Section 1-A(6) - Contents of Lease

Section 1-A(6) requires that all leases entered into contain certain language. Much of the provision seems quite reasonable.The language obligates the lessee to be given a copy of and abide by all governing documents and rules of the HOA. This creates a legal obligation for the lessee to follow HOA rules. It requires lessees to obtain a badge in order to use the amenities and creates an assignment of that use-right by the owner. In other words, either the lessee can use the amenities or the owner, but not both.

The added verbiage then goes on to say that "ANY" violation of the HOA governing documents and rules is a DEFAULT under the lease that gives the owner the power to terminate and evict the tenant. There is not an attorney anywhere who would tell a lessee that signing a lease that permits eviction for not mowing the grass is a good idea. It gets worse.

The verbiage required to be incorporated into all leases goes on to give the HOA Board power to EVICT as attorney-in-fact on behalf of the owner. In other words, not only will the owner have the power to evict for ANY violation, the Board will have the power to evict tenants directly "for breaches resulting from the violation of" governing documents and rules. Looking at the terms of this provision alone, the owner would have no say in this process and is not even entitled to notice. Section 209.006 of the Texas Property Code, which is relied on heavily by the Board as giving protection to homeowners against inappropriate Board actions, does not include tenant evictions among the Board actions for which the homeowner must be given notice or an opportunity to cure. Perhaps a landlord-owner could find an argument elsewhere in the property code to stop an eviction process initiated per Section 1-A(6), but we maintain if the Board is going to be granted power within these restrictions, the owner's rights should be clearly addressed as well. As Abraham Lincoln is sometimes credited for saying: “Your right to swing your arms ends just where the other man’s nose begins.” This provision only provides for the Board's right to swing its arm. It says nothing about the landlord-owner or tenant's right not to be unfairly hit. There is no standard, no process, no appeal set forth within this section. There's not even a reference to what kind of violation or how many violations are necessary to invoke this right and power to evict. Arguably, the Board could evict a tenant for not mowing the backyard (PDR Section 13) and having bad taste in porch furniture (PDR Section 7).

Again, maybe this Board wouldn't do that. But the question isn't whether they will, it is whether any board should have the power to do so.

Landlord-owners please talk to your attorneys about this. No homeowner should be obligated to “assign” their rights to an HOA board.