If you live in a house, condominium, or townhome that's part of a common interest community in Texas, you're most likely responsible for paying dues and assessments to the homeowners’ association (HOA) or condominium association (COA). If you don’t pay, in most cases the HOA or COA can get a lien on your property that could lead to a foreclosure.
Read on to learn about the particular requirements for HOA and COA foreclosures in Texas.
The Texas Residential Property Owners Protection Act (Title 11, Chapter 209 of the Texas Property Code) governs HOA activities in the state, while the Uniform Condominium Act (Title 7, Chapter 82 of the Texas Property Code) governs condominiums created after January 1, 1994, as well as condos created before this date if the governing documents state that the provisions of the Condominium Act will apply to the development.
Most HOAs and COAs have the power to place a lien on your home if you become delinquent in paying the monthly dues and/or any special assessments, collectively referred to as “assessments.” Once you fall behind in the payments, typically the lien will automatically attach to the property.
In Texas, an HOA gets the authority to collect assessments and place an assessments lien on your home primarily from its governing documents, such as such as the Declaration of Covenants, Conditions, and Restrictions (CC&Rs). COAs, on the other hand, get this right from state law. (Tex. Prop. Code Ann. § 82.102(a)(2), § 82.113). (A COA will also often include a provision in its governing documents about its right to collect assessments and place a lien on the condo if the owner falls behind in payments just to cover all bases.)
State law provides that a COA lien is automatically created when the condominium declaration (the instrument that created the condominium) is recorded. (Tex. Prop. Code Ann. § 82.113(c)). This constitutes record notice and perfection of the lien. Unless the declaration provides otherwise, no other recordation of a lien or notice of lien is required.
There is no comparable law in Texas for HOAs. So, in most cases, an HOA declaration will state that a lien is automatically created when the declaration is recorded. Many HOAs will record a notice of assessments lien in the county records as well.
Lien priority determines what happens to other liens, mortgages, and lines of credit if an HOA or COA lien is foreclosed. (To learn more about lien priority and its importance in HOA foreclosures, see What happens to my mortgages if the HOA forecloses on its lien?)
A COA lien for unpaid assessments has priority over all other liens except:
To find out the priority of an HOA lien, check the association’s governing documents. Most Texas HOA documents state that state tax liens and certain mortgages have priority over the assessments lien.
Texas law sets out the types of charges that a COA may include in the assessments lien. Unless the association’s governing documents provide otherwise, the lien may consist of:
To find out which charges an HOA may include in its lien, review the association’s governing documents.
If you default on the assessments, the HOA or COA can foreclose. A common misconception is that the association can't foreclose if you're current with your mortgage payments. However, the association’s right to foreclose has nothing to do with whether you're current on your mortgage payments. (Learn more about HOA liens and foreclosure.)
An HOA in Texas may foreclose its assessments lien:
However, the HOA may not foreclose a lien for assessments that consists solely of:
A COA may foreclose its lien judicially (by filing a lawsuit) or nonjudicially (without court supervision), except that the association may not foreclose a lien that consists solely of fines. (Tex. Prop. Code Ann. § 82.113(e)).
Texas law provides homeowners with a redemption period following an HOA or COA foreclosure in certain circumstances. (Learn more about redemption periods in Nolo’s article The Right of Redemption Following an HOA Foreclosure.)
If an HOA forecloses, the former owner may redeem (reacquire) the home within 180 days from the date the HOA mails the homeowner a post-foreclosure notice of redemption rights. (Tex. Prop. Code Ann. § 209.011(b)).
If a COA forecloses, the former owner may redeem the unit within 90 days after the date of the foreclosure sale. (Tex. Prop. Code Ann. § 82.113(g)).
To redeem the property if the HOA or COA purchases the property at the foreclosure sale, you must repay all amounts due to the association at the time of the foreclosure sale, plus interest, reasonable attorneys' fees and costs, any assessments levied after the foreclosure sale, and any reasonable costs incurred by the association, including maintenance and leasing costs. (Tex. Prop. Code Ann. § 209.011(d), § 82.113(g)).
Texas laws pertaining to HOA and COA foreclosures are complicated and extensive. If you're facing an HOA or COA foreclosure, consider talking to an attorney licensed in Texas to discuss all legal options and defenses available in your particular circumstances.