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A BILL TO BE ENTITLED
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AN ACT
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relating to the modification or termination of restrictions by |
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petition in certain real estate developments with certain |
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amenities. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 11, Property Code, is amended by adding |
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Chapter 213 to read as follows: |
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CHAPTER 213. MODIFICATION OR TERMINATION OF RESTRICTIONS BY |
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PETITION IN REAL ESTATE DEVELOPMENTS WITH CERTAIN AMENITIES |
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Sec. 213.001. DEFINITIONS. In this chapter: |
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(1) "Amenity property" means real property the use of |
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which is restricted by a dedicatory instrument to use as a golf |
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course or country club. |
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(2) "Council of owners" has the meaning assigned by |
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Section 81.002 as it relates to an existing condominium in a |
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development. |
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(3) "Dedicatory instrument" means a governing |
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instrument that: |
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(A) restricts amenity property to use as amenity |
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property; |
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(B) designates real property in the development, |
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other than amenity property, as a beneficiary of a restriction |
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described by Paragraph (A); and |
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(C) addresses the establishment, maintenance, |
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and operation of amenity property. |
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(4) "Development" means: |
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(A) amenity property; and |
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(B) all real property designated as beneficiary |
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property in the dedicatory instrument. |
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(5) "Owner" means a person, or the person's personal |
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representative, who holds record title to: |
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(A) a lot or parcel of real property in a |
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development; or |
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(B) a unit or apartment of a condominium in the |
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development. |
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(6) "Petition circulator" means a person authorized to |
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circulate a petition under Section 213.005. |
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(7) "Property owners' association" means an |
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incorporated or unincorporated association that: |
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(A) is designated as the representative of the |
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owners of lots or parcels of real property in a development; |
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(B) has a membership primarily consisting of |
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those owners; and |
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(C) manages or regulates all or part of the |
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development for the benefit of those owners. |
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(8) "Restrictions" means one or more restrictive |
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covenants contained or incorporated by reference in a properly |
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recorded map, plat, replat, declaration, or other instrument filed |
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in the real property records or map or plat records. The term |
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includes any amendment or extension of the restrictions. |
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(9) "Restrictive covenant" means any covenant, |
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condition, or restriction contained in a dedicatory instrument, |
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whether mandatory, prohibitive, permissive, or administrative. |
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(10) "Unit owners' association" means an association |
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of unit owners organized under Section 82.101 for a condominium in a |
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development. |
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Sec. 213.002. FINDINGS AND PURPOSE. (a) The legislature |
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finds that: |
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(1) a restriction on the use of an amenity property may |
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create uncertainty if the owners of an amenity property are |
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reluctant or unable to properly maintain or operate the amenity |
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property; |
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(2) such uncertainty may discourage investment and |
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negatively impact property values in the development; |
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(3) investors may be reluctant to or will not invest |
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funds to revitalize an amenity property burdened with a restriction |
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on its use; |
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(4) financial institutions may be reluctant to or will |
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not provide financing to revitalize an amenity property burdened |
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with a restriction on its use; and |
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(5) establishing a procedural option to allow for the |
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modification or termination of the restriction would alleviate the |
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uncertainty and encourage revitalization of the amenity property. |
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(b) The purpose of this chapter is to provide a procedural |
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option for the modification or termination of a restriction on the |
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use of an amenity property. |
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Sec. 213.003. MODIFICATION OR TERMINATION BY PETITION. (a) |
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Except as provided by Subsection (b), a restriction on the use of an |
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amenity property may be modified or terminated by petition in |
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accordance with this chapter. |
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(b) This chapter does not apply if: |
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(1) a dedicatory instrument includes a procedure to |
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modify or terminate a restriction on the use of an amenity property |
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on approval of the owners of 100 percent of, as applicable, the lots |
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or parcels of land and units or apartments of condominiums in the |
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development; or |
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(2) a restriction on the use of an amenity property may |
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be modified or terminated under the procedures of Chapter 81, 82, |
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201, or 209. |
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Sec. 213.004. PREREQUISITES FOR CIRCULATION. A petition |
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may not be circulated under this chapter unless: |
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(1) for a continuous period of at least 36 months, the |
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amenity property has not been in operation, has not been |
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maintained, or has been operated or maintained in a dilapidated or |
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substandard condition; and |
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(2) if zoning regulations apply to the amenity |
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property, the owner of the amenity property has received all |
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required zoning approvals for any proposed redevelopment of the |
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amenity property. |
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Sec. 213.005. PETITION CIRCULATOR. A petition authorized |
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by Section 213.003 may be circulated by: |
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(1) an owner; |
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(2) a property owners' association; or |
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(3) a unit owners' association or council of owners. |
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Sec. 213.006. CONTENTS OF PETITION. (a) The petition must |
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include all relevant information about the proposed modification or |
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termination, including: |
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(1) the name of the development, if any; |
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(2) the name of the amenity property, if any; |
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(3) the recording information of the restriction to be |
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modified or terminated; |
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(4) the text of the restriction subject to |
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modification or termination; |
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(5) the text of the restriction as modified or |
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terminated; and |
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(6) a comparison of the original language of the |
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restriction and the restriction as modified or terminated, showing |
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any insertion and deletion of language or punctuation. |
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(b) The petition must state the date by which a signed |
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statement required by Section 213.008 must be received to be |
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counted. |
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Sec. 213.007. CIRCULATION PROCEDURE. (a) A petition |
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circulator shall deliver a copy of the petition to: |
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(1) all owners of: |
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(A) each lot or parcel of real property in the |
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development; and |
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(B) each unit or apartment of each condominium, |
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if any, in the development; and |
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(2) each property owners' association, unit owners' |
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association, and council of owners in the development. |
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(b) The petition circulator may deliver a copy of the |
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petition in any reasonable manner, including: |
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(1) by regular mail or certified mail, return receipt |
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requested, to the last known address of the owners or entities |
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described by Subsections (a)(1) and (2); |
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(2) personal delivery to the owners or entities |
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described by Subsections (a)(1) and (2); |
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(3) at a meeting of owners in the development called |
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for the purpose of voting on the petition; |
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(4) at a regular meeting of a property owners' |
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association, unit owners' association, or council of owners; or |
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(5) at a special meeting of a property owners' |
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association, unit owners' association, or council of owners called |
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for the purpose of voting on the petition. |
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(c) If the petition circulator acts in good faith in |
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determining ownership and delivering copies of the petition as |
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required by this section, an owner's lack of receipt of a copy of |
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the petition does not affect the application of a modification or |
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termination of a restriction under this chapter to the amenity |
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property. |
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Sec. 213.008. VOTE ON PROPOSAL. (a) The modification or |
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termination of the restriction is adopted if the owners of at least |
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75 percent of the total number, as applicable, of the lots or |
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parcels of land and the units or apartments of condominiums in the |
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development, including the owner of the amenity property, vote in |
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favor of the modification or termination of the restriction. |
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(b) An owner may cast a vote only by delivering to the |
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petition circulator a signed statement that includes: |
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(1) the owner's name, the legal description or street |
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address of the owner's property, and the owner's mailing address; |
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(2) a statement that the owner holds record title to |
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the property; |
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(3) if more than one person owns an interest in the |
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property, the name and mailing address of each co-owner; and |
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(4) a statement indicating whether the owner is in |
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favor of or against the modification or termination proposed by the |
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petition. |
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(c) An owner may vote only in favor of or against the |
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modification or termination as proposed in the petition. |
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(d) If more than one person owns an interest in a lot or |
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parcel of land or a unit or apartment of a condominium, the owners |
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may cast only one vote for that lot, parcel, unit, or apartment. |
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Except as otherwise provided by this subsection, the vote of |
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multiple owners in favor of or against the modification or |
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termination may be reflected by the signatures of a majority of the |
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co-owners who return a signed statement. The vote of owners who are |
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married may be reflected by the signature of only one of those |
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owners. |
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(e) A person whose only property interest in a lot or parcel |
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of land or unit or apartment of a condominium is that of a contract |
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purchaser, lienholder, or mineral interest holder may not cast a |
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vote for that property under this chapter. |
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(f) A vote may be counted only if the vote is received before |
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the deadline stated in the petition as required by Section |
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213.006(b). |
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(g) The signed statement of an owner conclusively |
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establishes that: |
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(1) the petition was received by the owner in |
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accordance with Section 213.007; and |
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(2) the statement accurately reflects the vote of the |
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owner. |
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Sec. 213.009. CERTIFICATION OF RESULTS BY RECORDED |
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AFFIDAVIT. (a) The petition circulator shall certify the result |
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of the votes by filing an affidavit with the county clerk of the |
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county in which the restriction modified or terminated is recorded. |
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(b) The affidavit required by Subsection (a) must state: |
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(1) the name of the development, if any; |
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(2) the name of the amenity property, if any; |
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(3) the recording information of the restriction that |
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was modified or terminated; |
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(4) the text of the restriction before modification or |
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termination; |
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(5) the text of the restriction as modified or |
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terminated; |
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(6) the number of votes in favor of and against the |
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proposed modification or termination; |
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(7) the name and address of the petition circulator; |
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and |
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(8) the name, address, and telephone number of the |
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person maintaining the documents in accordance with Section |
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213.012. |
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(c) The petition circulator must affirm in the affidavit |
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that the petition was delivered in accordance with Section 213.007. |
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Sec. 213.010. NOTICE. (a) The recording of the affidavit |
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required by Section 213.009 constitutes notice that the restriction |
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is modified or terminated. |
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(b) Notwithstanding Subsection (a), the petition circulator |
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must deliver to each person who resides within 200 feet of the |
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boundary of the amenity property a copy of the affidavit. The |
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affidavit may be delivered by regular mail, by certified mail, |
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return receipt requested, or by personal delivery. |
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Sec. 213.011. EFFECTIVE DATE OF MODIFICATION OR |
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TERMINATION. The modification or termination of the restriction |
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takes effect on the later of: |
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(1) the date the affidavit required by Section 213.009 |
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is filed with the county clerk; or |
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(2) the date, if any, specified as the effective date |
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in the petition. |
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Sec. 213.012. DOCUMENTATION AVAILABLE. At least one year |
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after the date the affidavit is filed with the county clerk, the |
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petition circulator shall make available for inspection and copying |
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the original petition, the signed statements described by Section |
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213.008, and the affidavit required by Section 213.009. |
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Sec. 213.013. EXPIRATION. This chapter expires September |
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1, 2021. |
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SECTION 2. The change in law made by this Act does not apply |
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to a petition circulated before the effective date of this Act. |
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SECTION 3. This Act takes effect September 1, 2015. |