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A Govt. Report
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Do 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?
An opinion by the Texas Attorney General and his staff
December 09, 2004
By
Amy McCorkle
(View author info)
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First, I met Geneva Brooks in Nevada a few years ago, myself.
The Attorney General's opinion is not law, nor does it set any legal precedent. It's an explanation of the law. He recommends that the laws be changed, which he is not authorized to do. In short he discusses Inwwod and Brook (our Miss Brooks) case as supporting Inwood.
Having read the Inwood and Brooks cases, although I'm not an attorney, what Texans are up against is a decision in the Inwood case that says a person, the developer, can create restrictions on the use of the land, covenants, that can legally bind all subsequent purchasers of the land, homeowners, as they "run with the land". I repeat, all subsequent owners are bound by these restrictions,including the oligation to pay assessments and the lien given to the HOA.
The homestead protection becomes effective when the homeowner buys the lot subject to these covenants because they already exist. The Inwood decision said the Texas Constitution's homestead protections cannot overturn prior obligations, like not allowing ex post facto laws. In effect, the constitutional execeptions didn't apply here.
THe best way of "repealing" (can't really repeal)is to create laws to get around this particular circumstance. This is really simple. Just add another clause to the statutes that specifically declares homeowner association liens subject to the Homestead laws and that the HOA lien is not exempt. Problem is, as we face all over the country, to get a bill sponsor and enough votes to pass the bill to make it law.
Posted Dec 12 2004 4:23PM CET
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George Staropoli
(View Profile)
scottsdale, Arizona |
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Could somebody please interpret that legal gobbledygook!! Does it or does it not violate the Texas Homestead Act? A simple yes or no would have been just fine, sir Attorney General. or maybe you did answer it direct and we just didn't catch on?
This is so much like those damn CCR's written in legalese. even some legal beagles have trouble understanding 'em.
How in God's name is the average Joe supposed to understand those 'covenants that run with the land'. where they goin'?
We sure do Miss Geneva Brooks. How can anybody forget her spirited speech before the Nevada Senate and how she spoke out against the Community Associations Institute and everything they represent - or should we say misrepresent?
Her colorful hat and dress, fancy shoes, and perfectly coiffed and manicured look was in strange contrast to her clenched fist as it came banging down on the table as she proclaimed loudly "Its a racket, racket, racket!".
She spoke with true passion. a pioneer before her time!!
Posted Dec 10 2004 5:45AM CET
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Username withheld
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