HBA-ATS C.S.H.B. 2224 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 2224
By: Solomons
Business & Industry
4/8/1999
Committee Report (Substituted)


BACKGROUND AND PURPOSE 

A purchaser of a home may be unaware that the seller is a member of a
homeowners' association and that the purchase of the home obligates the
seller to be a member of the association. Even if a purchaser is aware of
this fact, the purchaser may not be aware of the extent of the restrictions
governing the maintenance and use of the property and of the
responsibilties associated with membership in the association. 

C.S.H.B. 2224 requires a seller of residential real property that is
subject to membership in a property owners' association to give to the
purchaser, before the date the executory contract binds the purchaser, a
written notice that informs the purchaser of the restrictions and
obligations associated with a purchase of this kind of home.  If the
contract is entered into without the seller providing the required notice,
the purchaser is authorized to terminate the contract for any reason within
the earlier of seven days after the purchaser receives the notice or the
date the transfer occurs as provided by the contract.  This right to
terminate the executory contract is the purchaser's exclusive remedy for
the seller's failure to provide the required notice.   In addition, this
bill requires each county clerk to maintain suitable records called
"Property Owners' Association Records" in which the clerk is required to
record dedicatory instruments governing property owners' associations. A
property owners' association is required to file the dedicatory instrument
in the real property records of each county in which the property to which
the dedicatory instrument relates is located.   
Under this bill, the above requirements do not apply to a transfer of
property: under a court order or foreclosure sale; by  a trustee in
bankruptcy; to a mortgagee by a mortgagor or successor in interest or to a
beneficiary of a deed of trust by a trustor or successor in interest; by a
mortgagee or a beneficiary under a deed of trust who has acquired the land
at a sale conducted under a power of sale under a deed of trust or a sale
under a court-ordered foreclosure or has acquired the land by a deed in
lieu of foreclosure; by a fiduciary in the course of the administration of
a decedent's estate, guardianship, conservatorship, or trust; from one
co-owner to another co-owner of an undivided interest in the real property;
to a spouse or a person in the lineal line of consanguinity of the seller;
to or from a governmental entity; of only a mineral interest, leasehold
interest, or security interest; or of a real property interest in a
condominium. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Subchapter A, Chapter 5, Property Code, by adding
Section 5.012, as follows: 

Sec. 5.012.  NOTICE OF OBLIGATIONS RELATED TO MEMBERSHIP IN PROPERTY
OWNERS' ASSOCIATION.  (a) Requires a seller of residential real property
that is subject to membership in a property owners' association and that
comprises not more than one dwelling unit located in this state to give to
the purchaser a written notice.  Sets forth the required form for the
notice, which informs the purchaser of the restrictions and obligations
associated with a purchase of a home that is subject to membership in a
property owners' association. 

 (b) Requires the seller to deliver the required notice to the purchaser
before the date the executory contract binds the purchaser.  Authorizes the
notice to be given separately, as part of the contract during negotiations,
or as part of any other notice the seller delivers to the purchaser.
Authorizes the omission of certain information if the notice is included as
part of the executory contract or another notice.   

(c) Provides that Section 5.012 does not apply to a transfer of property:

  _under a court order or foreclosure sale;
  _by  a trustee in bankruptcy;
  _to a mortgagee by a mortgagor or successor in interest or to a
beneficiary of a deed of trust by a trustor or successor in interest; 
  _by a mortgagee or a beneficiary under a deed of trust who has acquired
the land at a sale conducted under a power of sale under a deed of trust or
a sale under a court-ordered foreclosure or has acquired the land by a deed
in lieu of foreclosure; 
  _by a fiduciary in the course of the administration of a decedent's
estate, guardianship, conservatorship, or trust; 
  _from one co-owner to another co-owner of an undivided interest in the
real property; 
  _to a spouse or a person in the lineal line of consanguinity of the
seller; 
  _to or from a governmental entity;
  _of only a mineral interest, leasehold interest, or security interest; or
  _of a real property interest in a condominium.

(d) Authorizes the purchaser to terminate an executory contract, if the
contract is entered into without the seller providing the required notice,
for any reason within the earlier of seven days after the purchaser
receives the notice or the date the transfer occurs as provided by the
executory contract. 

(e) Provides that the purchaser's right to terminate the executory contract
is the purchaser's exclusive remedy for the seller's failure to provide the
required notice. 

SECTION 2.  Amends Chapter 202, Property Code, by adding Section 202.006,
as follows: 

Sec. 202.006.  PUBLIC RECORDS.  Requires each county clerk to maintain
suitable records called "Property Owners' Association Records" in which the
clerk is required to record dedicatory instruments governing property
owners' associations.  Requires a property owners' association to file the
dedicatory instrument in the real property records of each county in which
the property to which the dedicatory instrument relates is located. 

SECTION 3.  Effective date: September 1, 1999, except for Section 5.012,
Property Code, which takes effect January 1, 2000.  Makes application of
Section 5.012 prospective, beginning January 1, 2000. 

SECTION 4.  Requires the county clerk of each county to establish the
"Property Owners' Association Records" for the county on or before December
1, 1999.   Requires each property owners' association to present for
recording with the county clerk each dedicatory instrument governing the
association that has not been previously recorded in the real property
records of the county by January 1, 2000. 

SECTION 5.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 2224 modifies the original bill in SECTION 1 by modifying
Subsection (a) of  proposed Section 5.012, Property Code, to delete the
condition that written notice provided by the seller of property in a
property owners' association must be given before the transfer of the
property.  This time for giving the required notice is addressed in new
proposed Subsection (b) of the substitute. 
 
The substitute modifies the original in proposed Subsection (a) by setting
forth the required form for the notice, which informs the purchaser of the
restrictions and obligations associated with a purchase of a home that is
subject to membership in a property owners' association, that was
originally found in proposed Subsection (b) of the original.  The
substitute also modifies the required form for the notice by deleting a
capitalized warning contained in the original bill that read: "The
statements contained in this notice are summary in nature.  As a
prospective purchaser, you should refer to the restrictive covenants and
the dedicatory instrument for further detail.  I understand my obligations
relating to membership in the property owners' association as stated
above."  The substitute also deletes the provision specifying that the
written notice must be conspicuous and printed in 14-point bold-faced type.
The substitute makes nonsubstantive changes. 

The substitute modifies the original in new proposed Subsection (b) by
requiring the seller to deliver the required notice to the purchaser before
the date the executory contract binds the purchaser.  The substitute
authorizes the notice to be given separately, as part of the contract
during negotiations, or as part of any other notice the seller delivers to
the purchaser.  Authorizes the omission of certain information if the
notice is included as part of the executory contract or another notice.
Under the original bill, Subsection (b) had set forth the required form for
the notice. 

The substitute modifies the original in proposed Subsection (c) by deleting
the provision entitling the purchaser to cancel and rescind the purchase
contract and receive a full refund of any purchase payment made to the
seller if the seller fails to provide the required notice.  The substitute
replaces proposed Subsection (c) in the original bill with a new Subsection
(c) that provides that proposed Section 5.012 does not apply to a transfer
of property: under a court order or foreclosure sale; by  a trustee in
bankruptcy; to a mortgagee by a mortgagor or successor in interest or to a
beneficiary of a deed of trust by a trustor or successor in interest; by a
mortgagee or a beneficiary under a deed of trust who has acquired the land
at a sale conducted under a power of sale under a deed of trust or a sale
under a court-ordered foreclosure or has acquired the land by a deed in
lieu of foreclosure; by a fiduciary in the course of the administration of
a decedent's estate, guardianship, conservatorship, or trust; from one
co-owner to another co-owner of an undivided interest in the real property;
to a spouse or a person in the lineal line of consanguinity of the seller;
to or from a governmental entity; of only a mineral interest, leasehold
interest, or security interest; or of a real property interest in a
condominium. 

The substitute modifies the original by adding Subsection (d) to the
proposed addition of Section 5.012, Property Code, to authorize the
purchaser to terminate an executory contract, if the contract is entered
into without the seller providing the required notice, for any reason
within the earlier of seven days after the purchaser receives the notice or
the date the transfer occurs as provided by the executory contract. 

The substitute modifies the original by adding Subsection (e) to the
proposed addition of Section 5.012, Property Code, to provide that the
purchaser's right to terminate the executory contract is the purchaser's
exclusive remedy for the seller's failure to provide the required notice. 

C.S.H.B. 2224 modifies the original bill in SECTION 3 by making application
of Section 5.012 prospective for an executory contract, rather than a real
property transaction, beginning January 1, 2000.