## ATTORNEY GENERAL OF 

## TEXAS
GREG ABBOTT

December 9,2004

The Honorable Fred Hill Chair, Committee on Local Government Ways and Means Texas House of Representatives Post Office Box 2910 Austin, Texas 78768.2910 Opinion No. GA-0279

Re: Whether the placement ofone-party foreclosable contractual liens onlandby adeveloper that supersede the homestead rights created in article XVI, section 50 of the Texas Constitution violates the Texas Homestead Act (RQ-0236-GA)

Dear Representative Hill:

You have asked a specific question: “Whether the placement of one-party foreclosable contractual liens on the land by the developer that supersede the homestead rights created inArticle XVI, Section 50 of the Texas Constitution violate[s] the Texas Homestead Act.“’

I. 

### Homestead Protection inthe Texas Constitution and Statutes

We begin by briefly reviewing Texas homestead protections from forced sale. Texas is credited with enacting the first homestead law in 1839. SeeEstate ofJohnson v. Comm ‘ r,718 F.2d 1303, 1307 n.13 (5th Cir. 1983) (citing 1839 Laws of the Republic of Texas). Today, Texas’ homestead protection from creditors’ liens is found principally in article XVI, section 50 of the Texas Constitution and chapter 41 of the Property Code. See TEX. CONST. art. XVI, 5 50; TEX. PROP. CODE ANN. $541.001-,024 (Vernon 2000 & Supp. 2004-05); see&o TEX. CONST. art. XVI, @ 51 (defining homestead), 52 (descent and distribution). Article XVI, section 50not only protects
ahomestead from forced sale by creditors but provides that “[n]o mortgage, trust deed, or other lien
on the homestead shall ever be valid unless itsecures adebt described by this section.” TEX: CONST. art. XVI, 4 50(c). Article XVI, section 50 expressly enumerates eight exceptions to homestead protection from forced sale: (1)purchase money security, (2)taxes due on the homestead, (3)certain owelty on partition, ,(4) refinancing of certain liens, (5) security for improvements, (6) certain circumscribed extensions of credit in the nature of an equity loan, (7) reverse mortgages, and (8) special financing concerning manufactured homes. Id. § SO(a)(l)-(S).

‘Letter from Honorable Fred Hill, Chair, Committee on Local Government Ways and Means, Texas House of Representatives, to Honorable Greg Abbott, Texas Attorney General (June 9,2004)[hereinafter Request Letter]; Letter from Honorable Fred Hill, Chair, Committee on Local Government Ways and Means, Texas House of Representatives, toNancy Fuller, Chair, Opinion Committee, Office ofAttomeyGenera1 (July 19,2004) [hereinafter Supplemental Letter] (both letters on tile with Opinion Committee, also available afhttp://www.oag.state.6i.us).The Honorable Fred Hill - Page 2 (GA-0279)

Section 41.001 of the Property Code reiterates exceptions for homestead and burial plots. TEX. PROP. CODE ANN. 5 41.001(a)-@) (Vemon Supp. 2004-05) (listing seven of the eight constitutional exceptions). The remainder ofchapter 41 concerns homestead issues not pertinent to your inquiry.*

II. Znwood North Homeowners’ Association. Inc. v.Harris
The Texas Supreme Court addressed in 1987 whether Texas homestead laws preclude foreclosure of adeveloper’s lien for homeowners’ association fees and assessments. See generally Inwood N. Homeowners’ Ass’n, Inc. v. Harris, 736 S.W.2d 632 (Tex. 1987). In Inwood, a subdivision developer had filed a declaration of restrictions and covenants in local real property records reciting that all lots inthe subdivision were impressed with acovenant topay amaintenance fee orother assessment to ahomeowners’ association or similar entity, that such covenants run with the land, and that such covenants were secured by a lien. See Znwood, 736 S.W.2d at 633. Individuals who thereafter purchased property in the subdivision received a deed referencing the covenants to pay the fees and the lien against the property to secure payment. See id. The subdivision’s homeowners’ association sued to recover delinquent maintenance fees from homeowners and sought foreclosure of liens securing the fees. Id. at 634.
The court inInwood acknowledged that security for homeowners’ association fees was not
atrue vendor’s lien, but was instead more in the nature ofacontractual lien, not among the express constitutional exceptions to homestead protection. See id. The court observed that “[hlomestead rights, however, may not be construed so as to avoid or destroy pre-existing rights,” and that “[i]t has long been held that an encumbrance existing against property cannot be affected by the subsequent impression of the homestead exception on the land.” Id. at 635.
The court inZnwood held that an owner is free to impress property with acovenant running with the land, and that a“developer ofthe subdivision, asowner ofallland subject tothe [developer’s] declaration, is entitled to create liens on his land to secure the payment of assessments.” Id. at634. The court further determined that subsequent purchasers were bound by references in their deeds to the covenants as well aaby all instruments in aparticular purchaser’s chain oftitle. See id. at635. Because the developer had placed the restrictions on the land before itbecame the homestead ofthe homeowners, the court concluded that “the homeowners were subject tothe liens in question and an order of foreclosure would have been proper.” Id. at 635-36.

The court in Znwood stated that its decision was reinforced by the legal principle that “[a] homestead right inreal property cannot rise any higher than the right, title or interest acquired bythe homestead claimant.” Id. at 636. The court determined that the purchase of alot inthe subdivision carried with it “as an inherent part ofthe property interest, the obligation to pay association fees for

‘See TEX.PROP. CODEANN. $5 41.002 (Vemon 2000) (deftig the extent of urban and ma1 homesteads), 41.003 (effect oftemporary renting), 41.004 (abandonment), 41.005 (design&n ofhomestead), 41.0051 (advertising regarding taxrefunds), 41.006 (limitations on certain sales), 41.007 (home improvement contract requirements), 41.008 (federal law conflicts), 41.021 (designation ofhomestead in aid ofjudgment), 41.022 (designation procedures), 41.023 (designation by court appointed commissioner), 41.024 (sale of excess).The Honorable Fred Hill - Page 3 (GA-0279)

maintenance and ownership ofcommon facilities and services,” along with the concomitant remedy of foreclosure for failure to pay those fees. Id. The court concluded that constitutional homestead rights “will not operate to circumvent an inherent characteristic ofthe property acquired” and that the homeowners’ association was entitled to foreclose itscontractual lien onthe houses ofdelinquent homeowners. Id.

III. Post-Znwood Develonments

In 2001, the 77th Legislature enacted the Texas Residential Property Owners Protection Act (the “Act”). See Act ofMay27,2001,77thLeg., R.S., ch. 926,s 1,200l Tex. Gen. Laws 1857 (adding chapter 209 to the Property Code, codified at TEX. PROP. CODE ANN. $9 209.001- .01 1 (Vernon Supp. 2004-05)). The Act was added “to provide guidelines for the operations of [community] associations awell asspecific protections forTexas homeowners living in associationmanaged communities.” SENATE COMM. ON STATE AFFAIRS, BILL ANALYSIS, Tex. Comm. Substitute S.B. 507,77th Leg., R.S. (2001) (enrolled version). The Act gives owners ofproperty a number ofprocedural protections, including the right toredeem property following foreclosure. See TEX.PROP.CODEANN. $5 209.006-.Oll (Vernon Supp. 2004-05). The Act does not, however, change the essential holdings inZnwood that (1) aproperty owner such as a developer may impress the property with a covenant to pay association maintenance fees, enforceable by foreclosure, by tiling adeclaration ofcovenants and restrictions inthe deed records, (2) asubsequent purchaser with notice of the declaration in the purchaser’s deed and chain of title is bound by the declaration, and (3) the subsequent purchaser’s rights that arise upon purchase do not circumvent the remedy of enforcing the covenants by foreclosure. Recently, the Texas Supreme Court reiterated Znwood’s holding:

ln Znwood, we considered whether the homestead laws of Texas protect a homeowner against foreclosure for failure to pay homeowners association assessments. As ageneral rule, ahomestead is protected against the debts of those who live in the homestead. However, the deed restrictions for the subdivision included a vendor’s lien permitting foreclosure on the homestead for failure to pay the fee assessment. Because the property owner had notice when purchasing the property that alien attached to the land, we held that foreclosure was permissible.
Brooks v.NortJiglenAss ‘n,141 S.W.3d 158,170 (Tex. 2004) (citations omitted). The court applied the holding inZnwood to particular deed restrictions and concluded that because they did not give notice that late fees might be imposed on assessments, such fees were not enforceable by foreclosure. Zd.at 170-7 1.

IV. Discussion
The question, as specifically phrased, is “[wlhether the placement of one-party foreclosable contractual liens on the land by the developer that supersede the homestead rights created inArticleThe Honorable Fred Hill - Page 4 (GA-0279)

XVI, Section 50 of the Texas Constitution violate[s] the Texas Homestead Act.” Supplemental Letter, supra note 1,at 1. Although we did not locate the phrase “one-party foreclosable contractual liens” in the constitution, statutes, or case law, we assume you refer to a developer’s unilateral action, asinZnwood, ofencumbering property by filing adeclaration ofrestrictions and covenants, enforceable by foreclosure. Likewise, by “Texas Homestead Act,” we assume you mean homestead protection from forced sale by creditors in the Texas Constitution and the Property Code. See ZnwoodN. Homeowners’ Ass’n, Inc. Y.Harris, 707 S.W.2d 127,129 (Tex. App.-Houston [lst Dist.] 1986) (referring to article XVI, section 50ofthe Texas Constitution asthe “Homestead Act”), rev’d
on other grounds, 736 S.W.2d 632 (Tex. 1987); United States Y. West, 22 F.3d 586,598 n.33 (5th Cir. 1994) (equating the protections in section 41.001 ofthe Texas Property Code with the “Texas Homestead Act”). Consequently, we address whether a property owner who unilaterally files a declaration ofcovenants andrestrictions, enforceable by foreclosure, violates subsequent purchasers’ homestead rights under article XVI, section 50 ofthe Texas Constitution and section 41.001 ofthe Property Code.
The Texas Supreme Court in Znwood determined that a developer may encumber real property with a secured covenant running with the land by filing a declaration ofrestrictions and covenants and that such covenants bind subsequent purchasers with notice. SeeZnwood, 736 S.W.2d at 635-36. Because the developer’s encumbrance came into being before the purchasers acquired constitutional and statutory homestead rights in the property, the lien could be enforced by foreclosure. See id. The court’s holding in Znwood, that “[hlomestead rights may not be construed so as to avoid or destroy pre-existing rights,” applied to homestead rights whether under the Texas Constitution or chapter 41 ofthe Property Code. See id. at 635; see also id. at 637 (Mauzy, .I.,dissenting, noting that “the legislature has tracked the Constitution” in section 41.OOl(a)- (b) ofthe Property Code). To answer your question, underlnwood and itsprogeny, adeveloper may unilaterally encumber real property with a covenant running with the land, enforceable through foreclosure, without violating the constitutional and statutory homestead rights of subsequent purchasers with notice. Of course, whether particular covenants are enforceable by foreclosure depends on the particular instruments and circumstances involved. See, e.g., Brooks, 141 S.W.3d at 170-71 (holding that because particular deed restrictions did not give notice of certain late fees, foreclosure was an inappropriate remedy for collecting them); Tex. Att’y Gen. Op. No. GA-0237 (2004) at6-8 (determining that an assessment within the scope ofastatutory lien could be enforced by foreclosure only if the lien predated the attachment of a homestead interest); Tex. Att’y Gen. LO-97-01 9,at3-4 (determining that aproperty owners association’s right to foreclose onhomestead property forcertain costs depends on whether the lien for such costs (1) attached tothe property prior to the homestead right and (2) resulted from arestriction that runs with the land).

Wehave received extensive briefing that takes issue with the Texas Supreme Court’s analysis and reasoning inZnwood and recommends “‘repeal’ ofthe Inwood law.“’ That may be good policy and, as such, would be appropriate for the legislature to address or for the Texas Supreme Court to consider. The attorney general’s constitutional duty to render legal advice, however, does not include the authority to legislate orto establish bindingjudicial precedent. See TEX. CONST. art. IV,

‘See Brief from Harvella Jones, Texas Homeo\mers’ Advocate Group,to Nancy Fuller, Chair, Opinion Committee, Office of Attorney General, at 6 (July 20,2004) (on file with opinion Committee).The Honorable Fred Hill - Page 5 (GA-0279)

522; TEX.GOV’TCODEANN. 5402.042 (Vernon 1998); see also Bullock Y.Enserch Exploration, Inc., 614 S.W.2d 215,21X,220 (Tex. Civ. App.-Austin 1981, writ refdn.r.e.) (an attorney general opinion does not have the authority ofastatute), cert. denied, 455 U.S. 946 (1982); Bass v.Aransas County Zndep. Sch. Dist., 389 S.W.2d 165, 176 (Tex. Civ. App.-Corpus Christi 1965, writ refd n.r.e.) (attorney general opinion isnot bindingjudicial precedent). See also Holmes Y.Morales, 924 S.W.2d 920,924 (Tex. 1996) (attorney general opinion isnot binding on the courts). Consequently,
we may advise only about the current status of the law, which is that the Texas Supreme Court’s opinion in Znwood, as recently reaffirmed in Brooks, is dispositive of your question. See Brooks, 141 S.W.3d at 170; Znwood, 736 S.W.2d at 634-36.The Honorable Fred Hill - Page 6 (GA-0279)



### SUMMARY

A property owner may encumber real property with a covenant running with the land, which, depending on the particular instruments and circumstances involved, may be enforced by foreclosure without violating subsequent purchasers’ constitutional and statutory homestead rights. Very tr$y yours,

BARRY R. MCBEE First Assistant Attorney General
DON R. WILLETT Deputy Attorney General for Legal Counsel

NANCY S. FULLER Chair, Opinion Committee
William A. Hill Assistant Attorney General, Opinion Committee