Daughtry & Farine, P.C.Daughtry & Farine, P.C.2024-03-13T20:16:03Zhttps://www.daughtryfarine.com/feed/atom/WordPress/wp-content/uploads/sites/1100448/2020/12/cropped-favicon-32x32.jpgOn Behalf of Daughtry & Farine, P.C.https://www.daughtryfarine.com/?p=509442024-03-04T18:17:17Z2024-03-06T18:13:12ZTexas Property Code specifies what information you must include in your HOA management certificate.
Most of this information is basic. However, it is important that you include all of it so your management certificate is properly filed.
What you must include in your management certificate
Here is some of the information your management certificate must contain:
Name of the subdivision and your HOA
Name and mailing address of the association
Name, mailing address, telephone number and email address of the HOA manager
Website address where the HOA’s dedicatory instruments are found
The term "dedicatory instruments" refers to the documents that govern the establishment, maintenance or operation of a residential subdivision, planned unit development or condominium or townhouse plan.
Additionally, your HOA management certificate must include the description and amount of any fees the HOA charges when subdivision property is transferred and recording data for the subdivision.
You may also include any other information you believe should be included in the management certificate.
When you must amend the certificate
You must file an amended management certificate any time there are changes to any of the information, including minor changes such as contract information.
Not filing a management certificate is a violation of the Texas property code. Although there are no penalties for not filing one, you may not be able to collect past due amounts from a new property owner.
There is a small fee for filing an HOA management certificate and it takes little time to file. Your HOA’s reputation could also be damaged if it becomes known you are in violation of the Texas property code. Therefore, it is best to file the certificate.]]>On Behalf of Daughtry & Farine, P.C.https://www.daughtryfarine.com/?p=509422024-02-22T19:12:21Z2024-02-21T19:10:39ZCondominium associations
At Daughtry & Farine, P.C., our law firm has been a reliable legal resource for condo associations for over four decades. With our specialized knowledge and expertise, our attorneys are prepared to handle a wide array of legal issues that are particular and unique to condo living.
While the restrictive covenants, bylaws, rules and regulations concerning the condo association are crucial to the creation and operation of a condo association, these documents can also serve the condo association when it comes to obtaining and maintaining insurance coverage.
Insurance issues
The cost for insurance coverage is very impactful, as these costs could result in fee increases for residents. In essence, insurance coverage is necessary for condo associations, as it provides coverage for liability and property damage concerning common areas and shared spaces. However, the type of policy is often dictated by the bylaws and even state law.
Whether you are dealing with issues concerning the type of coverage needed, obtaining an appropriate level of coverage, seeking an adjustment mid-policy or are dealing with a legal matter related to your current coverage, it is important to take the time to understand your rights and options. A legal professional can help you better understand your situation, answering any questions you might have.]]>On Behalf of Daughtry & Farine, P.C.https://www.daughtryfarine.com/?p=509402024-02-09T17:50:14Z2024-02-07T17:49:25ZWorkplace safety violations
Violations can include not providing employees with appropriate protective equipment, like safety glasses or respiratory protection, failure to protect employees from dangerous equipment and not providing safety training to employees, including how to respond in an emergency.
Employers must also remove hazards in the workspace, like cleaning slippery floors, replacing faulty wiring and ensuring obstacles are removed, like boxes or supplies.
The employer should also conduct regular safety checks.
In most workplaces, employers must post safety notices and warnings where employees can see them clearly. If those are not present, the employee may state that there is a violation. In addition, while it may seem minor, employers must adequately respond to complaints about ergonomic issues. These can include desk or chair adjustments to prevent repetitive stress injuries.
Employer response
If an employee raises a workplace safety concern, it is important to acknowledge that you understand their concern and will investigate it. You can ask the employee to provide details and documentation about the violation.
If you determine that there is a violation, you should take immediate action to fix the safety issue. You may also need to update policies and procedures to prevent similar incidents.
Although it is time consuming and sometimes expensive to correct the issues, you should continue to support a work environment where employees know they can report concerns without fear of retaliation.]]>On Behalf of Daughtry & Farine, P.C.https://www.daughtryfarine.com/?p=509382024-01-24T17:17:21Z2024-01-24T17:17:21ZCan a Texas HOA member sue a board member personally?
Personal liability scenarios
In essence, an HOA board member in Texas may face personal liability when breaching fiduciary duties to the HOA or its members. Fiduciary duties entail legal obligations to act in the best interests of the HOA and its members, conduct HOA business with care, loyalty to the HOA and HOA good faith. Texas mandates HOA board members to uphold fiduciary duties to the association and its members. A breach of a fiduciary duty could render an HOA board member personally liable for damages resulting from their actions.
Circumstances leading to personal liability
HOA board members in Texas can be sued personally if they engage in negligent, willful misconduct, bad faith, fraud, criminal activity or actions beyond their board authority. Personal liability scenarios may involve embezzlement, fraudulent contracts, failure to maintain common areas or discriminatory actions.
Individual versus communal liability
It is crucial to note that not every claim against an HOA or its board extends to individual board members. Collective actions or decisions of the board may be the basis for certain claims, with the HOA as the entity under scrutiny. For instance, if an HOA enacts a rule infringing on a member’s rights, the member may sue the HOA as an entity rather than pursuing individual board members.
Texas personal liability mitigation
While personal liability is a possibility for HOA board members in Texas, proactive measures can mitigate such risks. Adhering to Texas laws and HOA governing documents is paramount. This includes compliance with the Texas Uniform Condominium Act for condominiums and cooperatives, as well as adherence to CC&Rs, bylaws, articles of incorporation and rules and regulations.
Board members should also consistently act in good faith, exercising reasonable care in their duties. This involves sound judgment, discretion and avoidance of arbitrary, capricious, malicious or fraudulent actions.
Insurance Coverage
Ensuring the HOA has sufficient insurance coverage is a fundamental step. Common policies include general liability insurance, property insurance and Directors and Officers insurance. D&O insurance is especially crucial, offering protection against claims related to breach of fiduciary duty, negligence, mismanagement, discrimination, harassment or rights violations. Despite these measures, insurance policies may have limitations or exclusions.
Serving on an HOA board in Texas brings both rewards and responsibilities, accompanied by potential risks. Personal liability for board actions is a real prospect.]]>On Behalf of Daughtry & Farine, P.C.https://www.daughtryfarine.com/?p=509362024-01-10T20:59:04Z2024-01-10T20:59:04ZAccording to the Equal Opportunity Employment Commission, retaliation claims are the most regularly alleged basis of discrimination in the federal sector and the most common discrimination finding. This shows that you should be prepared to address a retaliation claim if one arises.
What is retaliation?
Retaliation means punishing an employee or job applicant for exercising their right to be free from employment discrimination or harassment.
There are many different forms of retaliation, some of which you might not be aware of. Retaliation involves more than simply firing or refusing to hire someone because they alleged discrimination or harassment.
While these are some of the more obvious forms of retaliation, activities such as making an employee’s job more difficult, giving a lower performance review, demoting an employee or taking benefits away could be considered retaliation.
When an employee alleges discrimination or harassment in your workplace, it is important to take the claim seriously and act promptly. But what happens if there are problems with the employee that you must address without making it look like retaliation?
Be prepared with evidence to back up any action you take
You can defend yourself against a retaliation claim by showing a legitimate, non-discriminatory reason for any action you take against the employee.
Having thorough documentation is one of the best ways to protect yourself against a claim of retaliation. If an employee who accused you of harassment is also always late to work, have attendance records ready showing every day they came to work late.
The records can show that any negative action you took towards them was not motivated by a sense of retaliation, but because of a legitimate reason.
Employment records are one form of evidence you can use. There are other forms of evidence, such as witnesses, which can help with a defense against retaliation, as well.]]>On Behalf of Daughtry & Farine, P.C.https://www.daughtryfarine.com/?p=509342023-12-29T08:41:26Z2023-12-27T08:40:47ZHow do you know if bad faith is in play?
In some instances, bad faith can be hard to spot. However, there are several signs that your insurance company is acting in bad faith and contrary to the law. This includes the following:
Your claim is denied without justification.
The decision on your claim is taking an extremely long time to render.
The insurance company offers you a settlement that is worth far less than the value of your claim.
Despite providing all requested information demonstrating that your claim is valid, the insurance company delays in paying you what you’re owed.
The insurance company drags its feet on investigating your claim when they determine that an investigation is necessary.
The insurance company misconstrues or flat out lies about the facts of your case.
Don’t face financial disadvantage due to insurance bad faith
You’ve upheld your end of the insurance bargain by paying your insurance premiums. When the insurance company fails to uphold their end of the deal, you might need to take legal action to force their hand.
We know this can be a tricky area of the law to navigate, but help is available out there. Just be sure to prepare yourself to advocate as aggressively as possible so that you protect your interests as fully as possible.
]]>On Behalf of Daughtry & Farine, P.C.https://www.daughtryfarine.com/?p=509322023-12-28T16:37:51Z2023-12-18T16:37:08ZProperty Owners Associations or POAs have an understanding of the appliable state laws and provisions in codes when establishing and maintaining a POA.
Creating a POA
At Daughtry & Farine, P.C., our skilled attorneys know firsthand the benefits a POA can have, which is why we have dedicated much of our practice to aiding POAs from their very creation. Our firm possesses the in-depth knowledge to guide associations to ensure they are properly created and are functioning in accordance to all applicable laws and provisions.
Reaching resolutions
Whether you need assistance in drafting or amending governing documents, need assistance at meetings, require representation in a dispute, have enforcement issues or require legal advice during the creation or operation of an association, a legal professional can help.
One reality often faced by a POA is the need to enforce the restriction set by the association. There are ways to reach an amicable agreement, and our law firm seeks to guide our clients towards a resolution that is not only favorable to the association but a resolution that won’t harm the relationship with the members of the association.
Like a business, a POA is continuously evolving to meet the needs of its members, to remain in compliance and to ensure their property, interests and property value are protected. As such, it is important that a knowledgeable legal team is consulted with when any questions or issues concerning your POA arises.]]>On Behalf of Daughtry & Farine, P.C.https://www.daughtryfarine.com/?p=509242023-12-11T17:01:25Z2023-12-04T17:00:20ZHave your own internal process
Your HOA governing documents should not only contain information about the community rules and restrictions, but about how disputes will be resolved.
The HOA may have its own internal process for dispute resolution. This process and the steps to be followed should be included in your governing documents.
The internal process can generally be whatever you and the other board members believe is the best way to handle disputes. Your process may start with a homeowner submitting a written complaint, giving the other side a chance to respond and then scheduling a private meeting between the parties with the HOA board to discuss a resolution to the dispute.
Alternative forms of dispute resolution
When the dispute is not resolved through your internal process, using alternative dispute resolution methods, such as mediation or arbitration is a good idea. Your governing documents should contain language requiring one of these methods as the next step.
The alternative dispute resolution requirement can apply to disputes between the HOA and homeowners, disputes between neighbors or disputes between HOA board members.
A main difference between the alternative dispute resolution process and your internal process is that a neutral third-party will conduct the mediation or arbitration, rather than the HOA board. The purpose is to maintain fairness.
If a resolution is reached at mediation or arbitration, it is put into writing and becomes binding.
When a resolution is not reached
Sometimes disputes simply cannot be resolved and then the situation becomes more complicated. HOA litigation might require advice and guidance from an attorney experienced with HOA disputes.]]>On Behalf of Daughtry & Farine, P.C.https://www.daughtryfarine.com/?p=504002023-11-16T12:06:55Z2023-11-16T12:06:55Z
Excessive absenteeism or tardiness
Insubordination
Poor work performance
Poor fit
Failure to follow workplace policy
An employee may choose to file a wrongful termination claim against an employer for allegedly terminating their employment for illegal reasons. Illegal reasons for firing an employee may include:
Discriminatory termination based on protected class (e.g., age, gender, race, religion, age)
Termination in breach of employment contract
Retaliatory termination based on employee filing complaint of harassment/discrimination
Termination based on employee reporting illegal activity in the workplace (whistleblowing)
Defending against wrongful termination claim
The best way to defend against a wrongful termination claim is to prove that you have a legitimate, non-discriminatory reason for terminating the employee. These reasons can be proven through testimony and documentation including:
Workplace policies detailing what is expected of employees
Correspondence with the employee (e.g., emails, texts, etc.)
Reprimands or warnings given to the employee regarding their misconduct
Statements from coworkers and supervisors
Providing the above evidence can help you establish that the termination was not wrongful and the employee is not entitled to damages. An employment law attorney can help you defend against allegations made by a former employee and keep your reputation intact.]]>On Behalf of Daughtry & Farine, P.C.https://www.daughtryfarine.com/?p=509222023-12-05T07:30:26Z2023-11-16T07:28:21ZInsurance for HOAs
Insurance needs can vary, but perhaps the primary role of insurance for these associations is to help them cover defense costs if they are sued for some reason. For example, many residential neighborhoods that have HOAs have swimming pools or playgrounds. If someone were to suffer an injury in one of those common areas, that injured person might try to sue the HOA, for whatever reason. The claim can be forwarded to the insurance company, at which time it is common for the insurance to fund the defense.
But, there will also need to be insurance for the physical structures or areas that the HOA or property owners association controls. For a condo building, for example, there will likely be insurance coverage for the roof or in case of other exterior damage, possibly damages caused by natural disasters – which would not be covered by the insurance policies of individual condo owners in the building.
If you are part of the leadership team with an HOA or property owners association, you will need to become familiar with your existing insurance policies and the potential for other insurance needs. Oftentimes, associations find it helpful to get help with the legal details of insurance coverage, policies and claims.
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