SRC-JLB S.B. 949 78(R)   BILL ANALYSIS


Senate Research Center   S.B. 949
By: Lindsay
Intergovernmental Relations
3/14/2003
As Filed


DIGEST AND PURPOSE 

Currently, a general framework exists for property owners' associations to
follow with regard to the operations of associations and their boards.
However, the statutes are vague or inadequate with regard to providing
consumer protections to property owners.  As proposed, S.B. 949 provides a
number of protections for consumers pertaining to the collection of dues
and fees and the enforcement of deed restrictions by association boards,
including giving county attorneys in certain populous counties the
authority to enforce state law and neighborhood bylaws; providing for open
meetings and open records rules; limiting foreclosures; allowing
redemption of property up to two years following foreclosure; disallowing
attorney fees accrued in the first year following a restriction violation
or dues arrearage; limiting charges to home purchasers for documents and
transfers of information; limiting the power of Harris County association
boards to raise fees without a vote of the owners; prohibiting attorneys
from directly billing and collecting fees from owners; removing the
provision that permits associations to charge $200 a day in fines; and
allowing the courts the discretion to award attorney fees and court costs
to owners. 

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to
a state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 51, Property Code, by adding Section 51.009, as
follows: 
 
Sec. 51.009.  LIEN OF PROPERTY OWNERS' ASSOCIATION.  (a)  Defines
"dedicatory instrument" and "property owners' association." 

(b)  Provides that notwithstanding the provisions of a dedicatory
instrument, a property owners' association's lien on real property that
arises under a dedicatory instrument governing the property does not have
priority over a purchase money lien on the property arising from a
mortgage insured by the Federal Housing Administration, the Veterans
Administration, or a successor to one of those agencies. 

SECTION 2.  Amends the heading of Chapter 203, Property Code, to read as
follows: 

CHAPTER 203.  ENFORCEMENT OF PROVISIONS RELATING TO LAND USE RESTRICTIONS
OR PROPERTY OWNERS' ASSOCIATIONS IN CERTAIN COUNTIES 

SECTION 3.  Amends Section 203.003, Property Code, as follows:
 
Sec. 203.003.  New heading:  ENFORCEMENT AUTHORITY OF COUNTY ATTORNEY.
(a)  Authorizes the county attorney to sue in a court of competent
jurisdiction to enjoin or abate a violation of this title by a property
owners' association or owner or a violation of a restriction contained or
incorporated by reference in a properly recorded plan, plat, replat,  or
other instrument affecting a real property subdivision located in the
county, including architectural control guidelines and a property owners'
association's articles of incorporation or bylaws, regardless of the date
on which the instrument was recorded and recover from a property owners'
association that violates this title an administrative penalty of $1,000
for each violation. 

  (b)  No change to this subsection.

SECTION 4.  Amends Section 204.010, Property Code, by amending Subsection
(a) and adding Subsections (c), (d), and (e), as follows: 

(a)  Deletes certain powers previously granted to a property owners'
association acting through its board fo directors or trustees and
renumbers remaining subdivisions.  

(c)  Authorizes a property owners' association to be granted certain
powers not provided by the association's articles of incorporation or
bylaws if the association follows the petition procedures prescribed by
Section 204.005 for adding to or modifying existing restrictions, except
that the approval requirements of Section 204.005(b)(1) are satisfied if
the owners of at least 50 percent of the real property interests plus one
owner of real property interests, excluding lienholders, contract
purchasers, and the owners of mineral interests, approve the petition. 

(d)  Prohibits a property owners' association from exercising a power
granted by petition under Subsection (c) before the petition is filed as a
dedicatory instrument under Section 204.005(b). 

(e)  Requires any change to an existing architectural control guideline,
notwithstanding Subsection (c), to be made by petition under Section
204.005. 

SECTION 5.  Amends the heading for Section 207.003, Property Code, to read
as follows: 
 
Sec. 207.003.  DELIVERY OF SUBDIVISION INFORMATION TO OWNER OR BUYER.

SECTION 6.  Amends Section 207.003(c), Property Code, to authorize a
property owners' association or its representative to charge a reasonable
fee to assemble, copy, and deliver the information required by this
section but prohibits the association or its representative from charging
more than 20 cents for each letter-sized or legal-sized page or more than
a total of $75, rather than a reasonable fee to prepare and deliver an
update of a resale certificate. 

SECTION 7.  Amends Section 209.005, Property Code, as follows:

Sec. 209.005.  ASSOCIATION RECORDS.  (a)  Requires a property owners'
association to make the books and records of the association, including
financial records, available to an owner for inspection at its principal
office on request. 
 
(b)  Requires the property owners' association or its representative, if
the requested information is not available to examine at the time of the
request because it is in active use or in storage, to certify this fact in
writing to the requestor and set a date and time that is not later than
the fifth business day after the date the association receives the request
when the information will be available for inspection. 

(c)  Prohibits the property owners' association or its representative from
questioning the basis for the requestor's request for information but
authorizes the association or representative to verify that the requestor
is an owner. 

 (d)  Authorizes a property owners' association or its representative to
charge a reasonable fee for providing copies of documents under this
section but prohibits charging more than 20 cents per letter-sized or
legal-sized page.  Prohibits the charge, for a request of 50 or fewer
pages, from including costs of materials, labor, or overhead, other than
photocopying costs. 

(e)  Requires the property owners' association or its representative to
treat all requests for information uniformly. 

(f)  Requires the property owners' association or its representative to
provide all reasonable comfort and facility for the full exercise of the
right granted by this section. 

(g)  Provides that this section does not authorize a requestor to remove
an original of a property owners' association record from the location
where it is kept. 

(h)  Authorizes an action for a declaratory judgment or injunctive relief
to be brought in accordance with this section against a property owners'
association that violates this chapter. 
 
(i)  Authorizes the county attorney, if a property owners' association
fails to deliver the information required under this section, to seek a
court order directing the property owners' association to furnish the
required information.  Authorizes the county attorney, in an action under
this section, to also seek a judgment against the property owners'
association for court costs and attorney's fees. 
 
(j)  Requires this section to be liberally construed in favor of granting
a request for information.  Deletes existing Subsection(b) regarding an
attorney's records relating to the association. 
 
SECTION 8.  Amends Chapter 209, Property Code, by adding Sections 209.0051
and 209.0052, as follows: 
 
Sec. 209.0051.  AVAILABILITY OF ANNUAL BUDGET PROPOSALS.  Requires the
association, not later than the 10th business day before the date of a
property owners' association meeting to approve an annual budget, to  post
a written copy of the proposed budget on a bulletin board at a place
convenient to the public at the meeting location of the board. 

Sec. 209.0052.  ASSOCIATION MEETINGS.  (a)  Requires a property owners'
association to meet at least once each year. 
 
(b)  Requires a meeting of a property owners' association and its board to
be conducted as provided by the bylaws.  Requires meetings, if the bylaws
do not provide a manner for conducting meetings, to be open to the owners,
subject to the right of the board to adjourn a meeting of the board and
reconvene in closed executive session to consider actions involving
personnel, pending litigation, contract negotiations, enforcement actions,
matters involving the invasion of privacy of individual owners, or matters
that are to remain confidential by request of the affected parties and
agreement of the board.  Requires the general nature of any business to be
considered in executive session to first be announced at the open meeting. 
 
(c)  Requires notice of a meeting of the property owners' association and
board to be given as provided by the bylaws.  Requires the purpose for
which the meeting is called, if the bylaws do not provide for notice,
written or printed notice stating the place, day, and time of a meeting of
the association, and, if the meeting is a special meeting, to be  posted
on a bulletin board at a place convenient to the public at the meeting
location of the board not later than the 10th day before the date of the
meeting and to be delivered not later than the 10th day or earlier than
the 60th day before the date of the meeting to each member entitled to
vote at the meeting. 
 
(d)  Authorizes notice under Subsection (c) to be delivered in person, by
facsimile transmission, or by mail, as provided by the president,
secretary, or officers or persons calling the meeting.  Provides that if
mailed, the notice is considered to be delivered when deposited in the
United States mail addressed to the member at the member's address as it
appears on the records of the corporation, with postage paid.  Provides
that if transmitted by facsimile, notice is considered delivered when the
facsimile is successfully transmitted. 

SECTION 9.  Amends Section 209.006, Property Code, as follows:
 
Sec. 209.006.  NOTICE REQUIRED BEFORE ENFORCEMENT ACTION.  (a) Requires
the association or its agent, before a property owners' association may
suspend an owner's right to use a common area, file a suit against an
owner, charge an owner for property damage, or levy a fine for a violation
of the restrictions, architectural control guidelines, bylaws, or rules of
the association, to give written notice to the owner by certified mail,
return receipt requested. 
 
  (b)  Requires the notice to meet certain guidelines.

SECTION 10.  Amends Section 209.007(c), Property Code, to require that a
hearing be postponed upon request by the board or an owner, for a period
of not more than 10 days unless the association and the owner agree in
writing to a longer period.  Authorizes additional postponements to be
granted by agreement of the parties. 

SECTION 11.  Amends Chapter 209, Property Code, by adding Section
209.0071, as follows: 
 
Sec. 209.0071.  PAYMENT OF CERTAIN ASSESSMENTS.  (a)  Requires a property
owners' association to adopt guidelines under which an owner who is unable
to pay a delinquent regular or special assessment in full may, at the
owner's request, make partial payments of the delinquent assessments until
the delinquency is cured. 

(b)  Authorizes guidelines adopted under Subsection (a) to provide for the
payment of a reasonable amount of interest on unpaid assessments, not to
exceed 10 percent interest annually.  Authorizes interest charged under
this subsection to accrue from the time the assessment becomes delinquent. 

(c)  Authorizes a payment plan under this section to require an owner to
make payments to the property owners' association weekly, biweekly,
semimonthly, monthly, or as otherwise agreed by the association and the
owner. 

(d)  Authorizes a property owners' association, before agreeing to allow
an owner to make payments under this section, to require an owner to
provide substantive proof of financial hardship. 

(e)  Provides that a property owners' association is not required to agree
to a payment plan that does not meet certain criteria. 

SECTION 12.  Amends Section 209.008, Property Code, by amending Subsection
(b) and adding Subsection (h), as follows: 
 
(b)  Provides that an owner is not liable for attorney's fees incurred by
the association relating  to a matter involving a violation of the
association's restrictions, bylaws, rules, or architectural control
guidelines, including a violation involving overdue assessments, before
the first anniversary of the date on which the violation occurred or
arrearage accrued. 

(h)  Authorizes a court to assess costs of litigation and reasonable
attorney's fees incurred by a plaintiff or defendant who substantially
prevails in an action involving a property owners' association, including
an action by or against a management company or attorney representing a
property owners' association.  Requires the court, in exercising its
discretion under this subsection, to consider whether the action was
brought, defended, or conducted in good faith. 
 
SECTION 13.  Amends Section 209.009, Property Code, as follows:
 
Sec. 209.009.  FORECLOSURE SALE PROHIBITED IN CERTAIN CIRCUMSTANCES.  (a)
Prohibits a property owners' association from foreclosing a property
owners' association's assessment lien unless certain conditions exist. 

(b)  Authorizes a debt described by Subsection (a)(1) to include certain
assessments, costs, and fees. . 

SECTION 14.  Amends Chapter 209, Property Code, by adding Section
209.0091, as follows: 
 
Sec. 209.0091.  JUDICIAL FORECLOSURE REQUIRED.  Prohibits a property
owners' association from foreclosing a property owners' association's
assessment lien unless the association first obtains a court judgment
foreclosing the lien and providing for issuance of an order of sale. 

SECTION 15.  Amends Section 209.011, Property Code, by amending
Subsections (b) and (m) and adding Subsection (q), as follows: 

(b)  Authorizes the owner of property in a residential subdivision to
redeem the property from any purchaser at a sale foreclosing a property
owners' association's assessment lien not later than the second
anniversary of, rather than the 180th day after, the date the association
mails written notice of the sale to the owner under Section 209.010. 

(m)  Provides that if a third party foreclosure purchaser does not provide
the person's current mailing address as required under Subsection (q) and
a lot owner is unable to contact the purchaser, the redemption period is
extended by one day for each day the required notification of a change in
address is not provided. 

(q)  Requires a person, other than the property owners' association, who
purchases the property at the foreclosure sale to provide the association
with the person's mailing address not later than the 10th business day
after the sale and notify the association of any change in the person's
mailing address during the redemption period not later than the 10th
business day after the date the change becomes effective. 

SECTION 16.  Amends Chapter 209, Property Code, by adding Sections 209.012
through 209.015, as follows: 
 
Sec. 209.012.  CONTRACT WITH MANAGEMENT COMPANY.  (a)  Prohibits a
property owners' association or a person in privity with a property
owners' association, except as provided by Subsection (b), from
contracting with or compensating any person to manage, enforce, or
represent the association in connection with enforcing restrictions,
bylaws, rules, or guidelines. 
 
(b)  Authorizes a property owners' association or a person in privity with
a property  owners' association, if expressly described in a budget
approved by the board, to pay a management company a flat fee plus actual
postage costs for enforcing all restrictions, bylaws, rules, or
guidelines, including payment of assessments, for the budget period. 

Sec. 209.013.  CONFLICTS OF INTEREST.  Prohibits a person who is a member
of the board of a property owners' association or related within the third
degree by consanguinity or within the second degree by affinity to a
member of the board from being compensated for providing legal
representation or management services to the association. 

Sec. 209.014.  SUSPENSION OF VOTING PRIVILEGES.  Prohibits a property
owners' association from suspending an owner's voting privileges in the
association because of the owner's overdue assessments or failure to cure
a violation of a deed restriction unless certain conditions apply. 
  
Sec. 209.015.  FEE FOR TRANSFER OF CERTAIN INFORMATION.  Prohibits a
property owners' association or its representative from charging a
homebuyer more than $75 for the transfer of personal and contact
information in connection with the purchase of a home in the subdivision. 

SECTION 17.  Amends Chapter 82C, Government Code, by adding Section
82.067, as follows: 
 
Sec. 82.067.  DEFERRED BILLING FOR CERTAIN LEGAL SERVICES AND CERTAIN
COLLECTION PRACTICES PROHIBITED.  (a)  Defines "property owners'
association." 

(b)  Prohibits an attorney who provides legal services to a property
owners' association or management company in matters involving collections
of mandatory or special assessments or violations of the association's
restrictions, bylaws, or rules from collecting the attorney's fees for
those services directly from a homeowner from whom the association or
company has the right to collect the attorney's fees. 

SECTION 18.  Repealer:  Section 5.006(c) (Attorney's Fee in Breach of
Restrictive Covenant Action), Section 202.004 (Enforcement of Restrictive
Covenants), and Section 209.008(d), (f), and (g) (Attorney's Fees),
Property Code. 

SECTION 19.  (a)  Provides that Section 51.009, Property Code, as added by
this Act, applies to a property owners' association's lien that attaches
to real property before, on, or after the effective date of this Act. 

(b)  Makes application of Section 203.003, Property Code, as amended by
this Act, prospective. 
 
(c)  Makes application of Section 204.010, Property Code, as amended by
this Act, prospective. 

(d)  Makes application of Section 209.012, Property Code, as added by this
Act, prospective. 

(e)  Provides that Section 209.013, Property Code, as added by this Act,
does not apply to legal representation or management services provided
under a contract entered into before the effective date of this Act. 

(f)  Makes application of Section 209.014, Property Code, as added by this
Act, prospective. 

(g)  Makes application of Section 209.0051, Property Code, as added by
this Act, prospective. 
 
(h)  Makes application of Section 209.006, Property Code, as amended by
this Act, prospective. 

(i)  Makes application of Section 209.0071, Property Code, as added by
this Act, prospective. 

(j)  Makes application of Section 209.008(b), Property Code, as amended by
this Act, prospective. 

(k)  Makes application of Section 209.008(h), Property Code, as added by
this Act, prospective. 

(l)  Makes application of Section 209.009 and Sections 209.011(b) and (m),
Property Code, as amended by this Act, and Section 209.0091 and Section
209.011(q), Property Code, as added by this Act, prospective. 

(m)  Provides that the repeal of Section 5.006, Property Code, by this Act
applies only to the award of attorney's fees in an action filed on or
after the effective date of this Act.  

(n)  Provides that the repeal of Section 202.004(c), Property Code, by
this Act applies only to civil damages assessed for a violation of a
restrictive covenant that occurs on or after the effective date of this
Act. 
 
SECTION 20.  Effective date:  September 1, 2003.