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Proposed CCR Amendment: Article VII, Section 10 – Violation of Covenants

At this time, the remedies listed in the CCR for violations are either ineffective or in violation of the Texas Property Code. Therefore, the Board has very few remedies that can be utilized to discourage violations. There are a few sections of the CCR that offer a remedy for a specific violation, such as yard maintenance, but for the majority of the covenants, rules, and restrictions listed the only current solution would be to take the violator to court. Not only is this expensive for the Association, but it may prove to be ineffective and is an extreme solution for many of the potential violations. Therefore, on advice of counsel, the Board is proposing the following Amendment that would impose a reasonable solution for the ongoing violations and allow the Board – within reason, and with a specific procedure to follow, as well as a maximum cap on amounts – to issue fines to reoccurring violators.


The Proposed Amendment was drafted by the Association attorney and is based on language used in comparable Association CCRs. Passing this Amendment will also provide the Association additional income that benefits the Association as a whole. Failure for this Amendment to pass will leave the Board with no other remedy (for most violations) than to begin filing suits against Members who are frequently and egregiously violating the Association CCR.


 


Proposed Amendment:


1.      Article 7 of the Declaration is hereby amended to add a provision to be known as Section 10, as set forth below:


 


Section 10.  Violations of Covenants.


Establishment of Violation.  Any condition, use, activity or improvement that does not comply with the provisions of this Declaration, the Bylaws, Architectural Committee Rules (if any), or any Association Rules, shall constitute a “Violation” for all purposes.


Covenant Enforcement; Fines.  The Association shall have the power to assess fines against an Owner for Violations of any restriction set forth in this Declaration, Bylaws, Architectural Committee Rules (if any), or any Association Rules adopted by the Board which have been committed by an Owner, an occupant of the Owner’s Lot, or the Owner or occupant’s family, guests, employees, contractors, agents or invitees.  The Board may assess damage charges against an Owner for pecuniary loss to the Association from property damage or destruction of Common Area or any facilities located on Common Area by the Owner, an occupant of the Owner’s Lot, or the Owner or occupant’s family, guests, employees, contractors, agents or invitees.  Any fine and/or charge for damage levied in accordance with this Section will be considered an Assessment as provided in Article VIII below.  The Board, or any managing agent acting on behalf of the Board, will have authority to send notices to alleged violators, informing them of their violations and asking them to comply with the rules and/or informing them of potential or probable fines or damage assessments. 


Procedure for Notice and Assessment of Fines: The procedure for notice and assessment of fines and damage charges will be as follows:


(1)               Violation Notice: Before levying a fine, the Association shall give the Owner a first written violation notice and provide an opportunity to be heard. This notice requirement may not be waived. This notice shall be sent by both certified and regular mail. The Association’s written violation notice must contain the following items:


 


a.      the date the violation notice is prepared or mailed;


b.      a description of the violation;


c.       a reference to the rule or provision that is being violated;


d.      a description of the action required to cure the violation;


e.       the amount of the fine;


f.        a statement that not later than the 30th day after the date of the violation notice, the Owner may request a hearing before the Board to contest the fine; and


g.      allow the Owner a reasonable time to cure the violation and avoid the fine, by giving the date the fine attaches or begins accruing (the “Start Date”), subject to the following:


 


                                                                                                   i.      New Violation.  If the Owner was not given notice and a reasonable opportunity to cure a similar violation within the preceding twelve (12) months, the notice will state a specific date by which the violation must be cured to avoid the fine, if the violation is on-going and continuous. If the violation is not on-going, but is instead sporadic or periodic, the notice must state that any future violation of the same rule may result in the levy of a fine.


                                                                                                 ii.      Repeat Violation.  In the case of a repeat violation, the notice will state that, because the Owner was given notice and a reasonable opportunity to cure a similar violation within the preceding twelve (12) months, the fine attaches from the date of the violation notice.


(2)        Violation Hearing.  An Owner may request in writing a hearing by the Board to discuss and verify facts and resolve the violation. To request a hearing before the Board, the owner must submit a written request to the Association’s manager (or the Association’s board of directors if there is no manager) on or before the 30th day after the date the violation notice was mailed to the Owner. The Board shall notify the Owner of the date, time, and place of the hearing not later than the tenth (10) day before the date of the hearing. The Board or the Owner may request a postponement, and, if requested, a postponement shall be granted for a period of not more than ten (10) days. Additional postponements may be granted by agreement of the parties. The Owner or the Association may make an audio recording of the meeting. The hearing will be scheduled to provide a reasonable opportunity for both the Board and the Owner to attend. The hearing will be held in a closed or executive session of the Board. At the hearing, the Board will consider the facts and circumstances surrounding the violation. The minutes of the hearing must contain a statement of the results of the hearing and the fine, if any, imposed. A copy of the violation notice and request for hearing should be placed in the minutes of the hearing. If the Owner appears at the meeting, the notice requirements will be deemed satisfied.


(3)        Levy of Fine. If the Owner cures the violation before the expiration of the period for cure, a fine may not be assessed for the violation. The Board must give the Owner notice of the levied fine within five (5) days after levying the fine. If the fine is levied at the hearing at which the Owner is actually present, the notice requirement will be satisfied if the Board announces its decision to the Owner at the hearing. Otherwise, the notice must be in writing. In addition to the initial levy notice, the Association will give the Owner periodic written notices of an accruing fine or the application of an Owner’s payments to reduce the fine. The periodic notices may be in the form of monthly statements or delinquency notices.


(4)        Amount. This fine schedule shall only be amended by a vote of the majority of the Members of the Association. The Association’s standard fine schedule shall be as follows:


             a.  For “Minor Violations”: $10 per day until the violation is cured with a cap of $50 per incident.


             b. For “Major Violations”: $25 per day until the violation is cure with a cap of $100 per incident.


Minor Violations shall be limited to the following: a)  failure to bring in garbage cans from the curb, b) variances from flag size regulations, and c) violations of Section 18 regarding recreational equipment. All other Violations shall be Major Violations.