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Click here for the full text of this decision FACTS:Kevin and Linnell Sloan are the record owners of real property located at 6935 Scenic Sunset in San Antonio, Bexar County, Texas. The property is located in Westfield Subdivision, Unit 1, which is subject to a “Declaration of Protective Covenants” that was initially executed on March 25, 1998, and properly recorded in the real property records of Bexar County, Texas. The Owners Association of Westfield assessed maintenance charges against the Sloans as owners of property in the Westfield subdivision beginning Jan. 1, 2001. The assessments were not paid. After providing the Sloans with a written demand for the unpaid amounts, the association brought suit on the debt on April 22, 2003, to recover the unpaid assessments plus costs, interest, and reasonable attorney’s fees. The association then filed a motion for summary judgment which was granted by the trial judge. The court’s order granting summary judgment included the following findings: 1. the Sloans owe mature, unpaid assessments, late fees, and attorney’s fees to the association pursuant to the declaration; 2. the association has a lien on the Sloans’ real property to secure the obligations of the Sloans; 3. the association has met all conditions precedent to the granting of the relief requested; 4. the association’s lien was created and imposed on the real property before that property acquired, or could have acquired, status as the homestead of the Sloans; and 5. the association is entitled to foreclosure on its lien and an order of sale in execution. The trial court entered judgment against the Sloans for actual damages in the amount of $1,172.82, attorney’s fees in the amount of $2,000, plus additional attorney’s fees on appeal, and pre- and post-judgment interest. The court further ordered that the association’s lien be foreclosed and granted an order of sale. HOLDING:Affirmed. The declaration provides that a lien is established to secure payment of assessed maintenance charges “together with all reasonable expenses, costs, and attorney’s fees which may be incurred in connection with the collection thereof.” The Sloans contend that, because the association had a contingent fee agreement with its counsel, the association had not “incurred” any legal expenses for which the Sloans could be held accountable. However, this court has held that, in Texas, an attorney who provides legal services to a client under a contingent fee agreement has a contractual or quantum meruit claim against that client in the event of breach. Rocha v. Ahmad, 676 S.W.2d 149 (Tex. App. San Antonio 1984, writ dism’d). Because the association is liable to its counsel for services provided, even if provided on a contingent fee basis, and because the association would be required to pay its counsel out of any proceeds received as a result of this litigation, we conclude the association has “incurred” the legal fees that are secured by the lien in this case. The Sloans contend that the homestead protection provided in the Texas Constitution prohibits foreclosure for debts such as the attorney’s fees involved here. This issue has been addressed by the Texas Supreme Court in Brooks v. Northglen Assoc., 141 S.W.3d 158 (Tex. 2004) and Inwood N. Homeowners’ Assoc. v. Harris, 736 S.W.2d 632 (Tex. 1987). In Harris, the court acknowledged the general rule that a homestead is protected against the debts of those who live in the homestead. Foreclosure of a person’s homestead may only be sought for certain types of debt specifically delineated in the constitution. However, the court in Harris held that, “when the property has not become a homestead at the execution of the . . . lien, the homestead protections have no application even if the property later becomes a homestead.” Consequently, “if the lien attached prior to the claimed homestead right and the lien is an obligation that runs with the land, there would be a right to foreclose.” Id. Here, as in Harris, the lien against the property was established years before the Sloans took possession and established their homestead rights in the property. The declaration contains a valid contractual lien which runs with the land and of which the Sloans had notice when they purchased the property. Therefore, the Sloans are subject to the lien and an order of foreclosure is proper. While Harris did not specifically address the property owners’ obligation for attorney’s fees, as is the issue in this case, the court focused on the existence of the lien prior to the homestead right being established, and on the property owners’ notice of the lien and the obligations it was intended to secure. Because all of the obligations intended to be secured by the lien in this case were included in the original declaration, and because the Sloans had notice of both the obligations and the existence of the lien at the time they purchased the property, the court concludes that foreclosure is available to the association as a remedy. OPINION:Speedlin, J.; L�pez, C.J., Marion and Speedlin, JJ.

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