HOA ???

[Glockster]

As a private organization which may own land such as parks, pools, etc... the HOA may be able to post 30.06/30.07 signs. There will be an agenda item at our next HOA board meeting to post 30.07 within the common areas but to still allow concealed carry.

This is not directly on point, but I question whether an association can adopt rules that deny owners of the ability to engage in legal activities on their own property. The case certainly indicates that a 30.07 sign would not be enforceable against a property owner. Getting one arrested could well result in a successful civil suit against the HOA and individual Board members for malicious prosecution.

Chas.

We are not seeking to deny rights for homeowners carrying upon their own property but upon HOA premises. I OC on my own property while doing yard work and the others board members better not even try to take that away.

Yes you are. Based upon what Chas. stated above, that the current case law then is that all homeowners are owners, so there is no such thing as "HOA premises" that is owned by the HOA, but it is instead owned by the homeowner/owners. So they are carrying on their property, according to his reference to current case law.

[Charles L. Cotton]

As a private organization which may own land such as parks, pools, etc... the HOA may be able to post 30.06/30.07 signs. There will be an agenda item at our next HOA board meeting to post 30.07 within the common areas but to still allow concealed carry.

This is not directly on point, but I question whether an association can adopt rules that deny owners of the ability to engage in legal activities on their own property. The case certainly indicates that a 30.07 sign would not be enforceable against a property owner. Getting one arrested could well result in a successful civil suit against the HOA and individual Board members for malicious prosecution.

Chas.

We are not seeking to deny rights for homeowners carrying upon their own property but upon HOA premises. I OC on my own property while doing yard work and the others board members better not even try to take that away.

Are you talking about a condominium project with an HOA or a subdivision with an HOA? If it's the former, then the common areas are also owned by the unit owners and this is exactly the ruling in the Chiarini case. If it's the latter, then the land may or may not be owned by the homeowners collectively. I think most, if not all, subdivision HOAs do not own any property and it belongs to the homeowners as joint tenants in common. This not my area of practice, so I may be wrong about subdivisions.

Chas.

[b322da]

We are not seeking to deny rights for homeowners carrying upon their own property but upon HOA premises.

So you are seeking to deny people their right to carry. Duly noted.

One more question, which is the bottom line here, I would guess.

Is a right which can be denied really a right?

Jim

[Taypo]

As a private organization which may own land such as parks, pools, etc... the HOA may be able to post 30.06/30.07 signs. There will be an agenda item at our next HOA board meeting to post 30.07 within the common areas but to still allow concealed carry.

This is not directly on point, but I question whether an association can adopt rules that deny owners of the ability to engage in legal activities on their own property. The case certainly indicates that a 30.07 sign would not be enforceable against a property owner. Getting one arrested could well result in a successful civil suit against the HOA and individual Board members for malicious prosecution.

Chas.

We are not seeking to deny rights for homeowners carrying upon their own property but upon HOA premises. I OC on my own property while doing yard work and the others board members better not even try to take that away.

So how is "HOA Premises" defined to you? My HOA has common areas like a pool, playground and such that are available to the homeowners in that HOA. They belong to ALL of us, rather than the board members, and are governed accordingly. If you want to ban guns on everyone's property, maybe you should get everyone's input?

[JALLEN]

I am not a lawyer in Texas, and not even a lawyer in California anymore, but I was for 40 years, almost exclusively in title and real estate issues.

Here is how this works. When a project is planned, or in any event before any part is sold, the developer prepares and records a document that, often called a Declaration of Covenants, Conditions and Restrictions or terms of similar import, hereafter referred to as "CC&Rs." These CC&Rs are imposed on all the lots or units when incorporated by reference in the first deed to each unit. They set forth a number of restrictions, positive and negative, that each property owner is bound by. Subsequent owners are bound because the deed of the current owner was subject to those CC&Rs and every deed thereafter is as well.

In effect, those restrictions are limitations as to what can be done on the property. You have no right, you have given up the right, to conduct certain activities, set forth in the document. Raising pigs, hanging wash on the lines, operating an oil well drilling rig, leaving your trash cans out passed midnight on the day of collection, etc.

The more land one has, generally, the less restrictions are found. Condos and townhouses regulate activities a lot more than 10 acre properties. The CC&Rs generally vest enforcement in an association of homeowners, "HOA" especially if the development provides areas owned in common, clubhouses, pools, etc. The HOA owns those amenities, and each owner is a member of the HOA typically. In condos, often one owns exclusive use of one's unit and undivided fractional interests in common areas, subject in all events to the HOAs power in the CC&Rs to make rules, make and collect assessments, collect dues, and manage the area. In each case, one must refer to those documents to ascertain what rights one is getting when buying a property in that development.

In the case here, discharging a firearm is forbidden. This is an area quite rural, lot sizes at least an acre and often several. The county code prohibits discharging a firearm on a lot of less than ten acres, except defense, varmits, predators etc.

I'd be suspicious of an HOA rule prohibiting possession of a firearm unless it was contained in CC&Rs explicitly. Some restrictions prohibited certain racial and religious groups from owning or occupying the properties. Those were all invalidated back decades ago, cannot be enforced, and it may be that a restriction, or rule, prohibiting possession of a firearm might suffer the same fate.

[cb1000rider]

We are not seeking to deny rights for homeowners carrying upon their own property but upon HOA premises. I OC on my own property while doing yard work and the others board members better not even try to take that away.

Respectfully, HOA property IS THEIR property. When HOA leadership fails to recognize the basic concept that the members own the association property, things tend to get sideways. You're all paying for that property - the taxes, the upkeep, all of it. HOA members should have the same rights and access as board members.

That being said, I certainly understand that some people might not be comfortable with firearms in a common area. However, I'd ask you - as you are comfortable with OC... Why is what's good for the goose not good for the gander? It could come off as hypocritical.

[b322da]

...So how is "HOA Premises" defined to you? My HOA has common areas like a pool, playground and such that are available to the homeowners in that HOA. They belong to ALL of us, rather than the board members, and are governed accordingly. If you want to ban guns on everyone's property, maybe you should get everyone's input?

In the organization of the typical effective subdivision HOA everyone does get an input. Typically a new owner enters into a contractual relationship with the HOA, agreeing to comply with the rules, including the grant of certain powers to the board, and getting, along with every other homeowner, the right to be elected to the board by a vote of homeowners, and furthermore having a means of modifying the HOA rules by getting enough votes which agree with his, either within the board or within the homeowners themselves. Each homeowner also receives an effective way of maintaining, or increasing, the value of his investment in his home -- typically the largest investment one ever makes.

Like the rest of life in the US of A, if a homeowner, or prospective homeowner, does not like the rules, he has the option of living elsewhere.

Very "democratic," Taypo. Is everybody happy with the rules applicable in our nation? Of course not. All one has to do is read the postings on this very forum to see that -- loud and clear. To paraphrase a great leader, it is a lousy system, but it is the best there is. Perhaps that saying applies to a well-run and effective HOA.

Jim

[Taypo]

We are not seeking to deny rights for homeowners carrying upon their own property but upon HOA premises. I OC on my own property while doing yard work and the others board members better not even try to take that away.

Respectfully, HOA property IS THEIR property. When HOA leadership fails to recognize the basic concept that the members own the association property, things tend to get sideways. You're all paying for that property - the taxes, the upkeep, all of it. HOA members should have the same rights and access as board members.

That being said, I certainly understand that some people might not be comfortable with firearms in a common area. However, I'd ask you - as you are comfortable with OC... Why is what's good for the goose not good for the gander? It could come off as hypocritical.

[Jago668]

I will never live in a place with an HOA. I have enough power mad jackholes making up rules for me to follow without volunteering to add more of those same people.

[Eric Lamberson]

As we see here, an HOA can make life very difficult for the homeowners when a small group of elites controls the HOA. I once lived in a very nice community in Florida; however, the HOA was a nightmare: fines for trivial issues, misuse of funds, conflict of interest with the property management company, on and on. We owners finally banded together and tossed out the lot of them in an annual HOA board election.

Don't know what motivates people to become little power mad tyrants; however, I have see similar behavior in gun clubs. A well known USPSA/IPSC shooting club in San Antonio elected a board who promptly closed the club to new members and rescinded annual elections. This effectively put a small group in permanent control of the club.

[cb1000rider]

In the organization of the typical effective subdivision HOA everyone does get an input. Typically a new owner enters into a contractual relationship with the HOA, agreeing to comply with the rules, including the grant of certain powers to the board, and getting, along with every other homeowner, the right to be elected to the board by a vote of homeowners, and furthermore having a means of modifying the HOA rules by getting enough votes which agree with his, either within the board or within the homeowners themselves. Each homeowner also receives an effective way of maintaining, or increasing, the value of his investment in his home -- typically the largest investment one ever makes.

Like the rest of life in the US of A, if a homeowner, or prospective homeowner, does not like the rules, he has the option of living elsewhere.

Very "democratic," Taypo. Is everybody happy with the rules applicable in our nation? Of course not. All one has to do is read the postings on this very forum to see that -- loud and clear. To paraphrase a great leader, it is a lousy system, but it is the best there is. Perhaps that saying applies to a well-run and effective HOA.

Jim

Jim:
Most HOAs are just like the voting public. Everyone has a chance at an input (most of the time), but most people choose not to voice that input or even participate. It's generally easy for a small group of people to run the thing...

And you're absolutely right, choosing to live in an HOA, you're exchanging a bit of freedom for more structure and typically a bit more conformity. It can work well to keep people like me from welding in the driveway. Of course it's not perfect.

However, the HOA community is constrained within the bounds of law. You can't form a community that restricts based on color. You can't prohibit or inhibit protected speech (some HOAs tried it). You can prevent people from installing antennas (tried, failed). My guess is that those protections apply to the 2nd amendment also and I'd be darned if I'd ever let a board steer the community into that legal mess regardless of how firearm-phobic I was.

OP: Steer the board to address it if/when it becomes "an issue" - likely OC will be much to-do about nothing. Don't create liability - all home owners are at risk if the HOA gets sued.

[Charles L. Cotton]

There seems to be a bit of confusion about the authority of an HOA under Texas law. First, the Texas Condominium Act expressly states that the common areas are owned by the owners of the units in the complex. They are not owned by the HOA. The Chiarini court noted this in the following statement "This phrase conforms to the requirements of the Condominium Act, which provides, 'An owner of an apartment in a condominium regime shares ownership of the regime's common elements with the other apartment owners'." This is why I made the distinction between condo complexes and subdivisions.

While this is not my area of practice, I'm not clueless about HOAs. My wife is President our our HOA, so I've learned from her and I've researched issues for her and the board. HOA's cannot create rules or restrictions that are not in the deed restrictions and the covenants adopted by the HOA at inception, or by amendments approved by the home owners. That's another reason why a 30.07 sign won't be effective against homeowners and perhaps not against anyone.

I would never live outside of an HOA again. I realize some folks, especially hams, disagree and that's fine, that's their choice. However, there's no more validity to the bogus claims that all or even a majority of HOA boards are tyrants, than there is to the claim that all gun owners are irresponsible or have criminal intent.

Chas.

[EEllis]

As a private organization which may own land such as parks, pools, etc... the HOA may be able to post 30.06/30.07 signs. There will be an agenda item at our next HOA board meeting to post 30.07 within the common areas but to still allow concealed carry.

There was a recent Texas case dealing with HOAs and guns, but I don't recall the full style. The defendant was Chiarini or something like that. He was arrested and convicted of openly carrying a handgun in the common areas of his condo project. The conviction was overturned because all homeowners were also owners (joint tenants in common) of the common areas, thus he did not violate TPC §46.02.

This is not directly on point, but I question whether an association can adopt rules that deny owners of the ability to engage in legal activities on their own property. The case certainly indicates that a 30.07 sign would not be enforceable against a property owner. Getting one arrested could well result in a successful civil suit against the HOA and individual Board members for malicious prosecution.

Chas.

How would something like "house rules" work in a situation like that? By that I'm thinking dress codes, alcohol, extreme behavior? It would seem taken to the far end if there is an office or clubhouse you couldn't charge any homeowner for breaking into it because they "own" part of it. Seems confusing and not totally practical. Or maybe I'm just missing something. That's been known to happen.

[jimlongley]

OK, here's a twist.

When my bride and I bought our first house in TX, I, as a ham, specified to the real estate agent that, among other things, there would be NO HOA or CC&Rs attached to the property. On closing day, as we were signing papers, we were presented with the HOA membership to sign, and I refused. This led to a "sidebar" conversation between real estate agents and the person running the closing, and I was not asked to sign it a second time.

Fast forward a couple of years and I am thinking of putting up a tower and antenna, and the city informs me of the CC&Rs that I was never informed of and that I had specified, as a condition of the purchase of the property, that I would not tolerate.

Then my company gave me a big bonus (a year before they laid me off) and we decided to put in a swimming pool. The pool company told us they would take care of all permitting and such, including the new, to comply with city code, fence.

Shortly after construction was completed, we got a letter from the HOA telling us that we were not in compliance with HOA rules and we must cease and desist construction. I contacted them and pointed out that I was not a member, nor had I ever joined, and their response was that I had indeed joined, by default just by purchasing the property, and that I had paid one year of dues and was now in arrears (which they had never contacted us about.) This went back a couple of times and it was finally revealed that our real estate agent had paid our first year dues out of her own pocket, probably in order to avoid losing the sale.

The HOA, at one point, informed me that they were planning to have us tear down the fence and take out the pool.

A few more letters went back and forth, and eventually the whole mess was rendered moot because my company had laid me off and we sold the house. The new owner never had a problem.

I did report the agent to the State Board of Realtors but never heard any resolution.

[mojo84]

As far as the op, I belief there is a difference between condo owner associations and homeowner/property owner associations. Even though their functions are similar, the way they are set up are different.

I agree with Charles that one can't be barred from excercising one's right to carry in the condo common area but I think one would have trouble getting away with it at the neighborhood park that is owned by a homeowner's association. Our property owners association owns three neighborhood river parks and the mailbox facility and we are members of the association. However, I do not believe that membership in the association extends our right to open carry at those parks.