Texas Senate Committee on Intergovernmental Relations

COMPLETE SESSION; Interesting testimony starts at 1:28

At the end, distraught homeowner breaks down, threatening to take her own life to end ongoing horrors with her HOA.


An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc. 

October 5, 2006


The Community Associations Institute (CAI) may call it whatever they want -- Uniform Common Interest Ownership Act (UCIOA) or Texas Uniform Planned Community Act (TUPCA) -- it's all the same. Under the cover of creating a balanced, uniform, statewide law for the creation and operation of mandatory homeowners' associations they are trying to take away homeowners' constitutional and property rights. These bill proposals are popping up all over the nation, under various names, but they all have only one target: To establish a bigger income for the service providers and to fleece the homeowners who live in these associations.


Specialized attorneys that grow wealthy from these associations sponsor these bills. On the Texas TUPCA website one quote surely stands out: "TUPCA may be the first state statute in the country to devote an entire chapter to protecting the rights of individual homeowners." I think that's about the boldest false statement I have ever heard!  When any proposal takes away constitutional and property rights from United States citizens, that creates a dictatorship.  It doesn’t protect peoples’ rights, no matter what its proponents claim. This is another one of these “FEEL GOOD” bills that achieves nothing -- no enforcement, no accountability -- but tries to tell legislators that enacting this bill will bring the necessary reform to their constituents!


On Monday, October 2, 2006 in a Texas Senate Committee hearing homeowners' advocates from all over Texas made it very clear to the senators how homeowners feel about this bill. Read below the presentation of Beanie Adolph, a long-term Texas homeowners' advocate -- part of the Adolph family that created the well-known website HOA-DATA  that finally exposed the foreclosure abuse in homeowners' associations. 


In impressive fashion Texas homeowners delivered a testimony that clearly showed the senators what homeowners really think about TUPCA and the even bolder attempt to take away constitutional rights under the cover of "protecting" homeowners. Shame on the attorneys who wrote this bill. You can watch the testimony by CLICKING THIS LINK


The Homeowners' Advocates came armed with two weapons, besides their heart-wrenching testimonies:  Robin Lent held up the cover of the CAI Magazine Common Ground to show how the CAI executives really feel about homeowners' advocates. And they exposed Florida's Richard Spears as the CAI propagandist he really is – a person who, under the pretense of fighting for association rights, has absolutely no consideration for the United States Constitution and private property rights. Spears quote: "Buyers surrender their civil rights,” says it all!  (Note: Spears is a member of Florida's Commission on Ethics!)

Two Clear Lake advocates, Gwen Gate and Roberta Toppin, described the difficulties in their HOA to the Senate committee.


Barbara Gatlin, President of Texas Homeowners for HOA Reform, Inc. announced the AARP BILL of RIGHTS for HOMEOWNERS in ASSOCIATIONS, and presented a copy to each of the Senators. This Bill of Rights was created as a model statute that covers the Basic Principles of Consumer Protection. Even if some homeowners' advocates feel that it falls short of being a perfect bill of homeowners' rights, it definitely creates much needed protection for homeowners, much easier enforcement of the regulations and accountability of the people in charge.


This bill, if enacted, will give homeowners protections they desperately need. And homeowners all over the nation will introduce it to their local legislators and explain to them that this is what we owners need to protect our homes against abuses -- protection desperately needed in "The Land Of The Free"!


Any legislator who agrees with UCIOA or TUPCA should be considered an enemy of the United States Constitution, because agreement with those proposals shows a willingness to take away our constitutional, civil and property rights!

From: Beanie Adolph – Texas Homeowners for HOA Reform, Inc.

We do not like TUPCA.  TUPCA is contrary to the Texas Constitution.  Article I – Bill of Rights, Section 26:  “Perpetuities…are contrary to the genius of a free government and shall never  be allowed…”

TUPCA 83.004 states: “…the rule against perpetuities does not apply…”

TUPCA 83.151 – “…the rights listed…are not exclusive or intended to limit the rights guaranteed by the Constitution and laws of the United States and this state.”  Yet section after section gives unlimited powers to the HOA board.

Sec.83.067 states that the governing documents will be liberally construed in favor of the organization  -  not the homeowner.  I’ve been here almost 50 years and I know that this is totally contrary to Texas law – an individual rights state.  Governing documents should exist to serve homeowners, not the association.

TUPCA 83.113 – Architectural standards means a person or persons with power to approve or deny applications for proposed construction, etc.  Here you have American homeowners who have bought their homes, hold responsible jobs, raise their children and TUPCA forces them to be subject to an unknown entity who will control their lives.

TUPCA 83.114 – Accumulation of Assessments.  This is a booby-trap for homeowners and a boon to the greedy industry.  Most homeowners are on budgets and cannot bear a sudden demand for exorbitant assessments with the alternative being foreclosure.  This appears intended to overrule the Brooks case where the Supreme Court ruled  9 – 0  for homeowners.  Associations don’t need this power.  It encourages excessive spending without accountability to the homeowners who pay the bills.

TUPCA 83.116 – Foreclosure – Obscene for an HOA to have this power.  Nobody else does – not doctors or other professions – not even Enron.  But TUPCA makes it worse: “A court may not set aside a sale under this section solely because the purchase price at the foreclosure sale was insufficient to fully satisfy the former owner’s debt to the association.”

TUPCA 83.204 – puts the burden of disclosure on the seller of the property to advise the purchaser of HOA rules and assessments.  Sellers won’t do this correctly.  That won’t protect buyers. –Buyers won’t know what CAI knows.  On this I agree with CAI’s Dick Spears who said buyers “surrender their civil rights”.  He said buyers do it voluntarily.  We say buyers don’t know..”  Do you honestly believe that Texas homeowners voluntarily surrendered their civil rights when they bought their homes?  

There are major problems with Property Code 204.  Our website shows how foreclosure lawsuits grew  in Harris County alone after passage of 204. At first 204 only applied to Harris County.  It’s bad enough that 204 was recently expanded to adjacent counties.  TUPCA would make this a truly statewide problem.  TUPCA says it must be statewide.  We from Harris County are here to warn all Texans that TUPCA takes away basic property rights.  TUPCA means a homeowner does not own his own home.  Do your constituents know what you are considering?  Do your children, grandchildren, relatives and friends know that you are considering denying them their rights “in perpetuity”?

As TUPCA states – 83.012 – Uniformity of Application: – Any amendment… to limit this application to less than the entire state, e.g. population or geography is void.

For decades basic Texas law has said that deed restrictions must be clear and that limitations on the use of property are disfavored.  TUPCA 83.067 has overturned this.  TUPCA says the DRs don’t have to be clear.

TUPCA 83.116 (a) creates the right to foreclosure even if it is not in the deed restrictions.  That should violate the Texas Constitution because even Inwood and Brooks require the right to foreclose be included in the deed restrictions.

TUPCA 83.116 (b) seems to allow an association to sell your house by non-judicial foreclosure without going to court and even allows the association to buy the house at firesale prices.  That creates a real incentive to trump up and boost the fees.  Look at the long list of laws CAI has had enacted against the homeowner.  Stop these anti-homeowner laws.  Represent your constituents – the people of Texas.  Do not take any portion of TUPCA.  Support the Homeowner Bill of Rights.

Thank you.