By: West S.B. No. 239
Substitute the following for S.B. No. 239:
By: Quintanilla C.S.S.B. No. 239
A BILL TO BE ENTITLED
AN ACT
relating to notice requirements in certain enforcement actions
initiated by property owners' associations.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 209.006, Property Code, is amended by
amending Subsection (b) and adding Subsections (c) and (d) to read
as follows:
(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]
(2) inform the owner that the owner:
(A) is entitled to a reasonable period to cure
the violation and avoid the fine or suspension unless the owner was
given notice and a reasonable opportunity to cure a similar
violation within the preceding six months; and
(B) may request a hearing under Section 209.007
on or before the 30th day after the date notice was delivered to the
owner; and
(3) specify a date certain by which the owner must cure
the violation [receives the notice];
(4) if a fine is sought to be levied, specify the
dollar amount of any fine the association seeks to levy, and specify
the section(s) of the dedicatory instrument of which the owner is in
violation
(5) Notice shall be sent by certified mail with a
return receipt requested, or delivered by the United States Postal
Service with signature confirmation service to the owner at the
owner's last known address as shown on the association's records.
(c) The date specified in the notice under Subsection (b)(3)
must provide a reasonable period of at least 30 days for the owner
to cure the violation.
(d) If the property owner does not cure the violation within
30 days the property owners association may issue the fine upon
which they shall provide notice to the owner of the fine. If the
property owner disputes the violation, the homeowner may challenge
the fine by providing written notice to the property owners
association of the challenge with the grounds for why they believe
they are not in violation and citations of the dedicatory
instrument for each violation alleged. If the property owner cures
the violation before the expiration for the 30 days, the fine
assessed is void.
(e) If the property owner contests the violation within 30
days of receiving the notice of the fine but does not cure the
violation within that same 30 day period, the property owners'
association must file suit listing each violation with citation of
the dedicatory instrument for each violation in a justice of the
peace court within 60 days after the 30 day cure period to uphold
and enforce the fine.
(f) The justice of the peace shall hold an evidentiary
hearing on the matter within 30 days. The parties are entitled to
any discovery.
(g) At the hearing, the property owners' association has the
burden of proof by a preponderance of the evidence that the property
owner has violated a restrictive covenant.
(h) The court shall determine if a violation has occurred
and if so, whether the fine for the violation is reasonable
considering the type, duration and severity of the violation.
(i) If the court finds the position taken by either party is
groundless or made in bad faith, the court may award the prevailing
party its attorneys' fees.
SECTION 2. This Act is effective January 1, 2010.