Texas 2009 - 81st Regular

Texas House Bill HB3321 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R5305 AJA-F
2	2	By: Farrar H.B. No. 3321
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to creation, re-creation, extension, renewal, or
8	8	modification of or addition to deed restrictions in certain areas.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 201.001, Property Code, is amended by
11	11	adding Subsections (e), (f), and (g) to read as follows:
12	12	(e) The following areas are "residential real estate
13	13	subdivisions" for which restrictions may be created, regardless of
14	14	whether restrictions previously applied to the area, or expired
15	15	restrictions may be re-created under this chapter:
16	16	(1) a contiguous area, excluding streets, alleys, and
17	17	public areas, that is at least 50 percent of an area within a
18	18	municipality or its extraterritorial jurisdiction depicted on a
19	19	recorded map or plat if the land encompassed within the maps or
20	20	plats is or was burdened by restrictions limiting all or at least a
21	21	majority of the land area covered by the map or plat, excluding
22	22	streets and public areas, to residential use only;
23	23	(2) a contiguous area, excluding streets, alleys, and
24	24	public areas, that is at least 50 percent of an area within a
25	25	municipality or its extraterritorial jurisdiction that has been
26	26	divided into two or more parts and that is or was burdened by
27	27	restrictions limiting at least a majority of the land area burdened
28	28	by restrictions, excluding streets and public areas, to residential
29	29	use only, if the instrument or instruments creating the
30	30	restrictions are recorded in the deed or real property records of a
31	31	county; or
32	32	(3) an area designated as a historic, preservation, or
33	33	conservation district or any other official designation the purpose
34	34	of which is to preserve the historically primarily residential
35	35	character of the area, when the designation is granted by a
36	36	municipality.
37	37	(f) The following areas are "residential real estate
38	38	subdivisions" for which unexpired restrictions may be extended,
39	39	renewed, added to, or modified under this chapter:
40	40	(1) all land encompassed within one or more maps or
41	41	plats of land that is divided into two or more parts if the maps or
42	42	plats cover land within a city, town, or village, or within the
43	43	extraterritorial jurisdiction of a city, town, or village and are
44	44	recorded in the deed, map, or real property records of a county, and
45	45	the land encompassed within the maps or plats is or was burdened by
46	46	restrictions limiting all or at least a majority of the land area
47	47	covered by the map or plat, excluding streets and public areas, to
48	48	residential use only; or
49	49	(2) all land located within a city, town, or village,
50	50	or within the extraterritorial jurisdiction of a city, town, or
51	51	village that has been divided into two or more parts and that is or
52	52	was burdened by restrictions limiting at least a majority of the
53	53	land area burdened by restrictions, excluding streets and public
54	54	areas, to residential use only, if the instrument or instruments
55	55	creating the restrictions are recorded in the deed or real property
56	56	records of a county.
57	57	(g) For the purposes of Subsection (e), an area is at least
58	58	50 percent of a larger area if the smaller area contains at least 50
59	59	percent of the area, originally platted lots, or separately owned
60	60	parcels, tracts, or building sites contained in the larger area.
61	61	SECTION 2. Section 201.002(b), Property Code, is amended to
62	62	read as follows:
63	63	(b) The purpose of this chapter is to provide a procedure
64	64	for extending the term of, renewal of, creation of, re-creation of,
65	65	additions to, or modification of restrictions and to provide for
66	66	the removal of any restriction or other provision relating to race,
67	67	religion, or national origin that is void and unenforceable under
68	68	either the United States Constitution or Section 5.026.
69	69	SECTION 3. Chapter 201, Property Code, is amended by adding
70	70	Section 201.0021 to read as follows:
71	71	Sec. 201.0021. CONSTRUCTION. This chapter and any
72	72	documentation made in connection with an attempt to comply with
73	73	this chapter shall be liberally construed to effectuate the intent
74	74	of this chapter and the documentation, consistent with Section
75	75	201.002.
76	76	SECTION 4. Section 201.004, Property Code, is amended to
77	77	read as follows:
78	78	Sec. 201.004. EXTENSION, RENEWAL, CREATION, RE-CREATION,
79	79	MODIFICATION OF, OR ADDITION TO, RESTRICTIONS. (a) A petition may
80	80	be filed under this chapter to:
81	81	(1) extend or renew an unexpired restriction;
82	82	(2) create or re-create a restriction;
83	83	(3) add to or modify an existing restriction; or
84	84	(4) modify an existing provision in an instrument
85	85	creating a restriction that provides for extension of those
86	86	restrictions.
87	87	(b) A petition is not effective to extend, renew, create,
88	88	re-create, add to, or modify a restriction unless the petition is
89	89	filed with the county clerk's office in the county where the
90	90	subdivision is located before the second anniversary of the date
91	91	the committee files with the county clerk the notice required by
92	92	Section 201.005(a).
93	93	(c) If a petition meeting the requirements of this chapter
94	94	is filed with the county clerk within the required period, the
95	95	provisions of the petition extending, renewing, creating,
96	96	re-creating, adding to, or modifying a restriction apply to and
97	97	burden all of the property in the subdivision except property
98	98	excluded under Section 201.009. If a petition contains provisions
99	99	extending or renewing the term of a restriction, the petition may
100	100	provide for an initial extension or renewal period of not more than
101	101	10 years and additional automatic extensions of the term for not
102	102	more than 10 years each. The extension, renewal, creation,
103	103	re-creation, or modification of, or addition to, a restriction
104	104	takes effect on the later of the dates the petition is filed with
105	105	the county clerk or a date specified in the petition.
106	106	SECTION 5. Sections 201.005(b) and (c), Property Code, are
107	107	amended to read as follows:
108	108	(b) A notice filed under this chapter must contain:
109	109	(1) a statement that a petition committee has been
110	110	formed for the extension of the term of, creation, re-creation, or
111	111	renewal of, addition to, or modification of one or more
112	112	restrictions, as applicable;
113	113	(2) the name and residential address of each member of
114	114	the committee;
115	115	(3) the name of the subdivision to which the
116	116	restrictions apply and a reference to the real property records or
117	117	map or plat records where the instrument or instruments that
118	118	contain the restrictions sought to be extended, renewed, added to,
119	119	or modified are recorded or, if the creation or re-creation of a
120	120	restriction is proposed, a reference to the place where the map or
121	121	other document, if any, is recorded;
122	122	(4) a general statement of the matters to be included
123	123	in the petition;
124	124	(5) if the creation or re-creation of a restriction
125	125	for a subdivision is proposed, a copy of the proposed petition
126	126	creating the restriction; and
127	127	(6) if the amendment or modification of a restriction
128	128	is proposed, a copy of the proposed instrument creating the
129	129	amendment or modification, containing the original restriction
130	130	that is affected and indicating by appropriate deletion and
131	131	insertion the change to the restriction that is proposed to be
132	132	amended or modified.
133	133	(c) At least one [Each] member of the committee must sign
134	134	and acknowledge the notice before a notary or other official
135	135	authorized to take acknowledgments. The signatures of the other
136	136	members of the committee are not required to be notarized. The
137	137	signature of one owner of a tract or lot binds all owners of the
138	138	tract or lot for the purpose of establishment of the petition
139	139	committee.
140	140	SECTION 6. Sections 201.006(a), (b), and (d), Property
141	141	Code, are amended to read as follows:
142	142	(a) A petition may be circulated, approved, signed,
143	143	[acknowledged,] and filed by or on behalf of owners at any time
144	144	during the circulating committee's existence. The petition must
145	145	conform to the requirements of Section 201.007. A signature on the
146	146	petition is not required to be notarized.
147	147	(b) The petition may be filed not later than one year after
148	148	the date on which the notice required by Section 201.005(a) is
149	149	filed. The petition must be approved [signed and acknowledged] by
150	150	owners who own, in the aggregate:
151	151	(1) a majority of the total number of lots in the
152	152	subdivision, in order to extend, renew, [or] create, or re-create
153	153	restrictions;
154	154	(2) a majority of the total number of separately owned
155	155	parcels, tracts, or building sites in the subdivision, whether or
156	156	not the parcels, tracts, or building sites contain part or all of
157	157	one or more platted lots or combinations of lots, in order to
158	158	extend, renew, [or] create, or re-create restrictions;
159	159	(3) a majority of the square footage within all of the
160	160	lots in the subdivision, excluding any area dedicated or used
161	161	exclusively for roadways or public purposes or by utilities, in
162	162	order to extend, renew, [or] create, or re-create restrictions;
163	163	(4) at least 75 percent of the total number of lots in
164	164	the subdivision, in order to modify or add to existing
165	165	restrictions;
166	166	(5) at least 75 percent of the total number of
167	167	separately owned parcels, tracts, or building sites in the
168	168	subdivision, whether or not the parcels, tracts, or building sites
169	169	contain part or all of one or more platted lots or combination of
170	170	lots, in order to modify or add to existing restrictions; or
171	171	(6) at least 75 percent of the square footage within
172	172	all of the lots in the subdivision, excluding any area dedicated or
173	173	used exclusively for roadways or public purposes or by utilities,
174	174	in order to modify or add to existing restrictions.
175	175	(d) The petition is effective if approved [signed and
176	176	acknowledged] by the required number of owners of any one of the
177	177	classifications of property specified in Subsection (b) and is
178	178	filed as provided by Subsection (f).
179	179	SECTION 7. Section 201.007, Property Code, is amended to
180	180	read as follows:
181	181	Sec. 201.007. CONTENTS OF PETITION. (a) A petition filed
182	182	under this chapter must contain or be supplemented by one or more
183	183	instruments containing:
184	184	(1) the name of the subdivision;
185	185	(2) a reference to the real property records or map or
186	186	plat records where the instrument or instruments that contain any
187	187	restriction sought to be extended, renewed, added to, or modified
188	188	are recorded or, in the case of the creation or re-creation of a
189	189	restriction, a reference to the place where the map or other
190	190	document identifying the subdivision is recorded;
191	191	(3) a verbatim statement of any provisions for
192	192	extension of the term of, or addition to, the restriction;
193	193	(4) if a restriction is being amended or modified, the
194	194	text of the proposed instrument creating the amendment or
195	195	modification, together with a comparison of the original
196	196	restriction that is affected indicating by appropriate deletion and
197	197	insertion the change to the restriction that is proposed to be
198	198	amended or modified;
199	199	(5) if a restriction is being created or re-created,
200	200	the text of the proposed instrument creating the restriction or of
201	201	the restriction being re-created;
202	202	(6) original [acknowledged] signatures of the
203	203	required number of owners as provided by Section 201.006;
204	204	(7) alternate boxes, clearly identified in a
205	205	conspicuous manner next to the place for signing the petition, that
206	206	enable each record owner to mark the appropriate box to show the
207	207	exercise of the owner's option of either including or excluding the
208	208	owner's property from being burdened by the restrictions being
209	209	extended, renewed, created, re-created, added to, or modified;
210	210	(8) a statement that owners who do not sign the
211	211	petition must file suit under Section 201.010 before the 181st day
212	212	after the date on which the certificate called for by Section
213	213	201.008(e) is filed in order to challenge the procedures followed
214	214	in extending, renewing, creating, re-creating, adding to, or
215	215	modifying a restriction; and
216	216	(9) a statement that owners who do not sign the
217	217	petition may delete their property from the operation of the
218	218	extended, renewed, created, re-created, added to, or modified
219	219	restriction by filing a statement described in the fourth listed
220	220	category in Section 201.009(b) before one year after the date on
221	221	which the owner receives actual notice of the filing of the petition
222	222	authorized by this chapter.
223	223	(b) If a restriction being added to, modified, [or]
224	224	extended, or re-created contains any provision relating to race,
225	225	religion, or national origin that is void and unenforceable under
226	226	either the United States Constitution or Section 5.026, the void
227	227	and unenforceable restriction shall, by the provisions of the
228	228	petition, be declared to be deleted from the restriction as if the
229	229	provision had never been contained in the restriction.
230	230	(c) Each petition filed under this chapter must contain an
231	231	assertion from the signing owners that they own record title to
232	232	property within the subdivision, and the legal description and
233	233	street address of the property of each signing owner must be shown
234	234	beside or above the signature. If there is more than one [record]
235	235	owner of a tract or lot, the signature of one [each record] owner of
236	236	the tract or lot binds all owners of the tract or lot for the purpose
237	237	of approving the petition. If the owner of a tract or lot is
238	238	married, the signature of the spouse of the record owner binds the
239	239	record owner, even if the spouse is not a record owner, if the
240	240	signing spouse asserts on the petition that the signing spouse has a
241	241	community property interest in the tract or lot [must sign the
242	242	petition before the property can be counted as a part of the number
243	243	required by Section 201.006].
244	244	SECTION 8. Sections 201.008(a) and (c), Property Code, are
245	245	amended to read as follows:
246	246	(a) Not later than the 60th day after the date on which a
247	247	petition that meets the requirements of this chapter is filed, the
248	248	committee shall give notice directed to all persons who then are
249	249	record owners of property in the subdivision. The notice must
250	250	contain:
251	251	(1) the name of the subdivision covered by the
252	252	petition;
253	253	(2) a copy of the petition;
254	254	(3) a statement that the proper number of property
255	255	owners in the subdivision have approved [signed and acknowledged]
256	256	the petition; and
257	257	(4) the date the petition was filed with the county
258	258	clerk.
259	259	(c) If the committee acts in good faith in determining
260	260	ownership and giving notice as required by this section, the
261	261	failure to give personal notice to an owner does not affect the
262	262	application of an extension, renewal, modification, [or] creation,
263	263	or re-creation of, or addition to, a restriction under this chapter
264	264	to the property of a person who signed the petition.
265	265	SECTION 9. Sections 201.009(b), (c), (d), and (e), Property
266	266	Code, are amended to read as follows:
267	267	(b) A restriction added, modified, created, re-created,
268	268	[or] extended, or renewed under this chapter does not affect or
269	269	encumber property within the subdivision that is included within
270	270	one of the following categories:
271	271	(1) property exclusively dedicated for use by the
272	272	public or for use by utilities;
273	273	(2) property of an owner who elected in the petition to
274	274	exclude the property from the restriction;
275	275	(3) property of an owner who did not sign the petition
276	276	and has not received actual notice of the filing of the petition;
277	277	(4) property of an owner who did not sign the petition
278	278	and who files, before one year after the date on which the owner
279	279	received actual notice of the filing of the petition, an
280	280	acknowledged statement describing the owner's property by
281	281	reference to the recorded map or plat of the subdivision and stating
282	282	that the owner elects to have the property deleted and excluded from
283	283	the operation of the extended, renewed, modified, added [changed],
284	284	[or] created, or re-created restriction; and
285	285	(5) property owned by a minor or a person judicially
286	286	declared to be incompetent at the time the certificate is filed,
287	287	unless:
288	288	(A) actual notice of the filing of the petition
289	289	is given to a guardian of the minor or incompetent person, and the
290	290	guardian has not filed the statement described in the fourth listed
291	291	category in this subsection;
292	292	(B) a predecessor in title to the minor or
293	293	incompetent person signed a petition that was filed while the
294	294	property was owned by the predecessor; or
295	295	(C) the incompetent person signed a petition that
296	296	was filed before the judicial declaration of the person's
297	297	incompetency.
298	298	(c) The county clerk shall file a statement described in the
299	299	fourth listed category in Subsection (b) in the same manner as the
300	300	petition and certificate. Substantial compliance by an owner with
301	301	the requirements for the statement prevents the owner's property
302	302	from being burdened by an extended, renewed, created, re-created,
303	303	added to, or modified restriction if the statement is filed within
304	304	the time required.
305	305	(d) A lienholder whose lien was established before the
306	306	effective date of a petition is not bound by the petition unless the
307	307	lienholder signs it and it is later filed. If such a lienholder who
308	308	does not sign the filed petition later acquires title to the
309	309	property in the subdivision through foreclosure, the acquisition is
310	310	free of the restrictions added, modified, created, re-created, [or]
311	311	extended, or renewed by the petition. However, if any other person
312	312	acquires the title to the property at a foreclosure sale, that
313	313	person takes the property subject to the restriction added,
314	314	modified, created, re-created, [or] extended, or renewed by the
315	315	petition, if any prior owner of the foreclosed property signed and
316	316	acknowledged the petition.
317	317	(e) Notwithstanding any other provision of this chapter,
318	318	property that is excluded in any manner from the operation of
319	319	restrictions that are modified, added to, [or] created, or
320	320	re-created by a petition under this chapter is, unless the petition
321	321	expressly provides otherwise, subject to those restrictions, if
322	322	any, affecting the excluded property as the restrictions existed
323	323	immediately before the effective date of the petition, and those
324	324	restrictions are continued in effect to the extent originally
325	325	applicable to the excluded property. After the filing of such a
326	326	petition, those restrictions may be added to, modified, [or]
327	327	extended, or renewed by a specified percentage of the owners of real
328	328	property interests in accordance with this chapter or the
329	329	instruments evidencing the restrictions as they existed
330	330	immediately before the effective date of the petition, if otherwise
331	331	still applicable. Any petition filed under this chapter that
332	332	creates, re-creates, adds to, or modifies restrictions may provide
333	333	for the subsequent addition to or extension, renewal, creation, or
334	334	modification of, the resulting restrictions by a specified
335	335	percentage of the owners of real property interests in the
336	336	subdivision as set forth in the instruments evidencing the
337	337	continued restrictions. This subsection does not abrogate, alter,
338	338	affect, or impair the rights of a lienholder under Subsection (d) to
339	339	not be bound by a petition adopted under this chapter when the
340	340	lienholder subsequently acquires title to the excluded property
341	341	through foreclosure.
342	342	SECTION 10. Sections 201.010(a) and (d), Property Code, are
343	343	amended to read as follows:
344	344	(a) If an owner and the owner's predecessors in interest
345	345	neither signed the petition nor filed the statement described in
346	346	the fourth listed category in Section 201.009(b), the owner may
347	347	file a suit for declaratory judgment in a court of competent
348	348	jurisdiction:
349	349	(1) to challenge the completeness or regularity of the
350	350	procedures leading to the recordation of a certificate, if the suit
351	351	is filed before the 181st day after the date on which the
352	352	certificate is filed with the county clerk; or
353	353	(2) to exclude the owner's property from the operation
354	354	of the extended, renewed, modified, added to, [or] created, or
355	355	re-created restriction.
356	356	(d) The remedies in this section are exclusive of all others
357	357	in actions brought to challenge a restriction extended, renewed,
358	358	modified, added to, [or] created, or re-created under this chapter.
359	359	The filing of an action for the first listed purpose in Subsection
360	360	(a) does not prevent the restriction from taking effect in
361	361	accordance with its terms pending a final judgment.
362	362	SECTION 11. Section 201.011, Property Code, is amended to
363	363	read as follows:
364	364	Sec. 201.011. PROHIBITION OF CLAIM OF LACK OF
365	365	MUTUALITY. If a petition procedure is completed under this
366	366	chapter, the owners of property within the subdivision whose
367	367	property is covered by the petition may not raise in any judicial
368	368	proceeding the issue that the restrictions added, modified,
369	369	created, re-created, [or] extended, or renewed under this chapter
370	370	are not enforceable on the grounds that the restrictions are not
371	371	applicable to all of the property in the subdivision.
372	372	SECTION 12. Section 201.013, Property Code, is amended to
373	373	read as follows:
374	374	Sec. 201.013. CUMULATIVE EFFECT. The procedure prescribed
375	375	by this chapter for adding to, modifying, creating, re-creating,
376	376	[or] extending, or renewing the term of a restriction is cumulative
377	377	and not in lieu of other methods of adding to, modifying, creating,
378	378	re-creating, [or] extending, or renewing a restriction.
379	379	SECTION 13. Chapter 201, Property Code, is amended by
380	380	adding Sections 201.014 and 201.015 to read as follows:
381	381	Sec. 201.014. JOINDER TO RESTRICTIONS. Property not
382	382	affected by the creation, re-creation, extension, renewal,
383	383	addition to, or modification of a restriction under this chapter
384	384	for a reason provided by Section 201.009 or 201.010 or property
385	385	outside the subdivision but within the boundaries of the map or plat
386	386	within which the subdivision is located as described by Section
387	387	201.001(e) may be subjected to the restriction by filing in the real
388	388	property records of the county in which the property is located an
389	389	acknowledged joinder statement signed by one owner of the property
390	390	electing to restrict the property identified in the statement,
391	391	referencing the recording information for the relevant petition or
392	392	certificate of compliance and stating the owner's intent to be
393	393	bound by or subject to the restriction.
394	394	Sec. 201.015. RATIFICATION OF CERTAIN ACTIONS. An attempt
395	395	before September 1, 2009, to create, re-create, extend, renew, add
396	396	to, or modify a restriction under this chapter that did not satisfy
397	397	the requirements of the chapter as they existed at the time the
398	398	attempt was made is ratified on September 1, 2009, if the attempt
399	399	would satisfy the requirements of this chapter as they existed on
400	400	September 1, 2009.
401	401	SECTION 14. Section 201.003(2), Property Code, is repealed.
402	402	SECTION 15. This Act takes effect immediately if it
403	403	receives a vote of two-thirds of all the members elected to each
404	404	house, as provided by Section 39, Article III, Texas Constitution.
405	405	If this Act does not receive the vote necessary for immediate
406	406	effect, this Act takes effect September 1, 2009.