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Summary of Legislation: This legislation allows for municipalities to place a lien on a “Homestead” to secure the payment of the repair, removal, or demolition expenses. This applies to homesteads or structures on a homestead property that are deemed substandard or in addressing certain abatement proceedings.
Notes: Applying a lien for the purpose of repairing, removing or demolishing a structure on personal property (homestead) is an overreach by government. Possession and the simultaneous use of land by a person who owns it and resides upon it makes it homestead - Wilcox v. Marriott, 103 S.W.3d 469, 472 (Tex. App. – San Antonio 2003, pet denied) & Ramsey v. Davis, 261 S.W.3d 811, 817 (Tex. App.—Dallas 2008, pet. Denied). The OAG Texas (GA-0752)2009 opinion concurs. The bill would allow municipalities to apply liens to property (where someone is currently living) and repair, demolish, or remove their private property if it is deemed substandard. Modifications should be left up to the homeowner, unless it poses an eminent and immediate threat to life and property of others due to willful gross negligence.
According to the Texas Supreme Court a lien against a homestead is never valid unless it secures payment for certain debts provided for in the Texas Constitution. Tex. Const. Article XVI, Section 50; Benchmark Bank v. Crowder, 919 S.W.2d 657, 660(Tex. 1996). However the court has also found that a property that is deemed abandoned is no longer exempt from seizure or certain abatement proceedings. England v. Federal Deposit Insurance Corp., 975 F.2d 1168, 1175 (5th Cir. 1992). This would make valid a municipal abatement or seizure of certain property; the property is the homeowners responsibility until then.
The constitution prohibits the kinds of provisionary proposals contained in this legislation because private property rights are so fundamental to our individual liberties. Furthermore, there is a significant possibility this authority will be abused. We encourage legislators to oppose this HB 2757.