Texas 2023 - 88th Regular

Texas House Bill HB2447 Compare Versions

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Version 2 (New)

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1	1	88R4470 SHH-F
2	2	By: Darby H.B. No. 2447
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to private transfer fee obligations.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 5.201, Property Code, is amended by
10	10	adding Subdivision (3-a) to read as follows:
11	11	(3-a) "Payee of record" means:
12	12	(A) the payee of a private transfer fee under a
13	13	private transfer fee obligation if there is only one payee; or
14	14	(B) the payee designated as payee of record by
15	15	multiple payees of a single private transfer fee under a private
16	16	transfer fee obligation, as required by Section 5.203(b).
17	17	SECTION 2. Section 5.203, Property Code, is amended by
18	18	amending Subsection (e) and adding Subsections (e-1) and (e-2) to
19	19	read as follows:
20	20	(e) A person who refiles or amends a notice under Subsection
21	21	(d) [(d)(2)] must include:
22	22	(1) the recording information of the original notice
23	23	and each subsequent notice filed as required by this section; and
24	24	(2) the legal description of the property subject to
25	25	the private transfer fee obligation.
26	26	(e-1) The legal description of property included in a notice
27	27	under this section must be sufficient to describe all encumbered
28	28	property. A description by reference to a previously recorded
29	29	document other than a recorded plat does not satisfy this
30	30	subsection.
31	31	(e-2) If the encumbered property is located in a platted
32	32	subdivision, the legal description of property included in a notice
33	33	under this section must:
34	34	(1) describe the subdivision and include the
35	35	subdivision's name and recording information; and
36	36	(2) itemize by lot and block reference each lot that is
37	37	subject to the private transfer fee obligation.
38	38	SECTION 3. Subchapter G, Chapter 5, Property Code, is
39	39	amended by adding Sections 5.2035, 5.2041, 5.2042, 5.2043, 5.2044,
40	40	and 5.2045 to read as follows:
41	41	Sec. 5.2035. ADDITIONAL COMPLIANCE REQUIREMENT:
42	42	NOTIFICATION OF SUBDIVISION PROPERTY OWNERS. (a) This section
43	43	applies to encumbered property located in a platted subdivision
44	44	used or developed primarily for use as one to four family
45	45	residences.
46	46	(b) The payee of record for an encumbered property to which
47	47	this section applies shall:
48	48	(1) on or before the date a notice required under
49	49	Section 5.203 is filed for record, mail a separate copy of the
50	50	notice to each owner of property in the subdivision by first class
51	51	mail, postage prepaid, at the mailing address shown for the owner in
52	52	the records of the central appraisal district of the county in which
53	53	the encumbered property is located;
54	54	(2) file for record with the notice the payee's sworn
55	55	affidavit affirming the copies of the notice were mailed in the time
56	56	and manner required by this section; and
57	57	(3) maintain auditable records showing compliance
58	58	with this section for at least five years and make those records
59	59	available at no charge to any owner of property in the subdivision.
60	60	(c) For purposes of Section 5.203(f), a payee of record's
61	61	failure to comply with this section constitutes failure to comply
62	62	with Section 5.203.
63	63	Sec. 5.2041. LIMITATIONS PERIOD FOR PAYEE CLAIM. (a) This
64	64	section applies to a suit:
65	65	(1) for payment of a private transfer fee payable as a
66	66	result of a transfer of encumbered property;
67	67	(2) to foreclose a lien securing a private transfer
68	68	fee obligation; or
69	69	(3) to contest the validity of a recorded termination
70	70	of the instrument creating a private transfer fee obligation.
71	71	(b) A person must bring a suit to which this section applies
72	72	not later than one year after the date of the sale or conveyance or
73	73	the date the termination was recorded.
74	74	(c) This section does not affect any other limitation
75	75	applicable to the payment of a private transfer fee, a private
76	76	transfer fee obligation, or the foreclosure of a lien securing a
77	77	private transfer fee or private transfer fee obligation.
78	78	Sec. 5.2042. REQUEST FOR STATUS OF PRIVATE TRANSFER FEE
79	79	OBLIGATION. (a) An owner of property described in a recorded
80	80	private transfer fee obligation may by mail request that the payee
81	81	of record designated in the most recent recorded notice of private
82	82	transfer fee obligation under Section 5.203 declare whether the
83	83	private transfer fee obligation is or is not currently effective.
84	84	(b) Not later than the 30th day after the date of the mailing
85	85	of a request under Subsection (a), the payee of record who receives
86	86	the request shall:
87	87	(1) deliver to the owner making the request a copy of a
88	88	sworn affidavit stating the status of the private transfer fee
89	89	obligation as currently effective or not currently effective and
90	90	made by:
91	91	(A) the payee of record, if the payee of record is
92	92	a natural person; or
93	93	(B) an individual who is an authorized
94	94	representative of the payee, if the payee is not a natural person;
95	95	and
96	96	(2) file the affidavit for record in the county where
97	97	the property is located.
98	98	(c) If a request is made under Subsection (a) and the payee
99	99	of record does not satisfy the requirements of Subsection (b) or the
100	100	affidavit delivered and recorded under Subsection (b) states that
101	101	the private transfer fee obligation is not effective:
102	102	(1) the private transfer fee obligation is terminated,
103	103	is not effective, and does not encumber any property described in
104	104	the private transfer fee obligation; and
105	105	(2) a private transfer fee is not due or payable with
106	106	respect to any future transfer of the owner's property or any other
107	107	property described in the private transfer fee obligation.
108	108	(d) A property owner who makes a request under Subsection
109	109	(a) may record at any time in the county where the property is
110	110	located a sworn affidavit that states the date the request was
111	111	mailed and includes a copy of the request. An affidavit described by
112	112	this subsection:
113	113	(1) is presumed to be true and correct; and
114	114	(2) may be conclusively relied on as true and correct
115	115	by any future grantees or lienholders.
116	116	Sec. 5.2043. ACTION AGAINST PAYEE AUTHORIZED. (a) The
117	117	owner of or any purchaser, lienholder, or other party having an
118	118	interest in or lien on affected property may bring an action under
119	119	this section against any payee of a private transfer fee
120	120	obligation, as shown in the most recent notice of private transfer
121	121	fee obligation recorded under Section 5.203, and any individual who
122	122	signed the relevant affidavit on behalf of the payee, if the payee
123	123	improperly:
124	124	(1) files a notice of private transfer fee obligation
125	125	under Section 5.203;
126	126	(2) files an affidavit described by Section 5.2042(b)
127	127	stating that the private transfer fee obligation is currently
128	128	effective; or
129	129	(3) files any other affidavit or notice asserting the
130	130	private transfer fee obligation is effective with respect to the
131	131	property, the owner, or any purchaser, lienholder, or other
132	132	interested party having an interest in or lien on the property.
133	133	(b) An owner or a purchaser, lienholder, or other interested
134	134	party who prevails in an action under this section is entitled:
135	135	(1) to declaratory relief determining that the private
136	136	transfer fee obligation, any right to receive a private transfer
137	137	fee, and any lien securing the private transfer fee obligation is
138	138	invalid and unenforceable with respect to the property; and
139	139	(2) to recover:
140	140	(A) the party's attorney's fees and court costs;
141	141	(B) actual damages; and
142	142	(C) exemplary damages of $10,000 for each
143	143	affected tract, with each subdivided lot constituting a separate
144	144	tract.
145	145	(c) Each payee and any individual who is determined to have
146	146	signed a false affidavit is jointly and severally liable for an
147	147	award under Subsection (b)(2).
148	148	(d) An action may be brought under this section in the same
149	149	suit by more than one owner of property described by the private
150	150	transfer fee obligation. Each prevailing owner is separately
151	151	entitled to recover under Subsection (b)(2).
152	152	(e) An action under this section regarding an affidavit
153	153	recorded under Section 5.2042(b) may be brought by the owner who
154	154	requested the affidavit or any person who acquired title to the
155	155	property after the request was made.
156	156	(f) In an action brought under this section against the
157	157	payee of record for the most recently filed notice of private
158	158	transfer fee obligation under Section 5.203:
159	159	(1) service on the payee of record is effective
160	160	service on all payees, without requiring joinder or service on any
161	161	other payee; and
162	162	(2) a judgment against the payee of record is binding
163	163	on each payee jointly and severally.
164	164	Sec. 5.2044. DECEPTIVE TRADE PRACTICE. The filing of a
165	165	notice under Section 5.203 with respect to a private transfer fee
166	166	obligation that has terminated or the making or filing of a false
167	167	affidavit under Section 5.2042(b) is a deceptive trade practice
168	168	under Subchapter E, Chapter 17, Business & Commerce Code, and is
169	169	actionable under that subchapter.
170	170	Sec. 5.2045. TIMING OF TERMINATION. (a) In any action to
171	171	enforce or to determine the validity or enforceability of a private
172	172	transfer fee obligation with respect to a transaction in which a
173	173	deed is executed, a termination of the obligation shall be
174	174	considered effective if:
175	175	(1) the termination is recorded before the deed is
176	176	recorded; or
177	177	(2) a grantor or grantee of the deed executes and
178	178	records an affidavit stating that it was the intention of the
179	179	parties to the deed that the deed was not executed, delivered, or
180	180	accepted, and that the property was not sold, conveyed,
181	181	transferred, or assigned, until after the recordation of the
182	182	termination.
183	183	(b) For purposes of Subsection (a), if a deed is executed in
184	184	a transaction in which a termination of a private transfer fee
185	185	obligation is executed, it is presumed that the termination was
186	186	executed before the conveyance.
187	187	SECTION 4. (a) Notwithstanding Section 5.2041, Property
188	188	Code, as added by this Act, a person may bring a suit described by
189	189	Subsection (a) of that section before September 1, 2024, in
190	190	connection with a sale or conveyance that occurred or a termination
191	191	of private transfer fee obligation that was recorded before
192	192	September 1, 2023.
193	193	(b) This section does not affect any other limitation
194	194	applicable to the payment of a private transfer fee, a private
195	195	transfer fee obligation, or the foreclosure of a lien securing a
196	196	private transfer fee or private transfer fee obligation.
197	197	SECTION 5. This Act takes effect September 1, 2023.