82R11399 PMO-D

By: Bohac H.B. No. 2799

A BILL TO BE ENTITLED

AN ACT

relating to certain property owners' exemption from modification of existing deed restrictions.

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

SECTION 1. Section 201.007(a), Property Code, is amended to read as follows:

(a) A petition filed under this chapter must contain or be supplemented by one or more instruments containing:

(1) the name of the subdivision;

(2) a reference to the real property records or map or plat records where the instrument or instruments that contain any restriction sought to be extended, added to, or modified are recorded or, in the case of the creation of a restriction, a reference to the place where the map or other document identifying the subdivision is recorded;

(3) a verbatim statement of any provisions for extension of the term of, or addition to, the restriction;

(4) if a restriction is being amended or modified, the text of the proposed instrument creating the amendment or modification, together with a comparison of the original restriction that is affected indicating by appropriate deletion and insertion the change to the restriction that is proposed to be amended or modified;

(5) if a restriction is being created, the text of the proposed instrument creating the restriction;

(6) original acknowledged signatures of the required number of owners as provided by Section 201.006; and

(7) [alternate boxes, clearly identified in a conspicuous manner next to the place for signing the petition, that enable each record owner to mark the appropriate box to show the exercise of the owner's option of either including or excluding the owner's property from being burdened by the restrictions being extended, created, added to, or modified;

[(8)] a statement that owners who do not sign the petition must file suit under Section 201.010 before the 181st day after the date on which the certificate called for by Section 201.008(e) is filed in order to challenge the procedures followed in extending, creating, adding to, or modifying a restriction[; and

[(9) a statement that owners who do not sign the petition may delete their property from the operation of the extended, created, added to, or modified restriction by filing a statement described in the fourth listed category in Section 201.009(b) before one year after the date on which the owner receives actual notice of the filing of the petition authorized by this chapter].

SECTION 2. Section 201.009(b), Property Code, is amended to read as follows:

(b) A restriction added, modified, created, or extended under this chapter does not affect or encumber property within the subdivision that is included within one of the following categories:

(1) property exclusively dedicated for use by the public or for use by utilities;

(2) [property of an owner who elected in the petition to exclude the property from the restriction;

[(3)] property of an owner who did not sign the petition and has not received actual notice of the filing of the petition;

[(4) property of an owner who did not sign the petition and who files, before one year after the date on which the owner received actual notice of the filing of the petition, an acknowledged statement describing the owner's property by reference to the recorded map or plat of the subdivision and stating that the owner elects to have the property deleted and excluded from the operation of the extended, modified, changed, or created restriction;] and

(3) [(5)] property owned by a minor or a person judicially declared to be incompetent at the time the certificate is filed, unless:

(A) actual notice of the filing of the petition is given to a guardian of the minor or incompetent person[, and the guardian has not filed the statement described in the fourth listed category in this subsection];

(B) a predecessor in title to the minor or incompetent person signed a petition that was filed while the property was owned by the predecessor; or

(C) the incompetent person signed a petition that was filed before the judicial declaration of the person's incompetency.

SECTION 3. Sections 201.010(a) and (d), Property Code, are amended to read as follows:

(a) If an owner and the owner's predecessors in interest have not [neither] signed the petition [nor filed the statement described in the fourth listed category in Section 201.009(b)], the owner may file a suit for declaratory judgment in a court of competent jurisdiction[:

[(1)] to challenge the completeness or regularity of the procedures leading to the recordation of a certificate, if the suit is filed before the 181st day after the date on which the certificate is filed with the county clerk[; or

[(2) to exclude the owner's property from the operation of the extended, modified, added to, or created restriction].

(d) The remedies in this section are exclusive of all others in actions brought to challenge a restriction extended, modified, added to, or created under this chapter. The filing of an action under [for the first listed purpose in] Subsection (a) does not prevent the restriction from taking effect in accordance with its terms pending a final judgment.

SECTION 4. Sections 201.009(c) and 201.010(c), Property Code, are repealed.

SECTION 5. (a) The changes in law made by Sections 201.007 and 201.009, Property Code, as amended by this Act, apply only to a petition filed on or after the effective date of this Act. A petition filed before the effective date of this Act is governed by the law in effect immediately before that date, and that law is continued in effect for that purpose.

(b) The change in law made by Section 201.010, Property Code, as amended by this Act, applies only to the remedies available as a result of a petition filed on or after the effective date of this Act. The remedies available as a result of a petition filed before the effective date of this Act are governed by the law in effect immediately before that date, and that law is continued in effect for that purpose.

SECTION 6. This Act takes effect September 1, 2011.