§ 4.3. Property Owners or Homeowners Associations.

a.

Applicability. When a subdivision contains either common open space or other improvements which are not intended to be dedicated to the City of Terrell for public use, such as private streets or screening walls, a private recreation facility, landscaped entry features or other private amenities, a property owners or homeowners association agreement consistent with State and other appropriate laws, must be submitted to and approved by the City Attorney. The Conditions, Covenants and Restrictions (CCRs) and the association documents, such as the articles of incorporation and association by-laws, shall be submitted to the City for review and approval along with the construction plat application, and shall be filed of record at the County prior to final plat approval in order to ensure that there is an entity in place for long-term maintenance of these improvements (also see Section 3.1.c.10.(e)). Said documents must, at a minimum, include provisions which allow the City to take over the maintenance of common property, including, but not limited to, private streets and private recreation facilities, using association funds, if such action becomes necessary due to nonperformance or inaction by the association or if the association goes defunct. Provisions shall also be included which would, in the latter instance, convey ownership of the private streets (if any) and all other common areas to the City, and which would allow the City to remove any improvements or amenities from the common areas and sell any buildable land area, as residential lots, to recoup the City's expenses for maintenance or demolition of the improvements. Any monies that remain after the City has recovered all of its expenses shall be retained for future maintenance or upgrading of the streets, common areas (if any remain), screening walls, or other improvements within the subdivision. These provisions are not intended to allow the City to profit in any way from taking over the association's responsibilities or funds; they are only intended to allow the City to recoup its actual incurred expenses such that the general public, the taxpayers of the City, does not have to bear these costs.

b.

Membership. A property owners or homeowners association shall be an incorporated nonprofit organization operating under recorded land agreements through which:

1.

Each lot owner within the described land area is automatically a mandatory member; and

2.

Each lot is automatically subject to a charge for a proportionate share of the expenses for the property owners or homeowners association's activities, such as maintenance of common open spaces or private streets, or the provision and upkeep of common recreational facilities.

c.

Legal Requirements. In order to ensure the establishment of a proper property owners or homeowners association, including its financing, and the rights and responsibilities of the property or home owners in relation to the use, management and ownership of common property, the subdivision plat, dedication documents, covenants, and other recorded legal agreements must:

1.

Legally create an automatic membership, non-profit property owners or homeowners association;

2.

Place title to the common property in the property owners or homeowners association, or give definite assurance that it automatically will be so placed within a reasonable, definite time;

3.

Appropriately limit the uses of the common property;

4.

Give each lot owner the right to the use and enjoyment of the common property;

5.

Place responsibility for operation and maintenance of the common property in the property owners or homeowners association;

6.

Place an association charge on each lot in a manner which will both ensure sufficient association funds and which will provide adequate safeguards for the lot owners against undesirable high charges;

7.

Give each lot owner voting rights in the association; and

8.

Identify land area within the association's jurisdiction including, but not limited to, the following:

(a)

Property to be transferred to public agencies;

(b)

The individual residential lots;

(c)

The common properties to be transferred by the developer to the property owners or homeowners association; and

(d)

Other parcels.

9.

Any governmental authority or agency, including, but not limited to, the City and the County, their agents, and employees, shall have the right of immediate access to the common elements at all times if necessary for the preservation of public health, safety and welfare. Should the property owners or homeowners association fail to maintain the common elements to City specifications for an unreasonable time, not to exceed ninety (90) days after written request to do so, then the City shall have the same right, power and authority to enforce the association's rules and to levy assessments necessary to maintain the common elements. The City may elect to exercise the rights and powers of the property owners or homeowners association or its Board, or to take any action required and levy any assessment that the property owners or homeowners association might have taken, either in the name of the property owners or homeowners association or otherwise, to cover the cost of maintenance (or the possible demolition, if such becomes necessary to preserve public safety or to ease maintenance burden) of any common elements.

10.

The HOA must register with the Municipal Development Department a contact person authorized to receive and distribute information to the HOA Board of Directors and shall notify the City of any change in said contact person.

d.

Protective Covenants. Protective covenants shall be developed which, among other things, shall make the property owners or homeowners association responsible for:

1.

The maintenance and operation of all common property;

2.

The enforcement of all other covenants;

3.

The administration of architectural controls (if included); and

4.

Certain specified maintenance of exterior improvements of individual properties (if included).

The City is not responsible (i.e., has no jurisdiction) for enforcing protective covenants or deed restrictions.

e.

[Dissolution requiring consent.] The association may not be dissolved without the prior written consent of the City Council.

f.

[Document amending requiring consent.] No portion of the association documents pertaining to the maintenance of screening walls, private streets and alleys, and assessments therefore, may be amended without the written consent of the City Council.