84R26045 PMO-F
By: Parker, Romero, Jr. H.B. No. 2594
Substitute the following for H.B. No. 2594:
By: Simmons C.S.H.B. No. 2594
A BILL TO BE ENTITLED
AN ACT
relating to the modification or termination of restrictions by
petition in certain real estate developments with certain
amenities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 11, Property Code, is amended by adding
Chapter 213 to read as follows:
CHAPTER 213. MODIFICATION OR TERMINATION OF RESTRICTIONS BY
PETITION IN REAL ESTATE DEVELOPMENTS WITH CERTAIN AMENITIES
Sec. 213.001. DEFINITIONS. In this chapter:
(1) "Amenity property" means real property the use of
which is restricted by a dedicatory instrument to use as a golf
course or country club.
(2) "Council of owners" has the meaning assigned by
Section 81.002 as it relates to an existing condominium in a
development.
(3) "Dedicatory instrument" means a governing
instrument that:
(A) restricts amenity property to use as amenity
property;
(B) designates real property in the development,
other than amenity property, as a beneficiary of a restriction
described by Paragraph (A); and
(C) addresses the establishment, maintenance,
and operation of amenity property.
(4) "Development" means:
(A) amenity property; and
(B) all real property designated as beneficiary
property in the dedicatory instrument.
(5) "Owner" means a person, or the person's personal
representative, who holds record title to:
(A) a lot or parcel of real property in a
development; or
(B) a unit or apartment of a condominium in the
development.
(6) "Petition circulator" means a person authorized to
circulate a petition under Section 213.005.
(7) "Property owners' association" means an
incorporated or unincorporated association that:
(A) is designated as the representative of the
owners of lots or parcels of real property in a development;
(B) has a membership primarily consisting of
those owners; and
(C) manages or regulates all or part of the
development for the benefit of those owners.
(8) "Restrictions" means one or more restrictive
covenants contained or incorporated by reference in a properly
recorded map, plat, replat, declaration, or other instrument filed
in the real property records or map or plat records. The term
includes any amendment or extension of the restrictions.
(9) "Restrictive covenant" means any covenant,
condition, or restriction contained in a dedicatory instrument,
whether mandatory, prohibitive, permissive, or administrative.
(10) "Unit owners' association" means an association
of unit owners organized under Section 82.101 for a condominium in a
development.
Sec. 213.002. FINDINGS AND PURPOSE. (a) The legislature
finds that:
(1) a restriction on the use of an amenity property may
create uncertainty if the owners of an amenity property are
reluctant or unable to properly maintain or operate the amenity
property;
(2) such uncertainty may discourage investment and
negatively impact property values in the development;
(3) investors may be reluctant to or will not invest
funds to revitalize an amenity property burdened with a restriction
on its use;
(4) financial institutions may be reluctant to or will
not provide financing to revitalize an amenity property burdened
with a restriction on its use; and
(5) establishing a procedural option to allow for the
modification or termination of the restriction would alleviate the
uncertainty and encourage revitalization of the amenity property.
(b) The purpose of this chapter is to provide a procedural
option for the modification or termination of a restriction on the
use of an amenity property.
Sec. 213.003. MODIFICATION OR TERMINATION BY PETITION. (a)
Except as provided by Subsection (b), a restriction on the use of an
amenity property may be modified or terminated by petition in
accordance with this chapter.
(b) This chapter does not apply if:
(1) a dedicatory instrument includes a procedure to
modify or terminate a restriction on the use of an amenity property
on approval of the owners of 100 percent of, as applicable, the lots
or parcels of land and units or apartments of condominiums in the
development; or
(2) a restriction on the use of an amenity property may
be modified or terminated under the procedures of Chapter 81, 82,
201, or 209.
Sec. 213.004. PREREQUISITES FOR CIRCULATION. A petition
may not be circulated under this chapter unless:
(1) for a continuous period of at least 36 months, the
amenity property has not been in operation, has not been
maintained, or has been operated or maintained in a dilapidated or
substandard condition; and
(2) if zoning regulations apply to the amenity
property, the owner of the amenity property has received all
required zoning approvals for any proposed redevelopment of the
amenity property.
Sec. 213.005. PETITION CIRCULATOR. A petition authorized
by Section 213.003 may be circulated by:
(1) an owner;
(2) a property owners' association; or
(3) a unit owners' association or council of owners.
Sec. 213.006. CONTENTS OF PETITION. (a) The petition must
include all relevant information about the proposed modification or
termination, including:
(1) the name of the development, if any;
(2) the name of the amenity property, if any;
(3) the recording information of the restriction to be
modified or terminated;
(4) the text of the restriction subject to
modification or termination;
(5) the text of the restriction as modified or
terminated; and
(6) a comparison of the original language of the
restriction and the restriction as modified or terminated, showing
any insertion and deletion of language or punctuation.
(b) The petition must state the date by which a signed
statement required by Section 213.008 must be received to be
counted.
Sec. 213.007. CIRCULATION PROCEDURE. (a) A petition
circulator shall deliver a copy of the petition to:
(1) all owners of:
(A) each lot or parcel of real property in the
development; and
(B) each unit or apartment of each condominium,
if any, in the development; and
(2) each property owners' association, unit owners'
association, and council of owners in the development.
(b) The petition circulator may deliver a copy of the
petition in any reasonable manner, including:
(1) by regular mail or certified mail, return receipt
requested, to the last known address of the owners or entities
described by Subsections (a)(1) and (2);
(2) personal delivery to the owners or entities
described by Subsections (a)(1) and (2);
(3) at a meeting of owners in the development called
for the purpose of voting on the petition;
(4) at a regular meeting of a property owners'
association, unit owners' association, or council of owners; or
(5) at a special meeting of a property owners'
association, unit owners' association, or council of owners called
for the purpose of voting on the petition.
(c) If the petition circulator acts in good faith in
determining ownership and delivering copies of the petition as
required by this section, an owner's lack of receipt of a copy of
the petition does not affect the application of a modification or
termination of a restriction under this chapter to the amenity
property.
Sec. 213.008. VOTE ON PROPOSAL. (a) The modification or
termination of the restriction is adopted if the owners of at least
75 percent of the total number, as applicable, of the lots or
parcels of land and the units or apartments of condominiums in the
development, including the owner of the amenity property, vote in
favor of the modification or termination of the restriction.
(b) An owner may cast a vote only by delivering to the
petition circulator a signed statement that includes:
(1) the owner's name, the legal description or street
address of the owner's property, and the owner's mailing address;
(2) a statement that the owner holds record title to
the property;
(3) if more than one person owns an interest in the
property, the name and mailing address of each co-owner; and
(4) a statement indicating whether the owner is in
favor of or against the modification or termination proposed by the
petition.
(c) An owner may vote only in favor of or against the
modification or termination as proposed in the petition.
(d) If more than one person owns an interest in a lot or
parcel of land or a unit or apartment of a condominium, the owners
may cast only one vote for that lot, parcel, unit, or apartment.
Except as otherwise provided by this subsection, the vote of
multiple owners in favor of or against the modification or
termination may be reflected by the signatures of a majority of the
co-owners who return a signed statement. The vote of owners who are
married may be reflected by the signature of only one of those
owners.
(e) A person whose only property interest in a lot or parcel
of land or unit or apartment of a condominium is that of a contract
purchaser, lienholder, or mineral interest holder may not cast a
vote for that property under this chapter.
(f) A vote may be counted only if the vote is received before
the deadline stated in the petition as required by Section
213.006(b).
(g) The signed statement of an owner conclusively
establishes that:
(1) the petition was received by the owner in
accordance with Section 213.007; and
(2) the statement accurately reflects the vote of the
owner.
Sec. 213.009. CERTIFICATION OF RESULTS BY RECORDED
AFFIDAVIT. (a) The petition circulator shall certify the result
of the votes by filing an affidavit with the county clerk of the
county in which the restriction modified or terminated is recorded.
(b) The affidavit required by Subsection (a) must state:
(1) the name of the development, if any;
(2) the name of the amenity property, if any;
(3) the recording information of the restriction that
was modified or terminated;
(4) the text of the restriction before modification or
termination;
(5) the text of the restriction as modified or
terminated;
(6) the number of votes in favor of and against the
proposed modification or termination;
(7) the name and address of the petition circulator;
and
(8) the name, address, and telephone number of the
person maintaining the documents in accordance with Section
213.012.
(c) The petition circulator must affirm in the affidavit
that the petition was delivered in accordance with Section 213.007.
Sec. 213.010. NOTICE. (a) The recording of the affidavit
required by Section 213.009 constitutes notice that the restriction
is modified or terminated.
(b) Notwithstanding Subsection (a), the petition circulator
must deliver to each person who resides within 200 feet of the
boundary of the amenity property a copy of the affidavit. The
affidavit may be delivered by regular mail, by certified mail,
return receipt requested, or by personal delivery.
Sec. 213.011. EFFECTIVE DATE OF MODIFICATION OR
TERMINATION. The modification or termination of the restriction
takes effect on the later of:
(1) the date the affidavit required by Section 213.009
is filed with the county clerk; or
(2) the date, if any, specified as the effective date
in the petition.
Sec. 213.012. DOCUMENTATION AVAILABLE. At least one year
after the date the affidavit is filed with the county clerk, the
petition circulator shall make available for inspection and copying
the original petition, the signed statements described by Section
213.008, and the affidavit required by Section 213.009.
Sec. 213.013. EXPIRATION. This chapter expires September
1, 2021.
SECTION 2. The change in law made by this Act does not apply
to a petition circulated before the effective date of this Act.
SECTION 3. This Act takes effect September 1, 2015.