81R5305 AJA-F
By: Farrar H.B. No. 3321
A BILL TO BE ENTITLED
AN ACT
relating to creation, re-creation, extension, renewal, or
modification of or addition to deed restrictions in certain areas.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 201.001, Property Code, is amended by
adding Subsections (e), (f), and (g) to read as follows:
(e) The following areas are "residential real estate
subdivisions" for which restrictions may be created, regardless of
whether restrictions previously applied to the area, or expired
restrictions may be re-created under this chapter:
(1) a contiguous area, excluding streets, alleys, and
public areas, that is at least 50 percent of an area within a
municipality or its extraterritorial jurisdiction depicted on a
recorded map or plat if the land encompassed within the maps or
plats is or was burdened by restrictions limiting all or at least a
majority of the land area covered by the map or plat, excluding
streets and public areas, to residential use only;
(2) a contiguous area, excluding streets, alleys, and
public areas, that is at least 50 percent of an area within a
municipality or its extraterritorial jurisdiction that has been
divided into two or more parts and that is or was burdened by
restrictions limiting at least a majority of the land area burdened
by restrictions, excluding streets and public areas, to residential
use only, if the instrument or instruments creating the
restrictions are recorded in the deed or real property records of a
county; or
(3) an area designated as a historic, preservation, or
conservation district or any other official designation the purpose
of which is to preserve the historically primarily residential
character of the area, when the designation is granted by a
municipality.
(f) The following areas are "residential real estate
subdivisions" for which unexpired restrictions may be extended,
renewed, added to, or modified under this chapter:
(1) all land encompassed within one or more maps or
plats of land that is divided into two or more parts if the maps or
plats cover land within a city, town, or village, or within the
extraterritorial jurisdiction of a city, town, or village and are
recorded in the deed, map, or real property records of a county, and
the land encompassed within the maps or plats is or was burdened by
restrictions limiting all or at least a majority of the land area
covered by the map or plat, excluding streets and public areas, to
residential use only; or
(2) all land located within a city, town, or village,
or within the extraterritorial jurisdiction of a city, town, or
village that has been divided into two or more parts and that is or
was burdened by restrictions limiting at least a majority of the
land area burdened by restrictions, excluding streets and public
areas, to residential use only, if the instrument or instruments
creating the restrictions are recorded in the deed or real property
records of a county.
(g) For the purposes of Subsection (e), an area is at least
50 percent of a larger area if the smaller area contains at least 50
percent of the area, originally platted lots, or separately owned
parcels, tracts, or building sites contained in the larger area.
SECTION 2. Section 201.002(b), Property Code, is amended to
read as follows:
(b) The purpose of this chapter is to provide a procedure
for extending the term of, renewal of, creation of, re-creation of,
additions to, or modification of restrictions and to provide for
the removal of any restriction or other provision relating to race,
religion, or national origin that is void and unenforceable under
either the United States Constitution or Section 5.026.
SECTION 3. Chapter 201, Property Code, is amended by adding
Section 201.0021 to read as follows:
Sec. 201.0021. CONSTRUCTION. This chapter and any
documentation made in connection with an attempt to comply with
this chapter shall be liberally construed to effectuate the intent
of this chapter and the documentation, consistent with Section
201.002.
SECTION 4. Section 201.004, Property Code, is amended to
read as follows:
Sec. 201.004. EXTENSION, RENEWAL, CREATION, RE-CREATION,
MODIFICATION OF, OR ADDITION TO, RESTRICTIONS. (a) A petition may
be filed under this chapter to:
(1) extend or renew an unexpired restriction;
(2) create or re-create a restriction;
(3) add to or modify an existing restriction; or
(4) modify an existing provision in an instrument
creating a restriction that provides for extension of those
restrictions.
(b) A petition is not effective to extend, renew, create,
re-create, add to, or modify a restriction unless the petition is
filed with the county clerk's office in the county where the
subdivision is located before the second anniversary of the date
the committee files with the county clerk the notice required by
Section 201.005(a).
(c) If a petition meeting the requirements of this chapter
is filed with the county clerk within the required period, the
provisions of the petition extending, renewing, creating,
re-creating, adding to, or modifying a restriction apply to and
burden all of the property in the subdivision except property
excluded under Section 201.009. If a petition contains provisions
extending or renewing the term of a restriction, the petition may
provide for an initial extension or renewal period of not more than
10 years and additional automatic extensions of the term for not
more than 10 years each. The extension, renewal, creation,
re-creation, or modification of, or addition to, a restriction
takes effect on the later of the dates the petition is filed with
the county clerk or a date specified in the petition.
SECTION 5. Sections 201.005(b) and (c), Property Code, are
amended to read as follows:
(b) A notice filed under this chapter must contain:
(1) a statement that a petition committee has been
formed for the extension of the term of, creation, re-creation, or
renewal of, addition to, or modification of one or more
restrictions, as applicable;
(2) the name and residential address of each member of
the committee;
(3) the name of the subdivision to which the
restrictions apply and a reference to the real property records or
map or plat records where the instrument or instruments that
contain the restrictions sought to be extended, renewed, added to,
or modified are recorded or, if the creation or re-creation of a
restriction is proposed, a reference to the place where the map or
other document, if any, is recorded;
(4) a general statement of the matters to be included
in the petition;
(5) if the creation or re-creation of a restriction
for a subdivision is proposed, a copy of the proposed petition
creating the restriction; and
(6) if the amendment or modification of a restriction
is proposed, a copy of the proposed instrument creating the
amendment or modification, containing the original restriction
that is affected and indicating by appropriate deletion and
insertion the change to the restriction that is proposed to be
amended or modified.
(c) At least one [Each] member of the committee must sign
and acknowledge the notice before a notary or other official
authorized to take acknowledgments. The signatures of the other
members of the committee are not required to be notarized. The
signature of one owner of a tract or lot binds all owners of the
tract or lot for the purpose of establishment of the petition
committee.
SECTION 6. Sections 201.006(a), (b), and (d), Property
Code, are amended to read as follows:
(a) A petition may be circulated, approved, signed,
[acknowledged,] and filed by or on behalf of owners at any time
during the circulating committee's existence. The petition must
conform to the requirements of Section 201.007. A signature on the
petition is not required to be notarized.
(b) The petition may be filed not later than one year after
the date on which the notice required by Section 201.005(a) is
filed. The petition must be approved [signed and acknowledged] by
owners who own, in the aggregate:
(1) a majority of the total number of lots in the
subdivision, in order to extend, renew, [or] create, or re-create
restrictions;
(2) a majority of the total number of separately owned
parcels, tracts, or building sites in the subdivision, whether or
not the parcels, tracts, or building sites contain part or all of
one or more platted lots or combinations of lots, in order to
extend, renew, [or] create, or re-create restrictions;
(3) a majority of the square footage within all of the
lots in the subdivision, excluding any area dedicated or used
exclusively for roadways or public purposes or by utilities, in
order to extend, renew, [or] create, or re-create restrictions;
(4) at least 75 percent of the total number of lots in
the subdivision, in order to modify or add to existing
restrictions;
(5) at least 75 percent of the total number of
separately owned parcels, tracts, or building sites in the
subdivision, whether or not the parcels, tracts, or building sites
contain part or all of one or more platted lots or combination of
lots, in order to modify or add to existing restrictions; or
(6) at least 75 percent of the square footage within
all of the lots in the subdivision, excluding any area dedicated or
used exclusively for roadways or public purposes or by utilities,
in order to modify or add to existing restrictions.
(d) The petition is effective if approved [signed and
acknowledged] by the required number of owners of any one of the
classifications of property specified in Subsection (b) and is
filed as provided by Subsection (f).
SECTION 7. Section 201.007, Property Code, is amended to
read as follows:
Sec. 201.007. CONTENTS OF PETITION. (a) A petition filed
under this chapter must contain or be supplemented by one or more
instruments containing:
(1) the name of the subdivision;
(2) a reference to the real property records or map or
plat records where the instrument or instruments that contain any
restriction sought to be extended, renewed, added to, or modified
are recorded or, in the case of the creation or re-creation of a
restriction, a reference to the place where the map or other
document identifying the subdivision is recorded;
(3) a verbatim statement of any provisions for
extension of the term of, or addition to, the restriction;
(4) if a restriction is being amended or modified, the
text of the proposed instrument creating the amendment or
modification, together with a comparison of the original
restriction that is affected indicating by appropriate deletion and
insertion the change to the restriction that is proposed to be
amended or modified;
(5) if a restriction is being created or re-created,
the text of the proposed instrument creating the restriction or of
the restriction being re-created;
(6) original [acknowledged] signatures of the
required number of owners as provided by Section 201.006;
(7) alternate boxes, clearly identified in a
conspicuous manner next to the place for signing the petition, that
enable each record owner to mark the appropriate box to show the
exercise of the owner's option of either including or excluding the
owner's property from being burdened by the restrictions being
extended, renewed, created, re-created, added to, or modified;
(8) a statement that owners who do not sign the
petition must file suit under Section 201.010 before the 181st day
after the date on which the certificate called for by Section
201.008(e) is filed in order to challenge the procedures followed
in extending, renewing, creating, re-creating, adding to, or
modifying a restriction; and
(9) a statement that owners who do not sign the
petition may delete their property from the operation of the
extended, renewed, created, re-created, added to, or modified
restriction by filing a statement described in the fourth listed
category in Section 201.009(b) before one year after the date on
which the owner receives actual notice of the filing of the petition
authorized by this chapter.
(b) If a restriction being added to, modified, [or]
extended, or re-created contains any provision relating to race,
religion, or national origin that is void and unenforceable under
either the United States Constitution or Section 5.026, the void
and unenforceable restriction shall, by the provisions of the
petition, be declared to be deleted from the restriction as if the
provision had never been contained in the restriction.
(c) Each petition filed under this chapter must contain an
assertion from the signing owners that they own record title to
property within the subdivision, and the legal description and
street address of the property of each signing owner must be shown
beside or above the signature. If there is more than one [record]
owner of a tract or lot, the signature of one [each record] owner of
the tract or lot binds all owners of the tract or lot for the purpose
of approving the petition. If the owner of a tract or lot is
married, the signature of the spouse of the record owner binds the
record owner, even if the spouse is not a record owner, if the
signing spouse asserts on the petition that the signing spouse has a
community property interest in the tract or lot [must sign the
petition before the property can be counted as a part of the number
required by Section 201.006].
SECTION 8. Sections 201.008(a) and (c), Property Code, are
amended to read as follows:
(a) Not later than the 60th day after the date on which a
petition that meets the requirements of this chapter is filed, the
committee shall give notice directed to all persons who then are
record owners of property in the subdivision. The notice must
contain:
(1) the name of the subdivision covered by the
petition;
(2) a copy of the petition;
(3) a statement that the proper number of property
owners in the subdivision have approved [signed and acknowledged]
the petition; and
(4) the date the petition was filed with the county
clerk.
(c) If the committee acts in good faith in determining
ownership and giving notice as required by this section, the
failure to give personal notice to an owner does not affect the
application of an extension, renewal, modification, [or] creation,
or re-creation of, or addition to, a restriction under this chapter
to the property of a person who signed the petition.
SECTION 9. Sections 201.009(b), (c), (d), and (e), Property
Code, are amended to read as follows:
(b) A restriction added, modified, created, re-created,
[or] extended, or renewed under this chapter does not affect or
encumber property within the subdivision that is included within
one of the following categories:
(1) property exclusively dedicated for use by the
public or for use by utilities;
(2) property of an owner who elected in the petition to
exclude the property from the restriction;
(3) property of an owner who did not sign the petition
and has not received actual notice of the filing of the petition;
(4) property of an owner who did not sign the petition
and who files, before one year after the date on which the owner
received actual notice of the filing of the petition, an
acknowledged statement describing the owner's property by
reference to the recorded map or plat of the subdivision and stating
that the owner elects to have the property deleted and excluded from
the operation of the extended, renewed, modified, added [changed],
[or] created, or re-created restriction; and
(5) property owned by a minor or a person judicially
declared to be incompetent at the time the certificate is filed,
unless:
(A) actual notice of the filing of the petition
is given to a guardian of the minor or incompetent person, and the
guardian has not filed the statement described in the fourth listed
category in this subsection;
(B) a predecessor in title to the minor or
incompetent person signed a petition that was filed while the
property was owned by the predecessor; or
(C) the incompetent person signed a petition that
was filed before the judicial declaration of the person's
incompetency.
(c) The county clerk shall file a statement described in the
fourth listed category in Subsection (b) in the same manner as the
petition and certificate. Substantial compliance by an owner with
the requirements for the statement prevents the owner's property
from being burdened by an extended, renewed, created, re-created,
added to, or modified restriction if the statement is filed within
the time required.
(d) A lienholder whose lien was established before the
effective date of a petition is not bound by the petition unless the
lienholder signs it and it is later filed. If such a lienholder who
does not sign the filed petition later acquires title to the
property in the subdivision through foreclosure, the acquisition is
free of the restrictions added, modified, created, re-created, [or]
extended, or renewed by the petition. However, if any other person
acquires the title to the property at a foreclosure sale, that
person takes the property subject to the restriction added,
modified, created, re-created, [or] extended, or renewed by the
petition, if any prior owner of the foreclosed property signed and
acknowledged the petition.
(e) Notwithstanding any other provision of this chapter,
property that is excluded in any manner from the operation of
restrictions that are modified, added to, [or] created, or
re-created by a petition under this chapter is, unless the petition
expressly provides otherwise, subject to those restrictions, if
any, affecting the excluded property as the restrictions existed
immediately before the effective date of the petition, and those
restrictions are continued in effect to the extent originally
applicable to the excluded property. After the filing of such a
petition, those restrictions may be added to, modified, [or]
extended, or renewed by a specified percentage of the owners of real
property interests in accordance with this chapter or the
instruments evidencing the restrictions as they existed
immediately before the effective date of the petition, if otherwise
still applicable. Any petition filed under this chapter that
creates, re-creates, adds to, or modifies restrictions may provide
for the subsequent addition to or extension, renewal, creation, or
modification of, the resulting restrictions by a specified
percentage of the owners of real property interests in the
subdivision as set forth in the instruments evidencing the
continued restrictions. This subsection does not abrogate, alter,
affect, or impair the rights of a lienholder under Subsection (d) to
not be bound by a petition adopted under this chapter when the
lienholder subsequently acquires title to the excluded property
through foreclosure.
SECTION 10. Sections 201.010(a) and (d), Property Code, are
amended to read as follows:
(a) If an owner and the owner's predecessors in interest
neither signed the petition nor filed the statement described in
the fourth listed category in Section 201.009(b), the owner may
file a suit for declaratory judgment in a court of competent
jurisdiction:
(1) to challenge the completeness or regularity of the
procedures leading to the recordation of a certificate, if the suit
is filed before the 181st day after the date on which the
certificate is filed with the county clerk; or
(2) to exclude the owner's property from the operation
of the extended, renewed, modified, added to, [or] created, or
re-created restriction.
(d) The remedies in this section are exclusive of all others
in actions brought to challenge a restriction extended, renewed,
modified, added to, [or] created, or re-created under this chapter.
The filing of an action for the first listed purpose in Subsection
(a) does not prevent the restriction from taking effect in
accordance with its terms pending a final judgment.
SECTION 11. Section 201.011, Property Code, is amended to
read as follows:
Sec. 201.011. PROHIBITION OF CLAIM OF LACK OF
MUTUALITY. If a petition procedure is completed under this
chapter, the owners of property within the subdivision whose
property is covered by the petition may not raise in any judicial
proceeding the issue that the restrictions added, modified,
created, re-created, [or] extended, or renewed under this chapter
are not enforceable on the grounds that the restrictions are not
applicable to all of the property in the subdivision.
SECTION 12. Section 201.013, Property Code, is amended to
read as follows:
Sec. 201.013. CUMULATIVE EFFECT. The procedure prescribed
by this chapter for adding to, modifying, creating, re-creating,
[or] extending, or renewing the term of a restriction is cumulative
and not in lieu of other methods of adding to, modifying, creating,
re-creating, [or] extending, or renewing a restriction.
SECTION 13. Chapter 201, Property Code, is amended by
adding Sections 201.014 and 201.015 to read as follows:
Sec. 201.014. JOINDER TO RESTRICTIONS. Property not
affected by the creation, re-creation, extension, renewal,
addition to, or modification of a restriction under this chapter
for a reason provided by Section 201.009 or 201.010 or property
outside the subdivision but within the boundaries of the map or plat
within which the subdivision is located as described by Section
201.001(e) may be subjected to the restriction by filing in the real
property records of the county in which the property is located an
acknowledged joinder statement signed by one owner of the property
electing to restrict the property identified in the statement,
referencing the recording information for the relevant petition or
certificate of compliance and stating the owner's intent to be
bound by or subject to the restriction.
Sec. 201.015. RATIFICATION OF CERTAIN ACTIONS. An attempt
before September 1, 2009, to create, re-create, extend, renew, add
to, or modify a restriction under this chapter that did not satisfy
the requirements of the chapter as they existed at the time the
attempt was made is ratified on September 1, 2009, if the attempt
would satisfy the requirements of this chapter as they existed on
September 1, 2009.
SECTION 14. Section 201.003(2), Property Code, is repealed.
SECTION 15. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2009.