Texas – The 80th legislative session has begun in Texas and some voters, the majority single-family homeowners, are getting ready for another session of testifying before various legislators to pass or kill homeowner bills.  One of which will be watched, in one form or another, is The Texas Uniformed Planned Community Act or TUPCA for short.  The House Committee on Business & Industry comprised of Representatives and chaired by Rep. Helen Giddings submitted an 89-page Interim Report 2006 right at the beginning of session to the House of Representatives.

Some of the most enlightening bits of information from the report included sentences such as “not every member of the committee agreed on every finding and recommendation.  This includes the Chair.”  What the committee decided to do in an unique fashion was instead of  “incorporating suggestions into the report, three members of the committee chose to provide statements to attach to the report detailing differences.”  The committee consisted of Rep. Gary Elkins, Rep. Dwayne Bohac, Rep. Burt Solomons, Rep. Hubert Vo, Rep. Kevin Bailey, Rep. Armando “Mando” Martinez, Rep. Larry Taylor and Rep. William “Bill” Zedler. ##M:{full story}##

There were five (5) Interim Charges proposed.  Interim Charge 4 being the one most  captivating to me—“Study the powers ad practices of homeowner associations in Texas and the possible need for legislation, such as the proposed Texas Uniform Planning Community Act, to address the rules, enforcement, restrictions and other matters within the authority of a homeowner association..  (This was a joint Interim Charge with the House Committee on Land and Resource Management.)” 

While the report admits, in this state, “HOAs can foreclose on a home owned by a member to attempt to collect payment for overdue dues, penalties, and attorney fees incurred in collection attempts; it further stated, “however, the legislature has made it clear that an HOA may not foreclose on a lien on property solely based on fines or attorney’s fees.”   Personally found the next sentence on page 46 of the report encouraging, ##M:{full story}## when it read, “the right of an HOA to foreclose on an assessment lien is controversial and has been debated by the legislature in previous years.”  Encouraging to the extent, advocates plan to continue to knock on the door of legislators and make their presence known and the message to our legislators is listen and act on what we tell you regarding the stoppage of ALL foreclosures.  Advocates on this point are divided.  Some advocates think “some” foreclosures are okay and what I call, 100% advocates, think “no” foreclosure is constitutionally correct. 

It now appears, that finally after years of proactive advocacy work chiseling away at the foreclosure mentality, legislators are beginning to see the fallacy in foreclosing on one’s homestead in this state and that is why the surge of advocates who think “some” foreclosures are a-o-k is particularly insulting and repulsive to those of us who have worked hard to eradicate ALL foreclosures and right now we need a unified front to finish pushing legislators in the right direction as opposed to some advocates on one side of the fence and some on the other side of the fence. 

One of the most crucial points of how we as homeowners got our rights snatched away from us follows and is contained in the report:  “the protection of private property rights is one of the core functions of all governments.  This nation, and this state in particular, has always held fast to the notion that the true independence of its citizens rests squarely with the ability of those people to hold private property with the assurance that government will not interfere with that natural right.

However, also central to the idea of private property is the concept that individual property owners can contract away all or portions of that right as they see fit.  Government has a very limited role in interfering with such contracts, as long as such contracts do not violate either manmade or natural law.  When potential homeowners contract to be part of an HOA through deeds of sale, they should not generally look to the government to protect them when they are unhappy with the bargain that they made.

On the other hand, when HOAs (which have taken on many of the attributes and functions of governmental entities) violate the spirit or the letter of the law regarding their duties and rights, then it becomes incumbent on government to rein in these abuses.” 

This all sounds good but when you take into account, homeowners are forced into signing these so-called “contracts”; when in fact, they are one-party, pre-existing contracts created by the developer that usurp our right to protect our property from foreclosure at the closing table, it is impossible to accept the garbage about accepting this contract willingly.  Also, missing at closing is a notice informing you if you do not pay your maintenance fees, you will be foreclosed.  How many people do you think would actually sign a contract if they knew up front that the multi-thousand dollar investment they were just about to make could be lost if they do not or could not pay their $200 maintenance fees sometime in the future?  Probably no one and that is perhaps why homeowners do not get full disclosure at closing and in hindsight are told, oh you signed a contract—didn’t you remember?  What you get is a strong-armed presentation of a paper rush that if you do not sign as presented, you do not get the house you love.  It is only after you start having encounters with your lovely homeowner association, that you realize what has happened to you at closing.

Therefore, it is time for legislators to stop forcing the contract story down everyone’s throat and start being honest and real about pulling homeowners out of this quicksand we continue to be emerged in.  I said it years ago, stop giving us band aid legislation, band aid fixes for cancerous foreclosures.  Stop trying to cover up this Constitutional violation by looking in another direction and giving it a fresh coat of deception.  Now is the time to permanently fix it because the 100% advocates are not going to stop until you fix the problem the only way possible—repeal the caselaw Inwood vs. Harris--not adopting any parts of TUPCA. 

Having said all of this, at the end of the Interim report, a few legislators attached their letter as noted early in this article.  Rep. Gary Elkins, stated “I have signed the report, however it contains recommendations that I cannot completely support.  I believe that there are legitimate concerns regarding “’contract-for-deed’” and the powers of homeowner associations.  I am not sure that the concerns on both sides of these issues have been adequately addressed.  I look forward to having committee hearings during the 80th Legislative Session so we can more fully explore these issues and find a balance between the needs of all concerned parties.”   One hundred percent advocates that is our signal to bring our argument to the Capitol and win back our lost Constitutional and property rights. 

We advocates are allowing (some of us) the foreclosure issue to slip away from our grasp for correction by either accepting deals from our legislators or becoming distracted by other things, but Rep. Hubert Vo’s comment was troubling when he stated in his letter, “While we all know the problems with foreclosures, I hear more about other issues.  People complain that there is no authority or entity to appeal to for resolutions of problems with homeowner boards.”  Advocates may want to take note that Rep. Burt R. Solomons may not be on the side of the homeowner.  His statement in his letter was “Several of the recommendations outlined in the homeowner association section may increase the burden on HOA’s to the point of being unreasonable interference by state government in the development and maintenance of subdivisions.”  A legislator being concerned about the one holding the hammer is not a good legislator for the one being bludgeoned.

We homeowners  know that we did not form a contract at closing to be a member of a mandatory homeowner association and we did not knowingly agree to be foreclosed if we did not pay our maintenance fees.  Now it is our time to correct this misconception by protesting and demanding change and a better definition of the word “contract”.  harvellajones@yahoo.com