January 21, 2010 Letter announcing Enforcement Policy
As you may know, the Architectural Control Committee (ACC) of the Balcones Village – Spicewood Homeowners’ Association has been working diligently to ensure that all owners within the community are aware of, and comply with, the restrictive covenants and other governing documents affecting their property. For the most part, the ACC’s efforts have been very successful. However, there remain a few instances where, despite the ACC’s efforts, an owner has refused to abide by its obligations under the community’s governing documents.
To assist the ACC in its enforcement efforts, the Association’s Board of Directors has adopted an “Enforcement Policy for Violations of Restrictions, Bylaws or Rules,” a copy of which is enclosed with this letter. This Policy clearly sets out the process by which the ACC will notify owners of violations of the community’s governing documents and provides owners, the remedies available to the Association in the event that violations are not remedied in a timely manner, and the procedures for owners who disagree with the Association’s enforcement actions to be heard in an open forum by the Board.
As you will see in the Policy, the Board, on behalf of the Association, has reserved the right to file a lawsuit, on behalf of the subdivision homeowners, to enforce the community’s governing documents in the event that an owner fails to remedy a violation after the procedures described in the Policy have been carried out. This authority, which was transferred to the Board in 1992 by the original developer that created all of the deed restrictions, is vested in the Association by statute (Section 202.004(b) of the Texas Property Code), will be used only as a last resort.
The Board and the ACC hope and expect that owners will work within the procedures established in the Policy to timely resolve any violations. However, in cases where an owner refuses to remedy a violation, there is simply no other choice.
If you have any questions or concerns about the Policy, please do not hesitate to contact
To assist the ACC in its enforcement efforts, the Association’s Board of Directors has adopted an “Enforcement Policy for Violations of Restrictions, Bylaws or Rules,” a copy of which is enclosed with this letter. This Policy clearly sets out the process by which the ACC will notify owners of violations of the community’s governing documents and provides owners, the remedies available to the Association in the event that violations are not remedied in a timely manner, and the procedures for owners who disagree with the Association’s enforcement actions to be heard in an open forum by the Board.
As you will see in the Policy, the Board, on behalf of the Association, has reserved the right to file a lawsuit, on behalf of the subdivision homeowners, to enforce the community’s governing documents in the event that an owner fails to remedy a violation after the procedures described in the Policy have been carried out. This authority, which was transferred to the Board in 1992 by the original developer that created all of the deed restrictions, is vested in the Association by statute (Section 202.004(b) of the Texas Property Code), will be used only as a last resort.
The Board and the ACC hope and expect that owners will work within the procedures established in the Policy to timely resolve any violations. However, in cases where an owner refuses to remedy a violation, there is simply no other choice.
If you have any questions or concerns about the Policy, please do not hesitate to contact
The Enforcement Policy
The Board of Directors of the Association (the “Board”), by unanimous consent, has adopted this Enforcement Policy to set forth the procedures by which the Board will enforce violations of the Declarations and any rules and regulations which may be promulgated by the Board from time to time (the “Rules”). Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Declarations.
This Enforcement Policy is expressly intended to ensure compliance with the requirements of Chapter 209 of the Texas Property Code. In the event of any conflict between the terms and provisions of the policies set forth herein and the provisions of Chapter 209 of the Texas Property Code, the provisions of Chapter 209 will control.
I.VIOLATIONS SUBJECT TO THIS ENFORCEMENT POLICY
A violation may consist of a single act or action in violation of the Declarations, Bylaws or Rules (i.e., the construction of a temporary structure prohibited under the Declarations), or a series of acts or actions which constitute a repeated violation of the same or a similar provision of the Declaration, Bylaws or Rules (i.e., allowing refuse to accumulate gradually over a period of time in violation of the provisions of the Declarations). This Enforcement Policy applies to both types of violations. For purposes of this Enforcement Policy and the notices of violation described herein, a “Continuing Violation” includes not only an ongoing, uncured violation of a provision of the Declarations, Bylaws or Rules (i.e., failure to remove a prohibited temporary structure), but also any series of acts or actions which repeatedly violate the same or a similar provision of the Declarations, Bylaws or Rules, whether or not the violation has been partially or temporarily cured (i.e., consistently allowing refuse to accumulate, even if all or a portion of the refuse has been temporarily removed).
Additionally, this Enforcement Policy applies not only to violations of the Declarations, Bylaws or Rules committed by an Owner, but also to any violations committed by an occupant of a Lot, or the Owner or occupant’s family, guests, employees, contractors, agents or invitees (each, a “Violating Party”). The Association will seek to provide notice to the Violating Party, but the Owner is ultimately responsible for all violations which occur on an Owner’s Lot, without regard as to whether those violations were committed by an occupant other than the Owner, or the Owner’s family, guests, employees, contractors, agents or invitees.
II.NOTICES OF VIOLATION
Subject to the procedures described herein below, and unless otherwise directed by the Board, the manager of the Association has the authority to send violation notices utilizing the form attached hereto as Attachment “1” (the “Notice of Violation”) and Attachment “2” (the “Second Notice of Violation and Notice of Impending Legal Action”).
Initial Notice of Violation: The Association, or the Association’s property manager on its behalf, is authorized to send an Initial Notice of Violation at any time after the Association’s initial discovery of a violation of the Declarations, Bylaws, or Rules. The Initial Notice of Violation must be sent to the Owner of the property to which the violation relates, and may also be sent to the Violating Party (if other than the Owner). The Initial Notice of Violation will be sent via certified mail, return receipt requested, and will: (i) describe the violation of the Declarations, Bylaws or Rules; (ii) inform the Owner he/she is entitled to a reasonable period to cure the violation, unless the Owner was given notice and a reasonable opportunity to cure the same or a similar violation within the preceding six (6) months; (iii) demand that the violation be resolved within thirty (30) days from the date of the Initial Notice of Violation; (iv) inform the Owner that the Owner may request a hearing under Section 209.007 of the Texas Property Code on or before the thirtieth (30th) day after the date the Owner receives the Initial Notice of Violation; and (v) provide notice that the Association may pursue legal action to compel the Violating Party’s compliance with the Declaration, Bylaws and/or Rules if not timely cured.
Second Notice of Violation and Notice of Impending Legal Action: If, within thirty (30) days after receipt by an Owner of an Initial Notice of Violation, a Violating Party fails to cure the Continuing Violation as described in the Initial Notice of Violation, and the Owner does not request a hearing under Section 209.007 of the Texas Property, the Association, or the Association’s property manager on its behalf, is authorized to send a Second Notice of Violation and Notice of Impending Legal Action. The Second Notice of Violation must be sent to the Owner of the property to which the violation relates, and may also be sent to the Violating Party (if other than the Owner). The Second Notice of Violation will be sent via certified mail, return receipt requested, and will: (i) describe the violation of the Declaration, Bylaws or Rules; (ii) make a final demand that the Violating Party resolve such Continuing Violation immediately; and (iii) provide notice that the Association will pursue legal action to compel the Violating Party’s compliance with the Declaration, Bylaws and/or Rules if not cured immediately.
III.ATTORNEYS FEES
In accordance with the provisions of Section 209.008 of the Texas Property Code, the Association may collect reimbursement of reasonable attorneys’ fees and other reasonable costs incurred by the Association relating to collecting amounts, including damages, due to the Association for enforcing the Declaration, Bylaws or Rules.
This Enforcement Policy is expressly intended to ensure compliance with the requirements of Chapter 209 of the Texas Property Code. In the event of any conflict between the terms and provisions of the policies set forth herein and the provisions of Chapter 209 of the Texas Property Code, the provisions of Chapter 209 will control.
I.VIOLATIONS SUBJECT TO THIS ENFORCEMENT POLICY
A violation may consist of a single act or action in violation of the Declarations, Bylaws or Rules (i.e., the construction of a temporary structure prohibited under the Declarations), or a series of acts or actions which constitute a repeated violation of the same or a similar provision of the Declaration, Bylaws or Rules (i.e., allowing refuse to accumulate gradually over a period of time in violation of the provisions of the Declarations). This Enforcement Policy applies to both types of violations. For purposes of this Enforcement Policy and the notices of violation described herein, a “Continuing Violation” includes not only an ongoing, uncured violation of a provision of the Declarations, Bylaws or Rules (i.e., failure to remove a prohibited temporary structure), but also any series of acts or actions which repeatedly violate the same or a similar provision of the Declarations, Bylaws or Rules, whether or not the violation has been partially or temporarily cured (i.e., consistently allowing refuse to accumulate, even if all or a portion of the refuse has been temporarily removed).
Additionally, this Enforcement Policy applies not only to violations of the Declarations, Bylaws or Rules committed by an Owner, but also to any violations committed by an occupant of a Lot, or the Owner or occupant’s family, guests, employees, contractors, agents or invitees (each, a “Violating Party”). The Association will seek to provide notice to the Violating Party, but the Owner is ultimately responsible for all violations which occur on an Owner’s Lot, without regard as to whether those violations were committed by an occupant other than the Owner, or the Owner’s family, guests, employees, contractors, agents or invitees.
II.NOTICES OF VIOLATION
Subject to the procedures described herein below, and unless otherwise directed by the Board, the manager of the Association has the authority to send violation notices utilizing the form attached hereto as Attachment “1” (the “Notice of Violation”) and Attachment “2” (the “Second Notice of Violation and Notice of Impending Legal Action”).
Initial Notice of Violation: The Association, or the Association’s property manager on its behalf, is authorized to send an Initial Notice of Violation at any time after the Association’s initial discovery of a violation of the Declarations, Bylaws, or Rules. The Initial Notice of Violation must be sent to the Owner of the property to which the violation relates, and may also be sent to the Violating Party (if other than the Owner). The Initial Notice of Violation will be sent via certified mail, return receipt requested, and will: (i) describe the violation of the Declarations, Bylaws or Rules; (ii) inform the Owner he/she is entitled to a reasonable period to cure the violation, unless the Owner was given notice and a reasonable opportunity to cure the same or a similar violation within the preceding six (6) months; (iii) demand that the violation be resolved within thirty (30) days from the date of the Initial Notice of Violation; (iv) inform the Owner that the Owner may request a hearing under Section 209.007 of the Texas Property Code on or before the thirtieth (30th) day after the date the Owner receives the Initial Notice of Violation; and (v) provide notice that the Association may pursue legal action to compel the Violating Party’s compliance with the Declaration, Bylaws and/or Rules if not timely cured.
- Hearing Not Requested. In the event a hearing before the Board is not requested within the thirty (30) day period specified in the Initial Notice of Violation, and the violation remains uncured by the Violating Party, a Second Notice of Violation will be sent in accordance with the procedures described below. .
- Hearing Requested. If a hearing is requested within the time period specified in the Initial Notice of Violation, and the matter is not resolved as a result of such hearing, the Owner will be notified in writing, within ten (10) days of the date of such hearing, that the violation of the Declarations, Bylaws or Rules must be cured within thirty (30) days from the date of such hearing or the matter will be referred the to the Association’s attorney for enforcement. If the violation is not cured within thirty (30) days after the hearing, the matter will be referred to the Association’s attorney for further action.
- Hearing Procedures. A hearing before the Board is held to discuss, verify facts and attempt to resolve the matter identified in the Notice. Unless otherwise agreed by the Board, each hearing will be conducted in accordance with the agenda attached hereto as Attachment “3”.
Second Notice of Violation and Notice of Impending Legal Action: If, within thirty (30) days after receipt by an Owner of an Initial Notice of Violation, a Violating Party fails to cure the Continuing Violation as described in the Initial Notice of Violation, and the Owner does not request a hearing under Section 209.007 of the Texas Property, the Association, or the Association’s property manager on its behalf, is authorized to send a Second Notice of Violation and Notice of Impending Legal Action. The Second Notice of Violation must be sent to the Owner of the property to which the violation relates, and may also be sent to the Violating Party (if other than the Owner). The Second Notice of Violation will be sent via certified mail, return receipt requested, and will: (i) describe the violation of the Declaration, Bylaws or Rules; (ii) make a final demand that the Violating Party resolve such Continuing Violation immediately; and (iii) provide notice that the Association will pursue legal action to compel the Violating Party’s compliance with the Declaration, Bylaws and/or Rules if not cured immediately.
III.ATTORNEYS FEES
In accordance with the provisions of Section 209.008 of the Texas Property Code, the Association may collect reimbursement of reasonable attorneys’ fees and other reasonable costs incurred by the Association relating to collecting amounts, including damages, due to the Association for enforcing the Declaration, Bylaws or Rules.
