By: Dutton H.B. No. 1228
A BILL TO BE ENTITLED
AN ACT
relating to foreclosure of a property owners' association
assessment lien.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 12, Property Code, is amended by adding
Section 12.0171 to read as follows:
Sec. 12.0171. AFFIDAVIT AS RELEASE OF ASSESSMENT LIEN. (a)
A property owner whose property is subject to a recorded notice of a
property owners' assessment lien may, at any time, file an
affidavit that substantially complies with Subsection (e) in the
real property records of the county in which the lien notice is
recorded.
(b) Subject to Subsection (c) and except as provided by
Subsection (d), an affidavit filed under Subsection (a) serves as a
release of record of the property owners' association assessment
lien referenced in the affidavit.
(c) A bona fide purchaser or a mortgagee for value or a
successor or assign of a bona fide purchaser or mortgagee for value
may rely conclusively on an affidavit filed under Subsection (a) if
included with the affidavit is evidence that:
(1) the property owner sent a letter and a copy of the
affidavit, without attachments and before execution of the
affidavit, notifying the property owners' association of the
owner's intent to file the affidavit; and
(2) 30 or more days before the affidavit was filed, the
letter and the affidavit were sent to the property owners'
association by registered or certified mail, return receipt
requested, to the address provided in the management certificate
recorded under Section 209.004.
(d) An affidavit filed under Subsection (a) does not serve
as a release of record of a property owners' association assessment
lien if the association files a contradicting affidavit in the real
property records of the county in which the affidavit is filed
asserting that:
(1) the affidavit filed by the owner is untrue; or
(2) another reason exists as to why the assessment
lien attaches to the owner's property.
(e) An affidavit filed under Subsection (a) must be in
substantially the following form:
PROPERTY OWNER'S AFFIDAVIT AS RELEASE OF PROPERTY OWNERS'
ASSOCIATION ASSESSMENT LIEN
Before me, the undersigned authority, on this day personally
appeared _______ ("Affiant(s)") (insert name of one or more
affiants) who, being first duly sworn, upon oath states:
(1) My/our name is/are _______ (insert name of
Affiant(s)). I/we own the following described land ("Land"):
(describe the property that is the subject of the property owners'
association assessment lien)
(2) This affidavit is made for the purpose of
effecting a release of the property owners' association assessment
lien recorded in _______ (refer to recording information of
property owners' association assessment lien) ("Assessment Lien")
as to the Land.
(3) The debt on which the Assessment Lien is based has
been satisfied in its entirety or is not owed by us.
(4) Attached to this affidavit is evidence that:
(A) Affiant(s) sent a letter and a copy of this
affidavit, without attachments and before execution of the
affidavit, notifying the association claiming the Assessment Lien
of this affidavit and the Affiant(s)' intent to file for record this
affidavit; and
(B) the letter and this affidavit were sent by
registered or certified mail, return receipt requested, 30 or more
days before this affidavit was filed to the property owners'
association claiming the Assessment Lien.
(5) This affidavit serves as a release of the
Assessment Lien as to the Land in accordance with Section 12.0171,
Property Code.
Signed on this ____ day of ______, ____.
___________________
___________________
(Signature of Affiant(s))
State of _______
County of _______
SWORN TO AND SUBSCRIBED before me on the ________ day of
________, 20____.
My commission expires:
_____________________
____________________________
Notary Public, State of Texas
Notary's printed name:
____________________________
(f) A person who knowingly causes an affidavit with false
information to be executed and recorded under this section is
liable for the penalties for filing a false affidavit, including
the penalties for the commission of an offense under Section 37.02,
Penal Code. The attorney general may sue to collect the penalty. A
person who negligently causes an affidavit with false information
to be executed and recorded under this section is liable to a party
injured by the affidavit for actual damages. If the attorney
general or an injured party bringing suit substantially prevails in
an action under this subsection, the court may award reasonable
attorney's fees and court costs to the prevailing party.
SECTION 2. Chapter 209, Property Code, is amended by adding
Section 209.0091 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 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 recipient receives the notice.
(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.
SECTION 3. The change in law made by this Act applies only
to a notice of sale given under Section 51.002, Property Code, on or
after the effective date of this Act or a judicial foreclosure
action commenced on or after the effective date of this Act.
SECTION 4. This Act takes effect September 1, 2011.