LLCs offers benefits such as limited liability, tax benefits, legitimacy in business dealings, creating a structure for operations, and remaining personally anonymous.

A LLC is an entity having its own legal rights and obligations, of which the owners are not. This allows for compartmentalizing liability and asset protection which is one of the main and most common reasons for using a LLC.

LLCs can offer tax benefits in that the IRS doesn’t recognize LLCs so the IRS allows you to designate how you want to be taxed and you can be a pass through entity (S-corp). In certain situations, you can save on Medicare and Social Security taxes by structuring the Member’s compensation and distributions but this should be planned and discussed with your tax advisor.

A LLC offers legitimacy to doing business. A LLC is an officially created entity which is formed and registered with the Secretary of State in the state of Texas. “Bob’s Builders, LLC” sounds legitimate than “Bob Smith dba Bob’s Builders”.

A LLC should have a Company Agreement (sometimes called an Operating Agreement) which governs how the LLC is operated. Chapter 101 of the Texas Business Organizations Code defines what should and can be included in a Company Agreement. When a LLC has more than one Member, the Company Agreement is important to outline how the LLC will operate and the relationship of the Members.

LLCs offer some anonymity in that all contracts or transactions should be done in the name of the LLC rather than one’s personal name. If there is a dispute or if liability is incurred, it should be the LLC which is sued rather than the Members individually.

These are just some very basic concepts related to LLCs. If you think a LLC would benefit you, we would be happy to help you with your LLC. Please call 830-625-9300 to schedule a time to meet with a lawyer who can help with your LLC.

How did the 2021 Legislature Affect Property Owners Associations (HOAs/POAs)?

There were quite a few changes in the 87th Legislative Session in 2021 that affected Property Owners Associations. Below is a summary of those changes:

Texas Property Code § 82.1141 was added to incorporate provisions for keeping and producing records by condominium associations similar to existing requirements of property owners associations as outlined in Texas Property Code Section 209.005. Condominium associations must adopt a document production and copy charge policy as well as a document retention policy.

Texas Property Code § 202.006 was modified to require all Dedicatory Instruments of a property owners association to be recorded in the Official Public Records of the county in which is located and prohibits a property owners association from collecting a regular assessment if the Dedicatory Instrument authorizing the collection of such assessment is not recorded in the Official Public Records.

Texas Property Code § 202.018 was amended to prohibit restrictions on displaying religious items or symbols on an owner’s property. Section 202.018 was also amended to allow a property owners association to apply restrictions on religious items in common areas, which violate a right-of-way, setback, or easement, or which are attached to a traffic control device, street lamp, fire hydrant, or utility sign, pole, or fixture.

Texas Property Code § 202.022 was added to prohibit property owners associations from restricting a property owner from installing a swimming pool enclosure that conforms to applicable state or local safety requirements. However, this Section does allow property owners associations to set rules regulating the appearance of a swimming pool enclosure, within certain limits.

Texas Property Code § 202.023 was added to prohibit a property owners association from restricting a property owner from building or installing security measures, such as security cameras, motion detectors, or fences. However, this Section does allow a property owners association to regulate the type of fencing that a property owner may install.

Texas Property Code § 207.003 was modified regarding the production of resale certificates. The modifications limit the amounts charged for a resale certificate to no more than $375 for a resale certificate and no more than $75 for an updated resale certificate. It also modifies the number of days to cure a failure to timely produce a resale certificate, from 7 to 5, before a property owner may sue the property owners association. This modification also increased damages from $500 to $5,000.

Texas Property Code § 207.006 was amended to require a property owners association with at least 60 lots or that is managed by a management company to maintain a website and to publish its Dedicatory Instruments on the website.

Texas Property Code § 209.004 was modified and now requires the management certificate to identify the recording data for the governing Declarations as well as any amendments, the phone number and email address for someone representing the property owners association, the website address for the property owners association, and the fees charged for property transfers. This modification also requires the management certificate to be filed with the Texas Real Estate Commission. Further, owners are no longer liable for attorney’s fees or interest if the property owners association has not recorded the management certificate in the county’s Official Public Records or filed the management certificate with the Texas Real Estate Commission.

Texas Property Code § 209.0041 modified the procedure for the amendment of a Declaration by a property owners association and restricts amendments to a Declaration if the amendment will affect a portion of the subdivision which is zoned for or that contains, or previously contained a commercial structure, an industrial structure, an apartment complex, or a condominium.

Texas Property Code § 209.00505 was added with new rules for the appeal process on applications denied by an architectural committee for a subdivision with more than 40 lots. This addition also denies the property owners association’s board of directors, and their spouses and household members, from serving on the architectural committee.

Texas Property Code § 209.0051 was modified to require that notices of a regular board meeting must be posted and sent to the registered email address of members of the property owners association at least 144 hours (rather than 72 hours) before the meeting. It further amended the requirement that the annual budget must be approved by the property owners association’s board of directors at an open board meeting.

Texas Property Code § 209.0052 was modified to require property owners associations that propose to contract for services exceeding $50,000 to solicit bids or proposals using a bid process established by the property owners association.

Texas Property Code § 209.006 was amended and Section 209.0065 was added to create a due process procedure that must be followed prior to a delinquent account may be reported to a credit reporting service. It further prevents charging a property owner fees associated with reporting a delinquent account to a credit reporting service.

Texas Property Code § 209.0064 was modified to require written notice of a delinquent account to be sent to property owners with 45 days to cure before the property owner can be held liable for the fees of a debt collector.

Texas Property Code § 209.007 modified the procedure for conducting a hearing on a violation requiring the board of directors to provide evidence of the violation at least 10 days prior to the hearing and requiring the board of directors to conduct the hearing rather than appointing a committee to handle the hearing.

Texas Property Code § 209.016 was modified to no longer require redaction of sensitive personal information of a tenant from a lease agreement and authorizes a property owners association to require property owners who lease their property to submit contact information for tenants, including the name, mailing address, phone number, and e-mail address, of each person who will reside at a property under a lease as well as the start date and term of the lease.

Texas Property Code 209.017 was added and authorizes property owners to sue a property owners association in justice court for violations of Chapter 209 of the Texas Property Code.

Texas Property Code § Section 209.063 was modified to allow only reasonable attorney’s fees.

If your Property Owners Association needs assistance complying with these new requirements, we would be happy to help. Call 830-625-9300 to schedule an appointment with the Law Office of Roy Neal Linnartz.