Key Allegro Canal and Property Owners Association news regarding lawsuits, Board actions and other items of interest.

October 17, 2023 A Board meeting vignette: Palm trees more important than lawsuits

At the 10-16-23 Board meeting, board member John Schwartz expressed much concern over newly planted palm trees not being properly staked. He asked about guarantees that they wouldn’t “flop over in the next wind storm,” and asked that the tree planters be advised that in staking, they “cannot drive any nails into the actual tree because … any nail … will kill the tree.”

Shortly thereafter a board member asked Board President Myatt Hancock to provide owners with an update on the two active lawsuits. He wrongly stated that the lawsuits were “stagnant.” The board member noted that both lawsuits have been recently amended by the plaintiffs and asked Mr. Hancock if he cared to share any such information with the Board.

Mr. Hancock claimed ignorance of the amendments. The board member noted that it was a matter of public record and Mr. Schwartz commented, “…if it’s so important to you why don’t you just send it out to the board?” “There you go,” Mr. Hancock added. The member agreed, saying he would email them to every board member. “Whatever,” Mr. Schwartz chimed in. Mr. Hancock chuckled and said, “Alright, moving on …”

To me, this is a typical vignette of the Board’s unseriousness and lack of concern for the owners, who are funding the Board’s misadventures. There are two active lawsuits against the Association, in one of which the Texas Supreme Court has ruled against the Association’s attempt to have all owners individually sued for the Board’s illicit filing of new deed restrictions.

Plaintiffs in both suits have recently added complaints, but even the Board President claims ignorance and finds the whole thing humorous. Mr. Schwartz is concerned about nails in palm trees, but regarding lawsuits, “Whatever.”

Full Disclosure: I’m one six plaintiffs in one of the lawsuits.

May 12, 2023 KA Board loses at Supreme Court

As expected, the Texas Supreme Court ruled against the KA Board’s petition to force Chris Kappmeyer to sue all owners for the Board’s 2017 illicit filing of new deed restrictions. The case will go back to the District Court to continue. As far as I know the Association has never won a lawsuit, either as plaintiff or defendant. If justice is served the Board will continue it’s losing streak. The bad part is that they’re doing this at our considerable legal expense.

May 21, 2022 More Delay, Delay, Delay – Association Asks Supreme Court for More Time, Again

Yet again, the Board’s attorneys asked the Texas Supreme Court to give them extra time to respond to Chris Kappmeyer’s request to set aside the ruling that he must individually sue all Key Allegro owners. As far as I can tell, at every step in the proceeding, beginning with its initial response to the lawsuit, the Association has delayed. The Board clearly doesn’t want this lawsuit to move forward because it knows it will lose.

In the latest in this string of delays, the Association has been allowed to delay submitting a brief due on May 2 until June 1. This is the reason given for the Association’s request for a delay:

The Association is requesting additional time to thoroughly research and adequately brief these matters for the Court. Specifically, this mandamus involves complex issues of civil and property law, requiring more time than usual to adequately brief the issues on appeal.

So, almost a year and a half after the lawsuit was filled, the Association is still needing time to “research” because the issues are “complex.” How complex is it to understand the obvious? The Board illicitly filed new deed restrictions in 2017. If membership in the KA Canal and Property OA is mandatory for KA owners, the filing was illegal. If membership isn’t mandatory, the filing was a civil violation. Case closed.

December 23, 2021 Delay, Delay, Delay – Association Asks Supreme Court for More Time

The Board’s attorneys asked the Texas Supreme Court to give them extra time to respond to Chris Kappmeyer’s request to set aside the ruling that he must sue all Key Allegro owners. The court granted their request, extending their homework due date to January 10, 2022. They included in the ruling: “FURTHER REQUESTS FOR EXTENSIONS OF TIME FOR THIS FILING WILL BE DISFAVORED.” (all caps theirs)

No surprise here. The original ruling that all must be sued was made three months ago, and has already been appealed once, but still the Association says it needs more time to get its response together. I’m pretty sure Ms. Powers and her fellow board members Brink Brinkerhoff, John Schwarz, Stephen Portner, Keitha Spiekerman, Jim Martin and Myatt Hancock don’t want the Board’s actions to be exposed in the court room. And, the delay costs them nothing. Other people’s money.

December 17, 2021 Texas Supreme Court Agrees to Consider Board’s Demand for all of us to be Sued

Update Synopsis:

In 2017 the Board illicitly filed new deed restrictions for all five Key Allegro units. Chris Kappmeyer filed a lawsuit, asking the court to declare that those bogus restrictions couldn’t be enforced against him.

With Lynn Powers as their witness, the Association’s lawyers asked the court to force Chris to sue all of us for the Board’s misdeeds. In a “Look Monkeys!” distraction, Ms. Powers argued, not that the restrictions were legal, but that they needed to remain in place so that all would pay their fair share. The fact that the Board filed the restrictions in apparent plain violation of Texas law was never addressed.

That’s a typical response from this Board. When they violate Texas Law, the deed restrictions or the Bylaws they seldom argue that they acted legitimately. Rather, in one way or another they claim they did what was best. That is, they place themselves as the ultimate authority, above the governing documents and the law.

Inexplicably, the court agreed with Ms. Powers and ordered that all owners be sued. Ms. Powers and her fellow board members Brink Brinkerhoff, John Schwarz, Stephen Portner, Keitha Spiekerman, Jim Martin and Myatt Hancock had reason to pat themselves on the back. The Board’s virtual stab in the owners’ backs was well placed.

Chris appealed to the Court of Appeals, which allowed the order to stay in place. As an undeserved gift to all of us, Chris appealed to the Texas Supreme Court. The Supreme Court has agreed to consider the petition and has given the Association until December 27th to respond. We’re not out of the woods, but there’s still hope that the cynical demand that we all be sued will be set aside.

The specifics of this case, particularly the fact that Ms. Powers and her fellow board members want us to be sued for the Board’s misdeeds are significant. To any owners on the sideline, however, I believe the most important takeaway is the lengths to which this rogue board will go, using our money against us, to maintain their ill-gained control over Key Allegro and our property rights. Their betrayal of us here is dramatic and in your face, but it’s not a one off. The record reveals multiple violations of Texas law and the governing documents.

December 10, 2021 Board’s Demand to Sue all Owners Goes to Texas Supreme Court

Just five days ago I reported that Lynn Powers and her fellow board members Brink Brinkerhoff, John Schwarz, Stephen Portner, Keitha Spiekerman, Jim Martin and Myatt Hancock had reason to pat themselves on the back. The Association’s court-granted petition to force Chris Kappmeyer to sue all of us for the Board’s misdeeds remained in place.  As an undeserved gift to all of us, Chris has appealed this ruling to the Texas Supreme Court.

There’s no reason to expect the Board to stand down. I expect them to continue to fight against us with our own money. Nonetheless, we can have hope that eventually, through one or more court orders, the Board will be forced to operate within the law, the deed restrictions and the Association Bylaws.

Thank you Chris

December 5, 2021 Lawsuit Updates

Active lawsuit update:

In 2017, in what I believe was plain violation of Texas law, the Board filed new deed restrictions for all five Key Allegro units. As compared to the original, and still legitimate restrictions, they purport to transfer property rights from owners to the Association.

Chris Kappmeyer filed a lawsuit asking the court to state the obvious, that the Association couldn’t claim rights over him and his property based on the illicit 2017 deed restrictions. As stated in the lawsuit, the Board “staged a coup by paperwork when no one was looking.”

Through its attorney the Board demanded that Chris sue not just the Association, but all Key Allegro owners. Consider the irony. The Board created the problem and then demanded through its attorneys that all Key Allegro owners, innocent bystanders, be personally sued for the Board’s actions. As Chris’ attorney replied in response, “The motion is shocking and unconscionable…”

Following a hearing in which Lynn Powers testified in support of suing all owners for the actions of the Board, the judge agreed. She said Chris must sue all owners. Chris clearly doesn’t want to sue all the owners. In what world does it make sense to sue fellow victims? Did an Enron administrative assistant who lost her pension sue the mail clerks, secretaries and other victims of Ken Lay and his fellow executives?

Chris filed a “Writ of Mandamus,” appeal, asking the court to set aside the ruling. The court refused. That leaves Chris with three options. He can drop the case, sue all of us, or appeal to the Texas Supreme Court.

There’s no way to spin this as a positive for those of us who want a Board that obeys the law, acts within the limits of the governing documents and fulfills its legal fiduciary duties of obedience, loyalty and due care. So, right now Lynn Powers and her fellow board members Brink Brinkerhoff, John Schwarz, Stephen Portner, Keitha Spiekerman, Jim Martin and Myatt Hancock have reason to pat themselves on the back. Their virtual stab in our backs was well placed.

They had help from us of course. The Board’s spent over $200,000 in legal fees for our small island in the past four years and is on course to bring it up to $215,000 by the end of this month. That doesn’t include money the insurance company has paid for legal defense. So, the Board continues using money, and lots of it, taken out of our pockets to abuse us.

Additional lawsuits update:

On September 23, 2021 I reported here: “Without going into detail prematurely I can say there is near certainty of at least one more lawsuit being filed against the Board’s abuses in the near future. Stay tuned.”

Since it’s been over two months since then, I’d say the “near future” has passed without my prediction coming true. In retrospect my “near certainty” comment was over the top. I apologize.

September 23, 2021 Near Certainty of at Least one more Lawsuit in the Pipeline

With President Lynn Powers as their witness, the Board (Brink Brinkerhoff, John Schwarz, Stephen Portner, Keitha Spiekerman, Jim Martin and Myatt Hancock) was successful in getting a judge to agree to their attorney’s demand that all owners be sued for the Board’s illegal filing of deed restrictions in 2017. It’s the latest example of their disdain for the owners.

Following the hearing their attorney remarked to Ms. Powers, Brink Brinkerhoff and Chris Veatch, “I think that went as well as we could have hoped.” I agree. It’s a great ruling for the seven board members whose apparent desire is to rule over Key Allegro and its owners, regardless of whether that involves violating Texas law, the deed restrictions or the bylaws.

But it’s not so good for the owners, the ones the Board wants sued for the Board’s illegal actions. That a judge could agree that the owners are responsible for the Board’s illegal action is ludicrous. They did it; you are to be sued.

All is not lost, however, and the large number of us concerned about this rogue board have reason for hope. I’m frequently contacted by owners distressed at the Board’s lawlessness and disdain for their lessers, the owners. Without going into detail prematurely I can say there is near certainty of at least one more lawsuit being filed against the Board’s abuses in the near future. Stay tuned.

August 20, 2021 Lynn Powers Called as Witness for the Board in Her Attempt to get all Owners Sued

The hearing on the Board’s absurd demand that all Key Allegro owners be sued for the Board’s July 2017 illegal filing of deed restrictions was held today.

As further evidence of her and her fellow board members disdain for us owners, the Board’s attorney called Lynn Powers as a witness in support of suing all owners.

We’re awaiting the judge’s ruling. Will Ms. Powers, Brink Brinkerhoff, John Schwarz, Stephen Portner, Keitha Spiekerman, Jim Martin and Myatt Hancock succeed in getting all of us sued as they fight to the end, with our money, to let the Board’s illegally filed 2017 deed restrictions stand?

August 2, 2021 Hearing on Board’s Demand that all Owners be sued delayed; A History of the KA Canal & Property OA now available

The hearing on the Board’s absurd demand that all Key Allegro owners be sued for the Board’s July 2017 illegal filing of deed restrictions has been rescheduled for the second time. It was first set for early July, then August 3, and now August 20.

The demand is a delaying tactic that’s proving effective. When August 20 rolls around it will have been almost 8 months since the suit was filed. Regardless of the eventual ruling on this issue, expect the Board and its attorneys to have more delay tactics up their sleeves.

This seems to be a legal pattern for our Board. When sued in 2019 for obviously violating Texas law regarding retaining and making available governing documents and meeting minutes to owners the Board let the clock run out for over a year only to have their attorney show up at the trial, offer virtually no defense, and take the loss.

Why would the Board then, and now, when faced with an obvious loss related to an issue of their own making, take it to the mat? Wouldn’t most people be embarrassed by the airing of their misdeeds in public and want to get it out of the way as quickly as possible and at the least cost?

I don’t know what’s in the Board’s minds, but I suspect their motivation is some mixture of pride, disdain for the owners, and a childish belief that they must get their way no matter what. As for the ever mounting costs of their recalcitrance, I’m guessing that’s irrelevant to them as its not coming out of their pockets.

July 26, 2021 August 3rd hearing on Board’s Demand that all Owners be sued

There will be a hearing on August 3rd regarding the Association’s demand that all Key Allegro owners be sued for the Board’s July 2017 illegal filing of deed restrictions. The judge’s ruling will be reported here.

July 13, 2021 Board President falsely denies Board’s Demand for all Owners to be Sued

How many Pinocchios would you give this:

As noted on the KeyAllegro.org home page, the Board, through its attorney, has demanded that Chris Kappmeyer sue all owners for the Board’s illicit filing of deed restrictions in 2017. This would be like suing someone for having their car stolen.

You can read the Association’s proposed order to that effect, with a signature line for the judge, HERE.

It includes the following: “…Plaintiffs are ordered to join and serve, at Plaintiffs’ sole expense, all property owners in Units 1-5 of Key Allegro Island Estates…”

Chris’ letter was in response to that demand. No doubt embarrassed that their throwing the owners under the bus has been exposed, the Board President sent out an email. You can read it HERE.

It reads in part: “Based on what he filed and how he filed it, the law requires all persons affected by the decision be added as a party. Should the judge order this, it will not be the Homeowner’s Association that adds everyone but the plaintiff, Mr. Kappmeyer.”

People of integrity and honesty tend to think people on the other side of an issue may differ in opinion but are at least being honest. In some cases however that’s not the reality. Sometimes people just make things up, like a child saying the dog ate his homework. It can be very frustrating until the people of good will figure this out, but once they do, it becomes easier. What’s your opinion? Does the Board President’s email reflect the truth?

July 13, 2021 Board Spares no Legal Expenses in Stalling Lawsuits

It’s a sad irony that since at least 2014 the Board has spared no expense in paying attorneys to prop up its violations of Texas law and the governing documents. Such was the case in its 2019-2020 losing defense of its violation of Texas law regarding maintaining records and making them available to owners. Faced with an inevitable loss, it rode the case out for over a year.

It’s repeating the pattern in the 2020 suit regarding the Board’s filing of illicit deed restrictions, using delaying tactics to drag out what will almost certainly be a legal defeat. The latest tactic is a demand that all owners be sued, as if they were the perpetrators of the Board’s misdeed rather than the victims of it.

A brief description of that absurd demand is on the KeyAllegro.org home page. There will be a hearing on the issue in District Court on August 3. Stay tuned for more updates.

June 29, 2021 Election Completed

The Election Committee called election for June 24, 2021 happened. In spite of grousing the Association participated, bringing not one, but two lawyers. The junior lawyer was particularly observant, aggressive and anything but subtle. She and various board members exchanged conspiratorial appearing facial signals throughout the process. The purpose of this wasn’t clear. Were they signaling that they were successfully pulling off what they expected to pull off, that they had the “bad guys” in their sights, or something else? Regardless, watching them was a hoot for all.

The counting done, two new board members were elected. This could all have been avoided if the Board had simply followed the Bylaws and Texas law. The next election should be in February 2022. I’m guessing the Board won’t pass on that one. What about you?

There was an aspect about the run up to the election that was particularly troubling. Suffice it to say that there is an as yet unsettled issue regarding some communications on the part of the Board. There may be more about that in the future.

June 10, 2021: Announcement of election

The Board is violating Texas law and the Bylaws by failing to call an annual meeting and is violating the Bylaws by extending board member terms. In effect, it’s placed itself as master over the Association by denying our right to pick board members.

Last year the Association lost a lawsuit regarding its violation of Texas law mandating retaining and making available to owners association records. At present there’s an active lawsuit against the Association alleging the Board “staged a coup by paperwork” when it filed the 2017 deed restrictions. The likelihood of such lawsuits arising from the Board’s actions was predictable.

Likewise, the Board’s illicit extensions of member terms obviously place the Association at risk of more lawsuits. Every Board action and meeting is legally tainted when non-members are allowed to participate under the pretense of being members. Examples are contracts, legal deliberations and decisions, the ACC permitting process and owners’ various rights to privacy, like owner account status and discussions in Executive Session.

In 2020 two expired term members, including the former President, continued in place until at least late May. On May 21, 2020 the former president, whose term expired on February 25, 2020, signed an agreement between the Association and the City of Rockport. His notarized signature included the title “President of Board.” Two other members’ terms expired on February 24, 2021. They’ve continued to serve not only as board members, but as officers, one as Vice-President and the other as Secretary.

How could lawsuits not flow from this? Who pays the price? It’s not the Board. Ultimately it all comes back to us, the owners. To protect our property rights and pocketbooks we need to start bringing the Association into compliance with Texas law, the deed restrictions and the Bylaws. At the very least we must have an election for the two seats that are being occupied by non-board members. It’s up to us. The Board has ignored a demand that they be removed.

Texas law provides a two step remedy for owners in associations whose boards disobey the annual meeting mandate. Consider the first step the legislature giving a board a second chance to obey the law. It provides that an owner may demand a meeting be called within 30 days. I made a demand on April 23, but the Board again failed to obey the law and call a meeting.

When a board continues to defy Texas law, as ours has, the second step kicks in. It takes elections out of the hands of the board and gives it to the owners. It allows owners to create an Election Committee with authority to call a meeting for the purpose of electing board members.

An election committee has been formed and has called a meeting to elect two board members. The meeting will be held at 10:30 AM on June 24, 2021 at the Rockport Beach Beachfront Pavilion. To enter the park free tell the gate attendant you’re a guest for the KA meeting at the Pavilion.

Any Association member may present themselves or another willing member as a candidate for election before or at the meeting. It’s your right; you don’t need the approval of anyone. This may be done before the meeting by contacting Gary Mayes by email at gary@keyallegro.org or by snail mail at 3 Sandpiper Ln, Rockport, TX 78382.

May 19, 2021: Board Remains in Open Violation of the Bylaws

In 2020 the Board allowed two members with expired terms to continue to function as if they were on the Board, including the former president. This is problematic for a number of reasons.

First, it’s in plain violation of the Bylaws, which limit terms to three years. But, like many transgressions the violation doesn’t end there. It has a domino effect, inevitably causing additional violations and problems.

For example, it causes violations of owners’ rights to privacy. A good example is when the Board meets in executive session and discusses privacy protected information regarding owners. Allowing non board members to both hear and participate in such deliberations is a gross violation of owners’ privacy.

Further, it’s virtually an open invitation for anyone with a disagreement with the Board to sue on the basis that any action it undertakes while allowing non board members to function as board members is by definition illegitimate.

On June 6, 2020, in response to a letter of concern, the Board stated in part, “Neither are members of the Board any longer…” Then, in 2021 the Board boldly repeated the illicit term extension violation. As in 2020, two board member’s terms expired on February 27, 2021. At the March “Town Hall” the Board President announced:

“I also want to acknowledge ###### ####### and ##### ######## for agreeing to stay on the Board until we can all get together for a true annual meeting and vote for new Board members.”

This year the Board didn’t even bother responding to a letter of concern. The two now non board members continue to function, almost three months after their terms expired, under the guise of legitimacy.

For me, this is one of many examples of the Board’s actions and attitudes that serve as a window into their collective mindset. What mindset would you ascribe to a Board that:

1) boldly violates a foundational bylaw regarding term limits, not once but twice

2) is challenged on that violation both times and doesn’t even respond the second time

3) violates owners’ privacy rights

4) puts its every action under a legal cloud, virtually inviting yet another lawsuit

Do you see a mindset of a Board whose members consider themselves serving, not ruling over the owners and subject to, not masters over the Bylaws?

Do you see a mindset of a Board whose members take their fiduciary responsibilities to the owners seriously?

What mindset do you see?

April 26, 2021: Annual Meeting Demand

Stay tuned for an annual meeting. Though we haven’t had one since 2019, Texas law mandates them. If a board disobeys the law, an owner may demand that a meeting be called on or before the 30th day after the demand date. I made a demand on April 23.

How did we get here? Our Bylaws set the 2020 annual meeting for February 29. On January 20, 2020, violating the Bylaws, the Board passed a motion delaying the meeting until March 28, 2020. The Bylaws link board member terms with the annual meeting dates. Two board members’ terms were set to expire on February 29. At the same meeting, violating the Bylaws again, the Board passed a motion extending member terms to March 28, 2020. Both violation votes were unanimous.

The Board’s violations preceded Covid restrictions. The annual meeting could have been held on February 29. Governor Abbott’s first Covid mitigation executive order was on March 19, 2020. So, entirely due to the Board’s arbitrary violation of the Bylaws, there wasn’t a 2020 annual meeting.

What about the expired terms of the two members which had been illicitly extended until March 28? Violating the Bylaws, the legitimate board members simply let them remain in place. One, the former President, continued to preside as President. With him and the other non-member voting and participating in official Board activities, including but not limited to regular meetings and executive sessions, this places a cloud of illegitimacy over every Board action during that period. On June 6, 2020, in response to a letter of concern, the Board stated in part, “Neither are members of the Board any longer…”

The Bylaws set the date for the 2021 annual meeting for this past February 27th. In violation of the Bylaws no meeting was held. A February 25 email from the Board stated that because of a pending lawsuit a “town hall” would be held instead.

The Board repeated the illicit term extension violation as well. As in 2020, two board member’s terms expired on February 27, 2021. At the town hall the Board President announced, in violation of the Bylaws:

“I also want to acknowledge Debbie Kahanek and Susan O’Bryant for agreeing to stay on the Board until we can all get together for a true annual meeting and vote for new Board members.”

Once again there’s a cloud of illegitimacy over every Board action as long as the two non-members are allowed to participate.

Historically, the Board has averaged 10 members. At the January 2020 meeting the Board voted, for the first time in its history as far as I know, to decrease the number of directors to seven. At present there are five legitimate members, the minimum allowed by the Bylaws. In the event one resigns or is unable to serve, we’ll be below the minimum level. Enough is enough. It’s time for a meeting.

March 13, 2021: Board repeats 2020 violation of Bylaws by retaining term expired Board members

At the March 13, 2021 Zoom presentation, falsely labeled a “Town Hall,” the President announced the Board was retaining two directors whose terms expired in February. This is in plain violation of Sec. 3.3 of the Bylaws.

To those familiar with this Board it came as no surprise. They did the same thing last year. Their response to a May 20, 2020 complaint regarding the violation stated that the complaint was “moot at this point,” adding that “Neither are members of the Board any longer…”

One has to wonder if, absent the complaint, those two from 2020 would have been allowed to remain indefinitely, even possibly to the present. The President’s own words may give us a hint. As for the two who are currently being retained past their terms, the President stated:

“I also want to acknowledge ###### ####### and ##### ######## for agreeing to stay on the Board until we can all get together for a true annual meeting and vote for new Board members.”

The last Annual Meeting was on February 23, 2019, over two years ago. A “Welcome back to the Allegro House” event has been announced for this May 29th and a “60th Anniversary Celebration” for July 4th 2022 (yes, that’s 2022), but there are no plans for an Annual Meeting. In other words, don’t hold your breath waiting for an Annual Meeting.

December 31, 2020: Lawsuit filed against Association

What has seemed inevitable for some time happened on 12-31-20. An owner filed a lawsuit against the Association in District Court alleging the Board exceeded its authority when it filed “Amended and Restated Deed Restriction, Covenants and Conditions” in 2017. You may view the petition here.

As I’ve stated on this site (See Posts: 2017 Restrictions and 2020 Design Code Filings: Legal or Illegal? and Key Allegro Board Drives POA off a Cliff) and in mailings, I believe they plainly exceed their authority for reasons known only to them.

November 11, 2020 Key Allegro Canal and Property Owners Association News

The Board’s Fall 2020 Key Allegro Islander newsletter’s most prominent feature is a two page centerfold screed attacking homeowner Chris Kappmeyer who has asserted the obvious, that the 2017 Deed Restrictions were approved and filed by the Board in violation of Texas law. You can read it here:

The piece contains both deceptive and false statements. Some highlights:

1. “Mr. Kappmeyer, in his email, expresses concerns regarding Key Allegro’s documents, namely the updated versions voted on and passed with over 300 property owners present, plus write in proxy’s, at the Annual Meeting held February 27, 2016.”

False. The subject of Mr. Kappmeyer’s concern, the Amended and Restated Deed Restrictions, Covenants and Conditions, signed and filed on July 10, 2017, were approved by the Board prior to the 2016 meeting and simply announced after the fact at the meeting itself. No member vote, large or small, at the Annual Meeting or elsewhere, was involved.

2. “KACPOA’s legal counsel, at the time of the 2016 meeting, considered the Documents legal and binding.”

Deceptive. This is probably the closest we’ll get to the Board admitting they know the Amended and Restated Deed Restrictions, Covenants and Conditions filing was illegal and isn’t binding. Notice that nothing in the piece asserts otherwise.

3. “It should be noted, the original restrictions were written when Key Allegro had only one unit, but by 2016, there were 5 units.”

“It would be considered folly to think any current homeowner believes there are five Key Allegros.”

Deceptive. There were 5 units by 1974. That was by design, not some haphazard goof up. Krueger developed the units sequentially, each independent of the other and with its own “original” restrictions. So, there is one island we refer to as Key Allegro, but there are five distinct and legally independent “subdivisions” on the island. Each unit is master of its own deed restrictions. Whether that pleases the Board or not is of no consequence. They can no more legally consolidate the units than they can consolidate Harbor Oaks and City by the Sea.

4. “Original 1962 documents state that the Architectural Control Committee has the power to make all rules and regulations.”

False and deceptive. False, because the Unit I-V restrictions, from 1962-1974, gave limited rule and regulation writing authority to the Key Allegro Development and Sales Co.’s Architectural Control Committee.

Deceptive because regardless of interpretation of the original restrictions, Texas law is superior to restrictions. Texas law says it takes the approval of 2/3 of the owners to change restrictions.

You can read the original Unit I restrictions here.

5. “The 1962 document gave one individual on the Board power to walk on to any homeowner’s property, unannounced.”

“The 1962 document allowed for the Board to access any property for the purpose of maintaining, cleaning, etc. and levy charges the homeowner would be responsible for paying.”

Both false. The 1962 restrictions (Unit I) have no such provisions. The Association itself is mentioned in only one sentence and there is no reference to the Board in the entire document. Likewise, the Units II-V restrictions include no such provisions.

7. “Original 1962 document, for Unit I, stated that “non-Caucasians” were not welcome and could not purchase property on the island.”

False quote, but practically true in that the restrictions contain an unequivocal racial discrimination clause.

“Subsequently the KACPOA Board has deleted this restriction.”

Irrelevant and deceptive. Irrelevant because such clauses have long been illegal. Again, Texas law is superior to anything in deed restrictions. You don’t have to rewrite restrictions to keep up with law. Anything in violation of law is simply of no effect. Deceptive because it implies the Board accomplished something by deleting the restriction. The restriction was functionally deleted by State and Federal law.

8. “When questioned repeatedly,..he (Mr. Kappmeyer)…firmly stated he did not want to see any changes made to the original 1962 Restrictions and Conditions without two-thirds majority of all homeowners in each Unit voting. Essentially, preventing the HOA from upgrading because of a technicality.”

Translation: Mr. Kappmeyer firmly stated that he didn’t want to see any illegal changes made to the Restrictions and Conditions.

Well, yes, that’s the point, and I must agree with Mr. Kappmeyer. The “technicality” the Board so disdains is Texas law. At times perhaps all of us would like to be free of laws, but we ignore them at our own risk.

August 28, 2020 Key Allegro Canal and Property Owners Association news

2017 Deed Restrictions and 2020 Design Code Filings: Legal or Illegal?

On July 10, 2017 the Association filed five Amended and Restated Deed Restrictions, Covenants and Conditions, one for each of the Key Allegro Units. On July 22, 2020 the Association filed a document titled Key Allegro Island Estates Design Code, which is a collection of deed restrictions related to “…standards for design, construction, landscaping, and exterior items or Improvements; procedures and regulations for the construction of Improvements; and construction activities within Key Allegro Island Estates.” It also grants the Association a right to enter lots without permission.

In my opinion both documents were filed illegally. In a letter to homeowners the Board included:

Regarding Illegally filed documents: The Board used a prominent attorney with HOA experience in passing and filing those documents. Three law firms have been used over the past five years and all have been involved in document preparation. We are open to feedback try [sic] to work in the best interests of all homeowners and their property values. If there are complaints about the most recent documents or the ones filed in 2017 we would appreciate hearing the specifics.

Does anyone see a defense of the legality of the filings in that statement? Saying the Board has “used” three law firms over the past five years is a curious statement. Some might see it another way. The Board paid $121, 546 in legal expenses in 2018 and 2019 combined and are on course to spend $70,899 in 2020.

It’s also curious, in view of such profligate legal spending, that the Board implies it doesn’t have a clue as to what possible illegality could be involved in their filings. At multiple meetings regarding the proposed Declarations the Board has stressed the importance of complying with state law.

Here’s the law regarding amending governing documents:

Texas Residential Propery Owners Protection Act Sec. 209.0041. ADOPTION OR AMENDMENT OF CERTAIN DEDICATORY INSTRUMENTS.

…(e) This section applies to a dedicatory instrument regardless of the date on which the dedicatory instrument was created.

…(f) This section supersedes any contrary requirement in a dedicatory instrument.

…(h) Except as provided by Subsection (h-1) or (h-2), a declaration may be amended only by a vote of 67 percent of the total votes allocated to property owners entitled to vote on the amendment of the declaration, in addition to any governmental approval required by law.

(h-1) If the declaration contains a lower percentage than prescribed by Subsection (h), the percentage in the declaration controls.

(h-2) If the declaration is silent as to voting rights for an amendment, the declaration may be amended by a vote of owners owning 67 percent of the lots subject to the declaration.

The Association filed both documents absent any owner vote whatsoever. What do you think, legal or illegal?

July 15, 2020 Key Allegro Canal and Property Owners Association News

The three most distressing aspects of the recent KACPOA Board’s actions and policies are their aggressive usurpation of property rights, aggressive taking of money through assessments, fees, fines and the like, and their profligate spending.

One example, but sadly not the only, of their profligate spending is their spending for Administrative and Legal Expenses.

On those two items the Board spent $181,017 in 2018 and $194,602 in 2019. For 2020 they’re on course to spend a whopping $251,054 on nothing more than administrative and legal expenses for our little island. This is a 350% increase over the $71,401 spent in 2016.

To say the seven members of the Board play fast and loose with the other roughly 823 owners’ money is an understatement.

You may get an email from SpectrumAM about how delighted they are to partner with you, but don’t expect one from the Association’s attorney. In fact, don’t expect to get anything for your money, with the possible exception of a bill.

May 19, 2020 Key Allegro Canal and Property Owners Association News

Board continues to violate Bylaws – Expired term directors continue in place.

As per the Bylaws, Dave Foster and Helen Hough’s terms ended on February 25, 2020. In spite of that, Mr. Foster continues to hold the position of Board President, with the support of those Board members whose terms haven’t expired. Unfortunately, this follows a pattern of the current Board’s frequent operation outside the bounds of both the Association’s Bylaws and the Key Allegro deed restrictions.

A little background on this particular Bylaw violation:

The Bylaws state, “All Directors will be elected to serve a term of three years.” Historically those terms have begun at an Annual Meeting and ended at the Annual Meeting three years later. Both Dave Foster and Helen Hough began their second three year terms on February 25, 2017.

The Bylaws also state, “The annual meeting of Members shall be held on the last Saturday in February of each year.” Thus, the Annual Meeting should have been on February 29, 2020.

Regardless, on January 20, in blatant violation of both provisions, the Board unanimously voted to move the Annual Meeting to March 28 and extend the expiring director’s terms to that date. That was before Covid-19 reared its ugly head.

Since Covid-19 the Board has delayed the Annual Meeting indefinitely. Along with that it has apparently decided, without even the pretense of an illegitimate vote, that director terms are indefinite as well.

This is particularly ironic because another thing the Board did on January 20 was fix the director membership for 2020. Whenever the 2020 Annual Meeting occurs it won’t include a vote on directors. The Board has already taken care of that. Members don’t get a vote for 2020. So, at a called meeting anytime after February 25, or either of the two regular meetings since then, the Board could have simply thanked Mr. Foster and Ms. Hough for their service and moved forward.

But that hasn’t happened, which should come as no surprise. This is the same Board that has proposed no term limits. Apparently, they’re taking it one step further, allowing expired term directors to remain in place indefinitely.