Under Section 209.005 of the Texas Property Code, homeowners associations (HOAs) in Texas must adhere to strict protocols when responding to records requests from property owners. This statute outlines the rights of homeowners to access HOA records while establishing safeguards to protect sensitive information and ensure orderly procedures. For HOAs, compliance requires a thorough understanding of statutory timelines, permissible exemptions, and documentation practices. Below is a detailed breakdown of the legal framework and operational steps for handling records requests under §209.005. Prior to handling any request, we highly recommend that you contact Manning & Meyers to assist in your response.
Legal Obligations for HOAs
When a homeowner submits a written request via certified mail to the HOA’s official mailing address (as listed on the management certificate filed under §209.004), the association must act promptly. The request must include a clear description of the records sought and specify whether the homeowner wishes to inspect the records or receive copies directly. Failure to comply with these procedural requirements may invalidate the request, but HOAs must respond to valid requests within the statutory timeframe.
Under §209.005(e), the HOA has 10 business days from receipt of the request to either:
1. Provide written notice of available inspection dates during normal business hours, or
2. Produce copies of the requested records
If the HOA cannot meet this deadline, it must notify the homeowner in writing and propose a new production date no later than 15 additional business days from the original deadline. Delays beyond this extended period may expose the HOA to legal action.
Permissible Exemptions and Confidential Records
HOAs may withhold certain categories of records under §209.005(d), including:
* Individual homeowner violations or delinquencies (unless related to a ratified fine or violation already disclosed to other owners);
* Attorney-client communications or legal work product;
* Personnel files or personal contact information (except addresses);
* Records related to pending litigation or adversarial proceedings;
* Security-related information (e.g., access codes, surveillance details);
* Contracts under negotiation.
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These exemptions aim to balance transparency with privacy rights. HOAs should carefully review each request to avoid improperly disclosing protected information. For example, financial records detailing aggregate expenses are generally disclosable, but invoices containing attorney-client discussions about a specific violation are not.
Fees and Production Policies
HOAs may charge reasonable fees for copies and the cost of compilation of the records if they have adopted a records production policy that outlines costs (e.g., per-page copying fees, postage). The policy must be established in advance and applied uniformly to avoid claims of discrimination. Notably, §209.005(i) prohibits HOAs from charging fees unless the policy is “recorded in the real property records of the county in which the subdivision is located” or included in the association’s publicly available governing documents. This ensures homeowners can access fee schedules before submitting requests.
Legal Risks and Enforcement
If an HOA denies a request or fails to comply with §209.005, homeowners may file a petition in justice court within their precinct to compel production. Courts may order the HOA to:
* Release the records;
* Pay the homeowner’s attorney’s fees and court costs;
* Issue statutory penalties of up to $500 per day for noncompliance (capped at $5,000)
However, if the HOA prevails by demonstrating compliance or valid exemptions, it may recover its own legal fees.
To mitigate risks, HOAs should:
* Hire legal counsel to respond to records requests. Please contact Manning & Meyers to assist your records request responses.
* Maintain meticulous records of all requests and responses;
* Document exemptions with specificity (e.g., citing §209.005(d)(3) for attorney-client privilege);
* Train board members and staff on statutory requirements.
Best Practices for HOAs
1. Adopt a Records Policy: Clearly define procedures for handling requests, fee structures, and retention periods. For associations with over 14 lots, a document retention policy is mandatory under Texas law.
2. Use Certified Mail or Email: Respond to homeowners via certified mail or email to create a verifiable paper trail.
3. Limit Broad Requests: Engage with homeowners to clarify overly broad or vague requests, which may be denied under §209.005(g) if they impose an “unreasonable burden”.
4. Consult Legal Counsel: For complex requests involving exemptions (e.g., litigation-related records), seek legal guidance to avoid inadvertent disclosures.
By adhering to §209.005 and fostering transparent communication, HOAs can fulfill their legal duties while maintaining trust within the community. Proactive compliance not only reduces litigation risks but also reinforces the association’s commitment to fair governance.