One might think since the original launch of the “Clubhouse Vote Yes or No” e-blast following the meeting held on July 24th, 2018 at the clubhouse along with the subsequent fallout from property owners engaging in discussion about the project on various social media sites, the lack of documented preparation by the board, the lack of official community-wide notification, the lack of  actual written financial projections and budgets presented by the board to property owners to provide usable information with which to make an informed decision, and in general looking like there is no documented viable plan (or at least not one which has been shared with the stakeholders of this project) on the table to approve a $2 million dollar clubhouse build the board might consider it important to take some big steps back and rethink what is in the best interest of the community they serve. Big steps back like postponing the project until several benchmarks can be addressed.

Instead, today the property owners of Timberwood Park, at least those who belong to the Spectrum e-mail list for all things Timberwood, received a revised set of numbers, not full financials, with caveats listed at the bottom of the page.  Where is an actual written current financial for Timberwood Park which includes year-to-date revenue and expenditures, annual budgeted revenue and expenditures that has been sent out to every property owner in Timberwood Park as a means for property owners to establish a benchmark for informed decision making?

Do you remember receiving a notice earlier this week suspending voting because ….

“Dear Residents:

In reviewing the financial summary related to the proposed new clubhouse so we could answer questions, the TPOA Board discovered an error in the summary that caused the association’s projected gross income to be overstated. This error was the result of including fine income (fines issued for deed restriction violations) in the projections when it is not applicable to TPOA’s budget forecasting. Fine income is not accounted for in TPOA’s annual budgets, but because the association’s books are kept using the accrual accounting method, it is accounted for in income statements whether or not it is collected.

With regard to the summary, the original number presented to the community was $760,000 annually, but that number has been adjusted to $690,000 annually. ”

What was provided as a solution today was a sheet from the power point presented 7-24-18 which has been revised to “correct” the misstatement on income which the board was made aware of by a property owner.  Read that last line again…..the misstatement on income — which the board was made aware of by a property owner…..shouldn’t the board have known what was “real income” versus what was pass through or not included in our operating income? If that was a misstatement, why would you believe the numbers now being floated as accurate?

Shouldn’t we expect the board to have the details of the financials well understood and already correctly calculated thus far this year, especially if they are considering such a large expenditure?  Shouldn’t a board who has done their research, sought 3 bids, researched this project for 2 years, and so on know this inside and out and be able to confidently present any and all detail to ensure property owners are confident their money is in good hands?

Why would anyone now believe — hey problem solved — it was just a miscalculation of income and we are good to go????   Let’s invest $2 million dollars and see what it gets us….after-all it was just a simple mistake. Do you have confidence in this board at this time given what you’ve seen thus far?

The entire process to vote is so confusing, so purposely left without documentation and supporting information to provide to the property owners in order to make an informed decision that EVERY property owner should be wondering why they would trust their money and its management to this board under any circumstances at this point.

Restart the vote? Hmm.  Let’s see….. so if I have voted and I decide to vote again will that cancel my vote because we were told that if we voted more than once that would be the case.  Hmm.  Let’s see…. so if I vote now and my vote before was different, how can I be ensured that the new vote is counted rather than the old vote?  Hmm.  Let’s see…who’s counting these votes, the old votes and the new votes coming forward?  Hmm. Let’s see…who’s the independent oversight to ensure that this is being done fairly and allows ALL property owners the opportunity to vote?

We still have folks who are not on the Spectrum e-blast list.  Do they even have a clue what’s going on? Are we ensuring that EVERY property owner has the same opportunity to provide their informed vote on this matter? Someone mentioned this looked like a circus on social media….I hear the calliope now………..

Neighbors!  You are entitled to better, more documented information and full transparency on this huge project.  It’s time to vote no and put this to rest until every property owner has had the opportunity to be fully informed.

 

 

The special meeting held Tuesday, July 24, 2018 at 7 pm in our existing clubhouse was the opportunity for property owners to see a presentation on the final plan and ideas for the proposed new clubhouse build the board has been talking about for the last 2-years.  I was in attendance as I usually am taking notes to provide feedback to you, the readers of this blog and my neighbors.  If you haven’t seen the presentation from the meeting yet, I’ve posted the key pictures and summary information from it here.  Click here to see the presentation.

This 2-year process began when an on-line survey reached SOME of the property owners of Timberwood Park requesting feedback for what the survey responders might want in a renovated or upgraded clubhouse.  No-where in this survey did it say, “would you want or like to build a new clubhouse and pay for it?”  This was the first mistake made in the process.  The property owners who showed up at the meeting following the survey results were stunned to hear the board state they were largely considering building a new clubhouse at that time and were confused because they thought they had participated in responding to a remodel or renovation questionnaire.  There were numerous people in the audience that evening unhappy about the fact that they hadn’t even been given a chance to participate in the survey.  The process was flawed from the start and it truly has never recovered in part due to the lack of transparency and participation that is being offered during this entire process to the community at large, the property owners who will be paying the bill for what is ultimately decided.

During that initial results meeting, property owners were also told there was to be an option to remodel or build new based extensive research, solid numbers provided for both options, and a process that looked at what the entire community might want in this project.  Each of these items were to be presented to property owners to guide discussion and inclusion as to which option the property owners might feel was the best solution for our neighborhood. As early as this initial meeting, the board began exhibiting behavior when questioned about transparency and oversight and other standard business practices which included statements like “we don’t have to allow you to vote, we can make these decisions without your input” and “if you don’t like what we are doing, vote us out”.  This did not appear to be listening to the entire population of Timberwood Park in a fair and equitable manner. And as a result, several campaigns were launched to point out the fact that this project could obligate us to a large amount of debt without a vote to determine whether we, the property owners, might even want the project.

Contentious HOA meetings and objections continued to grow and ultimately the board decided to allow a vote for or against the clubhouse project.  They further indicated property owners would be involved along the way in determining what features might be essential or wanted in the park under a master plan which was being developed as another arm of this project.  I don’t know about you, but I never saw any official committees form with property owners who weren’t board members sitting on them to aid in providing feedback and getting information back out to the neighborhood as the progress continued did you?  If you were on one of those committees, would you step up and tell us about your experience working on it and what it was called?

Mysteriously, no options were ever presented again to remodel the existing footprint. Property owners were told at HOA meetings repeatedly this was impractical and unfeasible based on the board’s research in that regard and we needed to build new.  The discussion switched immediately to building a new million-dollar clubhouse without a single vote from the property owners who would be paying for it agreeing to a new build or to spend that kind of money.

No opportunities to provide feedback were sought when presentations were made regarding a master plan that an architect drew up which included a multi-use field/court if installed which would probably run somewhere in the 1-million-dollar range all by itself without including the maintenance costs to keep up the artificial surfaces which would be installed to make it multi-purpose.  This architect was the same architect hired to render the clubhouse drawings who was ultimately released for lack of performance.  Property owners were simply presented what the board called “final” plans when they were finished and there was no further discussion.  Was there a property owner-based committee involved in this part of the process?

The master plan developed utilizes every square inch of the 30-acre park we now enjoy.  It turns the country park that draws people into Timberwood Park as something unique into a park that most municipalities would have available to the public to be utilized 24/7.  Are we catering to outside neighbors who would like to spend their free time inside our private park?  There are certainly enough who send messages through this website on a regular basis seeking the how-to that allows them to use the park, swim in the pool and attend the ‘private’ events sponsored by property owners in Timberwood Park to make one think that the grand plan might be to allow public activities like team sports, etc.  What would parking look like then for the property owners who might want to use their “private” park?

It was fascinating to me that:

1. While there is always much grumbling about how difficult it is to keep the gate closed for events which are supposed to be private for the property owners of Timberwood Park to cut down on some of the neighboring development who now tag onto each event knowing they can come and go as they please even though they pay nothing to maintain the park nor pay for the activities within it, the one time we have a special meeting geared specifically to property owners the gate was closed for this private event.
2. We haven’t seen the costs to plat the park, nor what if any restrictions, limitations or further studies might be required as a result. Perhaps a flood plain study will be required by the San Antonio River Authority since the park and Timberwood Park sit at the head of that watershed and anything we do on this park property can impact those downstream from us, both commercial and private property owners because construction will impact drainage and how it leaves the park from our catch basin we refer to as the lake.  Have we budgeted those contingencies into this new 2-million-dollar clubhouse?
3. As one property owner suggested on NextDoor posts I have read recently about this topic, what might be the possibility of property owners not being charged to use these brand-new facilities since we are paying so much for them? The answer:  the board has clearly stated they plan to achieve even more revenue (to offset our costs paying for the clubhouse) by charging us all a premium to use it and went on to assume that because we have built a 2-million-dollar clubhouse rental use will increase.  Would that be because we rent to outside events as well?

As a property owner who has lived here for 13 years now, been on the board for a number of years, served the community for an extended period of time on various other community committees like the 281 Corridor project, the Dark Skies Committee, The Constable Commissioner Committee, and others, I understand the unique things which make Timberwood Park —-Timberwood Park.  It amazes me that we are now discussing building a 2-million-dollar clubhouse via financing for 10 years obligating all property owners to the payback involved when we are more than capable of saving the dollars necessary to build should the community want it.  Costs won’t change that much and according to the board we are nearly there in our cash available with the balance they quote available in our accounts at this writing….some 900,000 dollars and counting.  Do you suppose any of that cash would be needed to repair existing amenities, maintain them, keep funds in reserve for emergency situations, or other needs the community might have?

Do you believe this has been well planned, researched, designed, gotten ample feedback from property owners, is needed, wanted or even a consideration for most property owners?

I think it would be great to learn who the “advisors from the community” the board enlisted for their expertise and feedback to round out what the board was discussing on behalf of all property owners.  I’d like to know who spent time on the many projects like the second bathroom, which I have heard but cannot confirm is a fact, that the windows are a problem for potential peepers because of their installation height.  Anyone know about this or hear of this complaint?

Or maybe the lake re-seal?  Who besides the board sat on committee reviewing some of the options, costs, contractors, etc. to ensure we got the best use of our dollars?  I understand the contractor who was awarded the job is now out of business which means any potential warranty or repairs will be impossible with this original contractor.

If a clubhouse idea that started 2 years ago with a figure of between 500,000 to 750,000 with 1 million dollars being the maximum we could expect it to cost can now be a 2 million dollar figure without any change orders, can we rely on the statements made and the promises provided with only verbal reassurances by board members that no increases will come to assessment fees, no special assessments will show up because we didn’t plan for contingencies like things we already have to maintain breaking down and needing to be repaired, and so on?  For example, will there be a performance bond to ensure the contractors are held accountable for the project?

Look at the package you have been given to decide with.  Would you decide to spend this kind of money and obligate yourself to its payback with the information provided if it were within your personal ability to do so?  Do you want to be obligated to this debt?

Voting for or against this project is now underway with a cutoff date of August 6, 2018.  You can go to the clubhouse on 7/30/18 from 5-7 pm to vote in person.  You can go to the clubhouse on August 6, 2018 from 5-7 pm to vote in person.  Post cards are supposed to be arriving in all property owner’s mailboxes describing how to vote on-line if you prefer.  E-blasts are being sent out to give you an opportunity to cast your vote via an on-line option as well.  There is an option on the Spectrum website if you click on Documents tab located to the left of the screen, then in the middle of the screen that drops down click on the drop-down options and scroll until you find “New Clubhouse Vote and Proposal” which is nearly buried toward the end of all the other documents posted there.

In summary I am not opposed to improving amenities we all use and benefit from as property owners in Timberwood Park when it makes sense.  Improvement is a good thing and can add to the quality of life in a community.  It does not make sense to spend this huge amount of money to build a new clubhouse in our park!  Asking for property owners to make limited time decisions without much detail for such a big expenditure seems rushed for no apparent reason.  Perhaps town hall meetings for large scale discussion among property owners is something to be considered.

The biggest problem to date seems to be very little transparency and almost no inclusion of the constituents the board professes to represent.  It doesn’t appear there is much potential for that to change.  Audience members suggested an oversight committee made up of property owners other than the board to provide an independent view of the project to property owners might be a good idea.  The suggestion was made to use the pavilion as a multi-purpose room by enclosing it and remodeling it to some degree at a greatly reduced cost and taking up no new real estate in the process.  Several other suggestions seemed to be heard but no response came from the board showing any sign of interest other than one board member who said “it’s in my best interest to make sure there are no change orders, I hate change orders”.  Somehow that doesn’t bring much confidence this will keep costs in check.  Should we property owners require more tangible specifics?

Specifics like budgets should be posted with varying degrees of “what if’s” to give property owners a true sense of the costs really are long haul.

Specifics like regularly scheduled town hall meetings allowing property owner feedback and suggestions to be considered and incorporated as the project moves along should it be approved.  These should have taken place during the 2-year research process and didn’t.

Specifics like the board should be transparent and as such welcome outside committees to oversee and provide an independent set of eyes and ears on the project to give property owners more confidence that full transparency is taking place.

Specifics in writing like why this project went from a remodel to a new build, from 500,000 to 2 million all over a two-year period?  And, no, tariffs did not raise the costs to this level as one board member suggested – construction costs have risen only slightly in the 10-15% range — not doubled over this 2-year period – this according to construction industry experts that were consulted.

There was an audience member at the meeting who spoke about the 1.5-million-dollar price tag being insignificant for our proposed clubhouse who also said if you look just down the street and see that Hollywood Park just built a 5.5-million-dollar clubhouse in their community ours would be a deal.  What he neglected to say during his speech about the great price of our clubhouse was

• that Hollywood Park is a city and as such raised property taxes through bonds to pay for this project.
• that Hollywood Park is a City or municipality, so this is a City Public Park, which also received a $500,000 state grant to offset some of its costs. Do we have that going for us?  There’s an Express News Article which speaks to all these facts.

What’s important here is ——  V O T E —— it matters because the outcome will affect you as a property owner in Timberwood Park for up to the next 10 years.  Use your vote wisely!

As a property owner, we each have certain rights granted to us when we purchase property.  The most important of these is our deed restrictions which are a legally binding document that run with the land you purchase.   Typically, when you purchase you receive a title report which includes your title to the property and the deed restrictions which govern your rights in the development in which you purchase.

 

Timberwood Park was built on a platform that kept things simple.  GG Gale, the original developer of Timberwood Park, lived by the “keep it simple” rule.  He never liked overregulation and/or overzealous or overreaching HOAs which was why he kept the restrictions to your property to be on average, and this is unit by unit, about 15 numbered items.  There are 3 or 4 items which discuss easements, and the remainder reflect those things considered unacceptable for the overall development standard.  The goal was to minimize the influence an outside agency like an HOA could involve themselves with the use and enjoyment of a property owner’s property.  The restrictions vary here and there unit by unit, which means one unit may have a restriction that another doesn’t or vice versa.  Because Timberwood Park was developed as a custom home community– generally speaking no two homes are the same—likewise no two units are exactly the same with deed restrictions.  Therefore we have what essentially is 60+ units of owners, each being able to manage their unit independent of another unit due to the differences in deed restrictions.  What binds us all together is the park which we all own in common as property owners in Timberwood Park.

 

For lack of a better word, we became self-ruling on January 1, 2011, when after a negotiated mediation the developer agreed to release their control of the neighborhood to the property owners of Timberwood Park.  Since that time, we have been managed by a management company and HOA created during the turnover process  that is supposed to be representing the best interest of ALL property owners.

 

As owners in Timberwood Park, we have a unique opportunity to enjoy a beautiful 30-acre private park solely for owner use.  This was one of the visionary aspects the developer decided would be an amazing addition to living in a custom home community outside city boundaries in what was “country” at the time. Since the original development began back in the 1970s there was nothing else around Timberwood Park and it was considered living in the country, just look at the difference now!  The private park offers the opportunity to have events which were begun and held annually even before we were under self-rule like Music in the Park, Picnic in the Park, Easter Egg Hunts, have celebrations for your friends and family in the clubhouse, etc. It also allows for walking trails, playgrounds for the kids, a 7-acre lake to enjoy catch and release fishing in, and so much more.

 

All these great, wonderful amenities, limited restrictions to the use and enjoyment of your property, living on larger, treed lots with abundant wildlife roaming freely, and we pay a mere $217.00 a year!  What a bargain!

 

So, that brings me to the point of this narrative.  Wouldn’t it be sad if we found ourselves in the middle of something we don’t want to be a part of —- like a lawsuit settlement?  There are currently several lawsuits either filed, pending, or in the process of being settled against our HOA.  Each of these pertains to property rights, arbitrary regulation placed on the owner by the HOA which is does not have the legal right to do, and made up rules, regulations and specifications which not only were NOT voted on by property owners as our deed restrictions require but are not part of our deed restrictions…the ONLY legally binding document we, as property owners, are bound by in this development as to use of our property.

 

Click here to see a recent lawsuit settlement relating to HOA negligence and governance.  These property owners will effectively each be paying a portion of this settlement when it’s all said and done because the HOA insurance does not cover the settlement amount.  Lawsuits filed against the HOA are important to watch and understand because they CAN affect you as a property owner under the HOA.  Do you want a bill from the HOA for a special assessment as a part of paying claims needing to be settled from lawsuits filed by property owners who are being thwarted in the use and enjoyment of their property by the HOA?  In the instance you watched from the link I believe the number was about $80,000 per property owner will be assessed to pay out on this claim.  Of course, there will no doubt be appeals, etc. and who knows where the number will ultimately land, but whatever it is, would you want to share in that expense?  So, how does that affect us you ask?  What does that have to do with us?  Read on about the current lawsuits either won by property owners or underway by property owners……

1. The recent lawsuit most of you are aware of by now either from newsletter editorial, social media or other news outlets, was ultimately won in the Texas State Supreme Court on appeal.  It is one example of a potential where property owners might have to share the bill for the ultimate settlement to the property owners who won their case because the HOA board believed they can rewrite/adapt existing deed restrictions with the flick of a pen and no property owner involvement or vote to accept those changes.

2. The second lawsuit underway involves loss of use of property and rights of the property owner leaving a home sitting in a state of disrepair since 2015 when an improvement project was submitted for approval based on our existing deed restrictions. Interestingly enough this project was begun back in 2007 as a several piece or stage improvement project and was at that time initially approved for the incremental stages of the project as a part of the entire plan.  The homeowner’s circumstances changed, and they were unable at that time to complete the original submission in its entirety.  In good faith, they resubmitted the same plan in 2015 when they were ready to re-start the project to the current board for approval to continue and complete it and the board denied the project for several reasons, one of which was a masonry requirement for outbuildings which differs by deed restriction versus what the board was requiring at the time.  The property owner attempted to work in good faith with the board to remedy the disparity between them but were unsuccessful.  The HOA began assessing fines to the property owner for an incomplete project and during this 3-year process of negotiations and delays the property owner was ordered by the board to cease all construction.  The property owners felt they had no choice but to file suit against the HOA to bring the matter to a close.  And the icing on the cake—one of the property owners is a disabled veteran. How do you think this lawsuit will end?  Similarly, to the previous one listed where the property owner prevailed?
3. There is NO place in our deed restrictions that allows fines.   Period.  Yet from the period 2012 through 2017 our HOA collected from you, the property owner, $168,880.00 in fines! Were you one of those individuals who was fined?  Check your deed restrictions.

If any or all these things mean payback or payout to property owners for damages there will be an end to what our insurance will cover and where we, as property owners may/will be responsible for paying for these issues as they are settled.  Everyone should be paying attention because this may cost YOU down the road as a property owner in Timberwood Park.  That $217.00 a year won’t be the only thing you are paying.

 

It’s great to keep moving forward and make the most of our park and its amenities.  We’ve seen much needed improvements completed in the park under this HOA. We went from a developer controlling how to spend his money to a HOA board controlling how to spend “our” money.  The HOA isn’t just about social activities and improvements to our park.  It is supposed to be protecting our property rights not undermining them with arbitrary additional requirements and rules which do not exist legally in our deed restrictions.  It is supposed to represent every property owner fairly and equally according to the legally binding rules which exist.

 

If we are borrowing to build a new clubhouse, which looks like it might be the plan based on the discussion line item which addresses financing under the special meeting notice sent out for July 24^th, we will be incurring debt which will have to be paid back.  Or, in the alternative if we have the funds to build, we will be depleting funds which we may need to settle lawsuits? Will we also have debt to be paid for lawsuits which are underway, have been ruled on, or might be coming down the pike as well?  What if property owners decide to sue for fines which were levied without legal means to do so?  Will we be paying for the reimbursement of those monies as well?

 

For all those property owners who are interested in newer, bigger and better don’t think that this property owner isn’t looking at best interest of the entire neighborhood.  Keep in mind that while that new clubhouse is being built there will be no place for events to be held for your family and friends, no work out center, no ability to hold Music in the Park, etc. unless we totally overlook the liability of having people in the park in large numbers while construction is underway—both property owners and those who attend from the many neighboring developments now around us.  There will be much liability with construction going on in the park — will we be closing it for the construction period?

 

I’m sure all these things will be addressed at the special meeting July 24th.  It’s in your best interest as a property owner to attend and hear the discussion first hand.  Make time in your schedule and attend the meeting!

Attending our neighborhood HOA meetings in Timberwood Park is one of the many ways to keep up with what’s happening in the neighborhood as well as receive recent updates on things the board and/or our management company might be working on.

The June HOA meeting was attended well, probably around 60 or so property owners, 3 attorneys from the HOA legal team, Spectrum management attendee, and the board.  The attendance was no doubt a bit larger than usual due to the recent Texas Supreme Court Ruling against the HOA which was addressed in the last blog post.  If you want the ruling once again to read, click here.  Please read the blog entry prior to this one for further details.

The meeting was called to order with approval of the minutes from the April HOA meeting by the board.  It was followed by a brief statement of the funds collected and the aging report of those funds which are still outstanding.  There wasn’t a financial report since no expenses were provided to give property owners the latest on where their money is being spent.  Spectrum stated there is a financial on their web page which states the status of our accounts, but the last one posted was April,2018 at the time of the meeting.

The board recognized Chris Martinez for his work in helping with park staffing and the many projects which need to be managed throughout our neighborhood.  It was noted that Robert Jung, who has been a constant in Timberwood Park clear back to GG Gale days, retired May 15, 2018, and wanted to go without a lot of fuss and muss so no farewell party or gathering was planned.  Robert will be enjoying fishing and lots of free time now!  We are grateful for his many years of unparalleled service to our neighborhood and our property owners.  Never had an unkind word to say, always had a smile on his face and welcomed property owners input for maintenance and upkeep of the park.  Robert, you’ll be missed by many of us!

The board opted to title the next item on the agenda “short term lease issue update”.  This item refers to the Texas Supreme Court Ruling unanimously to overturn the HOA’s earlier win on this case and rule in favor of the property owner.  This is where the evening became interesting.

 

IMPORTANT NOTE:   As has been reported and written about for the last 2+ years in this blog and on other social media sites throughout the neighborhood, the bottom line here is the deed restrictions for the unit in which you live, as well as any other of the 60+ units in Timberwood Park CANNOT BE REWRITTEN, CHANGED, AMENDED, without a vote of all the owners of a given unit in majority to do so! 

 

Three members of the legal team which represents our development HOA, Roberts Markel Weinberg Butler Hailey PC were in attendance and began a discussion with the attending property owners about the ruling.  Mr. Markel took the lead in telling us that he was “our” attorney not just the HOAs attorney and that he represented all of us as did his firm.  In my opinion, Mr. Markel seemed to be quite uncomfortable, irritated with questions from the property owners, and in general not really interested in answering much that was asked.

The discussion regarding this recent ruling against the HOA and in favor of the property owners began with an explanation that the property owners brought the lawsuit and thus the HOA “HAD” to defend it.  The HOA did not sue the property owners.  An audience member asked why a property owner would sue unless the HOA was sending them threatening letters, fines and other documents attempting to get them to cooperate with the position the HOA had taken for their issue.  The answer back from both the board and the legal team was that letters had in fact been sent to the property owners which was what prompted the lawsuit by the property owners.

The issue in this case involved the deed restrictions and whether or not property owners were allowed to use their residence as a short-term rental, similar to a bed and breakfast or VRBO.  The HOA took the position that this was the same as operating a business and therefore not allowed in Timberwood Park according to our deed restrictions.

 

The following are summary comments and not reflective of exact verbiage or specific statement, but rather meant to convey the general discussion being held during the meeting.

Mr. Markel spent a fair amount of time explaining to the audience that he has been familiar with all 60+ units of Timberwood Park since 2010 when he first became aware of the development and worked on the turnover process.  He went on to discuss how we had an extremely unique development in that were were 60+ units with varying deed restrictions, and as such it would only be possible to change the deed restrictions in a given unit, one unit at a time. An audience member asked how could that be done?

One of the many comments included it would take lots of shoe leather.  In other words, door to door participation by property owners to achieve a change in a given unit.  That discussion included a summary that EACH unit of the development must independently hold a vote of property owners of a specific unit and then receive majority votes of those unit property owners in favor of whatever the change might be to the deed restrictions. Then, and only then can a new or amended deed restriction be added after it has been recorded to run with the land as the original deed restrictions did.

IMPORTANT NOTE:  Unless a vote has been held by a given unit of its property owners for a change, deletion, addition, or amendment of a restriction within that unit, it is not enforceable no matter who wrote it or how it was added to our development operations.  IT CANNOT BE DONE!

Think of Timberwood Park as a development of 60+ small organizations (HOAs if you prefer that term).  Each unit must adopt legally ANY change, addition, deletion or amendment that might be being considered before it can become law and run with the land.  That process is voting in majority within the unit of property owners to do so.  Again, this has been reported and discussed on numerous previous occasions to provide property owners with information essential to making informed decisions with regard to the use and enjoyment of their property.

One of the things Timberwood Park is known for is the lax deed restrictions and lack of control the HOA has over our everyday lives and property.  Most people when purchasing property in Timberwood Park, read their deed restrictions and those deed restrictions are one of the many draws to living here.  I’ve heard it said over and over that people don’t want an overzealous HOA that checks to see how high our lawn grass is, decides when a garbage can should come in off the street, or won’t allow people to have the recreational toys they have purchased like a boat or an RV on their property.  Our deed restrictions were originally written keeping in mind that the developer didn’t want property owners to be over regulated on their property, so our developer produced a basic set of restrictions that run legally with our land which you receive at closing in your title report as a result.  You can find each unit’s restrictions posted on the web page under the documents tab if you want to see your specific unit restrictions.

Mr. Markel provided further content to the audience regarding the recent ruling stating that the property owners were in the audience and that they would probably not provide too much comment because they intended to submit additional items to the remanded lower court that will be looking at the Supreme Court ruling for the final dispensation of the case.  Simply stated, Supreme Court ruled against the HOA and in favor of the property owner stating there was not sufficient deed restrictions outlining what constituted a residential use of the property versus a business use of property.  In the courts opinion the property owner was using the property in a residential manner.  People in the audience questioned that logic stating things like “I don’t want a weekend rental next to my home, I have small children in my home”, and “this does not seem like a ruling to help keep up property values”, and so on.  Again, as was outlined in the last blog, whether you agree with the decision or not, the Texas Supreme Court has ruled that the property owners have the right to have short term rentals on their property given the current deed restrictions.

Audience members questioned whether the ruling could be overturned.  It is this author’s understanding that once the court rules, it is not reversible, but comments included that there was potential for a reversal if the lower court could be shown additional detail which was felt to be missed in the upper courts ruling. Hmm.  I guess that’s for a wait and see what the lower court does with the remanded case after the Supreme Court ruling.

Questions were asked about fining property owners and why that was occurring when there was no provision in our deed restrictions to allow for fining.  Answers were several, but summarily the discussion by our board and the legal team was that the HOA board can produce additional documents and guidelines via the HOA by-laws as additional tools to govern the development more effectively.  IMPORTANT NOTE:  Again, it is not possible to make up new deed restrictions which are legally binding against our land unless each unit votes in majority to make changes to the existing deed restrictions!!!   Again, if it doesn’t run with the land, it isn’t enforceable or legal.  Hmm.  Again, I do not believe the by-laws trump the restrictions.

The legal team seemed uninterested in discussing the fining policy or the ACC which were also brought to the discussion as extremely invasive to the point that property owners cannot do anything without approval by the ACC and if they do they are fined.  The legal team indicated this was not the topic they were there to provide content for.  Hmm.  If they represent all of “us” should that not be something they can enlighten “us” about since they were in attendance?

The legal team also seemed rather defensive about the entire discussion.  Again, if you are representing all of “us” why not answer questions posed by all of “us”?

Of potential additional interest, during the pre-meeting discussion, I overheard a conversation between Spectrum and a property owner involving the fining policy.  The property owner was discussing with the Spectrum representative the fact fining was not provided for in our deed restrictions and our HOA therefore has no right to fine for any reason.  The conversation sounded as though the Spectrum rep understood what the property owner was stating and agreed with that position.  Our deed restrictions only allow for a lien to be placed on a property should it need to be cleaned up by the board or affiliated services to do so for a violation which is outlined in our existing deed restrictions.  Again, this pertains to our existing, legal deed restrictions.  Those made up after the fact and not voted for by property owners do not exist!  No fines, no suspension of use of the park, no other restrictions to my knowledge exist in our existing deed restrictions.

There were several other questions, but generally the answers were short, abrupt, and even a bit irritated and didn’t really allow for a discussion of the topic in full.  The legal team departed as soon as the short term lease topic was closed, and several property owners followed them into the parking lot to have an opportunity to ask questions.

Next topic was about our architect for the future proposed clubhouse.  Apparently, the architect became unresponsive and wasn’t finishing tasks as provided so the HOA board fired them and hired a new architect to continue the project.  Wonder how much that will cost us now?

There were two other agenda items – social events and citizens to be heard which were quickly dispensed and the meeting was adjourned.

 

Here’s what I took away.  We had a Texas Supreme Court ruling in favor of a property owner who sued the association (HOA) because they were attempting to limit their rights to use of their property under our current deed restrictions.  We cannot amend, add, delete or change anything in our deed restrictions without doing so unit by unit to EACH unit of Timberwood Park.  A majority vote of owners in a given unit must take place affirming that change, amendment, deletion or addition to the restrictions and then a recording process needs to take place to make it legally run with the land going forward.  The HOA board cannot arbitrarily decide what constitutes a restriction.  If it doesn’t exist in our legally binding documents, it isn’t enforceable.

While the board, and “our” legal team stated repeatedly this case’s defense will be paid for by HOA insurance, I never once heard that damages the property owner may seek were to be paid by insurance.  And if they are paid by insurance, does that mean we will be cancelled and not insurable down the road?  Does that mean the HOA might decide to assess a special assessment to each property owner to pay for the damages, etc. if they are not covered by our liability insurance.  There was finally a comment that so far the board has had to pay the deductible on our insurance policy, some $5,000.00 in expenses so far.

And what about the next case already underway in our legal system brought against the HOA by a property owner for ACC issues, variances, fines and other matters which have kept them from completing an improvement project on their home for more than 2 years?  Will the insurance cover that lawsuit as well?  Will the insurance pay for damages if the property owners win? If we don’t have the funds available to settle these cases, the next step most likely will be to look to property owners for a special assessment to cover the costs associated with these cases.  Is that how you want your money spent? Are you ready to be held accountable for a potential special assessment to defray these costs should the insurance not cover the settlements?

 Video and audio of the meeting will be posted in the coming days to give those of you who have been unable to attend the meetings an opportunity to see what happened at the meeting.  Stay tuned!

For anyone who might not know, there was a significant ruling handed down by the Texas Supreme Court this past week which will impact our neighborhood. The court ruled AGAINST our HOA in favor of the property owner who brought the action. The Supreme Court remanded the ruling back down to the lower courts to revisit the subject matter which involved using one’s home as a vacation rental through a service like VRBO.

It should be noted the ruling of the Supreme Court cannot be reversed or appealed and is final.  When the lower court revisits the case it will potentially be discussing with the property owner what they might want to see to remedy the case at this point.  This could ultimately mean a settlement action brought against the HOA.

To read the ruling click this link .

In short, the ruling deals with our rights as property owners regarding use of our property.   The court determined our restrictions do NOT allow the HOA to interpret existing restrictions to fit a particular need.  Further, the court indicated our restrictions do not allow the HOA to make amendments and/or changes to the restrictions without following the procedure described in our existing restrictions to modify or change the deed restrictions.  That means if a change were to be made to the existing deed restrictions the correct procedure to do so is as follows:

1.  Unit by unit, a vote must be held of all the current owners of the given unit in majority to either add or decline changes to that units deed restrictions.
2. Each unit must hold a separate vote of all current owners, it cannot be done as a blanket effort across the entire development.  Once the decision is upheld as a majority decision within the specific unit the amendment can then be recorded and made a part of that unit’s restrictions running with the land. Until that vote and acceptance occurs, no changes can be made to existing deed restrictions. That speaks to the amendments and other documents which the HOA has drafted, recorded and attempted to make a part of our development without the consent of each unit of property owners in majority to do so.

While you may or may not agree with the ruling, the property owners are to be commended for their tenacity and perseverance in seeking a final ruling which took several years to run through the court of appeals and finally the Texas Supreme Court.

The meeting on Tuesday is our regularly scheduled June HOA meeting.  The ruling which has been handed down will impact ALL property owners in Timberwood Park.  It may be of interest to you to attend and listen to the board explain the ruling and it’s meaning to property owners going forward.

Some examples of possible impact –  there could be substantial impact to our HOA assessment account (operating) fund to defray costs associated with this action.

Of additional importance, there is a second lawsuit underway which will be heard later this year that may further impact our assessment account (operating) funds once heard and ruled upon which while on a different topic, still applies to property owner rights and use of their property as determined by the existing deed restrictions.

All this is important to understand because it will definitely impact the ability of our HOA to make future major improvements and/or financial commitments, such as a new or remodeled clubhouse, park modifications, etc as these cases make their way through the courts.

Please make time in your busy schedules to attend this important HOA meeting.  It will be important to you as a property owner to be informed from all perspectives about this ruling and how it will impact us as a neighborhood and more importantly….YOU AS A PROPERTY OWNER!

See you there!