The subdivision now known as Barton Creek Lakeside was originally created in the early 1980's. There have been several Declarations of Covenants, Conditions, and Restrictions (CCR's) filed in the deed records for the subdivision. The current CCR's, say the affairs of the subdivision are the responsibility of “The Association", defined in Article 1.5 (page 2) as the Property Owners Association of Hidden Hills on Lake Travis, Inc., a non-profit corporation. The CCR’s require that any changes (amendments) to the CCR’s must be filed in the Deed records. (Article 8.1) That would include changing the association.  There has NEVER been an amendment to the CCR’s filed that would change the definition of the “Association” in Article 1.5. On June 2, 1993, a non-profit corporation named Barton Creek Lakeside - Master Property Owners Association Inc. (The "Master Assn") was created.

 

Whether authorized or not, on February 18, 1998, the Master Assn. forfeited its corporate charter with the State of Texas, meaning it ceased to LEGALLY exist over 10 years ago! In spite of this, the dead Master Assn. continued to illegally transact business, and money from property owners was still flowing into the dead Master Assn bank account as recently as 2008. (Show Me The Money) On December 5, 2005, a new non-profit corporation, Barton Creek Lakeside POA Inc. (BCLPOA) was chartered by directors of the illegally operating Master Assn..  

 

The CCR’s were never amended to change the definition of the association in article 1.5 to the new BCLPOA. In spite of this, BCLPOA directors began immediately acting as the defacto Association for the subdivision. In spite of lacking a proper filed amendment to the CCR’s, (see deed record searches) BCLPOA immediately began assessing and collecting dues from property owners even though they lacked any legal authority. The good news is that individual property owners ARE NOT LIABLE for damages caused by the actions of the Directors of either association. HOWEVER, YOU SHOULD BE AWARE THAT FORMER DIRECTORS OF THE DEAD MASTER ASSN. ARE USING YOUR POA DUES TO DEFEND THEMSELVES IN A LAWSUIT BROUGHT FOR THE VERY REASONS COVERED HERE!!

 

What Does All This Mean?

 

It means if you paid money (dues, fees, etc.) for anything to either POA, or lost money as a result of actions of either POA, you should be entitled to get that money back from the directors Insurance Company.  If you would like your money refunded, simply Click Here.  The CCR’s say that “The affairs of the subdivision shall be administered by the Association.” This includes assessing and collecting dues and fees, approving building plans, and managing the affairs of the subdivision. Nowhere in the CCR’s does it allow any other person or entity to assess dues and fees, approve building plans, or place a lien on property or foreclose on a property owner.

 

As a matter of law, any entity acting as the association for a subdivision must also be legally in existence (in good standing with the state), properly organized according to state statutes and properly authorized though a recorded amendment changing article 1.5 in the CCR’s. Property owners pay dues and fees, and comply with findings of the Directors of a POA based on the TRUST AND ASSUMPTION that the association is legally authorized to transact business, and authorized by proper amendment to act as the POA for the subdivision. It would be THE RESPONSIBILITY OF THE DIRECTORS to inform all property owners if the entity posing as the “Association” was not legally authorized by the state or authorized by proper amendment, in which case, property owners would only have to VOLUNTARILY comply with actions of the board, including assessments for dues and fees, building approvals, etc. Click here if you want a refund.

 

Who Has Been Affected?

 

ANY person owning property after October 15, 1997 has been affected. Additionally, any person or entity who performed duties as a contractor, sub-contractor, or builder during the same period and who was held accountable by an Architectural Control Committee of either POA or their designated inspection company would have been affected. Click here if you want a refund.

 

Does This Mean The Deed Restrictions Are Unenforceable?

 

The Deed Restrictions in the CCR’s are still valid and enforceable, and in fact, any individual property owner, or owners, or an authorized declarant, may at their own expense, attempt to enforce the Deed Restrictions. However, according to the CCR’s, no individual property owner, or owners, or declarant may assess and collect dues and fees, levy fines,  approve building plans, record a lien, or initiate foreclosures. Only the board of the association defined in article 1.5 of the CCR’s is allowed to assess and collect dues and fees, levy fines, approve building plans, impose liens, or initiate foreclosures.

 

With Legal Action Already Started, What Will This Cost Property Owners?

 

There will be no out of pocket cost to any property owner for either the refunds sought or the costs associated with the legal process of recovering those refunds*  The property owners are in no way liable for the actions of the directors of either POA, and according to the meeting minutes of the board, they had obtained insurance which could pay  for the refunds.  Click here if you want a refund.

 

Was There Any Attempt To Confer Authority On BCLPOA As The Association?

 

Since the CCR’s would have to be amended to change article 1.5, the answer is maybe, on February 7, 2007 there was a recording in the deed records of Travis County, document 2007023925 that was titled as an “Assignment of Rights and Amendment to Declarations”, however, there is no amendment to Article 1.5 of the CCR’s anywhere in the document. If you read the recitals (those things that are supposed to prove the document is valid), you find that it is actually difficult to find any factual information. Starting with the first highlighted reference, Volume 11150, Page 110, you find it is part of what appears to be a note and has nothing to do with the subdivision. The second highlighted reference, Volume 11257, page 624, appears to be the signature page of a repair contract, but again has nothing to do with the Subdivision.  The third Highlighted reference, Document 200518945 does not even exist according to a Travis County deed records search. The fourth highlighted reference claims “Hidden Hills on Lake Travis, Inc.” was formed, but a search of the Secretary of State Corporations section only finds a “Hidden hills on Lake Travis” as an assumed name of Hidden Hills Beverage Corp. Besides, “Hidden Hills On Lake Travis, Inc.” Is not the Association in article 1.5 of the CCR’s anyway. The fifth highlighted reference claims that the rights of “Hidden Hills On Lake Travis, Inc.”, which never existed, were assigned to “Barton Creek - Lakeside Master Property Owners Association, Inc.”, however all the possible Travis County Deed records searches do not show any recording of such assignment or a recorded amendment of article 1.5 of the CCR’s by any declarant between March 1, 1988 and Jan 18, 1998, when the Master Assn. ceased to exist. The sixth highlighted reference, defines the “Association” as the deceased Barton Creek - Lakeside Master Property Owners Association, Inc. The seventh highlighted phrase in article D of the recitals, says that the Assignee (BCLPOA) assumes the “Association’s” (the deceased Master Association) rights, priveledges and obligations pursuant to the Declaration.  Since the Master Assn. didn’t legally exist. what did BCLPOA assume? It’s impossible to know why the person who created document 2007023925 filled it with so much erroneous information.

 

Can This Problem Be Fixed?

 

Of Course it can be fixed. Any errors in recorded documents can be corrected by simply filing corrected replacement documents. By filing a corrected document, the error is fixed from that filing date forward. Of course, it will not fix what happened in the past up to the point of the new filing. It would be a matter of finding the Declarants who were authorized at the time the erroneous documents were filed. Those declarants would need to re-execute two corrected documents consisting of an Assignment of Declarant Rights, and an amendment to the CCR’s that changes article 1.5 to define the proper association name. That is assuming the property owners really want the same directors running things.

 

*Individual directors who are property owners may have out of pocket expenses.

 

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