Can a Briar Forest HOA Foreclose on an Inherited Townhome While Probate Is Still Open?

A detached house that sits empty during probate costs the estate taxes, insurance, and upkeep. A townhome or condominium in the Briar Forest and Westchase corridor costs all of that plus monthly assessments, and the association holding those assessments has collection powers that a utility company does not. The hard part is that the association’s first several moves are made by mail, to an address that belongs to someone who has died. Houston Probate Attorney Kyle Robbins explains what an association can actually do to an inherited unit in Harris County, how fast it can do it, and where a family’s leverage sits.

Key Takeaways

• Probate does not suspend assessments or the lien: the obligation is personal to the owner and secured by a continuing lien under Texas Property Code Section 82.113(a), and it keeps accruing after the death.
• The notices go to the decedent: Section 209.0094 directs delinquency notices to the address in the association’s own records, which after a death is typically an empty unit.
• A condominium association can move without filing anything: its lien is perfected by the recorded declaration under Section 82.113(c), and it may foreclose nonjudicially under Section 82.113(d) and (e).
• A subdivision association has to do more: two notices and a waiting period before filing under Section 209.0094, and generally a court order under Section 209.0092.
• Paying stops it: Section 82.113(j) lets a unit owner avoid a nonjudicial foreclosure at any time before the sale by paying all amounts due, which is what a funded closing accomplishes.
• A sale is usually the fastest exit: neither an association nor a servicer wants the unit, and an executed contract with a closing date ahead of the sale date is the strongest position an estate can be in.

The Short Answer: Probate Does Not Pause the Assessments

Families often assume that opening a probate case freezes the estate’s obligations while the court sorts things out. It does not work that way with an association.

Texas Property Code Section 82.113(a) says that an assessment levied against a unit or unit owner “is a personal obligation of the unit owner and is secured by a continuing lien on the unit and on rents and insurance proceeds received by the unit owner.” The same subsection defines “assessments” broadly, reaching regular and special assessments, dues, fees, charges, interest, late fees, fines, collection costs, attorney’s fees, and any other amount due to the association or levied against the unit, all enforceable as assessments unless the declaration says otherwise.

Two consequences follow for an estate. First, the monthly amount does not stop at the date of death, so a unit sitting empty through a nine month probate accumulates nine more months of assessments on top of whatever was already behind. Second, the number grows faster than the dues alone, because late fees, collection costs, and the association’s attorney’s fees all fold into the same enforceable total.

The Notices Go to the Empty Unit

This is the part that catches Briar Forest families, and it is a records problem rather than a legal one.

For a subdivision property owners’ association, Texas Property Code Section 209.0094 requires two notices of delinquency before an assessment lien can be filed. Subsection (d) says the first must go by first class mail “to the property owner’s last known mailing address, as reflected in records maintained by the association,” or by e-mail to an address the owner provided. Subsection (e) requires the second by certified mail, return receipt requested, to that same last known mailing address, no earlier than the 30th day after the first.

Nobody updates the association’s records when an owner dies. So the first class letter arrives at a unit no one is living in. The certified letter goes to the same place and comes back unclaimed. If the decedent gave the association an e-mail address years ago, the e-mail lands in an account no one is monitoring. The statutory notice requirements are satisfied by sending to the address of record, and the family learns about any of it much later.

For a lock-and-leave property of the kind common in the Woodlake and Briarmeadow area, this can run for months before anyone in the family connects the dots. Redirecting the association’s notice address is not a legal maneuver, it is a phone call and a letter, but it has to be made by someone the association will recognize, which brings the problem back to authority.

Condominium Foreclosure Is the Faster Track

If the inherited unit is a condominium governed by Chapter 82, the association’s position is considerably stronger than most families expect, in two specific ways.

The lien is already perfected and there is nothing to find. Section 82.113(c) provides that the association’s lien for assessments “is created by recordation of the declaration, which constitutes record notice and perfection of the lien,” and that unless the declaration provides otherwise, no other recordation of a lien or notice of lien is required. There is no lien filing to discover in the Harris County real property records, because the declaration recorded when the building was created is the lien. A family searching the county records for an encumbrance will not find a document with the decedent’s name on it.

It can foreclose without going to court. Section 82.113(d) states that by acquiring a unit, a unit owner grants the association a power of sale in connection with its lien, and that the association shall exercise that power pursuant to Section 51.002, the general Texas nonjudicial foreclosure statute. Section 82.113(e) confirms the right to foreclose judicially or nonjudicially, with one express limit worth knowing: the association “may not foreclose a lien for assessments consisting solely of fines.”

There are two further provisions an estate should have in view. Section 82.113(j) is the brake: at any time before a nonjudicial foreclosure sale, a unit owner may avoid foreclosure by paying all amounts due the association. And Section 82.113(g) is the safety net after the fact, giving the owner of a unit sold at an assessment lien foreclosure the right to redeem no later than the 90th day after the sale, on terms that differ depending on whether the association or a third party bought it. A redeemed unit remains subject to all liens and encumbrances that were on it before foreclosure.

One more detail that surprises people: under Section 82.113(l), foreclosure of a tax lien against a unit does not discharge the association’s lien for amounts that become due after the date of that tax foreclosure.

Subdivision Foreclosure Has More Steps

If the unit is a lot in a subdivision with a property owners’ association rather than a condominium, the association has to work considerably harder, and the estate has more time.

Before it can even file an assessment lien, Section 209.0094 requires the two notices described above and then a waiting period. Subsection (f) provides that the association “may not file an assessment lien before the 90th day after the date notice of delinquency was sent to the property owner under Subsection (e).” Counting the 30 day gap between the first and second notices, that is roughly four months of process before a lien instrument reaches the county records. Subsection (b) confirms that a filed assessment lien is a legal instrument affecting title to real property, so unlike the condominium situation, this one is findable in a title search.

Then comes the court. Section 209.0092(a) provides that, subject to Section 209.009 and with limited exceptions, a property owners’ association “may not foreclose a property owners’ association assessment lien unless the association first obtains a court order in an application for expedited foreclosure” under rules adopted by the Texas Supreme Court. Subsection (c) allows the owner to waive expedited foreclosure in writing at the time foreclosure is sought, and expressly provides that such a waiver may not be required as a condition of the transfer of title to real property. Subsection (d) lets an association elect instead to foreclose under a court judgment ordering the sale.

The practical read for an estate is that a subdivision association’s timeline leaves a real window, while a condominium association’s does not. Which regime applies is determined by the recorded instrument for the specific address, so that document is worth pulling before anyone makes assumptions about how much time there is.

Where the HOA Lien Sits Against the Mortgage

Heirs often ask whether the association can wipe out the mortgage, or whether the mortgage protects them from the association. Section 82.113(b) answers it for condominiums with a specific priority ladder. The association’s lien has priority over any other lien except:

• a lien for real property taxes and other governmental assessments or charges against the unit, unless otherwise provided by Section 32.05 of the Tax Code;
• a lien or encumbrance recorded before the declaration was recorded;
• a first vendor’s lien or first deed of trust lien recorded before the date the assessment being enforced became delinquent; and
• unless the declaration provides otherwise, a lien for construction of improvements to the unit, or an assignment of the right to insurance proceeds, recorded or perfected before that delinquency date.

For most inherited units the third exception controls, because the purchase money deed of trust was recorded years before anyone fell behind. That does not mean the association is powerless. It means a foreclosure by the association delivers the unit subject to the senior mortgage, which shapes who bids and at what price, and it is why associations frequently prefer to be paid from a sale rather than to foreclose.

Section 82.113(h) adds a coordination mechanism that can work in an estate’s favor. If an owner defaults, the association may notify other lienholders of the default and of its intent to foreclose, and it must notify any lienholder who has given it a written request for such notice. A mortgage servicer that learns of an impending association foreclosure often becomes a more motivated participant in working out a sale.

Can Getting the Unit Under Contract Stop the Foreclosure?

This is the question families ask once they understand the timeline, and it deserves a precise answer, because part of it is a statutory right and part of it is leverage. The two are worth keeping separate.

For a condominium, a closing that funds in time is a statutory stop. Section 82.113(j) provides that at any time before a nonjudicial foreclosure sale, a unit owner may avoid foreclosure by paying all amounts due the association. A sale that closes before the posted sale date does precisely that, because the title company pays the association’s payoff out of the proceeds at closing. The point is not that a contract stops the foreclosure. It is that a funded closing satisfies the statute, so the question becomes whether the closing date beats the sale date.

There is a probate brake, but only if the creditor opted into it. In an independent administration, Texas Estates Code Section 403.053(a)(2) provides that a creditor holding a matured secured claim is not entitled, during the administration of the estate, to exercise any contractual collection rights, including the power to foreclose, without either the prior written approval of the independent executor or court approval. That is a real restraint, and the written approval it names belongs to the executor.

The catch is in how a claim gets that status. Under Section 403.052, a secured creditor must give notice of its election to be treated as a matured secured claim within six months after letters are granted or four months after notice is received under Section 308.053, whichever is later. A creditor secured by real property must also record notice of that election in the deed records of the county where the property sits. If the creditor does not elect, elects late, or fails to record, the claim becomes a preferred debt and lien paid according to the contract, and the Section 403.053 restriction does not reach it.

Read the incentive and you can predict the behavior: a lienholder that wants to keep its power to foreclose simply will not make that election. So this is not something to count on. It is something to check, by searching the Harris County deed records for a recorded notice of election against the property. When one is there, the executor’s written approval becomes a genuine lever. In a court-supervised dependent administration the structure differs again, and Section 355.155 sets out what happens when secured property is not sold or distributed within six months of letters.

Everything else is leverage, and the leverage is real. There is no notice an attorney can send that orders a lienholder to stand down. What changes behavior is arithmetic. An association that forecloses a condominium usually takes it subject to the senior mortgage under the priority ladder above, which is a poor outcome compared to being paid in full at a closing. A servicer that forecloses acquires a unit it has to insure, maintain, and resell. Neither one wants the property. They want the money, and a signed contract with a title company, a payoff request, and a closing date shows them exactly when the money arrives.

That conversation goes better when three things are true at once: someone holds letters from the Harris County Probate Courts and can speak for the estate, there is an actual executed contract rather than an intention to list, and the closing date is in front of the foreclosure date. Associations and servicers abate collection on those facts with some regularity. They are not required to, and an estate should never plan on it as though it were a right.

This is why speed matters more than strategy here. For families who want certainty rather than a listing period, gathering multiple cash offers is usually the fastest route to a closing date, and there is no obligation attached to collecting them. A cash buyer can often close on a timeline a financed buyer cannot, which is the whole game when a sale date is posted. The estate still has to have authority to sell before anything can close, so the probate filing and the offers are best run in parallel rather than one after the other.

When the estate includes real property, the firm can advance legal fees and be repaid from the sale proceeds at closing, so an heir facing an association deadline is not asked to fund the probate while also covering assessments on a unit nobody is living in. Call for case-specific details, because pricing depends on the facts of the estate.

What an Estate Should Actually Do

The sequence that protects a Briar Forest or Westchase unit is short, and the whole thing turns on acting early rather than on any clever argument.

Pull the recorded instrument. The declaration or subdivision restrictions for the exact address, from the Harris County Clerk’s real property records, tell you whether you are on the condominium track or the subdivision track, and therefore how much time the estate has.

Get someone appointed. Letters from the Harris County Probate Courts in an independent administration, or a muniment of title order where there is a valid will and no unpaid debts other than one secured by real property, give a family member standing the association will recognize. Until then, the association is corresponding with a dead owner.

Redirect the notices immediately. Once there is authority, write to the association and its management company to change the owner’s address of record. This single step converts an invisible process into one the family can see.

Get a payoff figure and decide. Request the current balance, including late fees, collection costs, and attorney’s fees, since all of those are enforceable as assessments. Then decide whether the estate brings the account current and carries the unit, or sells. Section 82.113(j) means a condominium foreclosure can be stopped by paying all amounts due at any point before the sale, so a known number and a funding source are the whole defense.

Do not let it sit. Assessments, taxes, and insurance all keep running, and on a unit whose main value is its equity, months of delay are paid for out of the heirs’ eventual distribution. Where the estate includes real property, the firm can advance legal fees and be repaid from the sale proceeds at closing, so moving quickly does not require the family to fund the probate out of pocket. Call for case-specific details, because pricing depends on the facts of the estate.

An inherited condominium or townhome in this corridor is not a riskier asset than a detached house, but it is a faster one. The association’s clock starts at the date of death and runs whether or not anyone in the family knows about it. At Houston Probate Attorney, Harris County probate is all we do, and our office is minutes north of Briar Forest on the Katy Freeway, though most of a Harris County probate runs by Zoom and electronic filing if you would rather handle it from home.

This article is for informational purposes only and does not constitute legal advice. Every probate case is unique. Consult a licensed Texas attorney for advice specific to your situation.

Pricing Note: Any fees and price ranges shown are estimates based on typical cases. Actual costs vary depending on your unique circumstances, asset complexity, and family situation. Contact Kyle Robbins at the Houston Probate Attorney office for an exact quote.