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BAY OAKS COMMUNITY ASSOCIATION
DEED RESTRICTION ENFORCEMENT POLICY
PURPOSE
To adopt a policy
which addresses the uniform enforcement of deed
restrictions by Bay Oaks Community Association.
SCOPE
This policy applies to
all members of the Bay Oaks Community Association, Inc.
and all Lots which are subject to the Declaration of
Covenants, Conditions and Restrictions for Bay Oaks
Section One, a Subdivision in Harris County, Texas and any
Amendments thereto (hereinafter sometimes “Bay Oaks
Declarations”).
REFERENCES
The Bay Oaks Declarations
The Bay Oaks Community Association, Inc.
Bylaws
The Articles of Incorporation for Bay Oaks
Community Association, Inc.
And all other governing documents for Bay
Oaks Community Association, Inc., including but not
limited to any published rules, regulations, guidelines,
and resolutions.
Texas Property Code Chapter 204
Texas Property Code Chapter 209 -
Residential Property Owner’s Protection Act
Definitions
Deed
Restriction: As used herein, the term “deed
restriction” is intended to include the architectural
control provisions in Article VI and the use restrictions
in Article IX of the Bay Oaks Declarations
Inspector:
A person officially appointed to make inspections and
report to the Bay Oaks Community Association, Inc. board
of directors, who includes the property manager or his
designee, any member of the Bay Oaks Community
Association, Inc. Board of Directors, or any member of the
Architectural Review Committee. An inspector as defined
herein must verify all alleged violations.
Maintenance:
To repair or replace to an operable, functional and
aesthetically pleasing condition.
Violation:
Any act or condition, or lack of maintenance, willful or
not, by property owner or tenant that causes a property or
its improvements to be in noncompliance with the Deed
Restrictions.
Policy
The policy for
the enforcement of deed restrictions by the Bay Oaks
Community Association, Inc. (the “Association”) is as
follows:
I.
Owner’s Address: Each owner
shall notify the Association in writing, at all times, of
his/her current mailing address. Inspector or his/her
designee has the authority to automatically order a title
search at owners costs whenever mail sent by the Inspector
or his/her designee to an owner is returned by the post
office as undeliverable or if the Inspector or his/her
designee believes or has good reason to believe that
ownership has changed. Any costs incurred by the
Association in determining or attempting to determine
ownership of the property or locating or attempting to
locate the owner, and caused by failure of the owner to
advise the Association of his/her mailing address, shall
become charges due against the owner’s account and charges
against the owner’s lot. Deed restriction violation
enforcement shall not cease solely because notices are
returned by the post office.
II.
Notification: Following a
deed restriction inspection and violation verification, a
resident in violation of the deed restrictions shall
receive notification of the violation as follows:
A.
First Letter
Upon inspection and verification of the
violation, a letter shall be sent via regular mail to
notify owner and tenant (if applicable) of the violation
of the deed restrictions and to request correction of the
violation.
Owner and tenant (if applicable) shall be
advised to notify the Management Company if extenuating
circumstances exists, if additional time to correct the
violation is necessary, or if further information is
needed. Owner and tenant (if applicable) will be given an
opportunity to be heard at the next regular meeting of the
Board of Directors.
In the unusual circumstances that an
association seeks an injunction to prohibit a violation of
the Bay Oaks Declarations by an owner or tenant (if
applicable) and the association needs immediate relief
otherwise it will suffer irreparable harm, the association
may file suit for a temporary and/or permanent injunction
without any further notice to the owner or tenant (if
applicable). In the event an injunction is a possible
remedy, the association attorney may send the first letter
to owner or tenant (if applicable).
B.
Second Letter
Upon inspection and verification of the
continuing violation, a second letter shall be sent via
regular mail to notify owner and tenant (if applicable) of
the continuing violation of the deed restrictions and to
request correction of the violation. The length of time
between the first and second letters shall be extended if
the owner or tenant (if applicable) have contacted the
Management Company requesting additional time.
C.
Third Letter:
Upon subsequent inspection and verification
of the violation, a letter shall be sent, certified return
receipt requested and regular mail, to notify owner and
tenant (if applicable) of the failure to correct the
violation and to request correction of violation.
This certified letter will contain:
1)
A description of the
violation;
2)
A notice to the owner that
they are entitled to a “reasonable” period to cure the
violation and that attorney fees and costs will be charged
if the violation continues after a certain date (the date
must be at least 30 days from the owner’s receipt of the
notice; and
3)
A notice to the owner that
he/she may request a hearing on or before the 30th
day after the date the owner receives the notice.
4)
Language to indicate that if
a hearing is not requested and the violation is not cured
by the 30th day, all attorney’s fees, related
expenses and/or cost incurred by the Association shall be
charged to the owner’s account.
5)
The date, time and location
of the next Board Meeting along with contact information
for the managing agent.
The owner and tenant (if applicable) will
be advised that a $500.00 charge will be applied to
his/her account if the violation exists after the date
certain in the letter and a hearing has not been
requested, and the letter will further advise that it is
the intent of the association to turn the violation over
to the association attorney if not corrected and all
attorney’s fees and costs incurred by the owner will be
charged to the owners account. In accordance with the
Texas Property Code, a charge of $500.00 is applied to the
violator’s account, and as required, a statement of the
charge will be mailed to the property owner at the last
known address reflected on the association records.
Owner and tenant (if applicable) will be
advised to notify the Management Company if extenuating
circumstances exist, if additional time to correct is
necessary, or if further information is needed. Owner and
tenant (if applicable) will be given opportunity to be
heard at the next regular meeting of the Board of
Directors.
D.
Board
Upon subsequent inspection and verification
of the violation, a picture of the violation will be
taken. The Board will make a determination as to whether
or not the violation should be turned over to the
association’s attorney following either the hearing
requested by the owner or the deadline expiration to
request such a hearing. The board has the discretion to
consider special circumstances applying to owner or tenant
(if applicable)
If a hearing has been requested, the Board
must make arrangements for it to be held no later than 30
days after the date that the Board and/or the managing
agent received the written request.
The owner must be notified of the date time
and place for the hearing no later than 10 days prior to
the hearing date.
Either party may request a 10-day
postponement and additional postponements may be made by
mutual agreement.
The hearing may be recorded by either party
and the owner does not have to be present for the hearing
to be conducted.
E.
Demand Letter
The violation is referred to the
association’s attorney for a demand letter. The violation
will remain on the inspection list until final resolution
of the violation. A photograph may be taken of the
violation on any inspection thereafter, if required by the
association attorney.
Once the Board has referred the violation
to an attorney, all communications and correspondence
shall be directed to the attorney. No owner or tenant (if
applicable) shall communicate about the violation directly
with the board of directors of the manager(s) for the
association once the board of directors has referred the
file to the attorney for enforcement.
Any and all attorney fees associated with
the demand for violation correction and collection of the
associated fees shall be imposed on the owner’s account
and immediately become eligible for collection.
III.
Recurring Violator: The
Board has the discretion to impose a fine immediately upon
written notice for a similar violation within six months
of the original violation, so long as the owner received
the third notice letter. The Recurring Violator is not
entitled to an opportunity to avoid the fine by curing the
violation. The fine for recurring violations shall be no
less than $500.00.
IV.
Forced Maintenance: As
authorized by the Bay Oaks Declarations, Article IX,
Section 25, the Association reserves the right to cure the
violations after appropriate notice, and to charge the
owner for the cost of such work.
V. The notice and hearing
provisions stated herein do not apply if the association
files a suit seeking a temporary restraining order or
temporary injunctive relief or files a suit that includes
foreclosure as a cause of action.
Adopted June 18,
2003
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deed
restriction enforcement policy
