The Dues

  I moved into Cherokee Shores Owners Association in 2018.  The dues did not strike me as inappropriate as I came from living in Dallas condominium paying monthly dues equivalent to the yearly dues in Cherokee Shores Owners Association.  Back in 2018 I didn't personally own the place I was staying in and I never really thought that the dues could be anything other than what they are meant to be. 

  Things would have stayed the same if the Association would not choose to overcharge me in 2024 when I bought 2 lots within this community thus becoming a legitimate member of this Association.  The Association charged me for 3 lots instead of 2 lots, 2 of the lots that I just purchased and 1 lot that still belonged to the seller, the sellers late fees, the sellers road fee and the transfer fee.  When I argued about the legitimacy of this charge the Association's President stated that this is the policy of the Association for "all the transactions of this type".  

  That last statement captivated my attention.  I use it in all the legal paperwork we file as I don't quite understand what that statement means...  I am still wondering what type of transaction and what policy would allow the Association to charge the member for more lots than the owner owns... 

  Restrictions, executed in 1982, are pretty plain and dry on how much the member is to pay.  I live in section E so I will be using the statements from the Certified Copy of the Subdivision Restrictions Lots 1A, 1-1037, Section E, Cherokee Shores Subdivision I got from Henderson County Property Records, Deed Records, Volume 982, page 8-14.  To my knowledge these dues used to have the same numbers in all the sections of Cherokee Shores Subdivision. 

  Paragraph 12 (that is designated to the Dues) of the Section E Restrictions executed in 1982 states: 

"12. Subject to the remaining provisions of this paragraph, as to each lot hereunder (except Lot 1A, Section E), an assessment is hereby made of (i) $3.00 per month with respect to the total of lots, the owner of which owns one or two lots in Cherokee Shores Subdivision, (ii) $4.00 per month with respect to the total of lots, the owner of which owns three lots in Cherokee Shores Subdivision, and (iii) $6.00 per month with respect to the total of lots, the owner of which owns four or more lots in Cherokee Shores Subdivision; the word "owner", as used in this sentence, shall include also a purchaser of a lot in Cherokee Shores Subdivision. "

That same Paragraph 12 further states:

"At any time and from time to time, Cherokee Shores Owners Association may elect, by majority vote of the entire Board of Directors of said Association; plus a majority of votes cast at a meeting of the members of said Association duly convened, to increase such assessments, provided that prior written notice is mailed to each member of said Association (at the most recent address shown for such member on the records of said Association) stating either the exact amount or the maximum amount of such increase to be voted on at such meeting."

Here is the link to see these Restrictions:

https://drive.google.com/file/d/13eOwMpKqd3AmH2V78X_E21VF14c9k1z7/view?usp=sharing

  What does this mean?

  First of all any time there is a written notice required to all the members of the Association the vote is a major All-Association Members Vote.  And for that vote to be valid the Quorum of the Members has to be present during such meeting-vote.  What is that Quorum of Members is up for debate in Court right now, with the Association arguing that the Association is not prohibited from holding votes without a Quorum of the Members present. 

  Second, the meeting has to be "duly convened" - meaning that for the meeting-vote to be valid it has to follow all applicable rules and regulations of the Association and all applicable County, State and Federal Laws.  In this case, at the very minimum the vote has to comply with our Bylaws, Restrictions, Business Organization Code that regulates nonprofit corporations and Texas Property Code sections applicable to this property owners Association.

  Let's start with the Bylaws.  Article X, Powers and Duties of Board of Directors (b) gives the Board the right to establish the contribution of each owner to the common expenses not to exceed a five (5) percent increase annually. 

 This particular segment of our Bylaws makes our road fee as a permanent dues increase - illegal.  Not only was there no Quorum of Members present during any of the meetings which held the votes for these increases, but also the $50 increase is way beyond the 5% increase permitted by our Bylaws. 

Back to the regular dues.  With the dues amount around $147.00 for 2 lots (with 5% maximum yearly increase allowance) there had to be 29 major all-association members votes held (duly convened) with all 29 of them receiving majority members vote approval for those increases to be valid.  Needless to say there are no such records in Henderson County Property Records. 

Follow the link to see Cherokee Shores Owners Association's Assessment Rate Chart from 2022:

https://drive.google.com/file/d/13hPkCBmM67T17op-BUoIDqo2-JRPFkxz/view?usp=sharing

There is however a record of Subdivision Restrictions, Section E, Cherokee Shores Subdivision, (except Lots 1038 through 1077), Revised August 2019, that states: "an assessment is hereby made of (i)   per month with respect to the total of lots, the owner of which owns one or two lots in Cherokee Shores Subdivision, (ii)   per month with respect to the total of lots, the owner of which owns three lots in Cherokee Shores Subdivision, and (iii)   per month with respect to the total of lots, the owner of which owns four or more lots in Cherokee Shores Subdivision".

Here is the link to the currently posted restrictions on Cherokee Shores Owners Association's website:

https://cherokeeshores.org/architectural/

Do you notice anything missing? 

In 2019 the numbers from the Cherokee Shores Subdivision Restrictions were simply removed. 

And like so many owners of this Association I never questioned the dues amounts.  I paid what I was told to pay until the Association stepped one step too far and declared to me that they can charge me for more lots than I own.  

  Who in their right mind may think that the dues that thousands of members pay are not properly passed and are therefore unauthorized by any governing documents the Association has.  It's not like we live in stone ages: there is Internet, property records, there are attorneys, corporations, many business people who own land within this Association!  Who would have ever thought that someone would have the audacity to simply withdraw the numbers from the Restrictions and simply state in the records that the meeting was "duly convened"?  

  Did you know that even in higher levels of government the law can be passed without a Quorum unless someone brings up an issue of absence of a Quorum; which only happens when there is a close debate with every single vote having a possibility to swing the outcome of a decision one way or the other. 

Back to the discussion of the day - the Dues.  It is my position that the Association dues are bogus, that the road fee is unauthorized, that the dues amounts were unlawfully withdrawn from our Restrictions and Restrictions of the Association were unlawfully altered.

If our Dues amounts would be in the Bylaws they would be able to be amended with a majority vote of the All-Association Members Vote duly convened.  But our Dues being a part of our Restrictions make matters even more complicated and make that change also be subject to Texas Property Code 67% Vote approval requirement mandated by law to amend Restrictions. 

For any changes to be enforceable by law - it is not enough to simply make the change: the change has to comply with all the laws, the change has to be properly recorded with the County Property Records, and the Association has to keep permanent record of a prove-up of the change in case it ever gets challenged in Court.  The easy way to keep up with such documents is to have them properly notarized and to make them a part of County Property Records.  The records of All-Association Members Votes that cause amendments of the Restrictions and Bylaws have to be a part of a forever keep record of the Association. 

In the beginning of June we asked the Association for a prove-up record of Restrictions Amendment that passed 2019 Amended Restrictions recorded in Henderson County Property Records.  Still waiting...

On the closing note, I would like to bring your attention to the fact that our Deed Restrictions obligate us to pay the Dues in the amount that those Restrictions specify.  Not paying the dues would be unwise as a contractual lien may be placed on any property governed by these Restrictions.  The amount of dues we have to pay...?  I do not know.  I am not an attorney and I can only represent myself in this matter.  But the rule of thumb is that if you are paying without an argument you agree with the amount.  Silence in this case can be viewed as a sign of agreement. 

  Again, I am not an attorney, and I do not know what the Judge will decide to do in this matter.  Will the Judge choose to adjust our personal dues, our Section dues or the dues for the whole Association?  Will the Judge rule some other way? My point is that once you know that you may be being overcharged if you don't challenge the amount you are to pay - you are basically giving the other party a silent permission to continue charging what they are charging. 

I recently came across Martin Luther King's Jr. statement about the "freedom" that I think can also be applied to "change".  The quote was: "Freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed."  

We forget the basic truth of Nature - the constant change; and our true power - is the ability to change and make change happen.  When change is necessary, change has to be demanded, and only those that demand it - have the possibility of the change. 

In conclusion: if you are OK with the way things are - you need to do nothing, even though I encourage you to participate and keep reading.  If you want Change - DEMAND it! 

 

Board Membership

 Board Membership Eligibility

September 14, 2024 Board of Directors of Cherokee Shores Owners Association held an All-Association Members' Vote to remove a director from the Board of Directors Elected seat for "charges detrimental to the association".  While we are still trying to figure out what was so detrimental to Cherokee Shores Owners Association that this one member, my husband, did, let's discuss if it's even worth the effort to remove anyone in accordance with Article VI, Section 6 of Cherokee Shores Owners Association Bylaws.

The only reason anyone would try to remove a Board Members based on said section of our Bylaws is to permanently forbid that member to run for a position on the Board.  I guess my husband was on to something if the Association was so eager to remove him, that despite all of our legal arguments they went forth with this unfair and unethical removal. 

There must have been many unfair removals throughout our State because the issue of prohibiting a member from running on the Board of Directors made it all the way into State of Texas legislation, particularly Texas Property Code, Chapter 209, Sec. 209.00591, Board Membership, that states:

(a)Except as provided by this section, a provision in a dedicatory instrument that restricts a property owner's right to run for a position on the board of the property owners' association is void. 

This statute then goes into describing the permissible restrictions, such as: the Bylaws may only require some members to reside within association but not all of them, the Bylaws may require a section representatives to live within the sections they represent, two Board Members can not live together, felony conviction within 20 years and some development period allowances and exceptions. 

My husband tried to reason with the Board of Directors prior to his removal that the removal of the Director in accordance with Cherokee Shores Owners Association Bylaws Article VI, Section 6 is expensive, unnecessary and pointless.  The President and 2024 Board of Directors disagreed.

Why remove a director in the first place?  What I am still trying to make sense of in my head is how much do you have to dislike an individual that only has one vote?  Yes, he may speak up and say things you don't like: truth hurts as they say.  But... He can't hurt your plans.  A Board Member poses less threat than a regular member if you think about it from the perspective of the law.  If the Board Member disagrees it is an internal disagreement and when it's 4 against one there is nothing that Board Member can do, other than speak his/hers opinion or give up and quit. 

An attempt to remove a Board Member within Cherokee Shores costs on average $3500 - that is an average cost of the election in our association that has thousands of members who have to be notified of the upcoming all-association members' vote. 

After that you have to have Quorum of Members Present in accordance with Business Organisation Code for non-profit corporations, which the Association is arguing in Court right now they do not have to have.

And then you are looking at the cost of the lawsuit that may be triggered by a member feeling that he/she was wrongfully removed or for any other reasons and violations, that are no longer internal affairs and fall under the jurisdiction of District Court of the County the Association is located in.  The United States of America Bill of Rights Amendment I protects people's right "to petition the Government for a redress of grievances."  Last time I checked the deductible cost of Insurance Claim for Cherokee Shores Owners Association was around $20,000. 

Removing a director for charges "detrimental" to the Association is unnecessary and financially irresponsible, in other words with current Texas laws it is a complete waste of the Association's money and time. 

One of the objectives of our current lawsuit is to bring our Bylaws in sync with Texas Property Code so we can avoid wasteful removals and other unfair treatment of our members in the future.  

Our Bylaws currently have 2 restrictions in violation of Texas law that prohibit a member from running for a position on the Board.  Our Bylaws state that the member has to be in good standing in order to run and the member can never run for a position on the Board if the member has been removed for acts "detrimental to the Association".

Both of those restrictions should be found VOID in accordance with Texas Property Code, Chapter 209, Sec. 209.00591.  The Association was urged by the Court to conduct a Mediation and the Association has an opportunity right now to do the right thing, stop wasting time and bring the current lawsuit to an end by agreeing to align our Bylaws with State of Texas Law and fix discrepancies within the Bylaws, Restrictions and current Policies of the Association. We shall see...

I urge everyone to look into your rights.  It is not enough to have the laws that protect us, the people have to stand up for their rights and enforce those protections, otherwise we get attorneys saying in Court "these policies have been in place for quite some time" referring to the normality and acceptability of these unlawful practices by the neighborhood as a whole.  If no one speaks up, nothing changes.  If it doesn't bother anyone - it is silently accepted and agreed upon. 

Did you approve of wasting thousands of dollars to remove one harmless director? It is your right to know how much the Association spent on September 14th, 2024 removal of the director.  It is your money that is paying for the Association's attorneys to defend the interests of the few Board Members in Court. 

Do you know your rights?  Do you know where the numbers for your fees come from?  Do you know who came up with fines?  Do you know what happened to the second pool? Do you know where the road fee came from?

Ask questions - that is the only way you may get some answers...  Like The Good Book says: "Ask and you shall receive. "  Happy Independence Weekend to all!!! Don't forget you lose your freedoms if you don't fight for them!