birtzer, a nonsmoker who is president of the Eau Claire City-County Tavern League and general manager of Wagner's Lanes. "As long as tobacco is a legal product, people should be allowed to smoke it in their own homes."

While preventing smoking in privately owned homes is unusual, prohibiting the practice in rental residences isn't unheard of in Eau Claire and elsewhere. Some landlords don't allow renters to smoke indoors in an effort to keep those living quarters cleaner and to reduce the chances of a house fire.

Stomping out smoking in multifamily rental units is a growing trend in other parts of the U.S., Marlette said. "I think people are recognizing the exposure that is occurring to secondhand smoke in multiunit housing," she said. "It is definitely a bona fide health issue, and I think we're going to see more requests for those units to go smoke free."

Dave FitzGerald, one of the Fairfax Parkside developers who also lives there, initially questioned whether the non-smoking measure would hinder future sales in an already tough housing market. But FitzGerald, a nonsmoker, said the anti-smoking rule could attract buyers too, especially given that nearly four of every five people don't smoke.

"Could we lose a sale to somebody who is a smoker? Certainly," FitzGerald said. "But I think there is a better chance of having somebody be willing to live here because there isn't any smoking."

Hanvelt knows firsthand the frustrations of living next to a smoker in a shared-space residence. He previously spent thousands of dollars at a former residence retrofitting his unit to prevent cigarette smoke from a next-door neighbor from making its way to his home, but the effort proved unsuccessful, he said.

Now he looks forward to living in a smoke-free environment. "We adopted this for our own safety and health," Hanvelt said. "This is a very nice place to live, and we want to keep it that way."

from the Eau Clair, WI Leader Times

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...

San Antonio Homeowners Association Threatens Foreclosure of Military Couple Stationed Overseas from WOAI.com

A San Antonio couple, serving in the military overseas, almost loses their home. Not because they failed to make their mortgage payments, but because they were behind on their homeowners association fees. This military couple was fighting a losing battle, so they asked News 4 Trouble Shooter Jaie Avila for help.

David and Melody Gates admit they fell behind on their homeowners association fees when Melody got sick, but they say when they tried to pay what they owed, the association and its attorney kept sending their checks back and piling on more fees. The couple is stationed at an air force base in Germany.

The Gates say since late last year, they have sent three separate checks to the Westover Crossing Homeowners Association to pay off all the dues they owe for their home. But each time, the checks were returned, because by the time they arrived in the mail, more late fees, and attorneys fees had been added to the total. The attorney for the association refused to accept partial payment.

"Every time they mail it back to me, they tell me I owe them more money," says Melody Gates. "They tell me that I owe them late fees and I also, on top of that, I owe them attorney fees. And I don't understand why a company, knowing that we're so far away, is being so unjust to us."

After six months of this, the Gates' bill grew from $1,100 to more than $1,800.
The homeowners association filed a lien against their home and was threatening foreclosure. So the desperate couple e-mailed the Trouble Shooters.

"I reached out to you, because I don't know what else to do," says Gates. "We have tried very hard to make this bill paid in full."

The Trouble Shooters contacted Spectrum Management, which runs the Westover Crossing Homeowners Association, and its attorney, Tom Newton, Jr., the man who has been sending the Gates' all those intimidating letters. Newton wouldn't comment, but this isn't the first time the Trouble Shooters have come across attorney, Tom Newton.

Last year, Newton, who was working for another homeowners association, foreclosed on an elderly disabled couple, Dan and Elaine lambert, because they hadn't paid $380 in HOA fees. At the time he said he felt justified in foreclosing on struggling homeowners who are only a few hundred dollars behind on their HOA dues.

"I feel comfortable in taking those steps necessary to enforce my client's legal rights," said Newton at the time. "And if that means that ultimately somebody may go through this foreclosure process, it is unfortunate. But it is a consequence of their own making."

Although, he wouldn't talk to us, a few days after we contacted Newton, he and the Westover Crossing Homeowners Association agreed to stop tacking on fees and settled the dispute with the gates for $1,300. Almost $600 less than they had been demanding.

If you fall behind on your HOA fees, they can legally do the same thing to you. Be sure to read your deed restrictions which should explain what kind of notice they have to give you before trying to foreclose. And get them to agree to a re-payment plan in writing, to avoid unexpected fees.


If you feel that you are being harassed or treated unfairly by a Homeowners Association (HOA), contact San Antonio attorney Trey Wilson. Mr. Wilson is an experienced real estate lawyer who routinely represents both individuals under seige by their HOAs, and HOAs with claims agaisnt developers/builders. Trey Wilson was named by Scene in SA Magazine as one of San Antonio's Best real Estate Litigation Attorneys. He may be reached at 210-223-4100 or www.sa-law.com

Restrictive Covenants Are Treated as Contracts Under Texas Law

Read those CCRs before you sign them! Better yet, have an experienced attorney do so.

The Texas Property Code defines a restrictive covenant as “any covenant, condition, or restriction contained in a dedicatory instrument, whether mandatory, prohibitive, permissive or administrative.” TEX. PROP.CODE ANN. § 202.001(4). Black's Law Dictionary defines restrictive covenant as a “private agreement, usu[ally] in a deed or lease, that restricts the use or occupancy of real property, esp[ecially] by specifying lot sizes, building lines, architectural styles, and the uses to which the property may be put.” BLACK'S LAW DICTIONARY 393 (8th Edition 2004). The Restatement (Third) of Property states that a restrictive covenant is “a negative covenant that limits permissible uses of land.” RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 1.3(3) (2000). Clearly, “Declarations of Covenants, Conditions, and Restrictions" or CCRs fall squarely within these definitions, and constitute restrictive covenants.

Texas Courts have long held that restrictive covenant are interpreted according to the rules that govern contract construction. See e.g., Air Park-Dallas Zoning Comm. v. Crow Billingsley Airpark, Ltd., 109 S.W.3d 900, 909 (Tex.App.-Dallas 2003, no pet); Marcus v. Whispering Springs Homeowners Ass'n, Inc., 153 S.W.3d 702 (Tex.App.-Dallas, 2005); VICC Homeowners' Ass'n, Inc. v. Los Campeones, Inc., 143 S.W.3d 832 (Tex.App.-Corpus Christi, 2004). Dyegard Land Partnership v. Hoover, 39 S.W.3d 300 (Tex.App.-Fort Worth 2001, no pet.); Scoville v. SpringPark Homeowner's Ass'n, 784 S.W.2d 498, 502 (Tex.App.-Dallas 1990, writ denied). Further, Courts strictly construe covenants “against the party seeking to enforce it in favor of the free and unrestricted use of the premises.” Munson v. Milton, 948 S.W.2d 813, 816 (Tex.App.-San Antonio 1997, pet. denied). Stated differently, “the right of individuals to use their property in whatever manner they desire remains one of the most fundamental rights an individual property owner possesses.” Rankin v. Covington Oaks Condominium Owners Ass'n, Inc. Not Reported in S.W.3d, 2005 WL 3161039 (Tex.App.-San Antonio, 2005).

Neverthless, the CCRs you receive at time you purchase a home constitute a binding contract -- even if you are not asked to sign them. Prior to closing on your home, you should have an experienced real estate lawyer review and explain the CCRs to you. You can bet that the Homeowners Association and their lawyer are familiar with the CCRs and prepared to enforce them.