Texas bills limit HOAs power to foreclose for late dues

Homeowners associations could see their power to foreclose on families for failure to pay dues limited under several bills filed in the upcoming session of the Texas Legislature. A Dallas area HOA that foreclosed on a military family while the father was serving in Iraq sparked national outrage a couple of years ago. Michael Clauer was serving in the National Guard when his wife got behind on HOA dues. Heritage Lakes Homeowners Association foreclosed on the $300,000 home in 2008 after the family incurred an estimated $800 debt in HOA fees, according to a Mother Jones report of the case at the time. The debt later ballooned due to late fees. The house was sold at auction for about $3,200 and then resold for $135,000, according to news reports. A bill (S.B. 101) by Texas Sen. Leticia Van de Putte (D-San Antonio) amends the property code to prohibit HOAs from foreclosing on homes of military personnel on active duty. Under the bill, foreclosure notices must have a bold and conspicuous notice for military families with someone on active duty. Such families should send notice of the active duty to the sender of the foreclosure notice, according to the bill. A separate bill by Rob Orr (R-Burleson) takes things a step further. Under HB 366, a homeowners’ association would be prohibited from foreclosing on an assessed lien if the debt to the HOA consists solely of fines by the association and attorney’s fees incurred associated with the assessed fines. Payments received from property owners must be applied first to any delinquent assessment, then to any current assessment before being applied toward fines and attorney’s fees, according to the bill. Sen. Royce West (D-Dallas) filed SB 142, which would require HOAs in Texas to seek a court order to foreclose for payment of overdue HOA assessments. (Texas is a nonjudicial state in terms of foreclosure law.) West’s bill would also amend the property code to allow the buyer of a home with an HOA to receive all related HOA documents that relate to restrictions and rules on the property, including specific information about the amount and frequency of HOA payments and the style and cause numbers of any lawsuits pending against the HOA. Under the current Texas property code, HOA covenants and restrictions are recorded with the county. West’s bill also gives HOA boards more leeway in opting not to enforce covenants on a case-by-case basis, allowing variances to the rules. Examples in the bill include deciding not to pursue enforcement against violations when it’s not in the best interest of the HOA, or allowing variances to rules for extenuating circumstances, such as the topography of a homeowner’s land, which might make compliance with certain requirements difficult. In many states, HOAs can foreclose on a homeowner without a court order — and over small amounts in overdue fees. Texas HOAs have been bedeviled by allegations that they are taking advantage of the law, according to an article in July by Keith Jurow on The Real Estate Channel. “Some have even been accused of specifically targeting people who own their homes free and clear — like the Clauers did — so that they can flip the house and make a profit,” he wrote. Florida default services attorney Daniel Consuegra said in an interview with HousingWire over the summer that HOAs were getting very aggressive in pursuing overdue assessments due to deteriorating housing market conditions. On a national level, Sen. John Kerry (D-Mass.) introduced a bill to extend the ‘‘Helping Heroes Keep Their Homes Act of 2010’’ for another year. In a Dec. 22 vote, the Senate and the House approved an extension of the law through December 2012. The act was scheduled to expire at the end of this year. It protects military personnel who are on active duty from being foreclosed upon. The bill now awaits the president’s signature. Write to Kerry Curry.