Texas Property Code (“TPC”) Title 11, includes numerous provisions governing the formation, management, powers, and operation of residential HOAs (usually called “Property Owners Associations” in the statute) in Texas.
Chapter 202 of the TPC specifically applies to enforcement of restrictive covenants, and Chapter 204 governs powers of associations in residential communities.
The Texas Nonprofit Corporation Act, Tex. Bus. Code, Chapter 22, governs non-profits with regard to corporate structure and procedure. Homeowners associations in Texas must be organized as non-profit corporations under the Texas Business Code. Tex. Prop. Code §204.004.
Condominium associations in Texas may organize as either for-profit or nonprofit corporations. Tex. Prop. Code § 82.101.
To obtain an information report which includes the association’s corporate status, mailing address, registered agent, and list of the association’s current board members and officers, please visit the Texas Comptroller of Public Accounts and conduct a search under the name of the community or development.
Homeowners may also visit the county’s county recorder’s office to obtain copies of the association’s governing documents, including the Declaration of Covenants, Conditions, and Restrictions (CC&Rs) and amendments.
Federal Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. §1692, et seq.: The FDCPA regulates the conduct of “debt collectors” collecting debts owed by “consumers” to third parties.
HOA fees are considered “debts” under the FDCPA, and homeowners are protected “consumers.” Ladick v. Van Gemert, 146 F. 3d 1205 (10th Cir.1998); Thies v. Law Offices of William A. Wyman, 969 F. Supp. 604 (S.D. Cal. 1997).
An HOA collecting its own debts does not qualify as a “debt collector” and is therefore not directly regulated by the FDCPA. However, a third party – such as a collection agency, law firm, or property management company – attempting to collect fees owed to an association may qualify as a “debt collector” under the FDCPA.
Texas’s Debt Collection Act, Tex. Fin. Code §392.001, et. seq., regulates debt collection at the state level and contains provisions similar to the FDCPA. Unlike the FDCPA, though, the Texas statute is not limited to third-party debt collectors and can therefore apply to an HOA attempting to collect delinquent assessments on its own behalf. Texas’s Debt Collection Act is administered by the state’s Attorney General.