Pre-Existing Assessment Liens & Homestead Protection

Dated: 10/19/2018

Views: 111

It is well established under Texas law that while the Texas Constitution's protection of Homestead may protect a Homeowner's Lot or Unit from foreclosure by certain creditors, it will not extinguish or subvert a lien that preexists the invocation of the Homeowner's Homestead status.

The issue in determining whether a HOA's Assessment Lien preempts a Homeowner's Homestead protection on his or her property is whether the HOA's Assessment Lien attached to the Homeowner's property before he or she established it as his or her Homestead. This issue is easily determined for Condominium Associations. By virtue of the Texas Uniform Condominium Act, an Assessment Lien in favor of a Texas Condominium Association is created by and attaches to the Units in the Condominium Development upon the recording of the Condominium Declaration. Thus, the Assessment Lien preempts any invocation of Homestead protection.

There is no similar Texas law applicable to Subdivision Developments. To determine when a Subdivision Association's Assessment Lien attaches to the Lots in its Subdivision Development, the provision in its Declaration creating the Subdivision Association's Assessment Lien must be examined. It must be determined whether the creation language contains words of present intent or future intent to establish an Assessment Lien. For example, where a Declaration states "by the recording of this Declaration, a lien to secure the payment of assessments is hereby created...", such present-tense language indicates that the Assessment Lien is created by the recording of the Declaration and it will preexist the Homestead protection. On the other hand, a Declaration may state "in the event an owner shall fail to pay assessment, the Association's lien shall become a continuing lien on the property..." This future-tense language suggests that the Declaration creates an immediate contractual right to place a lien on a subject Lot in the future upon the failure of the Lot Owner to pay his or her Assessments. A Texas court may determine that the HOA's Assessment Lien does not preexist Homestead protection

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Hava Johnston

The Johnston Home Team Sean and Hava Johnston operate a full service real estate team in North Dallas, specializing in residential properties, estates, investment properties, new construction, short....

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