CHAPTER 209. TEXAS RESIDENTIAL PROPERTY OWNERS PROTECTION ACT
PROPERTY CODE
TITLE 11. RESTRICTIVE COVENANTS
CHAPTER 209. TEXAS RESIDENTIAL PROPERTY OWNERS PROTECTION ACT
Sec. 209.001. SHORT TITLE. This chapter may be cited as the
Texas Residential Property Owners Protection Act.
Added by Acts 2001, 77th Leg., ch. 926, Sec. 1, eff. Jan. 1,
2002.
Sec. 209.002. DEFINITIONS. In this chapter:
(1) "Assessment" means a regular assessment, special assessment,
or other amount a property owner is required to pay a property
owners' association under the dedicatory instrument or by law.
(2) "Board" means the governing body of a property owners'
association.
(3) "Declaration" means an instrument filed in the real property
records of a county that includes restrictive covenants governing
a residential subdivision.
(4) "Dedicatory instrument" means each governing instrument
covering the establishment, maintenance, and operation of a
residential subdivision. The term includes restrictions or
similar instruments subjecting property to restrictive covenants,
bylaws, or similar instruments governing the administration or
operation of a property owners' association, to properly adopted
rules and regulations of the property owners' association, and to
all lawful amendments to the covenants, bylaws, rules, or
regulations.
(5) "Lot" means any designated parcel of land located in a
residential subdivision, including any improvements on the
designated parcel.
(6) "Owner" means a person who holds record title to property in
a residential subdivision and includes the personal
representative of a person who holds record title to property in
a residential subdivision.
(7) "Property owners' association" or "association" means an
incorporated or unincorporated association that:
(A) is designated as the representative of the owners of
property in a residential subdivision;
(B) has a membership primarily consisting of the owners of the
property covered by the dedicatory instrument for the residential
subdivision; and
(C) manages or regulates the residential subdivision for the
benefit of the owners of property in the residential subdivision.
(8) "Regular assessment" means an assessment, a charge, a fee,
or dues that each owner of property within a residential
subdivision is required to pay to the property owners'
association on a regular basis and that is designated for use by
the property owners' association for the benefit of the
residential subdivision as provided by the restrictions.
(9) "Residential subdivision" or "subdivision" means a
subdivision, planned unit development, townhouse regime, or
similar planned development in which all land has been divided
into two or more parts and is subject to restrictions that:
(A) limit a majority of the land subject to the dedicatory
instruments, excluding streets, common areas, and public areas,
to residential use for single-family homes, townhomes, or
duplexes only;
(B) are recorded in the real property records of the county in
which the residential subdivision is located; and
(C) require membership in a property owners' association that
has authority to impose regular or special assessments on the
property in the subdivision.
(10) "Restrictions" means one or more restrictive covenants
contained or incorporated by reference in a properly recorded
map, plat, replat, declaration, or other instrument filed in the
real property records or map or plat records. The term includes
any amendment or extension of the restrictions.
(11) "Restrictive covenant" means any covenant, condition, or
restriction contained in a dedicatory instrument, whether
mandatory, prohibitive, permissive, or administrative.
(12) "Special assessment" means an assessment, a charge, a fee,
or dues, other than a regular assessment, that each owner of
property located in a residential subdivision is required to pay
to the property owners' association, according to procedures
required by the dedicatory instruments, for:
(A) defraying, in whole or in part, the cost, whether incurred
before or after the assessment, of any construction or
reconstruction, unexpected repair, or replacement of a capital
improvement in common areas owned by the property owners'
association, including the necessary fixtures and personal
property related to the common areas;
(B) maintenance and improvement of common areas owned by the
property owners' association; or
(C) other purposes of the property owners' association as stated
in its articles of incorporation or the dedicatory instrument for
the residential subdivision.
Added by Acts 2001, 77th Leg., ch. 926, Sec. 1, eff. Jan. 1,
2002.
Sec. 209.003. APPLICABILITY OF CHAPTER. (a) This chapter
applies only to a residential subdivision that is subject to
restrictions or provisions in a declaration that authorize the
property owners' association to collect regular or special
assessments on all or a majority of the property in the
subdivision.
(b) Except as otherwise provided by this chapter, this chapter
applies only to a property owners' association that requires
mandatory membership in the association for all or a majority of
the owners of residential property within the subdivision subject
to the association's dedicatory instruments.
(c) This chapter applies to a residential property owners'
association regardless of whether the entity is designated as a
"homeowners' association," "community association," or similar
designation in the restrictions or dedicatory instrument.
(d) This chapter does not apply to a condominium development
governed by Chapter 82.
Added by Acts 2001, 77th Leg., ch. 926, Sec. 1, eff. Jan. 1,
2002.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1367, Sec. 7, eff. September 1, 2007.
Sec. 209.004. MANAGEMENT CERTIFICATES. (a) A property owners'
association shall record in each county in which any portion of
the residential subdivision is located a management certificate,
signed and acknowledged by an officer or the managing agent of
the association, stating:
(1) the name of the subdivision;
(2) the name of the association;
(3) the recording data for the subdivision;
(4) the recording data for the declaration;
(5) the name and mailing address of the association;
(6) the name and mailing address of the person managing the
association or the association's designated representative; and
(7) other information the association considers appropriate.
(b) The property owners' association shall record an amended
management certificate not later than the 30th day after the date
the association has notice of a change in any information in the
recorded certificate required by Subsection (a).
(c) Except as provided under Subsections (d) and (e), the
property owners' association and its officers, directors,
employees, and agents are not subject to liability to any person
for a delay in recording or failure to record a management
certificate, unless the delay or failure is wilful or caused by
gross negligence.
(d) If a property owners' association fails to record a
management certificate or an amended management certificate under
this section, the purchaser, lender, or title insurance company
or its agent in a transaction involving property in the property
owners' association is not liable to the property owners'
association for:
(1) any amount due to the association on the date of a transfer
to a bona fide purchaser; and
(2) any debt to or claim of the association that accrued before
the date of a transfer to a bona fide purchaser.
(e) A lien of a property owners' association that fails to file
a management certificate or an amended management certificate
under this section to secure an amount due on the effective date
of a transfer to a bona fide purchaser is enforceable only for an
amount incurred after the effective date of sale.
(f) For purposes of this section, "bona fide purchaser" means:
(1) a person who pays valuable consideration without notice of
outstanding rights of others and acts in good faith; or
(2) a third-party lender who acquires a security interest in the
property under a deed of trust.
Added by Acts 2001, 77th Leg., ch. 926, Sec. 1, eff. Jan. 1,
2002.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
148, Sec. 1, eff. September 1, 2009.
Sec. 209.005. ASSOCIATION RECORDS. (a) A property owners'
association shall make the books and records of the association,
including financial records, reasonably available to an owner in
accordance with Section B, Article 2.23, Texas Non-Profit
Corporation Act (Article 1396-2.23, Vernon's Texas Civil
Statutes).
(a-1) A property owners' association described by Section
552.0036(2), Government Code, shall make the books and records of
the association, including financial records, reasonably
available to any person requesting access to the books or records
in accordance with Chapter 552, Government Code. Subsection (a)
does not apply to a property owners' association to which this
subsection applies.
(b) An attorney's files and records relating to the association,
excluding invoices requested by an owner under Section
209.008(d), are not:
(1) records of the association;
(2) subject to inspection by the owner; or
(3) subject to production in a legal proceeding.
Added by Acts 2001, 77th Leg., ch. 926, Sec. 1, eff. Jan. 1,
2002.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1367, Sec. 6, eff. September 1, 2007.
Sec. 209.0055. VOTING. (a) This section applies only to a
property owners' association that:
(1) provides maintenance, preservation, and architectural
control of residential and commercial property within a defined
geographic area in a county with a population of 2.8 million or
more or in a county adjacent to a county with a population of 2.8
million or more; and
(2) is a corporation that:
(A) is governed by a board of trustees who may employ a general
manager to execute the association's bylaws and administer the
business of the corporation;
(B) does not require membership in the corporation by the owners
of the property within the defined area; and
(C) was incorporated before January 1, 2006.
(b) A property owners' association described by Subsection (a)
may not bar a property owner from voting in an association
election solely based on the fact that:
(1) there is a pending enforcement action against the property
owner; or
(2) the property owner owes the association any delinquent
assessments, fees, or fines.
Added by Acts 2007, 80th Leg., R.S., Ch.
1367, Sec. 8, eff. September 1, 2007.
Sec. 209.006. NOTICE REQUIRED BEFORE ENFORCEMENT ACTION. (a)
Before a property owners' association may suspend an owner's
right to use a common area, file a suit against an owner other
than a suit to collect a regular or special assessment or
foreclose under an association's lien, charge an owner for
property damage, or levy a fine for a violation of the
restrictions or bylaws or rules of the association, the
association or its agent must give written notice to the owner by
certified mail, return receipt requested.
(b) The notice must:
(1) describe the violation or property damage that is the basis
for the suspension action, charge, or fine and state any amount
due the association from the owner; and
(2) inform the owner that the owner:
(A) is entitled to a reasonable period to cure the violation and
avoid the fine or suspension unless the owner was given notice
and a reasonable opportunity to cure a similar violation within
the preceding six months; and
(B) may request a hearing under Section 209.007 on or before the
30th day after the date the owner receives the notice.
Added by Acts 2001, 77th Leg., ch. 926, Sec. 1, eff. Jan. 1,
2002.
Sec. 209.007. HEARING BEFORE BOARD; ALTERNATIVE DISPUTE
RESOLUTION. (a) If the owner is entitled to an opportunity to
cure the violation, the owner has the right to submit a written
request for a hearing to discuss and verify facts and resolve the
matter in issue before a committee appointed by the board of the
property owners' association or before the board if the board
does not appoint a committee.
(b) If a hearing is to be held before a committee, the notice
prescribed by Section 209.006 must state that the owner has the
right to appeal the committee's decision to the board by written
notice to the board.
(c) The association shall hold a hearing under this section not
later than the 30th day after the date the board receives the
owner's request for a hearing and shall notify the owner of the
date, time, and place of the hearing not later than the 10th day
before the date of the hearing. The board or the owner may
request a postponement, and, if requested, a postponement shall
be granted for a period of not more than 10 days. Additional
postponements may be granted by agreement of the parties. The
owner or the association may make an audio recording of the
meeting.
(d) The notice and hearing provisions of Section 209.006 and
this section do not apply if the association files a suit seeking
a temporary restraining order or temporary injunctive relief or
files a suit that includes foreclosure as a cause of action. If a
suit is filed relating to a matter to which those sections apply,
a party to the suit may file a motion to compel mediation. The
notice and hearing provisions of Section 209.006 and this section
do not apply to a temporary suspension of a person's right to use
common areas if the temporary suspension is the result of a
violation that occurred in a common area and involved a
significant and immediate risk of harm to others in the
subdivision. The temporary suspension is effective until the
board makes a final determination on the suspension action after
following the procedures prescribed by this section.
(e) An owner or property owners' association may use alternative
dispute resolution services.
Added by Acts 2001, 77th Leg., ch. 926, Sec. 1, eff. Jan. 1,
2002.
Sec. 209.008. ATTORNEY'S FEES. (a) A property owners'
association may collect reimbursement of reasonable attorney's
fees and other reasonable costs incurred by the association
relating to collecting amounts, including damages, due the
association for enforcing restrictions or the bylaws or rules of
the association only if the owner is provided a written notice
that attorney's fees and costs will be charged to the owner if
the delinquency or violation continues after a date certain.
(b) An owner is not liable for attorney's fees incurred by the
association relating to a matter described by the notice under
Section 209.006 if the attorney's fees are incurred before the
conclusion of the hearing under Section 209.007 or, if the owner
does not request a hearing under that section, before the date by
which the owner must request a hearing. The owner's presence is
not required to hold a hearing under Section 209.007.
(c) All attorney's fees, costs, and other amounts collected from
an owner shall be deposited into an account maintained at a
financial institution in the name of the association or its
managing agent. Only members of the association's board or its
managing agent or employees of its managing agent may be
signatories on the account.
(d) On written request from the owner, the association shall
provide copies of invoices for attorney's fees and other costs
relating only to the matter for which the association seeks
reimbursement of fees and costs.
(e) The notice provisions of Subsection (a) do not apply to a
counterclaim of an association in a lawsuit brought against the
association by a property owner.
(f) If the dedicatory instrument or restrictions of an
association allow for nonjudicial foreclosure, the amount of
attorney's fees that a property owners' association may include
in a nonjudicial foreclosure sale for an indebtedness covered by
a property owners' association's assessment lien is limited to
the greater of:
(1) one-third of the amount of all actual costs and assessments,
excluding attorney's fees, plus interest and court costs, if
those amounts are permitted to be included by law or by the
restrictive covenants governing the property; or
(2) $2,500.
(g) Subsection (f) does not prevent a property owners'
association from recovering or collecting attorney's fees in
excess of the amounts prescribed by Subsection (f) by other means
provided by law.
Added by Acts 2001, 77th Leg., ch. 926, Sec. 1, eff. Jan. 1,
2002.
Sec. 209.009. FORECLOSURE SALE PROHIBITED IN CERTAIN
CIRCUMSTANCES. A property owners' association may not foreclose
a property owners' association's assessment lien if the debt
securing the lien consists solely of:
(1) fines assessed by the association; or
(2) attorney's fees incurred by the association solely
associated with fines assessed by the association.
Added by Acts 2001, 77th Leg., ch. 926, Sec. 1, eff. Jan. 1,
2002.
Sec. 209.010. NOTICE AFTER FORECLOSURE SALE. (a) A property
owners' association that conducts a foreclosure sale of an
owner's lot must send to the lot owner and to each lienholder of
record, not later than the 30th day after the date of the
foreclosure sale, a written notice stating the date and time the
sale occurred and informing the lot owner and each lienholder of
record of the right of the lot owner and lienholder to redeem the
property under Section 209.011.
(b) The notice must be sent by certified mail, return receipt
requested, to:
(1) the lot owner's last known mailing address, as reflected in
the records of the property owners' association;
(2) the address of each holder of a lien on the property subject
to foreclosure evidenced by the most recent deed of trust filed
of record in the real property records of the county in which the
property is located; and
(3) the address of each transferee or assignee of a deed of
trust described by Subdivision (2) who has provided notice to a
property owners' association of such assignment or transfer.
Notice provided by a transferee or assignee to a property owners'
association shall be in writing, shall contain the mailing
address of the transferee or assignee, and shall be mailed by
certified mail, return receipt requested, or United States mail
with signature confirmation to the property owners' association
according to the mailing address of the property owners'
association pursuant to the most recent management certificate
filed of record pursuant to Section 209.004.
(b-1) If a recorded instrument does not include an address for
the lienholder, the association does not have a duty to notify
the lienholder as provided by this section.
(b-2) For purposes of this section, the lot owner is deemed to
have given approval for the association to notify the lienholder.
(c) Not later than the 30th day after the date the association
sends the notice required by Subsection (a), the association must
record an affidavit in the real property records of the county in
which the lot is located, stating the date on which the notice
was sent and containing a legal description of the lot. Any
person is entitled to rely conclusively on the information
contained in the recorded affidavit.
(d) The notice requirements of this section also apply to the
sale of an owner's lot by a sheriff or constable conducted as
provided by a judgment obtained by the property owners'
association.
Added by Acts 2001, 77th Leg., ch. 926, Sec. 1, eff. Jan. 1,
2002.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
1176, Sec. 2, eff. September 1, 2009.
Sec. 209.011. RIGHT OF REDEMPTION AFTER FORECLOSURE. (a) A
property owners' association or other person who purchases
occupied property at a sale foreclosing a property owners'
association's assessment lien must commence and prosecute a
forcible entry and detainer action under Chapter 24 to recover
possession of the property.
(b) The owner of property in a residential subdivision or a
lienholder of record may redeem the property from any purchaser
at a sale foreclosing a property owners' association's assessment
lien not later than the 180th day after the date the association
mails written notice of the sale to the owner and the lienholder
under Section 209.010. A lienholder of record may not redeem the
property as provided herein before 90 days after the date the
association mails written notice of the sale to the lot owner and
the lienholder under Section 209.010, and only if the lot owner
has not previously redeemed.
(c) A person who purchases property at a sale foreclosing a
property owners' association's assessment lien may not transfer
ownership of the property to a person other than a redeeming lot
owner during the redemption period.
(d) To redeem property purchased by the property owners'
association at the foreclosure sale, the lot owner or lienholder
must pay to the association:
(1) all amounts due the association at the time of the
foreclosure sale;
(2) interest from the date of the foreclosure sale to the date
of redemption on all amounts owed the association at the rate
stated in the dedicatory instruments for delinquent assessments
or, if no rate is stated, at an annual interest rate of 10
percent;
(3) costs incurred by the association in foreclosing the lien
and conveying the property to the lot owner, including reasonable
attorney's fees;
(4) any assessment levied against the property by the
association after the date of the foreclosure sale;
(5) any reasonable cost incurred by the association, including
mortgage payments and costs of repair, maintenance, and leasing
of the property; and
(6) the purchase price paid by the association at the
foreclosure sale less any amounts due the association under
Subdivision (1) that were satisfied out of foreclosure sale
proceeds.
(e) To redeem property purchased at the foreclosure sale by a
person other than the property owners' association, the lot owner
or lienholder:
(1) must pay to the association:
(A) all amounts due the association at the time of the
foreclosure sale less the foreclosure sales price received by the
association from the purchaser;
(B) interest from the date of the foreclosure sale through the
date of redemption on all amounts owed the association at the
rate stated in the dedicatory instruments for delinquent
assessments or, if no rate is stated, at an annual interest rate
of 10 percent;
(C) costs incurred by the association in foreclosing the lien
and conveying the property to the redeeming lot owner, including
reasonable attorney's fees;
(D) any unpaid assessments levied against the property by the
association after the date of the foreclosure sale; and
(E) taxable costs incurred in a proceeding brought under
Subsection (a); and
(2) must pay to the person who purchased the property at the
foreclosure sale:
(A) any assessments levied against the property by the
association after the date of the foreclosure sale and paid by
the purchaser;
(B) the purchase price paid by the purchaser at the foreclosure
sale;
(C) the amount of the deed recording fee;
(D) the amount paid by the purchaser as ad valorem taxes,
penalties, and interest on the property after the date of the
foreclosure sale; and
(E) taxable costs incurred in a proceeding brought under
Subsection (a).
(f) If a lot owner or lienholder redeems the property under this
section, the purchaser of the property at foreclosure shall
immediately execute and deliver to the redeeming party a deed
transferring the property to the lot owner. If a purchaser fails
to comply with this section, the lot owner or lienholder may file
an action against the purchaser and may recover reasonable
attorney's fees from the purchaser if the lot owner or the
lienholder is the prevailing party in the action.
(g) If, before the expiration of the redemption period, the
redeeming lot owner or lienholder fails to record the deed from
the foreclosing purchaser or fails to record an affidavit stating
that the lot owner or lienholder has redeemed the property, the
lot owner's or lienholder's right of redemption as against a bona
fide purchaser or lender for value expires after the redemption
period.
(h) The purchaser of the property at the foreclosure sale or a
person to whom the person who purchased the property at the
foreclosure sale transferred the property may presume
conclusively that the lot owner or a lienholder did not redeem
the property unless the lot owner or a lienholder files in the
real property records of the county in which the property is
located:
(1) a deed from the purchaser of the property at the foreclosure
sale; or
(2) an affidavit that:
(A) states that the property has been redeemed;
(B) contains a legal description of the property; and
(C) includes the name and mailing address of the person who
redeemed the property.
(i) If the property owners' association purchases the property
at foreclosure, all rent and other income collected by the
association from the date of the foreclosure sale to the date of
redemption shall be credited toward the amount owed the
association under Subsection (d), and if there are excess
proceeds, they shall be refunded to the lot owner. If a person
other than the association purchases the property at foreclosure,
all rent and other income collected by the purchaser from the
date of the foreclosure sale to the date of redemption shall be
credited toward the amount owed the purchaser under Subsection
(e), and if there are excess proceeds, those proceeds shall be
refunded to the lot owner.
(j) If a person other than the property owners' association is
the purchaser at the foreclosure sale, before executing a deed
transferring the property to the lot owner, the purchaser shall
obtain an affidavit from the association or its authorized agent
stating that all amounts owed the association under Subsection
(e) have been paid. The association shall provide the purchaser
with the affidavit not later than the 10th day after the date the
association receives all amounts owed to the association under
Subsection (e). Failure of a purchaser to comply with this
subsection does not affect the validity of a redemption.
(k) Property that is redeemed remains subject to all liens and
encumbrances on the property before foreclosure. Any lease
entered into by the purchaser of property at a sale foreclosing
an assessment lien of a property owners' association is subject
to the right of redemption provided by this section and the lot
owner's right to reoccupy the property immediately after
redemption.
(l) If a lot owner makes partial payment of amounts due the
association at any time before the redemption period expires but
fails to pay all amounts necessary to redeem the property before
the redemption period expires, the association shall refund any
partial payments to the lot owner by mailing payment to the
owner's last known address as shown in the association's records
not later than the 30th day after the expiration date of the
redemption period.
(m) If a lot owner or lienholder sends by certified mail, return
receipt requested, a written request to redeem the property on or
before the last day of the redemption period, the lot owner's or
lienholder's right of redemption is extended until the 10th day
after the date the association and any third party foreclosure
purchaser provides written notice to the redeeming party of the
amounts that must be paid to redeem the property.
(n) After the redemption period and any extended redemption
period provided by Subsection (m) expires without a redemption of
the property, the association or third party foreclosure
purchaser shall record an affidavit in the real property records
of the county in which the property is located stating that the
lot owner or a lienholder did not redeem the property during the
redemption period or any extended redemption period.
(o) The association or the person who purchased the property at
the foreclosure sale may file an affidavit in the real property
records of the county in which the property is located that
states the date the citation was served in a suit under
Subsection (a) and contains a legal description of the property.
Any person may rely conclusively on the information contained in
the affidavit.
(p) The rights of a lot owner and a lienholder under this
section also apply if the sale of the lot owner's property is
conducted by a constable or sheriff as provided by a judgment
obtained by the property owners' association.
Added by Acts 2001, 77th Leg., ch. 926, Sec. 1, eff. Jan. 1,
2002.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
1176, Sec. 3, eff. September 1, 2009.
Sec. 209.012. RESTRICTIVE COVENANTS GRANTING EASEMENTS TO
CERTAIN PROPERTY OWNERS' ASSOCIATIONS. (a) A property owners'
association may not amend a dedicatory instrument to grant the
property owners' association an easement through or over an
owner's lot without the consent of the owner.
(b) This section does not prohibit a property owners'
association from adopting or enforcing a restriction in a
dedicatory instrument that allows the property owners'
association to access an owner's lot to remedy a violation of the
dedicatory instrument.
Added by Acts 2007, 80th Leg., R.S., Ch.
887, Sec. 1, eff. September 1, 2007.
Sec. 209.013. AUTHORITY OF ASSOCIATION TO AMEND DEDICATORY
INSTRUMENT. (a) A dedicatory instrument created by a developer
of a residential subdivision or by a property owners' association
in which the developer has a majority of the voting rights or
that the developer otherwise controls under the terms of the
dedicatory instrument may not be amended during the period
between the time the developer loses the majority of the voting
rights or other form of control of the property owners'
association and the time a new board of directors of the
association assumes office following the loss of the majority of
the voting rights or other form of control.
(b) A provision in a dedicatory instrument that violates this
section is void and unenforceable.
Added by Acts 2007, 80th Leg., R.S., Ch.
887, Sec. 2(a), eff. September 1, 2007.