Proposed Legislation Would Give Texas HOAs Power to Foreclose Without Court Assistance

San Antonio HOA Lawsuit Attorney Trey Wilson wrote:

Earlier this month, Rep. Kenneth Sheets (Dallas) introduced HB 2928. If passed, this bill would give Texas Homeowners Associations legal authority to foreclose assessment liens (for HOA dues and similar charges) non-judicially (on the courthouse steps) much like a mortgage lender or other lien holder.  Under current law (Texas Property Code Section 209.0092), Texas homeowners associations can only foreclose liens judicially -- by filing a lawsuit and obtaining a judgment. Obviously, lawsuits give property owners more due process (and consequently take longer and are more costly) than do Sheriff's Sales or similar non-judicial foreclosure processes.

The most significant aspect of HB2928 is that it does not require that a Declaration/CCR contain a provision authorizing a private power of sale as a condition of authorizing non-judicial foreclosure in Texas.  Essentially, the law would grant to Texas HOAs a collection remedy that does not independently exist either as a contractual right (CC&Rs are considered contracts in Texas) or as a covenant running with land in an HOA-governed subdivision.

Another troubling aspect of this Bill is that it seems to directly contradict brand-new law (effective January 1, 2012) concerning HOA foreclosures.  As part of the HOA Reform package of laws passed during the 82nd Legislative Session (2011), property owners were expressly granted the right to democratically  determine whether to amend their Declarations (CC&Rs) to prohibit non-judicial foreclosure: Texas Property Code Section 209.0093  is entitled "REMOVAL OR ADOPTION OF FORECLOSURE AUTHORITY," and provides:

" A provision granting a right to foreclose a lien on real property for unpaid amounts due to a property owners' association may be removed from a dedicatory instrument or adopted in a dedicatory instrument by a vote of at least 67 percent of the total votes allocated to property owners in the property owners' association.  Owners holding at least 10 percent of all voting interests in the property owners' association may petition the association and require a special meeting to be called for the purposes of taking a vote for the purposes of this section."

If adopted, HB 2928 would obviate this right of property owners to determine whether or not to authorize foreclosures by their HOA. In my opinion, HB 2928 favors Texas HOAs, at the expense of rights recently granted to homeowners.

9-year-old boy’s fort causes a stir with the neighbors -- Austin

Nicholas Aarsvold, 9, built this wooden play fort between two shrubs on a strip of grass that separates his driveway from his neighbor’s. The Summerwood Homeowners Association wants the structure dismantled because it breaks homeowner rules. Nicholas’ mother, Ramona Aarsvold, is refusing to take it down.

Read the full story in the Austin American Statesman:

9-year-old boy’s fort causes a stir with the neighbors

Covenants Restricting Solar Panels Are Unenforceable in Texas

San Antonio HOA Lawyer Trey Wilson wrote:

Solar energy has been used by humans for thousands of years. Scientists have discovered evidence that Greeks and Romans use burning mirrors to light torches for religious purposes as early as the 3rd century B.C.

In 1977 the U.S. Department of Energy launcheed the Solar Energy Research Institute
“National Renewable Energy Laboratory,” a federal facility dedicated to harnessing power from the sun. Fortunately, San Antonio, and our very own CPS Energy are solar industry leaders.

Yet, despite the historic and modern patterns of embracing solar energy, many restrictive covenants in Texas still expressly prohibit the installation of solar panels on homes and business.

I'll admit, solar panels are ugly.
Solar energy is also a somewhat esoteric topic. But, as our population grows solar energy is becoming an essential alternative to traditional energy sources. Thus, it was time that covenants prohibiting solar energy panels were addressed. That is exactly what happended during the last Texas legislative session.

House Bill 362 was adopted on June 17, 2011, and became effective on that day. The Bill __, and provides, in relevant part:

...a property owners’ association may not include or enforce a provision in a dedicatory instrument that prohibits or restricts a property owner from installing a solar energy device.

As usual, there are certain exceptions, and there is a specific definition of "solar energy device." The effect of the law, however, is clear -- to void a provision violating the general prohibition on CCR provisions that ban the installation of a solar energy device and roofing materials that meet certain criteria.

In my opinion as a lawyer with an active HOA litigation practice, the Legislature got this one right, as this was a law whose time had come!

The Great Flag Debate has Largely been Resolved in Texas

San Antonio Homeowners Association Lawyer Trey Wilson wrote:

Over the years, I have received many inquiries from Texas property owners questioning the legality of restrictive covenants prohibiting the display of flags. A surpising number of these types of restrictions exist even here, in Military City, USA (also known as San Antonio, Texas).

In some absurd cases, I have written posts on this blog about HOA Boards that have asked for removal of patriotic, or other non-controversial flags. In one unfortunate instance that I called "Absurdity in Dallas," a north Texas homeowners association demanded that a retired Marine and Viet-Nam vet remove the "Semper Fi" stickers from his vehicle. You can imagine his response, and the firestorm sparked amongst Jarheads, Leathernecks and Devil Dogs everywhere (Once a Marine, ALWAYS a Marine)!

As dumb/stupid/assinine as it sounds, such covenants were historically legal property restrictions in Texas until recently. However, that all changed on June 17, 201, when Governor Perry signed HB 2779 into law.

That legislation -- which is now part of Chapter 202 of the Texas Property Code -- prohibits an HOA from adopting or enforcing any restriction that prohibits an Owner from displaying:

(1) the flag of the United States of America;
(2) the flag of the State of Texas; or
(3) an official or replica flag of any branch of the United States armed forces.

Of course, there are some limitations, but one thing remains true in Texas -- Don't "mess" with our flags or our military!

God Bless Texas, and our troops!

Round Rock family's fight with HOA heads to court - YNN - Your News Now

Round Rock family's fight with HOA heads to court - YNN - Your News Now