Legislative Update: Let's Talk About Xeriscaping...

Now that the session of the 83rd Texas Legislature has come to a close, I have begun looking at the various bills that were passed effecting Texas Homeowners' Associations.  During the length of the regular session, approximately 55 bills related to HOAs were introduced.  I will look at a number of the bills that were passed, starting with a bill related to xeriscaping.

First we should discuss what, exactly, is xeriscaping.  Xeriscaping is a style of landscape design that requires little or no irrigation.  The style is frequently found in arid regions.  Xeriscaping is designed to conserve water and protect the environment.  In Texas, this usually means pebbled ground cover, drought-resistant and native plants, and other water-conserving natural turf.

The new law, which was proposed by Sen. Kirk Watson and Rep. Dawnna Dukes of Austin, mandates that Texas homeowners can now xeriscape their properties without being scrutinized by their homeowners association.  HOAs are still permitted to require preliminary plan approval of new xeriscaping plans, but the Association's ability to reject plans including xeriscaping is limited.

Texas Requires All Governing Documents Be Recorded!

As has been widely discussed over the past year, the 82nd Texas Legislature made many changes to the laws affecting property owners' associations (including condominiums and single-family residential HOAs). Perhaps the most important legislative mandate from this session deals with how associations must disseminate their governing documents.

Prior to January 1, 2012, it was required that a property owners association provide copies of any informative documents regarding membership in the association. Additionally, owners must be provided with documents such as the property's Declaration, any Restrictions, Bylaws, Rules and Regulations, and any other documents that help govern the establishment, maintenance, or operation of any property under the association's control.

New Texas legislation requires that all governing documents be recorded with the relevant County's Real Property Records. Pursuant to Texas Property Code Section 202.006, any governing document that is not recorded with the appropriate county by January 1, 2012 will have no force or effect. If you are a property manager or board member, this means that you should check on whether your documents have been appropriately recorded.

What Happens to Tenants in Texas When a Property is Sold at Foreclosure Auction?

The Protecting Tenants at Foreclosure Act of 2009 (“PTFA”) is a section of what is popularly called the Helping Families Save their Homes Act of 2009. Specifically, PTFA ensures that tenants who are losing their residence to foreclosure will have a sufficient period of time before being forced to leave their home. If the tenant is living at their home either without a lease or with a lease terminable at will, the immediate successor in interest (the person or entity taking over the property post-foreclosure) must give the tenant at least 90 days notice to vacate the property. If the tenant does have a bona fide lease, the immediate successor in interest must recognize the terms of the original lease. In this case, the tenant cannot be forced out of the property until the original lease expires. If the purchaser is going to use the property as his primary residence, however, the lease can be terminated with a 90-day notice period. These notice periods are designed to be the federal minimum, so they do not trump state laws that provide more time for tenants to vacate the property.


This could affect both Texas property owners associations and Texas property owners in undesirable ways. Most of the time, if there is a property owners association in place, the tenant is going to have a bona fide lease because the POA is generally not going to allow residential leases without written agreement. As a result, it is going to be difficult for the Texas POA to remove a tenant when an owner is not paying his POA dues. Even if foreclosure on the property occurs, it will, at a minimum, be three months before the tenant can be removed. This could mean that the POA will have to go even longer without receiving dues from one of the properties it governs. The Protecting Tenants at Foreclosure Act of 2009 is scheduled to sunset on December 31, 2012.