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LCPOA Law Suits Status Report - December 2012

LCPOA Lawsuits Status Report

Posted: December 1, 2012

 

 

 

Lake Country Property Owners Association, Inc.
vs. Richard Vaughn
to Remove Fence Encroaching on Greenbelt #6

Court Ruled in Favor of LCPOA and Awarded Legal Cost

The suit involves a resident who fenced in an area 90’ x 21’ feet of Greenbelt #6 which is in between Ironstone Trail and Lake Highlands Drive. All of the Greenbelts were deeded to the Association by the Lake Country Estates Inc. (Carter Foundation)https://lh5.googleusercontent.com/-oWVh9Bjuslw/TMGiwKizSJI/AAAAAAAAI4k/oGaooTHYKEE/s800/url_icon%5b1%5d.gif in 1998. Mr. Vaughn attempted to claim the encroachment with an adverse possession argument. This case went to trial in the Tarrant County Court at Law No. 2 on October 23, 2012. Judge Jennifer Rymell rendered a verdict in the Association’s favor. The fence will be removed from the greenbelt. The Judge additionally awarded the Association attorney’s fees and court costs of $6,500.

 

Lake Country Property Owners Association, Inc.
vs. Dan Peterson
to Remove Fence Encroaching on Greenbelt #6

Case Settled in Favor of LCPOA

The suit involves a resident who fenced in an area 90’ x 12’ feet of Greenbelt #6 which is in between Ironstone Trail and Lake Highlands Drive. All of the Greenbelts were deeded to the Association by the Lake Country Estates Inc. (Carter Foundation)https://lh5.googleusercontent.com/-oWVh9Bjuslw/TMGiwKizSJI/AAAAAAAAI4k/oGaooTHYKEE/s800/url_icon%5b1%5d.gif in 1998. Mr. Peterson attempted to claim the encroachment with an adverse possession argument. This case was settled in Association’s favor on November 8, 2012 to avoid significant legal fees and court cost. The defendant has agreed to remove the fence from the greenbelt.

 

Joe Burkett, et al.
Vs. Lake Country Property Owners Association, Inc.
To Stop Enforcement of Deed Restrictions

In 2011 the Association made great progress enforcing the deed restrictions as they were written. Eighty seven residents came into compliance after they received a warning notification.

On Sept 6, 2011 a group refusing to come into compliance was mailed warning letters that a lawsuit would be filed against them if they failed to cure their violation. Joe Burkett and 18 other households filed a lawsuit against the Association to permanently prevent the Lake Country Property Owners Association from enforcing all deed restrictions in Lake Country Estate & Lake Country Secret Harbor where the Association is the Dedicator.

The Association was served on Sept 12, 2011 in the 236th District Court and was ordered to appear for a Temporary Restraining Order (TRO) hearing. The Association appeared for the hearing on Sept 23, 2011 and the plaintiffs requested a later date for the hearing when the Judge could afford the plaintiffs’ more time. With the assumption that the hearing would be near term, the Attorneys and Judge Lowe agreed the Association would not sue anyone until the TRO hearing was accomplished.

Re-scheduling the TRO hearing became problematic due to the Judges extended travel, plaintiffs’ attorney scheduling issues, the Association’s attorney’s health issues and the holiday season. The Association’s attorney advised in Jan 2012 that the best way to settle the matter was to file a Motion for Summary Judgment (MSJ) in lieu of the TRO.  The Association’s attorney was nearing completion of the motion in February when he became ill and passed away in April of 2012.

On May 7, 2012 the Association retained the McDonald – Sanders law firm to represent the Association.  On May 30, 2012 the Association’s Motion for Summary Judgment (MSJ) was filed with the court. You can gain a clear understanding of the suit and the Association’s defense by reading this link to the Motion for Summary Judgmenthttps://lh5.googleusercontent.com/-oWVh9Bjuslw/TMGiwKizSJI/AAAAAAAAI4k/oGaooTHYKEE/s800/url_icon%5b1%5d.gif. The hearing took place on July 19, 2012 and the Association’s attorney did an outstanding job in arguing the Association’s motion. He presented the very best arguments possible. Judge Lowe stated he would render his judgment in a week’s time. Unfortunately, due the Judge’s busy schedule, four months have passed and the Association is still waiting for a ruling from Judge Lowe. The MSJ makes a compelling case in favor of the Association and it would be hard to imagine any court would rule against the Association’s authority to enforce the deed restrictions.

Given that the Plaintiffs’ claims are without legal basis in Association’s Attorney’s opinion, the Association filed for the Court to order the Plaintiffs to pay the Association’s attorney’s fees.

This lawsuit, while expensive, is necessary to defend the Association’s right to enforce the deed restrictions to maintain the quality of life in the neighborhood. The Board of Directors is very grateful for the numerous members who have shown support for the legal battle with personal contributions to help defray the costs of these legal proceedings.

With overwhelming support of the membership, the Association took action at the General Meeting in Feb 2012https://lh5.googleusercontent.com/-oWVh9Bjuslw/TMGiwKizSJI/AAAAAAAAI4k/oGaooTHYKEE/s800/url_icon%5b1%5d.gif by passing an amendment to the By-laws to prevent future board members from interpreting the deed restrictions to avoid compliance. The LCPOA By-lawshttps://lh5.googleusercontent.com/-oWVh9Bjuslw/TMGiwKizSJI/AAAAAAAAI4k/oGaooTHYKEE/s800/url_icon%5b1%5d.gif were amended to read “This Association shall be an organization for the purpose of …… enforcement of deed restrictions as written in the Lake Country dedication and restrictions…”

 

New Fees for Members
NOT in Compliance with Deed Restrictions

The LCPOA By-laws require the Association to provide access to all facilities upon payment of the dues and fees. This means even if a member is not in compliance with the deed restrictions they can still use the boat lunch, tennis courts and playground if they have paid all the dues and fees. However, the By-laws empower the association to set the fees.

Therefore beginning in 2013 the Association will have a policy that an additional mandatory facility fee of $1,500 for members who are or become non-compliant with the deed restrictions. Boat permits and court keys will not be issued to members that have not paid all dues and fees. Payment of the facilities fee does not preclude enforcement of deed restrictions by the Association and is in no way to be considered acceptance of non-compliance with deed restrictions. Hopefully this will encourage compliance and reduce the Association’s legal cost.

By Texas law when a homeowner is sued for violation of deed restrictions and loses, the homeowner in violation must pay the plaintiff’s legal fees in addition to their own legal expense and any judgment from the court. This law enables the Association to enforce the deed restrictions without great financial damage.

When a homeowner purchases a home in Lake Country they sign a contract to comply with the deed restrictions.  When a homeowner fails to comply with the deed restrictions they damage the property values of all their neighbors. It is the Association’s deepest desire to avoid all legal actions. It is hoped that all the residents will be respectful of their neighbor and comply with deed restrictions.

 

The Association Needs Your Support!

It is very helpful to receive your support for the Association. Please contact the President with your comments by either sending an email to LCPOAPresident@elcpoa.orghttps://lh5.googleusercontent.com/-oWVh9Bjuslw/TMGiwKizSJI/AAAAAAAAI4k/oGaooTHYKEE/s800/url_icon%5b1%5d.gif or leave a voice mail at (817) 566-2963 ext. 715 stating your name, address and your comments.

 



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