A Short Guide to Liens in Residential Subdivision Homeowner’s Associations
Under Texas law, an HOA has the right to place a lien on a property if the property owner fails to pay assessments (dues), fees, or fines. However, whether or not an HOA can foreclose on a property is dependent on if the lien is due to failure to pay assessments. Pursuant to Texas Property Code Sec. 209.009, an HOA cannot foreclose on a lien if “the debt securing the lien consists solely of: (1) fines assessed by the association; (2) attorney’s fees incurred by the association solely associated with fines assessed by the association….”
For example, imagine a homeowner has previously failed to pay dues, but is currently up to date on their dues, and as a result of the previous missed payments, the HOA imposed fines in addition to the assessments. Because the homeowner is up to date on their assessments, even though they have not paid their fines, the HOA may not foreclose on the property. Fines and attorney’s fees alone are never grounds on which an HOA may foreclose on a property.
However, a lien on your property due only to fines or attorney’s fees levied by your HOA may still affect the sale of the property. A lien secures the payment of a debt when a property gets sold. Therefore, while the HOA cannot force the foreclosure of your property under these circumstances in order to recover the debt, a lien filed to recover fines and attorney’s fees may still require the property owner to pay off the debts pursuant to the lien before the property can be sold.
Further, your HOA must follow notice requirements set forth in the Texas Property Code in order for a lien on your property to be valid and proper. Before an HOA may file a lien with the county, they must send a homeowner two notices. The first notice may be sent by first class mail or e-mail, and the second notice must be sent by certified mail at least 30 days after the first notice.
We often receive phone calls from homeowners indicating that their HOA has placed a lien on their property, or that their property is being foreclosed on when they had no idea of any assessment or fine delinquency. If you have received a Notice from your HOA indicating a lien has been placed on your property, or that your property is being foreclosed on, it may be in your interest to contact us to ensure that the HOA is acting within their rights, or otherwise ensure that your property remains in the lawfully correct hands.
Nacol Law Firm P.C. – Dallas Texas HOA Attorneys
Disclaimer: The information provided in this article is in no way intended to constitute legal advice. The information provided is merely an overview of the relevant law. Do not act on this information. Always consult an attorney for legal advice.
Building a Fence in an HOA: What, Why, and How?
We often receive calls from frustrated homeowners who have either had their request to build a fence around their property denied by their Homeowner’s Association’s Architectural Committee, or who have been fined by their Homeowner’s Association for erecting or altering a fence around their property. While there may be some limitations to the appearance of your fence, a Texas Homeowner’s Association is prohibited from restricting your right to build a fence around the perimeter of your property.
Pursuant to Section 202.023(b) of the Texas Property Code, a Homeowner’s Association may not include or enforce any provision in their governing documents that “prevents a property owner from building or installing security measures, including but not limited to a security camera, motion detector, or perimeter fence.”
However, Section 202.023 does allow Texas Homeowner’s Associations to regulate “the type of fencing that a property owner may install.” In our extensive experience examining the governing documents of Homeowner’s Associations, these provisions typically take shape as limits to the height, material, and color of the fence. If your Architectural Committee has denied your application to build a fence on these grounds, or you have been fined because your fence is not in accord with restrictions to this effect, it is likely that they have every right to enforce those restrictions.
It is worth noting that the above referenced Section 202.023 is titled “Security Measures” within the Texas Property Code. So, while the HOA can place some restrictions on a homeowner’s fence, if those restrictions reasonably interfere with the security a fence can provide, a homeowner may have a valid objection to such a provision within an Association’s restrictive covenants, however it is important to contact a qualified attorney to make an assessment to that effect. In conclusion, if your Homeowner’s Association is limiting your ability to put up a perimeter fence for reasons other than aesthetics, it would likely be beneficial to contact The Nacol Law Firm to determine any recourse you may have.
NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization