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AN ACT
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relating to the operation of certain property owners' associations, |
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condominium unit owners' associations, and councils of owners. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 82.157(a), Property Code, is amended to |
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read as follows: |
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(a) Except as provided by Subsection (c), if a unit owner |
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other than a declarant intends to sell a unit, before executing a |
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contract or conveying the unit, the unit owner must furnish to the |
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purchaser a current copy of the declaration, bylaws, any |
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association rules, and a resale certificate that must have been |
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prepared not earlier than three months before the date it is |
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delivered to the purchaser. The resale certificate must be issued |
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by the association and must contain the current operating budget of |
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the association and statements of: |
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(1) any right of first refusal or other restraint |
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contained in the declaration that restricts the right to transfer a |
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unit; |
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(2) the amount of the periodic common expense |
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assessment and the unpaid common expenses or special assessments |
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currently due and payable from the selling unit owner; |
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(3) other unpaid fees or amounts payable to the |
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association by the selling unit owner; |
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(4) capital expenditures, if any, approved by the |
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association for the next 12 months; |
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(5) the amount of reserves, if any, for capital |
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expenditures and of portions of those reserves designated by the |
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association for a specified project; |
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(6) any unsatisfied judgments against the |
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association; |
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(7) the nature of any pending suits against the |
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association; |
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(8) insurance coverage provided for the benefit of |
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unit owners; |
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(9) whether the board has knowledge that any |
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alterations or improvements to the unit or to the limited common |
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elements assigned to that unit violate the declaration, bylaws, or |
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association rules; |
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(10) whether the board has received notice from a |
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governmental authority concerning violations of health or building |
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codes with respect to the unit, the limited common elements |
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assigned to that unit, or any other portion of the condominium; |
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(11) the remaining term of any leasehold estate that |
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affects the condominium and the provisions governing an extension |
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or renewal of the lease; [and] |
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(12) the name, mailing address, and telephone number |
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of the association's managing agent, if any; |
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(13) the association's current operating budget and |
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balance sheet; and |
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(14) all fees payable to the association or an agent of |
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the association that are associated with the transfer of ownership, |
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including a description of each fee, to whom the fee is paid, and |
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the amount of the fee. |
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SECTION 2. Section 207.001(2), Property Code, is amended to |
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read as follows: |
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(2) "Dedicatory instrument," "property owners' |
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association," and "restrictive covenant" have the meanings |
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assigned by Section 209.002 [202.001]. |
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SECTION 3. Section 207.002, Property Code, is amended to |
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read as follows: |
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Sec. 207.002. APPLICABILITY. (a) This chapter applies to |
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a subdivision with a property owners' association that is entitled |
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to levy regular or special assessments. |
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(b) This chapter does not apply to a condominium council of |
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owners governed by Chapter 81 or a condominium unit owners' |
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association governed by Chapter 82. |
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SECTION 4. Section 209.002, Property Code, is amended by |
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amending Subdivision (4-a) and adding Subdivision (13) to read as |
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follows: |
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(4-a) "Development period" means a period stated in a |
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declaration during which a declarant reserves: |
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(A) a right to facilitate the development, |
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construction, and marketing of the subdivision; or [and] |
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(B) a right to direct the size, shape, and |
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composition of the subdivision. |
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(13) "Verified mail" means any method of mailing for |
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which evidence of mailing is provided by the United States Postal |
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Service or a common carrier. |
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SECTION 5. Section 209.003(d), Property Code, is amended to |
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read as follows: |
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(d) This chapter does not apply to a condominium as defined |
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[development governed] by Section 81.002 or 82.003 [Chapter 82]. |
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SECTION 6. Section 209.0041, Property Code, is amended by |
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amending Subsection (h) and adding Subsections (h-1) and (h-2) to |
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read as follows: |
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(h) Except as provided by Subsection (h-1) or (h-2) [this
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subsection], a declaration may be amended only by a vote of 67 |
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percent of the total votes allocated to property owners entitled to |
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vote on the amendment of the declaration [in the property owners'
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association], in addition to any governmental approval required by |
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law. |
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(h-1) If the declaration contains a lower percentage than |
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prescribed by Subsection (h), the percentage in the declaration |
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controls. |
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(h-2) If the declaration is silent as to voting rights for |
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an amendment, the declaration may be amended by a vote of owners |
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owning 67 percent of the lots subject to the declaration. |
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SECTION 7. Chapter 209, Property Code, is amended by adding |
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Section 209.0042 to read as follows: |
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Sec. 209.0042. METHODS OF PROVIDING NOTICES TO OWNERS. |
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(a) Subject to this section, a property owners' association may |
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adopt a method that may be used by the association to provide a |
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notice from the association to a property owner. |
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(b) A property owners' association may use an alternative |
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method of providing notice adopted under this section to provide a |
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notice for which another method is prescribed by law only if the |
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property owner to whom the notice is provided has affirmatively |
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opted to allow the association to use the alternative method of |
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providing notice to provide to the owner notices for which another |
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method is prescribed by law. |
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(c) A property owners' association may not require an owner |
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to allow the association to use an alternative method of providing |
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notice adopted under this section to provide to the owner any notice |
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for which another method of providing notice is prescribed by law. |
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SECTION 8. Section 209.0051, Property Code, is amended by |
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amending Subsections (b), (c-1), and (h) and adding Subsection |
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(c-2) to read as follows: |
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(b) In this section, "board[:
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[(1) "Board] meeting": |
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(1) [(A)] means a deliberation between a quorum of the |
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voting board of the property owners' association, or between a |
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quorum of the voting board and another person, during which |
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property owners' association business is considered and the board |
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takes formal action; and |
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(2) [(B)] does not include the gathering of a quorum |
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of the board at a social function unrelated to the business of the |
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association or the attendance by a quorum of the board at a |
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regional, state, or national convention, ceremonial event, or press |
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conference, if formal action is not taken and any discussion of |
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association business is incidental to the social function, |
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convention, ceremonial event, or press conference. |
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[(2)
"Development period" means a period stated in a
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declaration during which a declarant reserves:
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[(A)
a right to facilitate the development,
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construction, and marketing of the subdivision; and
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[(B)
a right to direct the size, shape, and
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composition of the subdivision.] |
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(c-1) Except for a meeting held by electronic or telephonic |
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means under Subsection (c-2) [(h)], a board meeting must be held in |
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a county in which all or part of the property in the subdivision is |
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located or in a county adjacent to that county. |
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(c-2) A board meeting may be held by electronic or |
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telephonic means provided that: |
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(1) each board member may hear and be heard by every |
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other board member; |
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(2) except for any portion of the meeting conducted in |
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executive session: |
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(A) all owners in attendance at the meeting may |
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hear all board members; and |
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(B) owners are allowed to listen using any |
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electronic or telephonic communication method used or expected to |
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be used by a board member to participate; and |
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(3) the notice of the meeting includes instructions |
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for owners to access any communication method required to be |
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accessible under Subdivision (2)(B). |
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(h) Except as provided by this subsection, a [A] board may |
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take action outside of a meeting [meet by any method of
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communication], including voting by electronic or [and] telephonic |
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means, without prior notice to owners under Subsection (e), if each |
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board member is given a reasonable opportunity to express the board |
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member's opinion to all other board members and to vote [director
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may hear and be heard by every other director, or the board may take
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action by unanimous written consent to consider routine and
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administrative matters or a reasonably unforeseen emergency or
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urgent necessity that requires immediate board action]. Any action |
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taken without notice to owners under Subsection (e) must be |
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summarized orally, including an explanation of any known actual or |
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estimated expenditures approved at the meeting, and documented in |
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the minutes of the next regular or special board meeting. The board |
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may not, unless done in an open meeting for which [without] prior |
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notice was given to owners under Subsection (e), consider or vote |
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on: |
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(1) fines; |
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(2) damage assessments; |
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(3) initiation of foreclosure actions; |
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(4) initiation of enforcement actions, excluding |
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temporary restraining orders or violations involving a threat to |
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health or safety; |
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(5) increases in assessments; |
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(6) levying of special assessments; |
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(7) appeals from a denial of architectural control |
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approval; [or] |
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(8) a suspension of a right of a particular owner |
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before the owner has an opportunity to attend a board meeting to |
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present the owner's position, including any defense, on the issue; |
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(9) lending or borrowing money; |
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(10) the adoption or amendment of a dedicatory |
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instrument; |
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(11) the approval of an annual budget or the approval |
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of an amendment of an annual budget that increases the budget by |
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more than 10 percent; |
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(12) the sale or purchase of real property; |
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(13) the filling of a vacancy on the board; |
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(14) the construction of capital improvements other |
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than the repair, replacement, or enhancement of existing capital |
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improvements; or |
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(15) the election of an officer. |
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SECTION 9. Section 209.0056, Property Code, is amended by |
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amending Subsection (a) and adding Subsection (a-1) to read as |
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follows: |
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(a) For an election or vote taken at a meeting of the owners, |
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not [Not] later than the 10th day or earlier than the 60th day |
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before the date of the [an] election or vote, a property owners' |
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association shall give written notice of the election or vote to: |
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(1) each owner of property in the property owners' |
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association, for purposes of an association-wide election or vote; |
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or |
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(2) each owner of property in the property owners' |
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association entitled under the dedicatory instruments to vote in a |
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particular representative election, for purposes of a vote that |
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involves election of representatives of the association who are |
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vested under the dedicatory instruments of the property owners' |
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association with the authority to elect or appoint board members of |
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the property owners' association. |
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(a-1) For an election or vote of owners not taken at a |
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meeting, the property owners' association shall give notice of the |
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election or vote to all owners entitled to vote on any matter under |
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consideration. The notice shall be given not later than the 20th |
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day before the latest date on which a ballot may be submitted to be |
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counted. |
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SECTION 10. Section 209.0057, Property Code, is amended by |
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amending Subsections (b), (c), and (d) and adding Subsections |
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(b-1), (b-2), (b-3), and (b-4) to read as follows: |
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(b) Any owner may, not later than the 15th day after the |
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later of the date of any [the] meeting of owners at which the |
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election or vote was held or the date of the announcement of the |
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results of the election or vote, require a recount of the votes. A |
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demand for a recount must be submitted in writing either: |
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(1) by verified [certified] mail[, return receipt
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requested,] or by delivery by the United States Postal Service with |
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signature confirmation service to the property owners' |
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association's mailing address as reflected on the latest management |
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certificate filed under Section 209.004; or |
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(2) in person to the property owners' association's |
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managing agent as reflected on the latest management certificate |
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filed under Section 209.004 or to the address to which absentee and |
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proxy ballots are mailed. |
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(b-1) The property owners' association must estimate the |
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costs for performance of the recount by a person qualified to |
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tabulate votes under Subsection (c) and must send an invoice for the |
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estimated costs to the requesting owner at the owner's last known |
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address according to association records not later than the 20th |
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day after the date the association receives the owner's demand for |
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the recount. |
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(b-2) The owner demanding a recount under this section must |
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pay the invoice described by Subsection (b-1) in full to the |
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property owners' association on or before the 30th day after the |
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date the invoice is sent to the owner. |
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(b-3) If the invoice described by Subsection (b-1) is not |
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paid by the deadline prescribed by Subsection (b-2), the owner's |
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demand for a recount is considered withdrawn and a recount is not |
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required. |
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(b-4) If the estimated costs under Subsection (b-1) are |
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lesser or greater than the actual costs, the property owners' |
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association must send a final invoice to the owner on or before the |
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30th business day after the date the results of the recount are |
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provided. If the final invoice includes additional amounts owed by |
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the owner, any additional amounts not paid to the association |
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before the 30th business day after the date the invoice is sent to |
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the owner may be added to the owner's account as an assessment. If |
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the estimated costs exceed the final invoice amount, the owner is |
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entitled to a refund. The refund shall be paid to the owner at the |
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time the final invoice is sent under this subsection. |
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(c) Following receipt of payment under Subsection (b-2), |
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the [The] property owners' association shall, at the expense of the |
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owner requesting the recount, retain for the purpose of performing |
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the recount[,] the services of a person qualified to tabulate votes |
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under this subsection. The association shall enter into a contract |
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for the services of a person who: |
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(1) is not a member of the association or related to a |
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member of the association board within the third degree by |
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consanguinity or affinity, as determined under Chapter 573, |
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Government Code; and |
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(2) is: |
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(A) a current or former: |
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(i) county judge; |
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(ii) county elections administrator; |
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(iii) justice of the peace; or |
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(iv) county voter registrar; or |
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(B) a person agreed on by the association and |
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each person [the persons] requesting the recount. |
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(d) On [Any recount under Subsection (b) must be performed
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on] or before the 30th day after the date of receipt of [a request
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and] payment for a recount in accordance with Subsection (b-2), the |
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recount must be completed and the property owners' association must |
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provide each owner who requested the recount with notice of the |
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results of the recount [Subsections (b) and (c)]. If the recount |
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changes the results of the election, the [property owners'] |
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association shall reimburse the requesting owner for the cost of |
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the recount not later than the 30th day after the date the results |
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of the recount are provided. [The property owners' association
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shall provide the results of the recount to each owner who requested
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the recount.] Any action taken by the board in the period between |
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the initial election vote tally and the completion of the recount is |
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not affected by any recount. |
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SECTION 11. Section 209.0058, Property Code, is amended by |
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amending Subsections (a) and (c) and adding Subsections (a-1) and |
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(d) to read as follows: |
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(a) Except as provided by Subsection (d), a [Any] vote cast |
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[in an election or vote] by a member of a property owners' |
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association must be in writing and signed by the member if the vote |
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is cast: |
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(1) outside of a meeting; |
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(2) in an election to fill a position on the board; |
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(3) on a proposed adoption or amendment of a |
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dedicatory instrument; |
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(4) on a proposed increase in the amount of a regular |
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assessment or the proposed adoption of a special assessment; or |
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(5) on the proposed removal of a board member. |
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(a-1) If a property owners' association elects to use a |
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ballot for a vote on a matter other than a matter described by |
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Subsection (a), the ballot must be: |
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(1) in writing and signed by the member; or |
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(2) cast by secret ballot in accordance with |
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Subsection (d). |
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(c) In a property owners' association [an association-wide] |
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election, written and signed ballots are not required for |
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uncontested races. |
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(d) A property owners' association may adopt rules to allow |
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voting by secret ballot by association members. The association |
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must take measures to reasonably ensure that: |
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(1) a member cannot cast more votes than the member is |
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eligible to cast in an election or vote; |
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(2) the association counts each vote cast by a member |
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that the member is eligible to cast; and |
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(3) in any election for the board, each candidate may |
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name one person to observe the counting of the ballots, provided |
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that this does not entitle any observer to see the name of the |
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person who cast any ballot, and that any disruptive observer may be |
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removed. |
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SECTION 12. Section 209.0059, Property Code, is amended by |
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adding Subsection (c) to read as follows: |
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(c) In a residential development with 10 or fewer lots for |
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which the declaration was recorded before January 1, 2015, a person |
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may not vote in a property owners' association election unless the |
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person is subject to a dedicatory instrument governing the |
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association through which the association exercises its authority. |
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SECTION 13. Section 209.00591, Property Code, is amended by |
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adding Subsection (a-1) and amending Subsection (c) to read as |
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follows: |
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(a-1) Notwithstanding any other provision of this chapter, |
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a property owners' association's bylaws may require one or more |
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board members to reside in the subdivision subject to the |
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dedicatory instruments but may not require all board members to |
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reside in that subdivision. A requirement described by this |
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subsection is not applicable during the development period. |
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(c) The declaration may provide for a period of declarant |
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control of the association during which a declarant, or persons |
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designated by the declarant, may appoint and remove board members |
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and the officers of the association, other than board members or |
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officers elected by members of the property owners' |
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association. Regardless of the period of declarant control |
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provided by the declaration, on or before the 120th day after the |
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date 75 percent of the lots that may be created and made subject to |
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the declaration are conveyed to owners other than a declarant or a |
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builder in the business of constructing homes who purchased the |
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lots from the declarant for the purpose of selling completed homes |
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built on the lots, at least one-third of the board members must be |
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elected by owners other than the declarant. If the declaration |
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does not include the number of lots that may be created and made |
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subject to the declaration, at least one-third of the board members |
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must be elected by owners other than the declarant not later than |
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the 10th anniversary of the date the declaration was recorded. |
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SECTION 14. Section 209.00592, Property Code, is amended by |
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amending Subsection (a) and adding Subsections (a-1) and (b-1) to |
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read as follows: |
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(a) Subject to Subsection (a-1), the [The] voting rights of |
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an owner may be cast or given: |
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(1) in person or by proxy at a meeting of the property |
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owners' association; |
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(2) by absentee ballot in accordance with this |
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section; |
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(3) by electronic ballot in accordance with this |
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section; or |
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(4) by any method of representative or delegated |
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voting provided by a dedicatory instrument. |
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(a-1) Except as provided by this subsection, unless a |
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dedicatory instrument provides otherwise, a property owners' |
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association is not required to provide an owner with more than one |
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voting method. An owner must be allowed to vote by absentee ballot |
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or proxy. |
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(b-1) For purposes of Subsection (b), a nomination taken |
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from the floor in a board member election is not considered an |
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amendment to the proposal for the election. |
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SECTION 15. Section 209.00593, Property Code, is amended by |
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adding Subsections (a-1), (a-2), and (a-3) and amending Subsection |
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(d) to read as follows: |
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(a-1) At least 10 days before the date a property owners' |
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association composed of more than 100 lots disseminates absentee |
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ballots or other ballots to association members for purposes of |
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voting in a board member election, the association must provide |
|
notice to the association members soliciting candidates interested |
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in running for a position on the board. The notice must contain |
|
instructions for an eligible candidate to notify the association of |
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the candidate's request to be placed on the ballot and the deadline |
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to submit the candidate's request. The deadline may not be earlier |
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than the 10th day after the date the association provides the notice |
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required by this subsection. |
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(a-2) The notice required by Subsection (a-1) must be: |
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(1) mailed to each owner; or |
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(2) provided by: |
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(A) posting the notice in a conspicuous manner |
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reasonably designed to provide notice to association members: |
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(i) in a place located on the association's |
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common property or, with the property owner's consent, on other |
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conspicuously located privately owned property within the |
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subdivision; or |
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(ii) on any Internet website maintained by |
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the association or other Internet media; and |
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(B) sending the notice by e-mail to each owner |
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who has registered an e-mail address with the association. |
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(a-3) An association described by Subsection (a-1) shall |
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include on each absentee ballot or other ballot for a board member |
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election the name of each eligible candidate from whom the |
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association received a request to be placed on the ballot in |
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accordance with this section. |
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(d) This section does not apply to the appointment of a |
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board member during a development period. [In this subsection,
|
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"development period" means a period stated in a declaration during
|
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which a declarant reserves:
|
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[(1)
a right to facilitate the development,
|
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construction, and marketing of the subdivision; and
|
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[(2)
a right to direct the size, shape, and
|
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composition of the subdivision.] |
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SECTION 16. Section 209.00594, Property Code, is amended by |
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amending Subsections (b) and (c) and adding Subsections (b-1) and |
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(d) to read as follows: |
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(b) A person other than a person described by Subsection (a) |
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may tabulate votes in an association election or vote [but may not
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disclose to any other person how an individual voted]. |
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(b-1) A person who tabulates votes under Subsection (b) or |
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who performs a recount under Section 209.0057(c) may not disclose |
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to any other person how an individual voted. |
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(c) Notwithstanding any other provision of this chapter or |
|
any other law, only a person [other than a person] who tabulates |
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votes under Subsection (b) or who performs a recount under Section |
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209.0057(c) [, including a person described by Subsection (a),] may |
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be given access to the ballots cast in the election or vote [only as
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part of a recount process authorized by law]. |
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(d) This section may not be construed to affect a person's |
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obligation to comply with a court order for the release of ballots |
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or other voting records. |
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SECTION 17. Section 209.006, Property Code, is amended to |
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read as follows: |
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Sec. 209.006. NOTICE REQUIRED BEFORE ENFORCEMENT ACTION. |
|
(a) Before a property owners' association may suspend an owner's |
|
right to use a common area, file a suit against an owner other than a |
|
suit to collect a regular or special assessment or foreclose under |
|
an association's lien, charge an owner for property damage, or levy |
|
a fine for a violation of the restrictions or bylaws or rules of the |
|
association, the association or its agent must give written notice |
|
to the owner by certified mail[, return receipt requested]. |
|
(b) The notice must: |
|
(1) describe the violation or property damage that is |
|
the basis for the suspension action, charge, or fine and state any |
|
amount due the association from the owner; [and] |
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(2) except as provided by Subsection (d), inform the |
|
owner that the owner: |
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(A) is entitled to a reasonable period to cure |
|
the violation and avoid the fine or suspension if the violation is |
|
of a curable nature and does not pose a threat to public health or |
|
safety [unless the owner was given notice and a reasonable
|
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opportunity to cure a similar violation within the preceding six
|
|
months]; |
|
(B) may request a hearing under Section 209.007 |
|
on or before the 30th day after the date [the owner receives] the |
|
notice was mailed to the owner; and |
|
(C) may have special rights or relief related to |
|
the enforcement action under federal law, including the |
|
Servicemembers Civil Relief Act (50 U.S.C. App. [app.] Section 501 |
|
et seq.), if the owner is serving on active military duty; |
|
(3) specify the date by which the owner must cure the |
|
violation if the violation is of a curable nature and does not pose |
|
a threat to public health or safety; and |
|
(4) be sent by verified mail to the owner at the |
|
owner's last known address as shown on the association records. |
|
(c) The date specified in the notice under Subsection (b)(3) |
|
must provide a reasonable period to cure the violation if the |
|
violation is of a curable nature and does not pose a threat to |
|
public health or safety. |
|
(d) Subsections (a) and (b) do not apply to a violation for |
|
which the owner has been previously given notice under this section |
|
and the opportunity to exercise any rights available under this |
|
section in the preceding six months. |
|
(e) If the owner cures the violation before the expiration |
|
of the period for cure described by Subsection (c), a fine may not |
|
be assessed for the violation. |
|
(f) For purposes of this section, a violation is considered |
|
a threat to public health or safety if the violation could |
|
materially affect the physical health or safety of an ordinary |
|
resident. |
|
(g) For purposes of this section, a violation is considered |
|
uncurable if the violation has occurred but is not a continuous |
|
action or a condition capable of being remedied by affirmative |
|
action. For purposes of this subsection, the nonrepetition of a |
|
one-time violation or other violation that is not ongoing is not |
|
considered an adequate remedy. |
|
(h) The following are examples of acts considered uncurable |
|
for purposes of this section: |
|
(1) shooting fireworks; |
|
(2) an act constituting a threat to health or safety; |
|
(3) a noise violation that is not ongoing; |
|
(4) property damage, including the removal or |
|
alteration of landscape; and |
|
(5) holding a garage sale or other event prohibited by |
|
a dedicatory instrument. |
|
(i) The following are examples of acts considered curable |
|
for purposes of this section: |
|
(1) a parking violation; |
|
(2) a maintenance violation; |
|
(3) the failure to construct improvements or |
|
modifications in accordance with approved plans and |
|
specifications; and |
|
(4) an ongoing noise violation such as a barking dog. |
|
SECTION 18. Section 209.0062(c), Property Code, is amended |
|
to read as follows: |
|
(c) A property owners' association is [may] not required to |
|
allow a payment plan for any amount that extends more than 18 months |
|
from the date of the owner's request for a payment plan. The |
|
association is not required to enter into a payment plan with an |
|
owner who failed to honor the terms of a previous payment plan |
|
during the two years following the owner's default under the |
|
previous payment plan. The association is not required to make a |
|
payment plan available to an owner after the period for cure |
|
described by Section 209.0064(b)(3) expires. The association is |
|
not required to allow an owner to enter into a payment plan more |
|
than once in any 12-month period. |
|
SECTION 19. Section 209.0064(b), Property Code, is amended |
|
to read as follows: |
|
(b) A property owners' association may not hold an owner |
|
liable for fees of a collection agent retained by the [property
|
|
owners'] association unless the association first provides written |
|
notice to the owner by certified mail[, return receipt requested,] |
|
that: |
|
(1) specifies each delinquent amount and the total |
|
amount of the payment required to make the account current; |
|
(2) if the association is subject to Section 209.0062 |
|
or the association's dedicatory instruments contain a requirement |
|
to offer a payment plan, describes the options the owner has to |
|
avoid having the account turned over to a collection agent, |
|
including information regarding availability of a payment plan |
|
through the association; and |
|
(3) provides a period of at least 30 days for the owner |
|
to cure the delinquency before further collection action is taken. |
|
SECTION 20. Section 209.009, Property Code, is amended to |
|
read as follows: |
|
Sec. 209.009. FORECLOSURE SALE PROHIBITED IN CERTAIN |
|
CIRCUMSTANCES. A property owners' association may not foreclose a |
|
property owners' association's assessment lien if the debt securing |
|
the lien consists solely of: |
|
(1) fines assessed by the association; |
|
(2) attorney's fees incurred by the association solely |
|
associated with fines assessed by the association; or |
|
(3) amounts added to the owner's account as an |
|
assessment under Section 209.005(i) or 209.0057(b-4). |
|
SECTION 21. Section 209.0091, Property Code, is amended 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 file an application for an expedited |
|
court order authorizing foreclosure of the association's |
|
assessment lien as described by Section 209.0092(a) or a petition |
|
for judicial foreclosure of the association's assessment lien as |
|
described by Section 209.0092(d) [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 association mails [recipient receives] the notice |
|
described in Subdivision (1). |
|
(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. |
|
(c) Notwithstanding any other law, notice under this |
|
section may be provided to any holder of a lien of record on the |
|
property. |
|
SECTION 22. Section 209.0092, Property Code, is amended by |
|
amending Subsection (a) and adding Subsections (d) and (e) to read |
|
as follows: |
|
(a) Except as provided by Subsection (c) or (d) and subject |
|
to Section 209.009, a property owners' association may not |
|
foreclose a property owners' association assessment lien unless the |
|
association first obtains a court order in an application for |
|
expedited foreclosure under the rules adopted by the supreme court |
|
under Subsection (b). A property owners' association may use the |
|
procedure described by this subsection to foreclose any lien |
|
described by the association's dedicatory instruments. A property |
|
owners' association whose dedicatory instruments grant a right of |
|
foreclosure is considered to have any power of sale required by law |
|
as a condition of using the procedure described by this subsection. |
|
(d) A property owners' association authorized to use the |
|
procedure described by Subsection (a) may in its discretion elect |
|
not to use that procedure and instead foreclose the association's |
|
assessment lien under court judgment foreclosing the lien and |
|
ordering the sale, pursuant to Rules 309 and 646a, Texas Rules of |
|
Civil Procedure. |
|
(e) This section does not affect any right an association |
|
that is not authorized to use the procedure described by Subsection |
|
(a) may have to judicially foreclose the association's assessment |
|
lien as described by Subsection (d). |
|
SECTION 23. Title 11, Property Code, is amended by adding |
|
Chapter 213 to read as follows: |
|
CHAPTER 213. MODIFICATION OR TERMINATION OF RESTRICTIONS IN |
|
CERTAIN REAL ESTATE DEVELOPMENTS BY PROPERTY OWNERS' ASSOCIATION OR |
|
PROPERTY OWNER PETITION |
|
Sec. 213.001. DEFINITIONS. In this chapter: |
|
(1) "Amenity property" means real property the use of |
|
which is restricted by a dedicatory instrument to use as a golf |
|
course or country club. |
|
(2) "Council of owners" has the meaning assigned by |
|
Section 81.002 as it relates to an existing condominium in a |
|
development. |
|
(3) "Dedicatory instrument" means a governing |
|
instrument that: |
|
(A) restricts amenity property to use as amenity |
|
property; |
|
(B) designates real property in the development, |
|
other than amenity property, as a beneficiary of a restriction |
|
described by Paragraph (A); and |
|
(C) addresses the establishment, maintenance, |
|
and operation of amenity property. |
|
(4) "Development" means: |
|
(A) amenity property; and |
|
(B) all real property designated as beneficiary |
|
property in the dedicatory instrument. |
|
(5) "Owner" means a person, or the person's personal |
|
representative, who holds record title to: |
|
(A) a lot or parcel of real property in a |
|
development; or |
|
(B) a unit or apartment of a condominium in the |
|
development. |
|
(6) "Petition circulator" means a person authorized to |
|
circulate a petition under Section 213.005. |
|
(7) "Property owners' association" means an |
|
incorporated or unincorporated association that: |
|
(A) is designated as the representative of the |
|
owners of lots or parcels of real property in a development; |
|
(B) has a membership primarily consisting of |
|
those owners; and |
|
(C) manages or regulates all or part of the |
|
development for the benefit of those owners. |
|
(8) "Restrictions" means one or more restrictive |
|
covenants contained or incorporated by reference in a properly |
|
recorded map, plat, replat, declaration, or other instrument filed |
|
in the real property records or map or plat records. The term |
|
includes any amendment or extension of the restrictions. |
|
(9) "Restrictive covenant" means any covenant, |
|
condition, or restriction contained in a dedicatory instrument, |
|
whether mandatory, prohibitive, permissive, or administrative. |
|
(10) "Unit owners' association" means an association |
|
of unit owners organized under Section 82.101 for a condominium in a |
|
development. |
|
Sec. 213.002. FINDINGS AND PURPOSE. (a) The legislature |
|
finds that: |
|
(1) a restriction on the use of an amenity property may |
|
create uncertainty if the owners of an amenity property are |
|
reluctant or unable to properly maintain or operate the amenity |
|
property; |
|
(2) such uncertainty may discourage investment and |
|
negatively impact property values in the development; |
|
(3) investors may be reluctant to or will not invest |
|
funds to revitalize an amenity property burdened with a restriction |
|
on its use; |
|
(4) financial institutions may be reluctant to or will |
|
not provide financing to revitalize an amenity property burdened |
|
with a restriction on its use; and |
|
(5) establishing a procedural option to allow for the |
|
modification or termination of the restriction would alleviate the |
|
uncertainty and encourage revitalization of the amenity property. |
|
(b) The purpose of this chapter is to provide a procedural |
|
option for the modification or termination of a restriction on the |
|
use of an amenity property. |
|
Sec. 213.003. MODIFICATION OR TERMINATION BY PETITION. |
|
(a) Except as provided by Subsection (b), a restriction on the use |
|
of an amenity property may be modified or terminated by petition in |
|
accordance with this chapter. |
|
(b) This chapter does not apply if: |
|
(1) a dedicatory instrument includes a procedure to |
|
modify or terminate a restriction on the use of an amenity property |
|
on approval of the owners of less than 75 percent of, as applicable, |
|
the lots or parcels of land and units or apartments of condominiums |
|
in the development; or |
|
(2) a restriction on the use of an amenity property may |
|
be modified or terminated under the procedures of Chapter 81, 82, |
|
201, or 209. |
|
Sec. 213.004. PREREQUISITES FOR CIRCULATION. A petition |
|
may not be circulated under this chapter unless: |
|
(1) for a continuous period of at least 36 months, the |
|
amenity property has not been in operation; and |
|
(2) if zoning regulations apply to the amenity |
|
property, the owner of the amenity property has received all |
|
required zoning approvals for any proposed redevelopment of the |
|
amenity property. |
|
Sec. 213.005. PETITION CIRCULATOR. A petition authorized |
|
by Section 213.003 may be circulated by: |
|
(1) an owner; |
|
(2) a property owners' association that owns and |
|
manages the amenity property; or |
|
(3) a unit owners' association or council of owners |
|
that owns and manages the amenity property. |
|
Sec. 213.006. CONTENTS OF PETITION. (a) The petition must |
|
include all relevant information about the proposed modification or |
|
termination, including: |
|
(1) the name of the development, if any; |
|
(2) the name of the amenity property, if any; |
|
(3) the recording information of the restriction to be |
|
modified or terminated; |
|
(4) the text of the restriction subject to |
|
modification or termination; |
|
(5) the text of the restriction as modified or |
|
terminated; and |
|
(6) a comparison of the original language of the |
|
restriction and the restriction as modified or terminated, showing |
|
any insertion and deletion of language or punctuation. |
|
(b) The petition must state: |
|
(1) reasonable times and dates the petition circulator |
|
will be available at a location in the development to receive a |
|
signed statement required by Section 213.008; |
|
(2) a mailing address, e-mail address, and facsimile |
|
number to which a signed statement may be delivered; and |
|
(3) the date by which a signed statement must be |
|
received to be counted. |
|
Sec. 213.007. CIRCULATION PROCEDURE. (a) A petition |
|
circulator shall deliver a copy of the petition to: |
|
(1) all owners of: |
|
(A) each lot or parcel of real property in the |
|
development; and |
|
(B) each unit or apartment of each condominium, |
|
if any, in the development; and |
|
(2) each property owners' association, unit owners' |
|
association, and council of owners in the development. |
|
(b) The petition circulator may deliver a copy of the |
|
petition in any reasonable manner, including: |
|
(1) by regular mail or certified mail, return receipt |
|
requested, to the last known address of the owners or entities |
|
described by Subsections (a)(1) and (2); |
|
(2) personal delivery to the owners or entities |
|
described by Subsections (a)(1) and (2); or |
|
(3) at a regular meeting of a property owners' |
|
association, unit owners' association, or council of owners. |
|
(c) If the petition circulator acts in good faith in |
|
determining ownership and delivering copies of the petition as |
|
required by this section, an owner's lack of receipt of a copy of |
|
the petition does not affect the application of a modification or |
|
termination of a restriction under this chapter to the amenity |
|
property. |
|
Sec. 213.008. VOTE ON PROPOSAL. (a) The modification or |
|
termination of the restriction is adopted if the owners of at least |
|
75 percent of the total number, as applicable, of the lots or |
|
parcels of land and the units or apartments of condominiums in the |
|
development, including the owner of the amenity property, vote in |
|
favor of the modification or termination of the restriction. |
|
(b) An owner may cast a vote only by delivering to the |
|
petition circulator in accordance with Section 213.009 a signed |
|
statement that includes: |
|
(1) the owner's name, the legal description or street |
|
address of the owner's property, and the owner's mailing address; |
|
(2) a statement that the owner holds record title to |
|
the property; |
|
(3) if more than one person owns an interest in the |
|
property, the name and mailing address of each co-owner; and |
|
(4) a statement indicating whether the owner is in |
|
favor of or against the modification or termination proposed by the |
|
petition. |
|
(c) An owner may vote only in favor of or against the |
|
modification or termination as proposed in the petition. |
|
(d) If more than one person owns an interest in a lot or |
|
parcel of land or a unit or apartment of a condominium, the owners |
|
may cast only one vote for that lot, parcel, unit, or apartment. |
|
Except as otherwise provided by this subsection, the vote of |
|
multiple owners in favor of or against the modification or |
|
termination may be reflected by the signatures of a majority of the |
|
co-owners who return a signed statement. The vote of owners who are |
|
married may be reflected by the signature of only one of those |
|
owners. |
|
(e) A person whose only property interest in a lot or parcel |
|
of land or unit or apartment of a condominium is that of a contract |
|
purchaser, lienholder, or mineral interest holder may not cast a |
|
vote for that property under this chapter. |
|
(f) A vote may be counted only if the vote is received before |
|
the deadline stated in the petition as required by Section |
|
213.006(b). |
|
(g) The signed statement of an owner conclusively |
|
establishes that: |
|
(1) the petition was received by the owner in |
|
accordance with Section 213.007; and |
|
(2) the statement accurately reflects the vote of the |
|
owner. |
|
Sec. 213.009. DELIVERY OF SIGNED STATEMENT. (a) The |
|
petition circulator must accept a signed statement described by |
|
Section 213.008 that is delivered: |
|
(1) in person under Section 213.006(b) or otherwise; |
|
(2) by first class mail to an address stated in the |
|
petition; |
|
(3) by e-mail to an address stated in the petition; or |
|
(4) by facsimile to a facsimile number stated in the |
|
petition. |
|
(b) This section supersedes any contrary provision in a |
|
dedicatory instrument. |
|
Sec. 213.010. CERTIFICATION OF RESULTS BY RECORDED |
|
AFFIDAVIT. (a) The petition circulator shall certify the result |
|
of the votes by filing an affidavit with the county clerk of the |
|
county in which the restriction modified or terminated is recorded. |
|
(b) The affidavit required by Subsection (a) must state: |
|
(1) the name of the development, if any; |
|
(2) the name of the amenity property, if any; |
|
(3) the recording information of the restriction that |
|
was modified or terminated; |
|
(4) the text of the restriction before modification or |
|
termination; |
|
(5) the text of the restriction as modified or |
|
terminated; |
|
(6) the number of votes in favor of and against the |
|
proposed modification or termination; |
|
(7) the name and address of the petition circulator; |
|
and |
|
(8) the name, address, and telephone number of the |
|
person maintaining the documents in accordance with Section |
|
213.013. |
|
(c) The petition circulator must affirm in the affidavit |
|
that the petition was delivered in accordance with Section 213.007. |
|
Sec. 213.011. NOTICE. (a) The recording of the affidavit |
|
required by Section 213.010 constitutes notice that the restriction |
|
is modified or terminated. |
|
(b) Notwithstanding Subsection (a), the petition circulator |
|
must deliver to each person who resides within 200 feet of the |
|
boundary of the amenity property a copy of the affidavit. The |
|
affidavit may be delivered by regular mail, by certified mail, |
|
return receipt requested, or by personal delivery. |
|
Sec. 213.012. EFFECTIVE DATE OF MODIFICATION OR |
|
TERMINATION. The modification or termination of the restriction |
|
takes effect on the later of: |
|
(1) the date the affidavit required by Section 213.010 |
|
is filed with the county clerk; or |
|
(2) the date, if any, specified as the effective date |
|
in the petition. |
|
Sec. 213.013. DOCUMENTATION AVAILABLE. At least one year |
|
after the date the affidavit is filed with the county clerk, the |
|
petition circulator shall make available for inspection and copying |
|
the original petition, the signed statements described by Section |
|
213.008, and the affidavit required by Section 213.010. |
|
Sec. 213.014. EXPIRATION. This chapter expires September |
|
1, 2021. |
|
SECTION 24. Section 209.0041(a), Property Code, is |
|
repealed. |
|
SECTION 25. (a) Section 82.157(a), Property Code, as |
|
amended by this Act, applies only to a resale certificate issued on |
|
or after the effective date of this Act. A resale certificate |
|
issued before the effective date of this Act is governed by the law |
|
as it existed immediately before the effective date of this Act, and |
|
that law is continued in effect for that purpose. |
|
(b) The changes in law made by this Act to Chapter 207, |
|
Property Code, apply only to a request for subdivision information |
|
made on or after the effective date of this Act and any resale |
|
certificate delivered in response to that request. A request for |
|
subdivision information made before the effective date of this Act, |
|
any resale certificate delivered in response to that request, and |
|
any request for an update of that resale certificate are governed by |
|
the law as it existed immediately before that date, and that law is |
|
continued in effect for that purpose. |
|
(c) Sections 209.0041, 209.0056, 209.0057, 209.0058, |
|
209.00592, 209.00593, and 209.00594(c), Property Code, as amended |
|
by this Act, apply only to an election or vote held on or after the |
|
effective date of this Act. An election or vote held before the |
|
effective date of this Act is governed by the law as it existed |
|
immediately before that date, and that law is continued in effect |
|
for that purpose. |
|
(d) Section 209.006, Property Code, as amended by this Act, |
|
applies only to an enforcement action taken on or after the |
|
effective date of this Act. An enforcement action taken before the |
|
effective date of this Act is governed by the law as it existed |
|
immediately before that date, and that law is continued in effect |
|
for that purpose. |
|
(e) Section 209.0064, Property Code, as amended by this Act, |
|
applies only to a collection action taken on or after the effective |
|
date of this Act. A collection action taken before the effective |
|
date of this Act is governed by the law as it existed immediately |
|
before that date, and that law is continued in effect for that |
|
purpose. |
|
(f) Section 209.0091, Property Code, as amended by this Act, |
|
applies only to an application or petition filed on or after the |
|
effective date of this Act. An application or petition filed before |
|
the effective date of this Act is governed by the law as it existed |
|
immediately before that date, and that law is continued in effect |
|
for that purpose. |
|
SECTION 26. Chapter 213, Property Code, as added by this |
|
Act, does not apply to a petition circulated before the effective |
|
date of this Act. |
|
SECTION 27. This Act takes effect September 1, 2015. |
|
|
|
|
|
|
|
|
______________________________ |
______________________________ |
|
President of the Senate |
Speaker of the House |
|
|
I hereby certify that S.B. No. 1168 passed the Senate on |
|
May 6, 2015, by the following vote: Yeas 27, Nays 4; and that the |
|
Senate concurred in House amendments on May 28, 2015, by the |
|
following vote: Yeas 26, Nays 5. |
|
|
|
|
______________________________ |
|
Secretary of the Senate |
|
|
I hereby certify that S.B. No. 1168 passed the House, with |
|
amendments, on May 24, 2015, by the following vote: Yeas 142, |
|
Nays 0, two present not voting. |
|
|
|
|
______________________________ |
|
Chief Clerk of the House |
|
|
|
|
|
Approved: |
|
|
|
______________________________ |
|
Date |
|
|
|
|
|
______________________________ |
|
Governor |