                                    ATTORNEYGENERAL OF TEXAS
                                                GREG        ABBOTT




                                                  December 9,2004



The Honorable Fred Hill                                  Opinion No. GA-0279
Chair, Committee on Local Government
   Ways and Means                                        Re: Whether the placement of one-party foreclosable
Texas House of Representatives                           contractual liens on landby a developer that supersede
Post Office Box 2910                                     the homestead rights created in article XVI, section
Austin, Texas 78768.2910                                 50 of the Texas Constitution violates the Texas
                                                         Homestead Act (RQ-0236-GA)

Dear Representative         Hill:

        You have asked a specific question: “Whether the placement of one-party foreclosable
contractual liens on the land by the developer that supersede the homestead rights created in Article
XVI, Section 50 of the Texas Constitution violate[s] the Texas Homestead Act.“’

I.       Homestead Protection in the Texas Constitution and Statutes

         We begin by briefly reviewing Texas homestead protections from forced sale. Texas is
credited with enacting the first homestead law in 1839. See Estate ofJohnson v. Comm ‘r, 718 F.2d
1303, 1307 n.13 (5th Cir. 1983) (citing 1839 Laws of the Republic of Texas). Today, Texas’
homestead protection from creditors’ liens is found principally in article XVI, section 50 of the
Texas Constitution and chapter 41 of the Property Code. See TEX. CONST. art. XVI, 5 50; TEX.
PROP. CODE ANN. $5 41.001-,024 (Vernon 2000 & Supp. 2004-05); see&o             TEX. CONST. art. XVI,
@ 51 (defining homestead), 52 (descent and distribution). Article XVI, section 50 not only protects
a homestead from forced sale by creditors but provides that “[n]o mortgage, trust deed, or other lien
on the homestead shall ever be valid unless it secures a debt described by this section.” TEX: CONST.
art. XVI, 4 50(c). Article XVI, section 50 expressly enumerates eight exceptions to homestead
protection from forced sale: (1) purchase money security, (2) taxes due on the homestead, (3) certain
owelty on partition, ,(4) refinancing of certain liens, (5) security for improvements,      (6) certain
circumscribed extensions of credit in the nature of an equity loan, (7) reverse mortgages, and (8)
special financing concerning manufactured homes. Id. § SO(a)(l)-(S).



          ‘Letter    from Honorable Fred Hill, Chair, Committee on Local Government Ways and Means, Texas House of
Representatives,      to Honorable Greg Abbott, Texas Attorney General (June 9,2004)[hereinafter Request Letter]; Letter
from Honorable       Fred Hill, Chair, Committee on Local Government Ways and Means, Texas House of Representatives,
toNancy Fuller,     Chair, Opinion Committee, Office ofAttomeyGenera1 (July 19,2004) [hereinafter Supplemental Letter]
(both letters on    tile with Opinion Committee, also available af http://www.oag.state.6i.us).
The Honorable Fred Hill - Page 2                      (GA-0279)




         Section 41.001 of the Property Code reiterates exceptions for homestead and burial plots.
TEX. PROP. CODE ANN. 5 41.001(a)-@)         (V emon Supp. 2004-05) (listing seven of the eight
constitutional exceptions). The remainder ofchapter 41 concerns homestead issues not pertinent to
your inquiry.*

II.     Znwood North Homeowners’ Association.                Inc. v. Harris

         The Texas Supreme Court addressed in 1987 whether Texas homestead laws preclude
foreclosure of a developer’s lien for homeowners’ association fees and assessments. See generally
Inwood N. Homeowners’ Ass’n, Inc. v. Harris, 736 S.W.2d 632 (Tex. 1987). In Inwood, a
subdivision developer had filed a declaration of restrictions and covenants in local real property
records reciting that all lots in the subdivision were impressed with a covenant to pay a maintenance
fee or other assessment to a homeowners’ association or similar entity, that such covenants run with
the land, and that such covenants were secured by a lien. See Znwood, 736 S.W.2d at 633.
Individuals who thereafter purchased property in the subdivision received a deed referencing the
covenants to pay the fees and the lien against the property to secure payment.           See id. The
subdivision’s    homeowners’ association sued to recover delinquent maintenance             fees from
homeowners and sought foreclosure of liens securing the fees. Id. at 634.

         The court in Inwood acknowledged that security for homeowners’ association fees was not
a true vendor’s lien, but was instead more in the nature of a contractual lien, not among the express
constitutional exceptions to homestead protection. See id. The court observed that “[hlomestead
rights, however, may not be construed so as to avoid or destroy pre-existing rights,” and that “[i]t
has long been held that an encumbrance existing against property cannot be affected by the
subsequent impression of the homestead exception on the land.” Id. at 635.

         The court in Znwood held that an owner is free to impress property with a covenant running
with the land, and that a “developer of the subdivision, as owner of all land subject to the [developer’s]
declaration, is entitled to create liens on his land to secure the payment of assessments.” Id. at 634.
The court further determined that subsequent purchasers were bound by references in their deeds to
the covenants as well aa by all instruments in a particular purchaser’s chain of title. See id. at 635.
Because the developer had placed the restrictions on the land before it became the homestead ofthe
homeowners, the court concluded that “the homeowners were subject to the liens in question and an
order of foreclosure would have been proper.” Id. at 635-36.

        The court in Znwood stated that its decision was reinforced by the legal principle that “[a]
homestead right in real property cannot rise any higher than the right, title or interest acquired by the
homestead claimant.” Id. at 636. The court determined that the purchase of a lot in the subdivision
carried with it “as an inherent part of the property interest, the obligation to pay association fees for


           ‘See TEX. PROP. CODE ANN. $5 41.002 (Vemon 2000) (deftig         the extent of urban and ma1 homesteads),
41.003 (effect oftemporary renting), 41.004 (abandonment), 41.005 (design&n         ofhomestead), 41.0051 (advertising
regarding taxrefunds), 41.006 (limitations on certain sales), 41.007 (home improvement contract requirements), 4 1.008
(federal law conflicts), 41.021 (designation ofhomestead in aid ofjudgment), 41.022 (designation procedures), 41.023
(designation by court appointed commissioner), 41.024 (sale of excess).
The Honorable Fred Hill - Page 3               (GA-0279)




maintenance and ownership ofcommon facilities and services,” along with the concomitant remedy
of foreclosure for failure to pay those fees. Id. The court concluded that constitutional homestead
rights “will not operate to circumvent an inherent characteristic of the property acquired” and that
the homeowners’ association was entitled to foreclose its contractual lien on the houses ofdelinquent
homeowners. Id.

III.   Post-Znwood    Develonments

         In 2001, the 77th Legislature enacted the Texas Residential Property Owners Protection
Act (the “Act”). See Act ofMay27,2001,77thLeg.,          R.S., ch. 926,s 1,200l Tex. Gen. Laws 1857
(adding chapter 209 to the Property Code, codified at TEX. PROP. CODE ANN. $9 209.001-
.01 1 (Vernon Supp. 2004-05)). The Act was added “to provide guidelines for the operations of
[community] associations a well as specific protections for Texas homeowners living in association-
managed communities.”         SENATE COMM. ON STATE AFFAIRS, BILL ANALYSIS, Tex. Comm.
Substitute S.B. 507,77th Leg., R.S. (2001) (enrolled version). The Act gives owners of property a
number ofprocedural protections, including the right to redeem property following foreclosure. See
TEX. PROP. CODE ANN. $5 209.006-.Oll (Vernon Supp. 2004-05). The Act does not, however,
change the essential holdings in Znwood that (1) a property owner such as a developer may impress
the property with a covenant to pay association maintenance fees, enforceable by foreclosure, by
tiling a declaration of covenants and restrictions in the deed records, (2) a subsequent purchaser with
notice of the declaration in the purchaser’s deed and chain of title is bound by the declaration, and
(3) the subsequent purchaser’s rights that arise upon purchase do not circumvent the remedy of
enforcing the covenants by foreclosure.

        Recently, the Texas Supreme Court reiterated Znwood’s holding:

                ln Znwood, we considered whether the homestead laws of Texas
                protect a homeowner       against foreclosure     for failure to pay
                homeowners association assessments. As a general rule, ahomestead
                is protected against the debts of those who live in the homestead.
                However, the deed restrictions for the subdivision          included a
                vendor’s lien permitting foreclosure on the homestead for failure to
                pay the fee assessment. Because the property owner had notice when
                purchasing the property that a lien attached to the land, we held that
                foreclosure was permissible.

Brooks v. NortJiglen Ass ‘n, 141 S.W.3d 158,170 (Tex. 2004) (citations omitted). The court applied
the holding in Znwood to particular deed restrictions and concluded that because they did not give
notice that late fees might be imposed on assessments, such fees were not enforceable by foreclosure.
Zd. at 170-7 1.

IV.     Discussion

         The question, as specifically phrased, is “[wlhether the placement of one-party foreclosable
contractual liens on the land by the developer that supersede the homestead rights created in Article
The Honorable Fred Hill - Page 4                 (GA-0279)




XVI, Section 50 of the Texas Constitution violate[s] the Texas Homestead Act.” Supplemental
Letter, supra note 1, at 1. Although we did not locate the phrase “one-party foreclosable contractual
liens” in the constitution, statutes, or case law, we assume you refer to a developer’s unilateral
action, as in Znwood, of encumbering property by filing a declaration of restrictions and covenants,
enforceable by foreclosure. Likewise, by “Texas Homestead Act,” we assume you mean homestead
protection from forced sale by creditors in the Texas Constitution and the Property Code. See
ZnwoodN. Homeowners’Ass’n, Inc. Y. Harris, 707 S.W.2d 127,129 (Tex. App.-Houston [lst Dist.]
 1986) (referring to article XVI, section 50 ofthe Texas Constitution as the “Homestead Act”), rev’d
on other grounds, 736 S.W.2d 632 (Tex. 1987); United States Y. West, 22 F.3d 586,598 n.33 (5th
Cir. 1994) (equating the protections in section 41.001 of the Texas Property Code with the “Texas
Homestead Act”). Consequently, we address whether a property owner who unilaterally files a
declaration ofcovenants and restrictions, enforceable by foreclosure, violates subsequent purchasers’
homestead rights under article XVI, section 50 of the Texas Constitution and section 41.001 of the
Property Code.

         The Texas Supreme Court in Znwood determined that a developer may encumber real
property with a secured covenant running with the land by filing a declaration of restrictions and
covenants and that such covenants bind subsequent purchasers with notice. SeeZnwood, 736 S.W.2d
at 635-36. Because the developer’s encumbrance came into being before the purchasers acquired
constitutional and statutory homestead rights in the property, the lien could be enforced by
foreclosure.    See id. The court’s holding in Znwood, that “[hlomestead rights               may not be
construed so as to avoid or destroy pre-existing rights,” applied to homestead rights whether
under the Texas Constitution or chapter 41 ofthe Property Code. See id. at 635; see also id. at 637
(Mauzy, .I., dissenting, noting that “the legislature has tracked the Constitution” in section 41 .OOl(a)-
(b) of the Property Code). To answer your question, underlnwood and its progeny, a developer may
unilaterally encumber real property with a covenant running with the land, enforceable through
foreclosure, without violating the constitutional and statutory homestead rights of subsequent
purchasers with notice. Of course, whether particular covenants are enforceable by foreclosure
depends on the particular instruments and circumstances involved. See, e.g., Brooks, 141 S.W.3d
at 170-71 (holding that because particular deed restrictions did not give notice of certain late fees,
foreclosure was an inappropriate remedy for collecting them); Tex. Att’y Gen. Op. No. GA-0237
(2004) at 6-8 (determining that an assessment within the scope of a statutory lien could be enforced
by foreclosure only if the lien predated the attachment of a homestead interest); Tex. Att’y Gen.
LO-97-01 9, at 3-4 (determining that a property owners association’s right to foreclose on homestead
property for certain costs depends on whether the lien for such costs (1) attached to the property prior
to the homestead right and (2) resulted from a restriction that runs with the land).

         We have received extensive briefing that takes issue with the Texas Supreme Court’s analysis
and reasoning in Znwood and recommends “‘repeal’ of the Inwood law.“’ That may be good policy
and, as such, would be appropriate for the legislature to address or for the Texas Supreme Court to
consider. The attorney general’s constitutional duty to render legal advice, however, does not
include the authority to legislate or to establish bindingjudicial precedent. See TEX. CONST. art. IV,


         ‘See Brief from Harvella Jones, Texas Homeo\mers’ Advocate Group, to Nancy Fuller,    Chair, Opinion
Committee, Office of Attorney General, at 6 (July 20,2004) (on file with opinion Committee).
The Honorable Fred Hill - Page 5               (GA-0279)




5 22; TEX. GOV’T CODE ANN. 5 402.042 (Vernon 1998); see also Bullock Y. Enserch Exploration,
Inc., 614 S.W.2d 215,21X,220 (Tex. Civ. App.-Austin 1981, writ refdn.r.e.)        (an attorney general
opinion does not have the authority of a statute), cert. denied, 455 U.S. 946 (1982); Bass v. Aransas
County Zndep. Sch. Dist., 389 S.W.2d 165, 176 (Tex. Civ. App.-Corpus Christi 1965, writ refd
n.r.e.) (attorney general opinion is not bindingjudicial precedent). See also Holmes Y. Morales, 924
S.W.2d 920,924 (Tex. 1996) (attorney general opinion is not binding on the courts). Consequently,
we may advise only about the current status of the law, which is that the Texas Supreme Court’s
opinion in Znwood, as recently reaffirmed in Brooks, is dispositive of your question. See Brooks,
 141 S.W.3d at 170; Znwood, 736 S.W.2d at 634-36.
The Honorable Fred Hill - Page 6             (GA-0279)




                                      SUMMARY

                        A property owner may encumber real property with a
               covenant running with the land, which, depending on the particular
               instruments   and circumstances   involved, may be enforced by
               foreclosure without violating subsequent purchasers’ constitutional
               and statutory homestead rights.

                                            Very tr$y yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
