Untitled Texas Attorney General Opinion ( 1983 )


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  •                                               The Attorney         General of Texas
    October 18, 1983
    JIM MATTOX
    Attorney General
    Supreme      Court Building            Honorable Chet Brooks                      Opinion No. JM-80
    P. 0. BOX 12546                        Chairman
    Austin,    TX. 76711. 2546                                                        Re:
    Committee on Health and Human Resources          Validity of Senate
    5121475-2501
    Telex    0101674-1367
    Texas State Senate                         Bill No. 1425 amending
    Telecopier     5121475-0266            Room 412, Archives Building                article 1301a. V.T.C.S.,
    Austin, Texas   78711                      the Condominium Act
    714 Jackson.    Suite 700
    Dear Senator Brooks:
    Dallas,   TX. 75202-4506
    2141742.6944
    You inquire about the validity of Senate Bill No. 1425 of the
    Sixty-eighth Legislature. This bill amends article 1301a. V.T.C.S.,
    4624 Alberta       Ave., Suite   160   the Condominium Act. The new provisions in general require that
    El Paso, TX.       79905.2793          particular decisions about the governance of a condominium be made by
    9151533.3464
    a 67 percent or unanimous vote of the condominium ownership. Senate
    r‘
    Bill No. 1425 "applies to all condominiums in the state regardless of
    101 Texas,    Suite 700             when the condominium was created." V.T.C.S. art. 1301a, 54, Acts
    tiousto”,     TX. 77002-3111           1983, 68th Leg., ch. 724, at 4487. This language did not appear in
    7131223-5666                           earlier versions of article 1301a. V.T.C.S. See Acts 1963, 58th Leg.,
    ch. 191 at 507. The amendments are thereforeretroactive.      Compare
    JM-75 (1983).
    606 Broadway.        Suite 312
    Lubbock,     TX.    794013479
    606/747.5236                                Your question raises the issue of whether Senate Bill No. 1425
    violates article I, section 16 of the Texas Constitution, which reads
    as follows:
    4309 N. Tenth, Suite 0
    McAIIB”,     TX. 76501-1665
    5121662.4547                                     No bill of attainder, ex post facto law,
    retroactive law, or w         law impairing the
    obligation of contracts, shall be made.
    200 Main Plaza, Suite 400
    San Antonio,  TX. 76205.2797
    5121225.4191
    Article 1301a permits a property owner to establish condominium
    management on his land and building by recording with the county clerk
    the document described in section 7. _See V.T.C.S. art. 1301, 83. A
    An Equal      Opportunity/             master deed, lease or declaration, sets out provisions that locate and
    Atfirmative     Action     Employer    describe the land, each unit, other areas subject to individual
    ownership, and the common elements belonging to the project. The
    declaration must also state the percentage interest which each
    apartment bears to the entire project, and it 'may include other
    provisions or covenants. -Id. sec. 7.
    Three of the four amendments included in Senate Bill No. 1425 add
    provisions to section 7. These are sections 7B(7), 7B(8), and 7D:
    p.   338
    Honorable Chet Brooks - Page 2         (m-80)
    Section 7.
    .   .   .   .
    (B) The declaration provided for in Section 3
    shall contain . . .
    .   .   .   .
    (7) A provision that the declaration may
    only be amended at a meeting of the apartment
    owners at which the amendment is approved by
    the holders of at least 67 percent of the
    ownership interests in the condominium.
    (8) A provision that an amendment of the
    declaration may not alter or destroy a unit or
    a limited common element without the consent of
    the owners affected and the owners’ first lien
    mortgagees.
    (9) Any further provisions, matters, or
    covenants desired.
    (C)         [recording by county clerk1
    (D) After    a   condominium declaration    is
    recorded with a county clerk the declaration may
    not be amended except at a meeting of the
    apartment owners at which the amendment is
    approved by the holders of at least 67 percent of
    the ownership interests in the condominium.
    Prior to these amendments, article 1301a contained no provisions for
    amending declarations, although amending provisions could have been
    included in the declaration itself. Board of Directors of By the Sea
    Council of Co-Owners, Inc. v. Sondock, 644 S.W.Zd 774 (Tex. Civ.
    Ann. - Cornus Christi 1982. writ ref’d n.r.e.): Bill Analysis to
    Senate Bill No. 1425 prepared for House Committee on Business and
    Commerce, Legislative Reference Library.
    The other amendment to article 1301a. V.T.C.S.. adds subsection
    (b) to section 6, which now reads as follows:
    Section 6.
    (a) An apartment owner shall have an exclusive
    ownership to his apartment and shall have a common
    right to a share, with other co-owners, in the
    p. 339
    Honorable Chet Brooks - Page 3   (JM-80)
    common elements of the property. Each co-owner
    may use the elements held in common in accordance
    with the purpose for which they are intended, as
    shown on the plat or expressed in the declaration
    or the by-laws, without hindering or encroaching
    upon the lawful rights of the other co-owners.
    (b) A condominium association may not alter or
    destroy a unit or a limited common element without
    the consent of all owners affected and the first
    lien mortgagees of all affected owners.
    A "limited common element" is space or a facility reserved for the use
    of a certain number of apartments, such as a corridor. SEC.      2(m).
    The condominium association includes all apartment owners. 15A Am.
    Jur. 2d Condominiums §§13, 14 (citing Federal Housing Administration
    Model Act).    Article 1301a elsewhere uses the term "council of
    co-owners." -See §§Z(I). 13.
    Prior to the enactment of Senate Bill No. 1425, article 1301a
    included provisions neither for the amendment of the declaration nor
    for the vote required to alter or destroy a unit or limited common
    element. "Destroy" presumably means to subdivide a unit or to merge
    it with another, as well as to demolish it. If these matters were
    addressed at all, it was in the declaration or the by-laws adopted for
    the administration of the building by the owners. Board of Directors
    of By the Sea Council of Co-Owners, Inc. v. 
    Sondock, supra
    .
    The question arises as to whether Senate Bill No. 1425 may be
    constitutionally applied to unit owners whose ownership contracts
    incorporate different provisions on amending the declaration or on
    altering condominium units than those imposed by the bill. Article I,
    section 16 of the Texas Constitution prohibits the enactment of
    statutes impairing the obligation of contract and retroactive statutes
    impairing vested rights. McCain v. Yost, 284 S.W.Zd 898 (Tex. 1955);
    Spires v. Mann, 173 S.W.Zd 200 (Tex. Civ. App. - Eastland 1943, writ
    ref'd).
    The deed to each apartment must express all encumbrances against
    the property. V.T.C.S. art. 1301a. 99. Purchasers of ,condominium
    units purchase them subject to all the restrictions and conditions in
    the declaration, including provisions on the vote needed to 'amend the
    declaration or to alter or destroy a unit or common element. Board of
    Directors of By the Sea Council of Co-Owners, Inc. v. 
    Sondock, supra
    ,
    at 779-80.  Encumbrances in the declaration or by-laws become part of
    the deed. 
    Id. at 780;
    see Levine v. Turner, 264 S.W.Zd 478 (Tex. Civ.
    APP. - El Paso 1954, writdism'd).   The deed is a contract, see Manley
    v. Noblitt, 
    180 S.W. 1154
    (Tex. Civ. App. - San Antonio 1915, writ
    ref'd), and it is entitled to constitutional protection against
    p* 340
    Honorable Chet Brooks - Page 4   (JM-80)
    legislative changes of its provisions. See Hutchings v. Slemons, 174
    S.W.Zd 487 (Tex. 1943). The substantive rights and duties of parties
    are governed by the law that existed at the time the agreement was
    made. Langevvr v. Miller, 
    76 S.W.2d 1025
    (Tex. 1934), accord, Winder
    Bros. v. Sterling, 12 S.W.Zd 127 (Tex. Comm'n App. 1929, -opinion
    adopted). A sutGquent law that changes those rightsand duties'would
    violate article I, section 16. Cape Conroe Limited v. Specht, 525
    S.W.Zd 215 (Tex. Civ. App. - Houston 114th Dist.] 1975, no writ).
    Retroactive legislation which regulates property pursuant to the
    police power is valid where the public health, safety, morals or
    general welfare outweighs the interests of the individual property
    owner. Southwestern Bell v. PUC, 615 S.W.Zd 947 (Tex. Civ. App. -
    Austin 1981, writ ref'd n.r.e), pr curium, 622 S.W.Zd 82 (Tex. 1981);
    Caruthers V. Board of Adjustment, 290 S.W.Zd 340 (Tex. Civ. App. -
    Galveston 1956, no writ). No police power purpose is recited in
    Senate Bill No. 1425, and it is difficult to find that the legislation
    serves the public health, safety, morals or general welfare to an
    extent that outweighs the interests and expectations of the individual
    property owner. An existing declaration may for example include a
    provision permitting amendment by vote of the holders of 51 percent of
    the ownership interests. A change in the vote required to amend the
    declaration would serve the public interest to a vary small degree, if
    at all. The amendment instead affords protection to the smaller
    ownership interests in the condominium, which could block change if a
    two thirds or unanimous vote were required. See Scott v. Williams,
    
    607 S.W.2d 267
    (Tex. Civ. App. - Texarkana 1980, writ ref'd n.r.e.).
    We do not believe that Senate Bill No. 1425 is facially
    unconstitutional since it will have constitutional applications. It
    is, however, unconstitutional as applied to condominium deeds and
    declarations which included contrary provisions prior to the effective
    date of the bill.
    SUMMARY
    Senate Bill No. 1425 of the Sixty-eighth
    Legislative Session amending article        1301a,
    V.T.C.S., the Condominium Act, is unconstitutional
    as applied retroactively to condominium deeds and
    declarations containing contrary provisions.
    dz&
    MATTOX
    Attorney General of Texas
    p. 341
    Honorable Chet Brooks - Page 5     (JM-80)
    TOM GREEN
    First Assistant Attorney General
    DAVID R. RICHARDS
    Executive Assistant Attorney General
    Prepared by Susan L. Garrison
    Assistant Attorney General
    APPROVED:
    OPINION COMMITTEE
    Rick Gilpin, Chairman
    Jon Bible
    David Brooks
    Colin Carl
    Susan Garrison
    Jim Moellinger
    Nancy Sutton
    p. 342
    

Document Info

Docket Number: JM-80

Judges: Jim Mattox

Filed Date: 7/2/1983

Precedential Status: Precedential

Modified Date: 2/18/2017