Bill Text: TX SB1588 | 2021-2022 | 87th Legislature | Enrolled

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Bill Title: Relating to the powers and duties of certain property owners' associations.

Spectrum: Bipartisan Bill

Status: (Passed) 2021-06-18 - See remarks for effective date [SB1588 Detail]

Download: Texas-2021-SB1588-Enrolled.html

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S.B. No. 1588

AN ACT
relating to the powers and duties of certain property owners'
associations.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 202.006, Property Code, is amended by
adding Subsection (c) to read as follows:
(c) A property owners' association may not collect a regular
assessment, as defined by Section 209.002, if the dedicatory
instrument authorizing the collection of the regular assessment is
not filed as required by Subsection (a).
SECTION 2. Sections 202.018(a) and (b), Property Code, are
amended to read as follows:
(a) Except as otherwise provided by this section, a property
owners' association may not enforce or adopt a provision in a
dedicatory instrument, including a restrictive covenant, that
prohibits a property owner or resident from displaying or affixing
on the [entry to the] owner's or resident's property or dwelling one
or more religious items the display of which is motivated by the
owner's or resident's sincere religious belief.
(b) This section does not prohibit the enforcement or
adoption of a provision in a dedicatory instrument, including a
restrictive covenant, that, to the extent allowed by the
constitution of this state and the United States, prohibits the
display or affixing of a religious item on the [entry to the]
owner's or resident's property or dwelling that:
(1) threatens the public health or safety;
(2) violates a law other than a law prohibiting the
display of religious speech;
(3) contains language, graphics, or any display that
is patently offensive to a passerby for reasons other than its
religious content;
(4) is installed on property:
(A) owned or maintained by the property owners'
association; or
(B) owned in common by members of the property
owners' association;
(5) violates any applicable building line,
right-of-way, setback, or easement; or
(6) is attached to a traffic control device, street
lamp, fire hydrant, or utility sign, pole, or fixture [in a location
other than the entry door or door frame or extends past the outer
edge of the door frame of the owner's or resident's dwelling; or
[(5) individually or in combination with each other
religious item displayed or affixed on the entry door or door frame
has a total size of greater than 25 square inches].
SECTION 3. Chapter 202, Property Code, is amended by adding
Section 202.022 to read as follows:
Sec. 202.022. SWIMMING POOL ENCLOSURES. (a) In this
section, "swimming pool enclosure" means a fence that:
(1) surrounds a water feature, including a swimming
pool or spa;
(2) consists of transparent mesh or clear panels set
in metal frames;
(3) is not more than six feet in height; and
(4) is designed to not be climbable.
(b) A property owners' association:
(1) may not adopt or enforce a provision in a
dedicatory instrument that prohibits or restricts a property owner
from installing on the property owner's property a swimming pool
enclosure that conforms to applicable state or local safety
requirements; and
(2) may adopt and enforce a provision in a dedicatory
instrument establishing limitations related to the appearance of a
swimming pool enclosure, including limitations establishing
permissible colors for a swimming pool enclosure, provided that the
provision does not prohibit a swimming pool enclosure that is black
in color and consists of transparent mesh set in metal frames.
SECTION 4. Chapter 202, Property Code, is amended by adding
Section 202.023 to read as follows:
Sec. 202.023. SECURITY MEASURES. (a) This section does not
apply to:
(1) a condominium as defined by Section 81.002 or
82.003; or
(2) a master mixed-use property owners' association
subject to Chapter 215.
(b) Except as provided by Subsection (c), a property owners'
association may not adopt or enforce a restrictive covenant that
prevents a property owner from building or installing security
measures, including but not limited to a security camera, motion
detector, or perimeter fence.
(c) This section does not prohibit a property owners'
association from:
(1) prohibiting the installation of a security camera
by a property owner in a place other than the property owner's
private property; or
(2) regulating the type of fencing that a property
owner may install.
SECTION 5. Section 207.001, Property Code, is amended by
adding Subdivision (2-a) to read as follows:
(2-a) "Management company" has the meaning assigned by
Section 209.002.
SECTION 6. Section 207.003(c), Property Code, is amended to
read as follows:
(c) A property owners' association may charge a reasonable
and necessary fee, not to exceed $375, to assemble, copy, and
deliver the information required by this section and may charge a
reasonable and necessary fee, not to exceed $75, to prepare and
deliver an update of a resale certificate under Subsection (f).
SECTION 7. Section 207.004(b), Property Code, is amended to
read as follows:
(b) If a property owners' association fails to deliver the
information required under Section 207.003 before the fifth
business [seventh] day after the second request for the information
was mailed by certified mail, return receipt requested, or hand
delivered, evidenced by receipt, the owner:
(1) may seek one or any combination of the following:
(A) a court order directing the property owners'
association to furnish the required information;
(B) a judgment against the property owners'
association for not more than $5,000 [$500];
(C) a judgment against the property owners'
association for court costs and reasonable attorney's fees; or
(D) a judgment authorizing the owner or the
owner's assignee to deduct the amounts awarded under Paragraphs (B)
and (C) from any future regular or special assessments payable to
the property owners' association; and
(2) may provide a buyer under contract to purchase the
owner's property an affidavit that states that the owner, owner's
agent, or title insurance company or its agent acting on behalf of
the owner made, in accordance with this chapter, two written
requests to the property owners' association for the information
described in Section 207.003 and that the association did not
timely provide the information.
SECTION 8. Section 207.006, Property Code, is amended to
read as follows:
Sec. 207.006. ONLINE SUBDIVISION INFORMATION REQUIRED. (a)
This section applies only to:
(1) the property owners' association of a subdivision
composed of at least 60 lots; or
(2) a property owners' association that has contracted
with a management company.
(b) A property owners' association to which this section
applies shall make the current version of the association's
dedicatory instruments relating to the association or subdivision
and filed in the county deed records available on an Internet [a]
website:
(1) maintained by [if] the association [has,] or a
management company on behalf of the association; and
(2) available to association members [maintains, a
publicly accessible website].
SECTION 9. Section 209.002, Property Code, is amended by
adding Subdivision (5-a) to read as follows:
(5-a) "Management company" means a person or entity
established or contracted to provide management or administrative
services on behalf of a property owners' association.
SECTION 10. Section 209.004, Property Code, is amended by
amending Subsections (a), (b), (c), and (e) and adding Subsection
(b-1) to read as follows:
(a) A property owners' association shall record in each
county in which any portion of the residential subdivision is
located a management certificate, signed and acknowledged by an
officer or the managing agent of the association, stating:
(1) the name of the subdivision;
(2) the name of the association;
(3) the recording data for the subdivision;
(4) the recording data for the declaration and any
amendments to the declaration;
(5) the name and mailing address of the association;
(6) the name, [and] mailing address, telephone number,
and e-mail address of the person managing the association or the
association's designated representative; [and]
(7) the website address of any Internet website on
which the association's dedicatory instruments are available in
accordance with Section 207.006;
(8) the amount and description of a fee or fees charged
by the association relating to a property transfer in the
subdivision; and
(9) other information the association considers
appropriate.
(b) The property owners' association shall record an
amended management certificate in each county in which any portion
of the residential subdivision is located not later than the 30th
day after the date the association has notice of a change in any
information in the recorded certificate required by Subsection (a).
(b-1) Not later than the seventh day after the date a
property owners' association files a management certificate for
recording under Subsection (a) or files an amended management
certificate for recording under Subsection (b), the property
owners' association shall electronically file the management
certificate or amended management certificate with the Texas Real
Estate Commission. The Texas Real Estate Commission shall only
collect the management certificate and amended management
certificate for the purpose of making the data accessible to the
general public through an Internet website.
(c) Except as provided under Subsections (d) and (e), the
property owners' association and its officers, directors,
employees, and agents are not subject to liability to any person for
a delay in recording or failure to record a management certificate
with a county clerk's office or electronically file the management
certificate with the Texas Real Estate Commission, unless the delay
or failure is wilful or caused by gross negligence.
(e) A lien of a property owners' association that fails to
file a management certificate or an amended management certificate
under this section to secure an amount due on the effective date of
a transfer to a bona fide purchaser is enforceable only for an
amount incurred after the effective date of sale. An owner is not
liable for attorney's fees incurred by a property owners'
association relating to the collection of a delinquent assessment
against the owner or interest on the amount of a delinquent
assessment if the attorney's fees are incurred by the association
or the interest accrues during the period a management certificate
is not recorded with a county clerk or electronically filed with the
Texas Real Estate Commission as required by this section.
SECTION 11. Chapter 209, Property Code, is amended by
adding Section 209.00505 to read as follows:
Sec. 209.00505. ARCHITECTURAL REVIEW AUTHORITY. (a) In
this section, "architectural review authority" means the governing
authority for the review and approval of improvements within a
subdivision.
(b) This section:
(1) applies only to a property owners' association
that consists of more than 40 lots; and
(2) does not apply during a development period or
during any period in which the declarant:
(A) appoints at least a majority of the members
of the architectural review authority or otherwise controls the
appointment of the architectural review authority; or
(B) has the right to veto or modify a decision of
the architectural review authority.
(c) A person may not be appointed or elected to serve on an
architectural review authority if the person is:
(1) a current board member;
(2) a current board member's spouse; or
(3) a person residing in a current board member's
household.
(d) A decision by the architectural review authority
denying an application or request by an owner for the construction
of improvements in the subdivision may be appealed to the board. A
written notice of the denial must be provided to the owner by
certified mail, hand delivery, or electronic delivery. The notice
must:
(1) describe the basis for the denial in reasonable
detail and changes, if any, to the application or improvements
required as a condition to approval; and
(2) inform the owner that the owner may request a
hearing under Subsection (e) on or before the 30th day after the
date the notice was mailed to the owner.
(e) The board shall hold a hearing under this section not
later than the 30th day after the date the board receives the
owner's request for a hearing and shall notify the owner of the
date, time, and place of the hearing not later than the 10th day
before the date of the hearing. Only one hearing is required under
this subsection.
(f) During a hearing, the board or the designated
representative of the property owners' association and the owner or
the owner's designated representative will each be provided the
opportunity to discuss, verify facts, and resolve the denial of the
owner's application or request for the construction of
improvements, and the changes, if any, requested by the
architectural review authority in the notice provided to the owner
under Subsection (d).
(g) The board or the owner may request a postponement. If
requested, a postponement shall be granted for a period of not more
than 10 days. Additional postponements may be granted by agreement
of the parties.
(h) The property owners' association or the owner may make
an audio recording of the meeting.
(i) The board may affirm, modify, or reverse, in whole or in
part, any decision of the architectural review authority as
consistent with the subdivision's declaration.
SECTION 12. Sections 209.0051(e) and (h), Property Code,
are amended to read as follows:
(e) Members shall be given notice of the date, hour, place,
and general subject of a regular or special board meeting,
including a general description of any matter to be brought up for
deliberation in executive session. The notice shall be:
(1) mailed to each property owner not later than the
10th day or earlier than the 60th day before the date of the
meeting; or
(2) provided at least 144 [72] hours before the start
of a regular board [the] meeting and at least 72 hours before the
start of a special board meeting by:
(A) posting the notice in a conspicuous manner
reasonably designed to provide notice to property owners'
association members:
(i) in a place located on the association's
common property or, with the property owner's consent, on other
conspicuously located privately owned property within the
subdivision; or
(ii) on any Internet website available to
association members that is maintained by the association or by a
management company on behalf of the association [other Internet
media]; and
(B) sending the notice by e-mail to each owner
who has registered an e-mail address with the association.
(h) Except as provided by this subsection, a board may take
action outside of a meeting, including voting by electronic or
telephonic means, without prior notice to owners under Subsection
(e), if each board member is given a reasonable opportunity to
express the board member's opinion to all other board members and to
vote. Any action taken without notice to owners under Subsection
(e) must be summarized orally, including an explanation of any
known actual or estimated expenditures approved at the meeting, and
documented in the minutes of the next regular or special board
meeting. The board may not, unless done in an open meeting for
which prior notice was given to owners under Subsection (e),
consider or vote on:
(1) fines;
(2) damage assessments;
(3) initiation of foreclosure actions;
(4) initiation of enforcement actions, excluding
temporary restraining orders or violations involving a threat to
health or safety;
(5) increases in assessments;
(6) levying of special assessments;
(7) appeals from a denial of architectural control
approval;
(8) a suspension of a right of a particular owner
before the owner has an opportunity to attend a board meeting to
present the owner's position, including any defense, on the issue;
(9) lending or borrowing money;
(10) the adoption or amendment of a dedicatory
instrument;
(11) the approval of an annual budget or the approval
of an amendment of an annual budget [that increases the budget by
more than 10 percent];
(12) the sale or purchase of real property;
(13) the filling of a vacancy on the board;
(14) the construction of capital improvements other
than the repair, replacement, or enhancement of existing capital
improvements; or
(15) the election of an officer.
SECTION 13. Section 209.0052, Property Code, is amended by
adding Subsection (c) to read as follows:
(c) In addition to the other applicable requirements of this
section, an association that proposes to contract for services that
will cost more than $50,000 shall solicit bids or proposals using a
bid process established by the association.
SECTION 14. Section 209.006(a), Property Code, is amended
to read as follows:
(a) Before a property owners' association may suspend an
owner's right to use a common area, file a suit against an owner
other than a suit to collect a regular or special assessment or
foreclose under an association's lien, charge an owner for property
damage, [or] levy a fine for a violation of the restrictions or
bylaws or rules of the association, or report any delinquency of an
owner to a credit reporting service, the association or its agent
must give written notice to the owner by certified mail.
SECTION 15. Section 209.0063(a), Property Code, is amended
to read as follows:
(a) Except as provided by Subsection (b), a payment received
by a property owners' association from the owner shall be applied to
the owner's debt in the following order of priority:
(1) any delinquent assessment;
(2) any current assessment;
(3) any reasonable attorney's fees or reasonable third
party collection costs incurred by the association associated
solely with assessments or any other charge that could provide the
basis for foreclosure;
(4) any reasonable attorney's fees incurred by the
association that are not subject to Subdivision (3);
(5) any reasonable fines assessed by the association;
and
(6) any other reasonable amount owed to the
association.
SECTION 16. Section 209.0064(b), Property Code, is amended
to read as follows:
(b) A property owners' association may not hold an owner
liable for fees of a collection agent retained by the association
unless the association first provides written notice to the owner
by certified mail that:
(1) specifies each delinquent amount and the total
amount of the payment required to make the account current;
(2) if the association is subject to Section 209.0062
or the association's dedicatory instruments contain a requirement
to offer a payment plan, describes the options the owner has to
avoid having the account turned over to a collection agent,
including information regarding availability of a payment plan
through the association; and
(3) provides a period of at least 45 [30] days for the
owner to cure the delinquency before further collection action is
taken.
SECTION 17. Chapter 209, Property Code, is amended by
adding Section 209.0065 to read as follows:
Sec. 209.0065. CREDIT REPORTING SERVICES. (a) A property
owners' association or the association's collection agent may not
report any delinquent fines, fees, or assessments to a credit
reporting service that are the subject of a pending dispute between
the owner and the property owners' association.
(b) A property owners' association may report the
delinquent payment history of assessments, fines, and fees of
property owners within its jurisdiction to a credit reporting
service only if:
(1) at least 30 business days before reporting to a
credit reporting service, the association sends, via certified
mail, hand delivery, electronic delivery, or by other delivery
means acceptable between the parties, a detailed report of all
delinquent charges owed; and
(2) a property owner has been given the opportunity to
enter into a payment plan.
(c) A property owners' association may not charge a fee to
an individual property owner for the reporting under Subsection (b)
of the delinquent payment history of assessments, fines, and fees
of property owners within the association's jurisdiction to a
credit reporting service.
SECTION 18. Section 209.007, Property Code, is amended by
amending Subsection (a) and adding Subsections (f), (g), and (h) to
read as follows:
(a) Except as provided by Subsection (d) and only if [If]
the owner is entitled to an opportunity to cure the violation, the
owner has the right to submit a written request for a hearing to
discuss and verify facts and resolve the matter in issue before [a
committee appointed by] the board [of the property owners'
association or before the board if the board does not appoint a
committee].
(f) Not later than 10 days before the association holds a
hearing under this section, the association shall provide to an
owner a packet containing all documents, photographs, and
communications relating to the matter the association intends to
introduce at the hearing.
(g) If an association does not provide a packet within the
period described by Subsection (f), an owner is entitled to an
automatic 15-day postponement of the hearing.
(h) During a hearing, a member of the board or the
association's designated representative shall first present the
association's case against the owner. An owner or the owner's
designated representative is entitled to present the owner's
information and issues relevant to the appeal or dispute.
SECTION 19. Section 209.015(c), Property Code, is amended
to read as follows:
(c) An owner must obtain the approval of the property
owners' association or, if applicable, an architectural review
authority, as defined by Section 209.00505(a), [committee]
established by the association or the association's dedicatory
instruments, based on criteria prescribed by the dedicatory
instruments specific to the use of a lot for residential purposes,
including reasonable restrictions regarding size, location,
shielding, and aesthetics of the residential purpose, before the
owner begins the construction, placement, or erection of a
building, structure, or other improvement for the residential
purpose on an adjacent lot.
SECTION 20. Section 209.016, Property Code, is amended by
amending Subsection (d) and adding Subsection (e) to read as
follows:
(d) Nothing [Except as provided by Subsection (b), nothing]
in this section shall be construed to prohibit the adoption or
enforcement of a provision in a dedicatory instrument establishing
a restriction relating to occupancy or leasing.
(e) A property owners' association may request the
following information to be submitted to the association regarding
a lease or rental applicant:
(1) contact information, including the name, mailing
address, phone number, and e-mail address of each person who will
reside at a property in the subdivision under a lease; and
(2) the commencement date and term of the lease.
SECTION 21. Chapter 209, Property Code, is amended by
adding Section 209.017 to read as follows:
Sec. 209.017. JUSTICE COURT JURISDICTION. An owner of
property in a subdivision may bring an action for a violation of
this chapter against the property owners' association of the
subdivision in the justice court of a precinct in which all or part
of the subdivision is located.
SECTION 22. The following provisions of the Property Code
are repealed:
(1) Sections 202.018(c) and (d);
(2) Section 209.007(b); and
(3) Sections 209.016(a) and (c).
SECTION 23. (a) Not later than December 1, 2021, the Texas
Real Estate Commission shall establish and make available the
system necessary for the electronic filing of management
certificates and amended management certificates as required under
Section 209.004(b-1), Property Code, as added by this Act.
(b) Notwithstanding Section 209.004(b-1), Property Code, as
added by this Act, a property owners' association that has on or
before December 1, 2021, recorded a management certificate or
amended management certificate with a county clerk under Section
209.004, Property Code, shall electronically file the most recently
recorded management certificate or amended management certificate
with the Texas Real Estate Commission not later than June 1, 2022.
SECTION 24. Section 209.0052(c), Property Code, as added by
this Act, applies only to a contract for services proposed by a
property owners' association on or after the effective date of this
Act.
SECTION 25. Section 209.0065, Property Code, as added by
this Act, applies only to a fine, fee, or assessment that becomes
due on or after the effective date of this Act. A fine, fee, or
assessment that becomes due before the effective date of this Act is
governed by the law in effect immediately before the effective date
of this Act, and that law is continued in effect for that purpose.
SECTION 26. Section 209.017, Property Code, as added by
this Act, applies only to an action brought on or after September 1,
2021.
SECTION 27. (a) Except as provided by Subsection (b) of
this section, this Act takes effect September 1, 2021.
(b) Section 209.004(b-1), Property Code, as added by this
Act, takes effect December 1, 2021.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1588 passed the Senate on
April 28, 2021, by the following vote: Yeas 28, Nays 3;
May 25, 2021, Senate refused to concur in House amendments and
requested appointment of Conference Committee; May 27, 2021, House
granted request of the Senate; May 30, 2021, Senate adopted
Conference Committee Report by the following vote: Yeas 28,
Nays 3.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1588 passed the House, with
amendments, on May 20, 2021, by the following vote: Yeas 144,
Nays 2, one present not voting; May 27, 2021, House granted request
of the Senate for appointment of Conference Committee;
May 30, 2021, House adopted Conference Committee Report by the
following vote: Yeas 139, Nays 4, one present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor