Sec. 201.009. PROPERTY WITHIN SUBDIVISION NOT AFFECTED BY PETITION

(a) The procedures called for under this chapter are considered complete and regular in all respects unless challenged by a declaratory judgment suit under Section 201.010.

(b) A restriction added, modified, created, or extended under this chapter does not affect or encumber property within the subdivision that is included within one of the following categories:

(1) property exclusively dedicated for use by the public or for use by utilities;

(2) property of an owner who elected in the petition to exclude the property from the restriction;

(3) property of an owner who did not sign the petition and has not received actual notice of the filing of the petition;

(4) property of an owner who did not sign the petition and who files, before one year after the date on which the owner received actual notice of the filing of the petition, an acknowledged statement describing the owner's property by reference to the recorded map or plat of the subdivision and stating that the owner elects to have the property deleted and excluded from the operation of the extended, modified, changed, or created restriction; and

(5) property owned by a minor or a person judicially declared to be incompetent at the time the certificate is filed, unless:

(A) actual notice of the filing of the petition is given to a guardian of the minor or incompetent person, and the guardian has not filed the statement described in the fourth listed category in this subsection;

(B) a predecessor in title to the minor or incompetent person signed a petition that was filed while the property was owned by the predecessor; or

(C) the incompetent person signed a petition that was filed before the judicial declaration of the person's incompetency.

(c) The county clerk shall file a statement described in the fourth listed category in Subsection (b) in the same manner as the petition and certificate. Substantial compliance by an owner with the requirements for the statement prevents the owner's property from being burdened by an extended, created, added to, or modified restriction if the statement is filed within the time required.

(d) A lienholder whose lien was established before the effective date of a petition is not bound by the petition unless the lienholder signs it and it is later filed. If such a lienholder who does not sign the filed petition later acquires title to the property in the subdivision through foreclosure, the acquisition is free of the restrictions added, modified, created, or extended by the petition. However, if any other person acquires the title to the property at a foreclosure sale, that person takes the property subject to the restriction added, modified, created, or extended by the petition, if any prior owner of the foreclosed property signed and acknowledged the petition.

(e) Notwithstanding any other provision of this chapter, property that is excluded in any manner from the operation of restrictions that are modified, added to, or created by a petition under this chapter is, unless the petition expressly provides otherwise, subject to those restrictions, if any, affecting the excluded property as the restrictions existed immediately before the effective date of the petition, and those restrictions are continued in effect to the extent originally applicable to the excluded property. After the filing of such a petition, those restrictions may be added to, modified, or extended by a specified percentage of the owners of real property interests in accordance with this chapter or the instruments evidencing the restrictions as they existed immediately before the effective date of the petition, if otherwise still applicable. Any petition filed under this chapter that creates, adds to, or modifies restrictions may provide for the subsequent addition to or extension, creation, or modification of, the resulting restrictions by a specified percentage of the owners of real property interests in the subdivision as set forth in the instruments evidencing the continued restrictions. This subsection does not abrogate, alter, affect, or impair the rights of a lienholder under Subsection (d) to not be bound by a petition adopted under this chapter when the lienholder subsequently acquires title to the excluded property through foreclosure.

Added by Acts 1985, 69th Leg., ch. 309, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 712, Sec. 5, eff. June 18, 1987.