By: Dutton H.B. No. 1228

A BILL TO BE ENTITLED

AN ACT

relating to foreclosure of a property owners' association assessment lien.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 12, Property Code, is amended by adding Section 12.0171 to read as follows:

Sec. 12.0171. AFFIDAVIT AS RELEASE OF ASSESSMENT LIEN. (a) A property owner whose property is subject to a recorded notice of a property owners' assessment lien may, at any time, file an affidavit that substantially complies with Subsection (e) in the real property records of the county in which the lien notice is recorded.

(b) Subject to Subsection (c) and except as provided by Subsection (d), an affidavit filed under Subsection (a) serves as a release of record of the property owners' association assessment lien referenced in the affidavit.

(c) A bona fide purchaser or a mortgagee for value or a successor or assign of a bona fide purchaser or mortgagee for value may rely conclusively on an affidavit filed under Subsection (a) if included with the affidavit is evidence that:

(1) the property owner sent a letter and a copy of the affidavit, without attachments and before execution of the affidavit, notifying the property owners' association of the owner's intent to file the affidavit; and

(2) 30 or more days before the affidavit was filed, the letter and the affidavit were sent to the property owners' association by registered or certified mail, return receipt requested, to the address provided in the management certificate recorded under Section 209.004.

(d) An affidavit filed under Subsection (a) does not serve as a release of record of a property owners' association assessment lien if the association files a contradicting affidavit in the real property records of the county in which the affidavit is filed asserting that:

(1) the affidavit filed by the owner is untrue; or

(2) another reason exists as to why the assessment lien attaches to the owner's property.

(e) An affidavit filed under Subsection (a) must be in substantially the following form:

PROPERTY OWNER'S AFFIDAVIT AS RELEASE OF PROPERTY OWNERS'

ASSOCIATION ASSESSMENT LIEN

Before me, the undersigned authority, on this day personally appeared _______ ("Affiant(s)") (insert name of one or more affiants) who, being first duly sworn, upon oath states:

(1) My/our name is/are _______ (insert name of Affiant(s)). I/we own the following described land ("Land"):

(describe the property that is the subject of the property owners'

association assessment lien)

(2) This affidavit is made for the purpose of effecting a release of the property owners' association assessment lien recorded in _______ (refer to recording information of property owners' association assessment lien) ("Assessment Lien") as to the Land.

(3) The debt on which the Assessment Lien is based has been satisfied in its entirety or is not owed by us.

(4) Attached to this affidavit is evidence that:

(A) Affiant(s) sent a letter and a copy of this affidavit, without attachments and before execution of the affidavit, notifying the association claiming the Assessment Lien of this affidavit and the Affiant(s)' intent to file for record this affidavit; and

(B) the letter and this affidavit were sent by registered or certified mail, return receipt requested, 30 or more days before this affidavit was filed to the property owners' association claiming the Assessment Lien.

(5) This affidavit serves as a release of the Assessment Lien as to the Land in accordance with Section 12.0171, Property Code.

Signed on this ____ day of ______, ____.

___________________

___________________

(Signature of Affiant(s))

State of _______

County of _______ SWORN TO AND SUBSCRIBED before me on the ________ day of ________, 20____. My commission expires: _____________________

____________________________

Notary Public, State of Texas

Notary's printed name:

____________________________

(f) A person who knowingly causes an affidavit with false information to be executed and recorded under this section is liable for the penalties for filing a false affidavit, including the penalties for the commission of an offense under Section 37.02, Penal Code. The attorney general may sue to collect the penalty. A person who negligently causes an affidavit with false information to be executed and recorded under this section is liable to a party injured by the affidavit for actual damages. If the attorney general or an injured party bringing suit substantially prevails in an action under this subsection, the court may award reasonable attorney's fees and court costs to the prevailing party.

SECTION 2. Chapter 209, Property Code, is amended by adding Section 209.0091 to read as follows:

Sec. 209.0091. PREREQUISITES TO FORECLOSURE: NOTICE AND OPPORTUNITY TO CURE FOR CERTAIN OTHER LIENHOLDERS. (a) A property owners' association may not foreclose a property owners' association assessment lien on real property by giving notice of sale under Section 51.002 or commencing a judicial foreclosure action unless the association has:

(1) provided written notice of the total amount of the delinquency giving rise to the foreclosure to any other holder of a lien of record on the property whose lien is inferior or subordinate to the association's lien and is evidenced by a deed of trust; and

(2) provided the recipient of the notice an opportunity to cure the delinquency before the 61st day after the date the recipient receives the notice.

(b) Notice under this section must be sent by certified mail, return receipt requested, to the address for the lienholder shown in the deed records relating to the property that is subject to the property owners' association assessment lien.

SECTION 3. The change in law made by this Act applies only to a notice of sale given under Section 51.002, Property Code, on or after the effective date of this Act or a judicial foreclosure action commenced on or after the effective date of this Act.

SECTION 4. This Act takes effect September 1, 2011.