In The Court of Appeals For the Fourth District of Texas at San Antonio

Transcription

ACCEPTED
04-16-00022-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/15/2016 9:55:32 PM
KEITH HOTTLE
CLERK
No. 04-16-00022-CV
In The Court of Appeals For the Fourth
District of Texas at San Antonio
KENNETH H. TARR,
Appellant,
v.
TIMBERWOOD PARK OWNERS ASSOCIATION, INC.,
Appellee.
On Appeal from the County Court at
Law Number 3, Bexar County, Texas
Trial Court Cause No. 2014CV02779
BRIEF OF APPELLANT
J. Patrick Sutton
SBOT 24058143
1706 W. 10th Street
Austin Texas 78703
Tel. (512) 417-5903
Fax. (512) 355-4155
jpatricksutton@jpatricksuttonlaw.com
Counsel for Appellant
Oral Argument Requested
March 15, 2016
IDENTITY OF PARTIES AND COUNSEL
Appellants:
Kenneth H. Tarr, an individual
Appellee:
Timberwood Park Owners Association,
Inc., a Texas nonprofit corporation
Counsel for Appellant:
J. Patrick Sutton
SBOT 24058143
1706 W. 10th Street
Austin Texas 78703
Tel. (512) 417-5903
Fax (512) 355-4155
jpatricksutton@jpatricksuttonlaw.com
Counsel for Appellees:
Amy M. VanHoose
Frank O. Carroll III
2800 Post Oak Blvd, 57th Floor
Houston, TX 77056
Tel.(713) 840-1666
Fax (713) 840-9404
avanhoose@rmwbhlaw.com
fcarroll@rmwbhlaw.com
Trial Court:
County Court at Law Number 3, Bexar County,
Texas, Hon. David J. Rodriguez, Presiding
i
TABLE OF CONTENTS
INDEX OF AUTHORITIES .................................................................. iv ORAL ARGUMENT IS WARRANTED ................................................ 1 STATEMENT OF THE CASE ............................................................. 1 ISSUES PRESENTED ........................................................................ 2 INTRODUCTION ............................................................................... 3 STATEMENT OF FACTS ................................................................... 4 I. Ken Tarr buys a house in Timberwood Park and later has to
rent it out ........................................................................................ 4 II. The Deed Restrictions allow leasing and short-term use ............ 5 III. The board cannot decide what double-secret minimum rental
duration should be imposed ............................................................. 7 IV. The HOA waives claims ............................................................. 8 V. The HOA runs up the score in the last inning ........................... 10 SUMMARY OF ARGUMENT ............................................................ 13 ARGUMENT ..................................................................................... 15 I. Summary Judgment Standard of Review .................................. 15 II. Texas Law Surrounding the Interpretation of Restrictive
Covenants ...................................................................................... 15 A. Restrictive covenants defined .............................................. 15 B. In general, restrictive covenants are interpreted like
contracts .................................................................................. 16 C. Texas courts struggle with what it means to "liberally
construe" deed restrictions ....................................................... 16 ii
D. Tarr's approach applies the common-law rule favoring
property rights and the statutory rule of "liberal construction"
as written ................................................................................. 22 III. The HOA waived the contention that a minimum period of
occupancy applies .......................................................................... 24 IV. Tarr prevails under every interpretation ................................. 25 A. Plain meaning: the restrictive covenants do not say what
they do not say ......................................................................... 25 B. A "liberal" construction favors short-term occupancy .......... 27 C. The common-law rule favoring property use allows STR's .. 28 D. The nature of the occupant's use, not its duration,
determines whether the use is commercial .............................. 29 E. Requiring permanent occupancy has absurd results ........... 32 F. An illustration of residential and business uses .................. 33 V. The HOA Waived Most Relief Ordered by the Trial Court ........ 35 VI. The injunction is too vague to be enforced ............................... 36 VII. Reversal and remand as to attorney's fees is warranted ........ 37 PRAYER FOR RELIEF ..................................................................... 38 CERTIFICATE OF SERVICE ........................................................... 40 CERTIFICATE OF COMPLIANCE ................................................... 40 iii
INDEX OF AUTHORITIES
Cases Applegate v. Colucci, 908 N.E.2d 1214 (Ind. Ct. App. 2009) ............. 30
Bellatti v. Holland Mortg. & Inv. Corp., 838 S.W.2d 261 (Tex.
App.—Texarkana 1992, no writ) .................................................... 25
Benard v. Humble, 990 S.W.2d 929 (Tex. App.—Beaumont 1999,
pet. denied) .......................................................................... 7, 19, 22
Benchmark Bank v. Crowder, 919 S.W.2d 657 (Tex. 1996) ............... 10
Cavazos v. Bd. of Governors of Council of Co-Owners of Summit
Condominiums, 13-12-00524-CV, 2013 WL 5305237 (Tex. App.—
Corpus Christi Sept. 19, 2013, no pet.) .......................................... 26
Cedar Oak Mesa, Inc. v. Altemate Real Estate, LLC, No. 03-1000067-CV, 2010 WL 3431703 (Tex. App. - Austin 2010, no pet.) ... 18
City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000)15
City of Pasadena v. Gennedy, 125 S.W.3d 687 (Tex. App.-Houston
[1st Dist.] 2003, pet. denied) .......................................................... 18
Double Diamond, Inc. v. Saturn, 339 S.W.3d 337 (Tex. App.—Dallas
2011, pet. denied) .......................................................................... 38
Dunn v. Aamodt, 2012 WL 137463 (W.D. Ark. Jan. 18, 2012) .......... 30
Estates at Desert Ridge Trails Homeowners' Ass'n v. Vazquez, 2013NMCA-051, 300 P.3d 736, 743 (N.M. App. Feb. 8, 2013) ............... 30
Farm Bureau Cty. Mut. Ins. Co. v. Rogers, 455 S.W.3d 161 (Tex.
2015) .............................................................................................. 12
iv
Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132 (Tex. 1994) ............... 24
G & H Towing Co. v. Magee, 347 S.W.3d 293 (Tex. 2011) ................. 35
Hodas v. Scenic Oaks Prop. Ass'n, 21 S.W.3d 524 (Tex. App. - San
Antonio 2000, pet. denied) ............................................................. 16
Holubec v. Brandenberger, 111 S.W.3d 32 (Tex. 2003) ..................... 35
Houston v. Wilson Mesa Ranch Homeowners Ass'n, Inc., 2015 COA
113, ¶ 18, 2015 WL 4760331 (Colo. App. Aug. 13, 2015) ................ 29
Kachina Pipeline Co., Inc. v. Lillis, 471 S.W.3d 445 (Tex. 2015) ...... 37
Lowden v. Bosley, 395 Md. 58 (2006) ................................................ 30
Mason Family Trust v. DeVaney, 146 N.M. 199 (2009) ..................... 30
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex.
1993) .............................................................................................. 35
Moore v. Jet Stream Investments, Ltd., 261 S.W.3d 412 (Tex. App. Texarkana 2008, pet. denied) ........................................................ 38
Mullin v. Silvercreek Condo. Owners Assoc., Inc., 195 S.W.3d 484
(Missouri Ct. App. 2006) ................................................................ 30
Munson v. Milton, 948 S.W.2d 813 (Tex. App. - San Antonio 1997,
pet. denied) ................................................................... 20, 21, 22, 29
Pilarcik v. Emmons, 966 S.W.2d 474 (Tex. 1998) ............................. 16
Pinehaven Planning Bd. v. Brooks, 138 Idaho 826 (2003) ................ 30
Rankin v. Covington Oaks Condo. Owners Ass'n, Inc., No. 04-0400861-CV, 2005 WL 3161039 (Tex. App. - San Antonio 2005, no
pet.) ......................................................................................... 15, 18
Raymond v. Hanson, 970 S.W.2d 175 (Tex. App.—Dallas 1998, no
v
pet.) ............................................................................................... 24
Roaring Lion, LLC v. v. Exclusive Resorts PBL 1, LLC, CAAP-110001072, 2013 WL 1759002 (Haw. Ct. App. Apr. 24, 2013) ........... 30
Ross v. Bennett, 148 Wash.App. 40 (Wash.Ct.App.-Div. 1 2009) ....... 30
Scott v. Walker, 274 Va. 209 (2007) .................................................. 30
Slaby v. Mtn. River Est. Resid'l Assoc., Inc., 2012 WL 1071634 (Ala.
Ct. Civ. App. March 30, 2012) ........................................................ 30
Slusher v. Streater, 896 S.W.2d 239 (Tex. App.—Houston [1st Dist.]
1995, no writ) ................................................................................. 21
Smith v. Board of Regents of the University of Houston System, 874
S.W.2d 706 (Tex. App.—Houston [1st Dist.] 1994, writ denied) .... 21
State Farm v. Pan Am, 437 S.W.2d 542 (Tex. 1969) ......................... 32
Stiles v. Resolution Trust Corp., 867 S.W.2d 24 (Tex. 1993) ............. 35
Vaughn v. Drennon, 202 S.W.3d 308 (Tex. App.-Tyler 2006) ............ 21
Webb v. Glenbrook Owners Ass'n, Inc., 298 S.W.3d 374 (Tex. App.—
Dallas 2009, no pet.) ...................................................................... 36
Wilkinson v. Chiwawa Communities Ass'n, 86870-1, 2014 WL
1509945 (Wash. Apr. 17, 2014) ...................................................... 30
Wilmoth v. Wilcox, 734 S.W.2d 656 (Tex. 1987) .......................... 16, 17
Yogman v. Parrott, 325 Or. 358 (1997) ............................................. 30
Zgabay v. NBRC Prop. Owners Ass'n, No. 03-14-00660-CV, 2015 WL
5097116 (Tex. App. - Austin Aug. 28, 2015, pet. filed) ............ passim
Statutes and Rules T.R.A.P. 43.3 .................................................................................... 38
vi
Tex Prop. Code § 209.0041 ............................................................ 6, 16
Tex. Civ. Prac. & Rem. Code § 37.009 .............................................. 37
Tex. Educ. Code § 25.001 .................................................................. 22
Tex. Educ. Code § 54.052 .................................................................. 22
Tex. Election Code § 11.001 .............................................................. 22
Tex. Fam. Code § 6.301 ..................................................................... 22
Tex. Prop. Code § 202.001 ................................................................ 15
Tex. Prop. Code § 202.003 .......................................................... 17, 27
Tex. Prop. Code § 202.004 ...................................................... 8, 10, 35
Tex. Prop. Code § 209.006 .................................................................. 7
Tex. Prop. Code § 209.007 .................................................................. 7
Tex. Prop. Code § 209.015 ................................................................ 22
Tex. Prop. Code § 82.067 .................................................................. 23
Tex. R. Civ. P. 166a .................................................................... 10, 35
Tex. R. Civ. P. 683 ............................................................................ 36
Treatises Gregory S. Cagle, Texas Homeowners Association Law (2d. Ed.
2013) .............................................................................................. 16
vii
ORAL ARGUMENT IS WARRANTED
The outcome of this case will affect the fundamental property
rights of hundreds of thousands of Texas property owners who
have no reason to believe that the phrase "residential use" imposes
a duration limit on an owner or tenant's occupancy. Oral argument
is therefore warranted.
STATEMENT OF THE CASE
Nature of the case:
A subdivision's restrictive covenants allow
both leasing and short-term occupancy
without limitation. The 2014 HOA board
began fining Tarr for short-term leasing.
Trial court:
Hon. David J. Rodriguez, County Court at
Law Number 3, Bexar County, Texas.
Course of
proceedings:
The homeowner filed a DJ action to declare
that the restrictive covenants do not
restrict leasing by duration. The HOA did
not continue to pursue fines or an
injunction by counterclaiming. On crossmotions for summary judgment, the trial
court granted the HOA's motion and denied
the homeowner's.
Disposition below:
The trial court declared that the deed
restrictions bar short-term leases. It also
went beyond the DJ that the homeowner
pled, entering a judgment against the
homeowner for breach of restrictive
covenant and entering a permanent
injunction. (App. 0001).
1
ISSUES PRESENTED
Whether the trial court erred in granting the defendant
HOA's motion for summary judgment and denying the plaintiff
homeowner's. Specifically:
1. If deed restrictions allow both short-term occupancy and
renting, do they bar short-term renting?
2. If deed restrictions allow an owner to lease, do they
require owner-occupancy?
3. If a party never pled or asserted a claim, can the party
get a judgment on that claim?
4. Is a permanent injunction
transient" rentals too vague?
2
against
"temporary
or
INTRODUCTION
The result here will affect the fundamental property rights of
many thousands of Texans. The trial court imposed an unspecified,
mandatory minimum period of residency on homeowners and
renters based solely on the requirement of "residential use," the
most basic and prevalent deed restriction extant. But "residential
use" does not give fair notice to owners and buyers that a
minimum duration for occupancy or leasing applies, much less
what the minimum duration is.
If "residential use" has forbidden short-term occupancy all
along, then countless property owners have been violating deed
and zoning restrictions unwittingly and for decades. Property
owners who invested in land because of the lack of any duration
limits on occupancy will get punished by vengeful HOA boards for
activities
the
property
owners
had
no
idea
violated
deed
restrictions and ordinances. The trial court's decision, if upheld,
will wreak havoc on settled property rights and make Texas the
sole state that has judicially confiscated property owners' right to
occupy and rent homes for short-terms in the absence of clear and
specific restrictive covenants limiting occupancy by duration.
3
STATEMENT OF FACTS
I. Ken Tarr buys a house in Timberwood Park and
later has to rent it out
In 2012, Ken Tarr bought the single-family home at 26331
Romance Point in the Timberwood Park subdivision of San Antonio
and began living there with his family. In 2014, he was transferred
to Houston, whereupon he began renting out the San Antonio
house for 7 days or less. 1 He has no particular, fixed intent
concerning the duration of rentals or his own future use and
occupancy of the home. CR389-390, 434.
Tarr leases the San Antonio house to natural persons for use
as a dwelling. He leases out the entirety and not individual rooms.
There is no business office, leasing office, signage, or any other
indicator of a commercial activity occurring on the property. Tarr
provides no concierge or guest services to his tenants. The home
has no traffic or maximum occupancy beyond what is ordinary and
reasonable for a residence and consistent with zoning ordinances.
Tarr pays state and local occupancy taxes applicable to rentals of
less than 30 days. CR389-90, 434-435. The record contains zero
evidence that anyone has ever complained about -- or been
adversely affected by -- Tarr's rentals.
1
This brief refers to these as "short-term rentals" or "STR's."
4
II. The Deed Restrictions allow leasing and
short-term occupancy
Timberwood Park owners have been leasing out their
properties since 1979. CR389, 494. The deed restrictions imposed
that year provide that each property is "held, sold and conveyed
only subject to" the restrictions. App. 0011, CR412 (emphasis
added). Further, they state that "[a]ll tracts shall be used solely
for
residential
purposes,"
as
distinguished
from
"business
purposes"; they do not, however, define either phrase. App. 0011,
CR412 (emphasis added). 2
The
deed
restrictions
contemplate
short
durations
of
occupancy by allowing "[s]ervants quarters and guest houses . . . to
the rear of the permanent residence." App. 0011, CR412. The
HOA's policies, consistent therewith, recognize the rights of
"guests" and "tenants." CR423. The HOA board itself has admitted
that "there is no provision in any section of the Timberwood
restrictions that limits use by duration." CR847 (response to Tarr
motion to reopen summary judgment hearing); compare Zgabay v.
NBRC
Prop.
Owners
Ass'n,
No.
03-14-00660-CV,
2015
WL
5097116, at *3 (Tex. App. - Austin Aug. 28, 2015, pet. filed) (deed
restrictions imposed maximum duration of 6 months on certain
kinds of occupancy, but no minimum duration).
The deed restrictions do not mention leasing, much less
This brief refers to "deed restrictions" and "restrictive covenants"
interchangeably.
2
5
regulate it or differentiate it from owner-occupancy in any respect.
The 2014 HOA board admitted in discovery that the absence of any
prohibition means that leasing is allowed, conceding that owneroccupancy is not required. CR393-394, 494-495 (App. 24a-b ). As
noted above, the HOA's written policies likewise acknowledge the
permissibility of leasing. CR389, 421-423. The 2014 board also
admitted in binding discovery responses that the deed restrictions:
• do not require owners to occupy their own homes;
• do not treat owners differently than tenants; and
• do not impose a different minimum duration on a
tenant's use than on an owner's use.
CR393-394; CR494-496 (RFA 12, 16, 23). This logically equates to
an admission that no minimum period of occupancy is required of
anyone.
Separately, the deed restrictions forbid the construction of
multi-family buildings: "[n]o building, other than a single family
residence containing not less than 1,750 square feet . . . and
having not less than 75% of its exterior ground floor walls
constructed of masonry . . . shall be erected or constructed on any
residential tract." App. 0011, CR412. 3
Finally, the deed restrictions provide that they may be
amended by a majority of the owners. App. 0014, CR415; see Tex
Prop. Code § 209.0041 (statutory requirement of 67% vote to
However, the same provision does allow separate "servants quarters
and guest houses," as already mentioned.
3
6
amend unless deed restrictions allow a lesser percentage). There is
no record of any attempt by the board or the owners of the
subdivision to amend the deed restrictions to impose a minimum
duration on home rentals.
III. The board cannot decide what double-secret
minimum rental duration should be imposed
The 2014 board fined Tarr for violations of the restrictive
covenants and ordered him to stop engaging in free commercial
speech all over the world. App. 0015, CR462; App. 0019, CR464.
The board asserted that STR's and internet advertising are
prohibited because short durations of occupancy transform a home
into a business. The board did not provide any specific minimum
duration, however. Nor did the board assert that anyone had ever
complained or been harmed by Tarr's rentals.
The board has been all over the map as to what minimum
duration applies:
• At Tarr's administrative appeal, the board said 6-9
months was the minimum permissible rental period. App.
0022, CR502 (transcr. p. 12); see Tex. Prop. Code §§
209.006, 209.007 (HOA due process). It based that position
on a 1999 decision of the Beaumont Court of Appeals,
Benard v. Humble, 990 S.W.2d 929, 931 (Tex. App.—
Beaumont 1999, pet. denied). App. 0018, CR506. The
Benard decision, however, imposed a minimum lease
period of 90 days, not 6-9 months.
7
• In a subsequent court hearing, the HOA again relied on
Benard but now claimed that the minimum lease period
was 30 days. 2RR8. It still didn't believe the case it was
relying upon.
• At summary judgment, the HOA finally settled on
"permanent" as the minimum duration for a lease,
arguing that the U.S. Constitution (no less) determines the
meaning of the Timberwood Park restrictive covenants.
CR492, 515, 598-99; 3RR44.
IV. The HOA waives claims
Tarr
filed
suit
seeking
a
declaration
that
the
deed
restrictions do not impose duration limits on leasing. CR8, 299. 4
The HOA answered with a general denial but did not continue its
crusade for fines and a gag order by counterclaiming. CR21; see
Tex. Prop. Code § 202.004 (statutory basis for claim for breach of
restrictive covenant).
On cross-motions for summary judgment, the parties clashed
over what "residential use" and "business use" mean. CR382, 509.
The board argued that short durations of use transform a home
into a business, though the board was relying on things that shortterm leases and long-term leases have in common. CR514. One
such feature was Tarr's formation of an LLC to manage his
rentals, as if that were unique to short-term rentals. CR516. Tarr
4
Tarr's appeal does not pursue certain other claims.
8
responded by pointing out that if the registration of an LLC to a
residence address was the standard for determining business use,
then most of the board's 2014 directors were running prohibited
businesses from their homes as evidenced by their official company
filings. CR635.
The board also argued that a home does not qualify as a
"residence" if the occupant does not stay there permanently, an
inverse way of arguing that a home is a business unless it is
permanently occupied. CR515, 599. Tarr offered the board's
binding discovery admissions that neither an owner nor a tenant is
required to occupy a home for any minimum period:
Request for Admission 12: You do not contend that an
owner of a tract or property at Timberwood Park Unit
III is required to personally occupy his or her own tract
or property.
Response: . . . Admit.
Request For Admission No. 16. You do not contend
that the restrictive covenants place a different minimum
duration on a residential owner’s personal occupancy of
a tract or property than on a tenant’s occupancy of that
residential tract or property.
Response: Admit.
Request For Admission No. 23. You do not contend
that the restrictive covenants regulate a residential
tract owner’s leasing differently than that owner’s
personal use.
Response: Admit. 5
5
CR394, 496-497; App. 24a-c.
9
The board never did assert a claim for breach of restrictive
covenant or seek an injunction before the close of the summary
judgment evidence. 3RR43; see Tex. Prop. Code § 202.004; Tex. R.
Civ. P. 166a(c); Benchmark Bank v. Crowder, 919 S.W.2d 657, 663
(Tex. 1996) (summary judgment evidence deadline; late evidence is
not evidence at all). Furthermore, not only did the HOA not assert
that Tarr had violated the construction requirement that homes be
built as "single family residences," but the board had already
expressly disclaimed in written discovery that it was placing any
reliance on the "single family residence" wording:
Response to Interrogatory 3: [T]he Association's
defense is not presently based on the “single-family”
definition, but rather, the “residential purpose” definition. 6
V. The HOA runs up the score in the last inning
The trial court denied Tarr's MSJ and granted the HOA's,
informing the parties of its decision in separate phone calls.
CR852-859; 3RR5-6. The HOA thereafter, at the trial court's
request,
submitted
a
proposed
order
that
declared
STR's
impermissible and ordered a permanent injunction. 3RR39, 43.
Before the order was signed, the Third Court of Appeals
decided an identical case, holding that "residential use," without
more, does not bar STR's. See Zgabay v. NBRC Prop. Owners
Ass'n, No. 03-14-00660-CV, 2015 WL 5097116, at *3 (Tex. App. -
6
CR394, 492.
10
Austin Aug. 28, 2015, pet. filed). 7 Because Timberwood Park,
acknowledging that the two cases were identical, had actually
modeled its proposed judgment on the trial court judgment that
Zgabay reversed, 3RR41, Tarr asked the trial judge to reopen the
summary judgment hearing to consider Zgabay, CR658. The HOA
opposed that request, insisting that the only issue left for the court
to decide was the form of the judgment, not substantive matters.
CR845. The trial court agreed and informed Tarr that it had
already ruled on the cross-MSJ's. 3RR5-6. Tarr therefore filed a
motion for reconsideration based on the new case authority; the
HOA did not file a response. CR669.
The trial judge set a hearing on the entry of judgment, to
which Tarr added his motion for reconsideration. CR843-844. At
the hearing, Tarr argued the wisdom of Zgabay and objected to the
HOA's proposed order, including the grant of unpled injunctive
relief and the vagueness of the injunction. 3RR10-13, 39-41. The
HOA conceded that it had never pled for an injunction and agreed
to take it out. 3RR43. But then the HOA started asserting that
Tarr had violated the restrictive covenants by renting his home for
"multi-family" use. 3RR17-20, 22-23, 26-27, 42-44. Tarr objected to
this claim as unpled and the evidence as improper. 3RR31-32.
The trial judge took under advisement the form of the
Undersigned counsel represents homeowner Zgabay. "Zgabay" is
pronounced "sky-bye." The HOA's petition for review in that case is
fully briefed, but briefs on the merits have not been requested.
7
11
judgment and Tarr's motion to reconsider. The HOA submitted a
new proposed order granting the HOA's MSJ and denying Tarr's.
The new proposed order:
• declared that a home is not a residence unless
occupied permanently;
• included another permanent injunction, which
again failed to state what minimum number of
days constituted a permissible minimum period of
occupancy;
• found that Tarr had violated the deed restrictions
by renting for short terms and for "multi-family"
use; and
• awarded attorney's fees to the HOA. 8
The trial judge signed and entered this order.* The order
reserved
the
amount
of
the
attorney
fee
award
for
later
determination. See Farm Bureau Cty. Mut. Ins. Co. v. Rogers, 455
S.W.3d 161, 163 (Tex. 2015) (finality does not hinge on magic
words where attorney fee issues remain). At a subsequent hearing,
the trial court determined the amount of the fees and entered an
order that recited finality.
Tarr timely appealed the combined two orders as jointly
constituting the final judgment. CR875. The HOA did not apply to
the trial court for additional relief or file a cross-appeal. CR6.
CR861.
* Tarr reserves for his Reply the order's applicability to "heirs" and "successors."
8
12
SUMMARY OF ARGUMENT
The deed restrictions allow both leasing and short-term
occupancy with no other limitations. The HOA has admitted as
much. Thus, short-term rentals are allowed no matter what
interpretive standard is employed since the deed restrictions are
clear.
The HOA's preferred "liberal" interpretation, which gives
effect to the overarching "purposes and intent" of deed restrictions,
favors property rights in this case because the deed restrictions
allow
both
leasing
and
short-term
occupancy.
A
"liberal"
interpretation does not mean that an HOA board's interpretation
always wins, as the board believes. App. 0020, CR500 (transcr. pp.
2-4). It means that the restrictions have to be read as a whole.
The board is flailing. It says 30 days is the minimum lease
term, then it says forever is the minimum lease term. It says no
minimum period of occupancy is required, then says permanent
occupancy is required. It concedes that leasing is allowed because
not expressly prohibited, then says that leasing is prohibited
because not expressly allowed. It admits that an injunction is
improper, then doubles down on the injunctions. It pleads no
counterclaims, then ambushes Tarr with counterclaims after the
evidence has closed. It insists that the evidence has closed, then it
proffers new evidence. The board is floundering because nothing in
the deed restrictions bars short-term rentals.
13
Furthermore, every argument the board makes that shortterm rentals are a "business use" applies equally to long-term
rentals. Thus, if short-term rentals are barred, then long-term
rentals are too. Since the board has conceded that long-term
rentals are allowed, it has no basis for contending that short-term
rentals are not. In any event, the activities of ordinary tenants at
a rental property do not render a home a business enterprise, and
none of the 14 other states that have looked at this issue have held
otherwise. Doing so would confiscate property rights.
Injunctive relief was improper. The HOA never sought any
injunction. In any event, an injunction that bars "temporary or
transient" rentals while also requiring "permanent" occupancy is
too vague. Even if an injunction is proper, the mandatory
minimum duration should be clarified so that Tarr and other
owners can avoid inadvertent violations. The various statutory
minimum "residency" (though not "leasing," specifically) periods
range from zero to a year, so there are many to choose from. But in
the end, there is no principled basis for choosing one statute's
minimum residency period over another's.
If Tarr prevails on appeal on his declaratory judgment claim,
the case should be remanded as to attorney's fees since the award
of fees to the HOA will no longer be equitable and just. In any
event, the judgment has to be vacated in part since the HOA never
pled a counterclaim or sought an injunction.
14
"The right of individuals to use their property in whatever
manner they desire remains one of the most fundamental
rights an individual property owner possesses." 9
ARGUMENT
I. Summary Judgment Standard of Review
When both parties move for summary judgment, each bears
the burden of establishing its entitlement to judgment as a matter
of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351,
356 (Tex. 2000). The court must review the summary judgment
evidence presented by both parties and determine all questions
presented. Id. The Court should render the judgment that the trial
court should have rendered, or remand if issues remain or if
neither party has met its summary judgment burden. Id.
II. Texas Law Surrounding the Interpretation of
Restrictive Covenants
A. Restrictive covenants defined
Restrictive covenants are private agreements that restrict
property uses. Rankin, 2005 WL 3161039, at *2 A restrictive
covenant is "any covenant, condition, or restriction contained in a
dedicatory
instrument,
whether
mandatory,
prohibitive,
permissive, or administrative." Tex. Prop. Code § 202.001(4).
Restrictive covenants are mini-constitutions establishing locallocal government and describing the scope of individual owners'
Rankin v. Covington Oaks Condo. Owners Ass'n, Inc., No. 04-0400861-CV, 2005 WL 3161039, at *2 (Tex. App. - San Antonio 2005, no
pet.).
9
15
property rights. See generally Gregory S. Cagle, Texas Homeowners
Association Law §§ 1.4.1, 9.1 (2d. Ed. 2013).
In subdivisions, developers create the restrictive covenants,
but the homeowners can then amend them by direct vote. Id. §
11.5; see Tex Prop. Code § 209.0041 (minimum vote percentage
requirements); CR415 (¶ 17, amendment clause of Timberwood
Park restrictive covenants).
B. In general, restrictive covenants are interpreted
like contracts
The parties agree that the normal rules for contract
construction apply to restrictive covenants. Pilarcik v. Emmons,
966 S.W.2d 474, 478 (Tex. 1998). The court's primary task is to
determine the intent of the framers. Wilmoth v. Wilcox, 734
S.W.2d 656, 658 (Tex. 1987). The entire document must be given
effect so that none of its provisions are rendered meaningless.
Hodas v. Scenic Oaks Prop. Ass'n, 21 S.W.3d 524, 528 (Tex. App. San Antonio 2000, pet. denied).
C. Texas courts struggle with what it means to
"liberally construe" deed restrictions
Everything beyond the general rules of interpretation is
disputed by the parties, though the dispute is ultimately academic
on the facts of this case, as will be seen.
16
1. Two standards: common-law "liberal
construction"
and
statutory
"strict
construction" to favor property rights
Until 1987, if there was any doubt or ambiguity as to the
meaning of restrictive covenants, they were construed by the court
(1) to favor property rights and (2) against the party seeking
enforcement. Id. The 1987 Wilmoth case reflects the traditional
standard:
. . . [C]ovenants restricting the free use of land are not
favored by the courts, but when they are confined to a
lawful purpose and are clearly worded, they will be
enforced. Davis v. Huey, 620 S.W.2d 561 (Tex.1981). All
doubts must be resolved in favor of the free and
unrestricted use of the premises, and the restrictive
clause must be construed strictly against the party
seeking to enforce it.
734 S.W.2d at 657 (holding that a "double-wide," in 1980's
parlance, was clearly what the drafters meant by "house trailer" in
the early 1960's). 10
Uncertainty began in 1987, when the legislature enacted a
cryptic rule that "[a] restrictive covenant shall be liberally
construed to give effect to its purposes and intent." Tex. Prop.
Code § 202.003. But what does "liberal" mean? Is the common law
rule that favors property rights superseded? What if the deed
restrictions' overarching purposes aren't clear? The legislature
The same property-rights-oriented interpretive standard applies to
city ordinances, which regulate local property use the same way
restrictive covenants do. City of Kermit v. Spruill, 328 S.W.2d 219, 223
(Tex. Civ. App. 1959, writ refused n.r.e.).
10
17
didn't answer these questions, though nothing suggests that the
legislature meant to strangle property rights. See generally City of
Pasadena v. Gennedy, 125 S.W.3d 687, 693-95 (Tex. App.-Houston
[1st Dist.] 2003, pet. denied).
The courts have thus struggled to determine what § 202.004
means and how it should be reconciled with the common-rule
favoring the free use of land. See id. at 693-95 (collecting and
analyzing cases, asking Texas Supreme Court to intervene); Cedar
Oak Mesa, Inc. v. Altemate Real Estate, LLC, No. 03-10-00067-CV,
2010 WL 3431703, at *3 (Tex. App. - Austin 2010, no pet.)
(concluding that the standards coexist).
This Court has not addressed the issue but has consistently
recited the two standards together, suggesting that, like the Third
Court, it sees no conflict. See, e.g., Rankin v. Covington Oaks, 2005
WL 3161039, at *2.
2. The two standards as applied to short-term rentals
Short-term rentals specifically have generated a split among
the courts as to how to interpret the blanks or ambiguous terms in
deed restrictions. The issue as framed by HOA's is whether the
naked, undefined phrase "residential use" limits leasing -- but not
owner-occupancy, apparently -- according to duration. And not just
duration, but minimum duration as opposed to maximum duration.
A 1999 Beaumont case said it does, indicating it was giving
precedence to the statutory "liberal" standard without explaining
18
what "liberal" means or why a "liberal" construction restricts
rather than enlarges property rights. See Benard, 990 S.W.2d at
931. The Benard court proceeded to import into the private deed
restrictions -- which were silent as to duration limits on either
owner-occupancy or tenant-occupancy -- a minimum residency (not
leasing, specifically) standard from the family code. Id. The
statute required someone to "reside" in Texas for 90 days before
filing for divorce. Id. (The Benard court rejected using a voting
eligibility statute that required "no specific length of time" for
residency status. Id.). The Benard wrote a deed restriction by fiat,
declaring that "residential use" forbids a tenant "resident" -- but
apparently not an owner "resident" -- from occupying a home for
less than 90 days. In the Benard court's view, a "liberal"
construction means inserting into deed restrictions a specific
minimum-residency period from an unrelated statute so as to
restrict property rights.
The recent Zgabay memorandum opinion of the Austin Court
of Appeals rejects that activist approach and honors property
rights if deed restrictions aren't clear. See 2015 WL 5097116, at
*3. In Zgabay as in Benard, the deed restrictions did not define
"residential use" or regulate leasing by duration. Rejecting both
parties' contentions that the deed restrictions were clear, the
Third Court said that the statutory "liberal" rule of interpretation
did not apply because there was ambiguity. Id. Applying solely the
19
common-law rule favoring property use, it concluded that the deed
restrictions did not limit leasing according to duration. Id.
3. This Court has not settled on an approach
The
one
decision
of
this
Court
involving
STR's
and
"residential use" wording is inconclusive and factually inapposite.
See Munson v. Milton, 948 S.W.2d 813, 816 (Tex. App. - San
Antonio 1997, pet. denied). First, it sidestepped the common-law
rule altogether by giving conclusive weight to the parties'
stipulation that the deed restrictions were clear. Second, the deed
restrictions had language that suggested to the Court some intent
to regulate occupancy according to duration -- i.e., “[m]otel, tourist
courts, and trailer parks shall be deemed to be a business use.” Id.
Finally, Munson was not a decision on the merits; it merely upheld
a temporary injunction. No final decision on the merits was ever
reported.
Separately, Munson is troubling in two respects. First, it fails
to give clear guidance on what specific minimum duration applies
to leasing, stating only that "temporary" or "transient" occupancy
is barred. Id. at 817. Yet paradoxically, in doing so, it relies on
cases construing statutes containing specific durations. (See
discussion below). By contrast, the recent Zgabay case faulted the
trial judge for "injecting ambiguity into its ruling" by not providing
a
numerically-specific
minimum
leasing
duration.
2015
WL
5097116 at n. 3. Munson should be faulted for the same thing.
20
Injunctions (and declarations) have to be clear so that people can
comply. See Vaughn v. Drennon, 202 S.W.3d 308, 316-317 (Tex.
App.-Tyler 2006) (injunction was invalid because unclear). With
Benard extant and the HOA in this case veering from 30 days to
forever as the minimum lease duration, it is impossible for a
homeowner like Tarr to know how many days or months
constitutes the mandatory minimum lease term.
Second, Munson is also troubling because the cases it relies
on come from a different factual context. They were decisions
construing the minimum residency period that any citizen, and not
just a tenant, has to satisfy to obtain a right or a benefit, such as
public education or the right to vote. 948 S.W.2d at 816 (citing
Smith v. Board of Regents of the University of Houston System, 874
S.W.2d 706, 712 (Tex. App.—Houston [1st Dist.] 1994, writ
denied), and Slusher v. Streater, 896 S.W.2d 239, 243 (Tex. App.—
Houston [1st Dist.] 1995, no writ)). The deed restriction cases,
however, do not implicate any question whether an owner or
tenant qualify for a right or benefit (to vote? to get a free
education?) by residing in a home for a minimum period. The
question in such cases is whether the deed restrictions limit
leasing by duration, yes or no.
In addition, the Smith and Slusher cases that Munson relied
on afford no basis for a court to zero in on a tenant's minimum
period of occupancy as distinguished from an owner's. Both a
21
tenant and an owner "reside" in a home for purposes of qualifying
for in-state tuition or divorce. Why would a minimum period of
"residency" apply solely to tenants and not to owners?
Finally, as the Benard court noted but chose to gloss over,
any number of Texas statutes contain minimum residency periods,
anything from zero to a year. Compare, e.g., Tex. Educ. Code §
25.001(d), (f) (no minimum residency requirement for K-12 public
schools) and Tex. Election Code § 11.001 (no minimum time for
eligibility to vote) with Tex. Fam. Code § 6.301 (6 mos. in Texas
plus 90 days in county to divorce) and Texas Educ. Code §
54.052(a) (one year to qualify for in-state college tuition rates).
Besides these statutes, there is at least one statute specifically
targeted at HOA's, and it defines "residential purpose" expressly,
with no limit on duration. See Tex. Prop. Code § 209.015(a)(2). In
the end, however, there is no rational basis for ripping from the
statutory
context
a
minimum
lease
term
for
private
deed
restrictions, nor even anything in those laws distinguishing owner
"residents" from tenant "residents." The statutes are all irrelevant
to what the drafter of the deed restriction meant.
Thus, whatever the merits of Munson in trying to give effect
to deed restrictions that expressly defined motels as "businesses,"
the decision is in other respects inconclusive, factually inapposite,
or logically unsound. This Court should take a fresh look at the
issues implicated in cases like this following the Zgabay decision.
D. Tarr's approach applies the common-law rule
22
favoring property rights and the statutory rule of
"liberal construction" as written
In
the
trial
court,
Tarr
proposed
an
approach
that
harmonizes the statutory and common-law rules by applying them
literally. As written, they have different objectives:
• The statutory rule is a general rule that applies to a
set of restrictive covenants as a whole.
• The common-law rule, by contrast, applies specifically
to "uses," which is one subset of the several kinds of
provisions in a "declaration of covenants, conditions,
and restrictions."
Texas law already recognizes "uses" as a subset of restrictive
covenants requiring special protection from majority tyranny. See
Tex. Prop. Code § 82.067(e) (changes to use restrictions require a
100% vote of condominium owners). 11 Furthermore, the commonlaw rule is expressly intended to interpret a single, particular
"restrictive clause," and expressly not the deed restrictions as a
whole. The specificity of the rule safeguarding the unrestricted use
of property thus affords a doctrinal basis for applying that rule to
the exclusion of the more general, statutory rule.
There
is
precedent
for
differentiating
the
rules
of
interpretation this way. It is well-established that a specific rule of
law for a given subject matter controls over a general one. See
Raymond v. Hanson, 970 S.W.2d 175, 178 (Tex. App.—Dallas 1998,
Condos are prone to trying to ban leasing outright, thwarting the
expectations of buyers who purchased with a leasing right in place. The
Property Code protects these owners by blocking such changes in use if
one owner objects.
11
23
no pet.); see also Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132,
133-34 (Tex. 1994) (parallel rule in contract interpretation
context). Thus, the rule favoring free and unrestricted use, being
specific to uses being restricted by particular clauses, trumps the
rule of liberal construction, which is a general rule applicable to
all "covenants, conditions, and restrictions" in a subdivision
declaration. See, supra at II.A., p. 15 (definition of "restrictive
covenant" encompasses various things). Such a rule would resolve
disputes over property rights in a way consistent with Texas'
unique property-rights-oriented history and precedent, but as to
other HOA matters, such as assessments, architectural standards,
insurance, and HOA administration, the common-law rule favoring
property rights would not apply at all.
III. The HOA waived the contention that a
minimum period of occupancy applies
The HOA admitted in discovery that: (1) the deed restrictions
place no minimum period of occupancy on owners and (2) the deed
restrictions treat owners and tenants the same as regards
occupancy. 12 Ergo, the deed restrictions impose no minimum period
of occupancy on tenants. The HOA has waived any contention that
a minimum duration of occupancy applies to either owners or
tenants.
The
HOA's
other
principal
argument
has
a
different
In one filed submission, the HOA stated: ". . . there is no provision in
any section of the Timberwood restrictions that limits use by
duration." CR847 (emphasis in original).
12
24
emphasis. It focuses on whether STR's are, affirmatively, a
prohibited "business use" owing to various features of such rentals,
rather than the negative assertion that a home does not qualify as
a "residence" absent "permanent" occupancy. The HOA relies on
different bodies of law for the two arguments.
IV. Tarr prevails under every interpretation
The parties' dispute over the rules of interpretation applicable
to restrictive covenants turns out to be irrelevant. Tarr prevails
under any of the rules.
A. Plain meaning: the restrictive covenants do not
say what they do not say
The Timberwood Park restrictive covenants do not mention
leasing, much less diff ere ntiate it from owner-occupancy or impose
duration limits on it. See fn. 12, supra. Some restrictions do, and
some even require owner-occupancy, ruling out leasing completely.
See, e.g. Bellatti v. Holland Mortg. & Inv. Corp., 838 S.W.2d 261,
262 (Tex. App.—Texarkana 1992, no writ). 13 Other declarations
comprehensively
regulate
leasing
and
restrict
its
duration
separately from an owner's own occupancy rights. See Cavazos v.
Bd.
of
Governors
of
Council
of
Co-Owners
of
Summit
Condominiums, 13-12-00524-CV, 2013 WL 5305237, at *1 (Tex.
Some condominiums mandate owner occupancy (and impose leasing
caps) because the FHA won't provide loans to condos with less than 50%
owner-occupancy. Guidelines accessed at:
http://portal.hud.gov/hudportal/documents/huddoc?id=41551_4_secB.pdf.
13
25
App.—Corpus Christi Sept. 19, 2013, no pet.) (owners amended
restrictions to impose 30-day min. lease period). It is not too much
to ask of deed restrictions that they be clear concerning something
as important as leasing rights.
Moreover, to the extent the deed restrictions in this case do
reference duration, they expressly allow guest houses, which are a
"temporary" kind of occupancy. The only thing that can be said for
certain is that the drafter thought about short-term occupancy and
blessed it. Accordingly, the plain meaning of the restrictive
covenants is that they impose no duration limits on owner or
tenant occupancy and affirmatively bless short-term occupancy.
The HOA runs smack against its own admissions in trying to
impose a minimum duration by negative inference. The HOA
admitted in discovery that the reason leasing is allowed is that it
is not expressly prohibited. Yet the HOA simultaneously maintains
that short-term leasing is somehow prohibited because it is not
expressly allowed. The HOA cannot have it both ways concerning
the same subject matter. Consistent with the HOA's own rule that
what is not prohibited is allowed, all durations of leasing (and
owner-occupancy) are allowed because none are prohibited. That
accords
with
the
deed
restrictions'
prefatory
wording
that
subdivision property is "held, sold and conveyed only subject to"
the restrictions, which establishes the principle that whatever is
not forbidden is allowed. CR412 (emphasis added).
26
Were the Court to decide that silence as to the duration of
occupancy amounts to a ban on one subset of occupancy -- leasing - then the Court would have to write an elaborate new provision
into the restrictive covenants. Yet that would still beg the question
why
short-term
durations
are
disfavored
when
the
deed
restrictions don't disfavor such terms and affirmatively allow
guest houses. And even if this Court does agree with Benard that
resort to an unrelated statute is warranted, the statutes that
contain residency requirements run the gamut from zero to a year;
there is no rational basis for choosing one statute over another.
B. A "liberal" construction favors short-term occupancy
The HOA's position seems to be that "liberal construction"
means that the party seeking enforcement always wins. That's not
what the rule says. The rule requires examining the deed
restrictions as a whole to discern their overarching "purposes and
intent." Tex. Prop. Code § 202.003. HOA boards come and go, but
the deed restrictions stay the same -- unless amended by a vote of
the owners, which the Timberwood Park owners haven't done. The
meaning of the text does not change according to the caprices of
HOA boards or individual owners.
Were the overarching intent of the deed restrictions to favor
permanent
occupancy,
they
would
either
mandate
owner-
occupancy or else express a preference for owner-occupancy over
lease occupancy, or for long-term occupancies over short terms.
But there is no such wording, and the deed restrictions bless
27
temporary occupancies by allowing guest houses. They do not
specifically address or target leasing, nor in any respects
differentiate or prioritize owner-occupancy from lease-occupancy.
The overarching intent of the deed restrictions is to place leasing
and owner-occupancy on the same footing and to favor temporary
uses.
"Liberal"
in
the
context
of
Timberwood
Park's
deed
restrictions means "the free and unrestricted use of property."
C. The common-law rule favoring property rights
allows STR's
There is no daylight between this case and Zgabay. The deed
restrictions and fact pattern are identical:
Zgabay
Timberwood Park
"properties in the subdivision are
only to be used 'for single family
residential purposes.'" Zgabay,
2015 WL 5097116, at *1
"[a]ll tracts shall be used solely for
residential
purposes"
as
distinguished
from
"business
purposes"
"residential purposes": not defined
"residential purposes": not defined
"the covenants do not provide any
minimum term for which a
property may be leased but do
address the use of a temporary
structure such as a mobile home, a
barn, or a garage as a residence."
Id. at *2.
"[s]ervants quarters and guest
houses may be constructed . . . to
the
rear
of
the
permanent
residence."
"leasing
of
homes
was HOA admits that leasing is
contemplated by the drafters and allowed because not expressly
is
permissible
under
the prohibited
covenants" Id. at *2.
28
Zgabay
Timberwood Park
Homeowner
moves
out
of Homeowner
moves
out
of
subdivision but continues to rent subdivision but continues to rent
the home when not using it
the home when not using it
These two cases contrast with this Court's Munson case, where an
express definition of prohibited "business uses" included transient
uses and afforded some basis for a temporary injunction, if not
necessarily a decision on the merits. Munson, 948 S.W.2d at 817.
Accordingly, if this Court agrees with the rule in Zgabay, and
concludes that there is doubt or ambiguity, then the common-law
rule favoring the free use of land applies, and Tarr prevails.
Likewise, if the Court approves of Tarr's proposed rule, where the
common-law rule applies when a "use" is at issue, Tarr prevails.
D. The nature of the occupant's use, not its duration,
determines whether the use is commercial
The deed restrictions do not define "residential use" or
"business use," but the HOA has argued that STR's are always a
business use. That argument does not survive even minimal
scrutiny.
Of the 14 other states that have addressed whether STR's are
a "business use" owing to duration, the cases are unanimous that
they are not:
• Houston v. Wilson Mesa Ranch Homeowners Ass'n,
Inc., 2015 COA 113, ¶ 18, 2015 WL 4760331 (Colo.
App. Aug. 13, 2015)
• Wilkinson v. Chiwawa Communities Ass'n, 86870-1,
29
2014 WL 1509945 (Wash. Apr. 17, 2014)
• Roaring Lion, LLC v. v. Exclusive Resorts PBL 1,
LLC, CAAP-11-0001072, 2013 WL 1759002 (Haw. Ct.
App. Apr. 24, 2013)
• Estates at Desert Ridge Trails Homeowners' Ass'n v.
Vazquez, 2013-NMCA-051, 300 P.3d 736, 743 (N.M.
App. Feb. 8, 2013)
• Slaby v. Mtn. River Est. Resid'l Assoc., Inc., 2012 WL
1071634 (Ala. Ct. Civ. App. March 30, 2012)
• Dunn v. Aamodt, 2012 WL 137463 (W.D. Ark. Jan. 18,
2012)
• Mason Family Trust v. DeVaney, 146 N.M. 199 (2009)
• Ross v. Bennett, 148 Wash. App. 40 (Wash. Ct. App. Div. 1 2009)
• Applegate v. Colucci, 908 N.E.2d 1214 (Ind. Ct. App.
2009)
• Scott v. Walker, 274 Va. 209 (2007)
• Lowden v. Bosley, 395 Md. 58 (2006)
• Mullin v. Silvercreek Condo. Owners Assoc., Inc., 195
S.W.3d 484 (Missouri Ct. App. 2006)
• Pinehaven Planning Bd. v. Brooks, 138 Idaho 826
(2003)
• Yogman v. Parrott, 325 Or. 358 (1997).
These cases all hold that a particular duration of occupancy does
not transform what is otherwise a use residential in character to
one commercial in character.
Of the various arguments in this and the reported cases
asserting that STR's are a "business use," none manage to identify
anything that differentiates short-term rentals from long-term
30
rentals apart from the mere fact of a duration difference:
Leasing attribute
Long-term
leases
Short-term
leases
Owner need not occupy the property
√
√
Tenant has sole and exclusive
possession during lease term
√
√
Owner earns rental income
√
√
Owner may be entity (LLC, Inc., etc.)
√
√
Owner uses a property manager
√
√
Neither owner nor tenant operates a
profit-making concern upon the property
(hair salon, oil refinery, real estate
office, hotel concierge desk)
√
√
Property is advertised for rent
√
√
√
√
√
√
√
√
Tenants do not have as much at stake as
owners in home and neighborhood
preservation
√
√
Tenants sometimes behave badly
√
√
Occupants use the property in the
manner of a residential dwelling -eating, sleeping, playing on the
swingset, cocktails on the patio, bingewatching Game of Thrones, increasing
the human population, etc.
Maximum-occupancy limits are
respected (e.g., Tex. Prop. Code § 92.010
- max. of 3 adults per bedroom)
Tenant can have a birthday party or
guest sleepover
If these attributes do not bar long-term rentals, they logically
cannot bar short-term rentals. Put another way, if these attributes
bar short-term rentals, they bar all rentals: leasing would become
illegal all over Texas because "residential use" bars an owner from
31
earning rental income! The proposition is absurd on its face.
E. Requiring permanent occupancy has absurd results
The trial court reasoned that ''residential" equates to
"occupy[ing] a place over a substantial period such that it is
permanent rather than temporary." App. 0004; CR864. If that's the
standard, then the Tarrs themselves, who now have a different
homestead in Houston but still own the San Antonio home, are
perpetually in violation of the deed restrictions because they do
not reside in their second home permanently! (The Zgabays were
in the same boat, see supra at 28 (table).) That would impose an
owner-occupancy
requirement
even
though
the
declarations
conspicuously lack any such requirement and affirmatively favor
temporary occupancy in guest houses and servants quarters. See
State Farm v. Pan Am, 437 S.W.2d 542, 545 (Tex. 1969)
(conspicuous omission denotes intent to exclude). The Tarrs would
be forced to establish the Timberwood Park home as their primary
residence even though their Houston residence has the same
“residential use” restriction! In fact, however, since there's no
requirement that an owner has to occupy his dwelling at all,
temporarily or permanently, there was no basis for the trial court
to single out lessees for a minimum residency requirement.
32
F. An illustration of residential and business uses
A diagram helps show why statutes imposing minimum
"residency" have no bearing on whether private deed restrictions
regulate the duration of a use. In the Venn bubbles below, salient
kinds of property occupants are shown doing the things they
customarily do. In the "residential" bubble are natural persons
who sleep, eat, watch TV, swim in the pool, etc. These comprise
owners, tenants, and guests, any of whom might occupy the
premises for any duration.
In the "business" bubble are both open-and-obvious and
invisible business activities. A business tenant may be operating a
gun shop or dry cleaners, which is open and obvious. In instances
where a residential occupant has a home office, the diagram shows
that as a business use with "no external indications of business
use." There's no evidence in this case that Tarr's tenants have
engaged in any kind of business enterprise, nor evidence that Tarr,
who lives in Houston, operates a going concern out of the
residence. If his merely being a landlord rendered the home a
"business," then leasing would be illegal everywhere.
33
(In this illustration, residential owners and tenants do not
have overlapping occupancy, which reflects the evidence in this
case that Tarr rents out the entirety of his house. However,
decided cases allow owner/tenant cohabitation. See, e.g., Cockrell
v. Matlock, No. 10-07-00283-CV, 2009 WL 2462654, at *5 (Tex.
App.-Waco 2009, no writ) (incidental renting of rooms by owneroccupant is not forbidden under common deed restrictions).)
34
V. The HOA Waived Most Relief Ordered
by the Trial Court
The trial court erred in granting relief that the HOA waived or
never sought timely. Rule 166a(c) "unequivocally restrict[s] a trial
court's summary judgment ruling to issues raised in the motion,
response, and any subsequent replies." Stiles v. Resolution Trust
Corp., 867 S.W.2d 24, 26 (Tex. 1993). Issues that a non-movant
contends defeat summary judgment must be expressly presented
by written response. McConnell v. Southside Indep. Sch. Dist., 858
S.W.2d 337, 341 (Tex. 1993). Granting a summary judgment on a
claim not addressed in the summary judgment motion is reversible
error. G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex.
2011).
Separately, a permanent injunction “must not grant relief
which is not prayed for nor be more comprehensive or restrictive
than justified by the pleadings, the evidence, and the usages of
equity.” Holubec v. Brandenberger, 111 S.W.3d 32, 39 (Tex. 2003).
The summary judgment order of November 6, 2015 grants
relief beyond a declaratory judgment, which is the only pled claim.
The trial court found violations of the deed restrictions even
though the HOA never pled breach of restrictive covenant or
pursued it at summary judgment. See Tex. Prop. Code § 202.004
(statutory basis for breach of restrictive covenant claim). Yet
Paragraph 1 of the summary judgment order finds that "Plaintiff
is operating a business" and "is accordingly in violation of the deed
35
restrictions." Paragraph 2 finds violations for "multi-family"
rentals. Page 4 of the order contains permanent injunctions
relating
to
the
purported
violations,
requiring
Tarr
to
"immediately cease operating a business," prohibiting "rentals to
multi-family parties," and forbidding "temporary or transient"
rentals. App. 0001-0002.
The above findings, claims, and injunctions were not sought
at summary judgment or otherwise pled; they are improper and
must be vacated. The HOA admitted on the record at the December
17, 2015 hearing on entry of judgment that any order granting an
injunction was improper. Thus, the HOA expressly waived the
granting of any such relief. In addition, the HOA expressly took
the position in a written submission that nothing was at issue at
the December 17, 2015 hearing on entry of judgment except the
form of the order. Thus, the HOA waived any argument that the
December 17 hearing was a continuation of the March 20, 2015
hearing on the parties' cross-motions for summary judgment.
In summary, the only substantive relief that the trial court
could grant in the November 6 order was declaratory relief.
VI. The injunction is too vague to be enforced
An injunction has to be clear to be enforceable. Tex. R. Civ. P.
683; see generally Webb v. Glenbrook Owners Ass'n, Inc., 298
S.W.3d 374, 384 (Tex. App.—Dallas 2009, no pet.). The trial court's
permanent injunction bars "temporary or transient" rentals while
requiring "permanent" occupancy. This formulation is too vague
36
even if this Court determines that short-term rentals are
prohibited. Tarr cannot tell whether 5, 10, 30, 90, 180, or 270 days
is a minimum rental term, putting him at risk of violating the
injunction and for further legal action and civil penalties.
The trial court erred in not providing specific guidelines on
minimum rental duration. Thus, the injunction should be:
• vacated as moot if the Court renders judgment for
Tarr on his DJ claim; or
• modified if the court determines there to be a
specific number of days constituting a minimum
residency, occupancy, or lease duration; or
• reversed, vacated, and remanded for modification
by the trial court to declare a minimum number of
days.
VII. Reversal and remand as to attorney's
fees is warranted
Both parties pled for discretionary "equitable and just"
attorney's fees under the DJ Act, Tex. Civ. Prac. & Rem. Code §
37.009. CR307 (Tarr); CR22 (HOA). Tarr's MSJ was partial and
reserved his attorney fee claim; he never put in evidence. CR382,
408-409; 4RR30. The HOA sought final summary judgment and
attorney's fees. The trial court awarded trial and contingent
appellate fees to the HOA, though it did not expressly determine
that such an award was equitable and just. In any event, an award
of attorneys' fees following a reversal on the merits is probably no
longer equitable and just. Kachina Pipeline Co., Inc. v. Lillis, 471
S.W.3d 445, 455 (Tex. 2015); see also Moore v. Jet Stream
37
Investments, Ltd., 261 S.W.3d 412, 432 (Tex. App. - Texarkana
2008, pet. denied).
If Tarr prevails on appeal on his claim for a declaratory
judgment that leasing is not restricted by duration, then the
award of attorney's fees and costs to the HOA should be remanded
for the trial court to revisit what is equitable and just. See Double
Diamond, Inc. v. Saturn, 339 S.W.3d 337, 347 (Tex. App.—Dallas
2011, pet. denied) (trial court determines fees for a DJ).
PRAYER FOR RELIEF
This Court should reverse the trial court's judgment and
render judgment for Tarr on his claim for declaratory judgment
that the restrictive covenants do not prohibit rentals or occupancy
according to duration. T.R.A.P. 43.3; see Double Diamond, 339
S.W.3d at 347 (rendering judgment is appropriate upon reversal of
a DJ on uncontested facts). In that event, the trial court's
judgment for breach of restrictive covenant and entry of a
permanent injunction become moot. The award of attorney's fees
and
costs
to
the
HOA
should
be
remanded
for
renewed
consideration by the trial judge if the appeals court vindicates
Tarr's case.
If judgment is not rendered for Tarr on his declaratory
judgment claim, the trial court's findings of breach of restrictive
covenant should still be vacated since the HOA never pled such
claims. Tarr does not request a remand as to attorney's fees should
38
this be the result.
Likewise, if judgment is not rendered for Tarr on his
declaratory judgment claim, the injunction should be vacated
because it was never pled or sought as further relief incident to
the declaratory judgment. If the injunction is not vacated, then it
should be modified to state what specific period of time renders
occupancy in a home a "residential use." so that Tarr and other
property owners know their rights, including whether they are
required to maintain permanent residence in every property they
own in order for each such property to be considered "residential."
Tarr does not request a remand as to attorney's fees should this be
the result.
Respectfully submitted,
/s/ JPS
J. Patrick Sutton
Texas Bar No. 24058143
1706 W. 10th Street
Austin Texas 78703
Tel. (512) 417-5903
Fax. (512) 355-4155
jpatricksutton@
jpatricksuttonlaw.com
Attorney for Appellant
39
CERTIFICATE OF SERVICE
I certify that on March 15, 2016, per T.R.A.P. 6.3(b), a true
and correct copy of this brief was served by efiling and email on:
Amy M. VanHoose
Frank O. Carroll III
TBA No. 24082785
Houston, TX 77056
(713) 840-1666
Fax: (713) 840-9404
avanhoose@rmwbhlaw.com
fcarroll@rmwbhlaw.com
/s/ J. Patrick Sutton
Attorney for Plaintiff-Appellant
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R.
App. P. 9.4(e) because it has been prepared in Century Schoolbook
14-point for text and 12-point for footnotes. Spacing is expanded
by .6 point for clarity. This document also complies with the wordcount limitations of Tex. R. App. P. 9.4(i), if applicable, because it
contains 8000 words, excluding any parts exempted by Tex. R.
App. P. 9.4(i)(1).
/s/ J. Patrick Sutton
Attorney for Plaintiff-Appellant
40
No. 04-16-00022-CV
In The Court of Appeals For the Fourth District
of Texas at San Antonio
KENNETH H. TARR,
Appellant,
v.
TIMBERWOOD PARK OWNERS ASSOCIATION, INC.,
Appellee.
On Appeal from the County Court at Law
Number 3, Bexar County, Texas
Trial Court Cause No. 2014CV02779
APPENDIX TO BRIEF OF APPELLANT
0001 Order on cross-MSJ's
0007 Order on attorney's fees
0011 Restrictive Covenants
0015 HOA notice of violation of 7/29/14
0017 HOA internal emails re: STR's of 08/14-09/14
0019 HOA notice of denial of administrative appeal of 9/17/14
0020 Transcript of HOA administrative hearing of 9/2/14
0024 HOA discovery answers
0025 Tex. Prop. Code § 202.001
0026 Tex. Prop. Code §§ 202.002, 202.004
0027 Tex. Prop. Code § 209.0041
0028 Tex. Educ. Code § 25.001
0030 Tex. Educ. Code § 54.052
0031 Tex. Educ. Code § 11.001
0032 Tex. Fam. Code § 6.301
0033 Tex. Prop. Code § 209.006
0035 Tex. Prop. Code § 209.007
0036 Tex. Prop. Code § 209.0041
0037 Zgabay v. NBRC Prop. Owners Assoc., Inc., No. 03-14-00660-CV,
2015 WL 5097116 (Tex. App. - Austin 2015, pet. filed)
0044 Munson v. Milton, 948 S.W.2d 813 (Tex. App. - San Antonio 1997,
pet. denied)
0050 Benard v. Humble, 990 S.W.2d 929 (Tex. App.—Beaumont 1999,
pet. denied)
0054 Tex. Prop. Code § 209.015
'
.
CAUSE NO. 2014CV02779
§
§
§
§
§
§
KENNETH H. TARR
v.
TIMBERWOOD PARK OWNERS
ASSOCIATION, INC.
=
ORDER GRANTING DEFENDANT TIMBERWOOD PARK OWNERS
ASSOCIATION, INC.'S MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
The Court considered Defendant Timberwood Park Owners Association, Inc.'s
(the "Association") Traditional Motion for Summary Judgment and Plaintiff
Kenneth H. Tarr's ("Plaintiff') Motion for Partial Summary Judgment (collectively
"Motions").
After considering the Motions, Pleadings, Responses, Replies (if any), the
evidence properly before the Court, and arguments of counsel, the Court is of the
opinion that the Defendant's Traditional Motion for Summary Judgment is good
and should be, and hereby is, in all things GRANTED while Plaintiffs Partial
Motion for Summary Judgment should be, and hereby is, in all things DENIED for
the following reasons.
1)
Restrictions
The Court finds that the Declaration of Covenants, Conditions and
for
Timberwood
Park
Owners
Association,
Inc.
contains
an
unambiguous prohibition against business uses on residential lots. The Court finds
that Plaintiff is operating a business on his residential lot, and is accordingly in
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
861
PAGE 1 OF5
Appeal Appendix 0001
violation of the deed restrictions. For this reason, Defendant's summary judgment is
GRANTED.
2)
In addition, or in the alternative, the Court finds that Plaintiff is
renting his property for short terms to parties that are not individuals or singlefamilies. These "multi-family" short-term rentals are a violation of the Declaration
of Covenants,
Conditions
and
Restrictions
for
Timberwood
Park
Owners
Association, Inc. 1 For this reason, Defendant's summary judgment is GRANTED.
3)
In addition, or in the alternative, the Court finds that Plaintiff is
subject to the
Declaration of Covenants,
Conditions and Restrictions for
Timberwood Park Owners Association, Inc., and that the applicable provisions of
the restrictive covenants are not ambiguous. While it is the Court's duty to
determine the intent of the drafter of the covenants, the Court must do so by
balancing the statutory requirement to liberally construe language within
restrictive covenants with the common law mandate to strictly construe restrictive
clauses in real estate instruments resolving all doubt in favor of the free use of real
estate. 2
The key word central to the instant dispute from within the subject covenants
is the word "residential." Common law authorities whose opinions are controlling
upon this Court from the United States and Texas Supreme Courts along with the
3rd
Court of Appeals in Austin hold, for various purposes and reasons, that a
1
The Court notes that these "multi-family" short-term rentals place this case outside of the holding of
cases such as Zgabay v. NBRC Property Owners Association.
2 See generally, Bernard v. Humble, 990 S.W.2d 929, 930 (Tex.App.-Beaumont 1999, writ refd
n.r.e.) (noting the invariable legal conflict).
862
PAGE20F5
"residence" is a place occupied over a substantial period such that it is permanent
rather than temporary, evidenced by one's physical presence simultaneous with a
then-existing intent to remain.3
Although the legislature has assigned differing minimum lengths of time (i.e.
30 days to 6 months) that a person might obtain some various benefit or avoid some
various consequence, the Texas Supreme Court held in Mills, supra, that for a
purpose of residency under the Texas Election Code "no specific length of time [is
required] for the bodily presence to continue." 4 The San Antonio Court of Appeals,
albeit in construction of a more specific set of covenants than are at issue here,
noted the well-recognized distinction in Texas law between a permanent residence
and temporary housing. 5 Without ascribing any specific length of time or brightlined rule, the San Antonio Court modified the lower court's injunction enjoining a
homeowner from "renting and/or leasing [the subject] property to the public for
lodging, vacation and recreation purposes" to prohibit "renting and/or leasing [the
subject] property to the public for temporary or transient housing purposes." 6
Based upon the existing and proper summary judgment record, the Court
finds
that the
Declaration of Covenants,
Conditions and Restrictions for
Timberwood Park Owners Association, Inc., created and filed in 1979, allow
3 See generally, Martinez v. Bynum, 461 U.S. 321, 103 S.Ct. 1838, 1843, 75 L.Ed.2d 879 (1983)
("Although the meaning may vary according to context, 'residence' generally requires both physical
presence and an intention to remain."), Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex. 1964) ("Neither
bodily presecnce alone nor intention alone will suffice to create the residence, but when the tow
coincide at that moment the residence is fixed and determined."); Howell v. Mauzy, 899 S.W.2d 690,
697 n. 9 (Tex.App.-Austin 1994, writ denied) (residence is a fixed place of abode occupied
substantially enough to become permanent).
4 Mills, supra at 637.
5 Munson v. Milton, 948 S.W.2d 813, 816-17 (Tex.App.--San Antonio 1997, writ deniedJ.
6 I d. At 815 & 817.
863
PAGE 30F5
-
property to be rented or leased for residential purposes consistent with the
then-existing common law understanding and meaning of that word at that time.
Thus, the Court declares that, within the Declaration of Covenants, Conditions and
Restrictions for Timberwood Park Owners Association, Inc., to be "residential"
means to occupy a place over a substantial period such that it is permanent rather
than temporary evidenced by one's physical presence simultaneous with a then·
existing intent to remain. Plaintiffs short-term rentals are not consistent with the
"residential" restriction contained within the Declaration of Covenants Conditions
and Restrictions for Timberwood Park Owners Association, Inc. For this reason,
Defendant's summary judgment is GRANTED.
It is therefore ORDERED that Plaintiff immediately cease operating a
business on his residential lot. This applies to Plaintiff, or his tenants, assigns,
heirs or successors.
It is further ORDERED that Plaintiff, nor his tenants, assigns, heirs or
successors, shall allow or cause the Property to be rented, sub-rented, leased or
subleased for short-term rentals to multi-family parties.
It is further ORDERED that neither Plaintiff, nor his tenants, assigns, heirs
or successors, shall allow or cause the Property to be rented, sub-rented, leased or
subleased to any person or the public for temporary or transient purposes.
It is further, ORDERED that Plaintiff takes nothing against Defendant and
that all claims asserted by Plaintiff are denied and all costs of court be taxed
against Plaintiff.
864
PAGE40F5
..
It is further, ORDERED that Defendant recover from Plaintiff reasonable
and necessary attorney's fees to be determined at a later hearing.
It is further, ORDERED that all relief sought herein which is not expressly
granted is denied, with the exception of Defendant's attorneys fees.
Signed this{p_ day
orli~~ ~ 2015.
865
PAGE50F5
Frank 0. Carroll III
TBA No. 24082785
MIA B. LORICK
TBA No. 24091415
Houston, TX 77056
Tel: (713) 840-1666
Fax: (713) 840-9404
avanhoose@rmwbhlaw .com
fcarroll@rmwbhlaw .com
mlorick@rmwbhlaw .com
ATTORNEYS FOR DEFENDANT
ASSOCIATION, INC.
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PAGE60F5
~
CAUSE NO. 2014CV02779
KENNETH H. TARR
§
§
v.
§
§
§
§
ASSOCIATION, INC.
IN THE COUNTY COt&Rrg
~ ~en""
COUNTY COURT AT LAW~. :k~~
M
CD
rl>CJ
:-·- ::a.:::;;
:· ..:~~
x.J..:.
BEXAR COUNTY, T¥A~;?2
-
ORDER GRANTING DEFENDANT TIMBERWOOD PARK OWNER&:.
ASSOCIATION, INC.'S ATTORNEYS FEES
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TO THE HONORABLE JUDGE OF SAID COURT:
The Court considered Defendant Timberwood Park Owners Association, Inc.'s
("Defendant") Attorney's Fees. The Court, having considered the Defendant's
Attorney's Fees, response, pleadings and arguments of counsel, if any, is of the
opinion that Defendant should be awarded Attorney's Fees. It is therefore,
ORDERED that Plaintiff Kenneth H. Tarr ("Plaintiff') is to pay Defendant
attorney's fees in the amount of $
>"4 ()I./C)
~
within 45 days of the
execution of this Order. It is further,
ORDERED that if Plaintiff unsuccessfully appeals this judgment to an
intermediate court of appeals, Defendant will additionally recover reasonable fees
and expenses in the amount of $
/7, @
j
for anticipated fees and
expenses for the defense of the appeal. It is further,
ORDERED that if Plaintiff unsuccessfully appeals this judgment to the Texas
Supreme Court, Defendant will additionally recover reasonable fees and expenses in
the amount of$/2 . ~
I
for anticipated fees and expenses for the defense
of the appeal. It is further,
ORDER GRANTING DEFENDANT'S ATI'ORNEY'S FEES
871
PAGE 1 OF4
ORDERED that if Plaintiff unsuccessfully appeals t · ·
gment to the Texa&
Supreme Court, Defendant will additionally recover reasonable fees and expenses in
-~-
the amount of $_ _ _---::?'"""'--~--~-- for anticipated fees and expenses for the
e petition for review stage in the Supreme Court of Texas. It is
furt
,
~
ORDERED that if Plaintiff unsuccessfully appeals this jgdgmtfiitto the Texas
~-
--------
'().
Supreme Court, Defendant will additionally re...oover-reasonable fees and expenses in
~-/
the amount of $
_...-
~
~-
for anticipated fees and expenses for the
~/~
~
representation at
e merits briefing stage in the Supreme Court of Texas. It is
ORDERED that if Plaintiff unsuccessfully appeals t~i_s_ j_uA~e Texas /
----------~
Supreme Court, Defendant will additionally_r.~co-ver-reasonable fees and expenses in
the amount of $____....,......____-··_·_
.,-< ____ .----~
for anticipated fees and expenses for
representatio~-~gh oral argument and the completion of proceedings in the
Supr~rt of Texas. It is further,
ORDERED that Defendant recovers post-judgment interest on all of the
above at the rate of 5%, compounded annually, from the date this judgment is
entered until all amounts are paid in full.
All motions not herein granted are denied. All relief not herein given 1s
denied. This is a final and appealable order.
ORDER GRANTING DEFENDANT'S ATTORNEY'S FEES
872
PAGE20F4
,L ,
\..
Signed thij_
?_cl'-( (IJ ~777
r:..Y o/ll;k:!_~015.
ORDER GRANTING DEFENDANT'S ATI'ORNEY'S FEES
873
PAGE30F4
APPROVED AND ENTRY REQU STED:
Frank 0. Carroll III
TBA No. 24082785
MIA B. LORICK
TBA No. 24091415
Houston, TX 77056
Tel: (713) 840-1666
Fax: (713) 840-9404
avanhoose@rmwbhlaw .com
fcarroll@rmwbhlaw .com
mlorick@rmwbhlaw .com
ATTORNEYS FOR DEFENDANT
ASSOCIATION, INC.
ORDER GRANTING DEFENDANT'S ATTORNEY'S FEES
874
PAGE40F4
•
•
•
AL'G·ZJ;-i9 111 11 6 z
LS-I
9.00
?521.3
·THE STAT£ OF TEXAS I .
COUKTY OF
BEXAR I ·
TIMBERWOOD DEVELOPMENT COMPANY, herein called declarant, fs the owner
in fee simple of certain real property located in Bexar County, Texas, and, known
·by official plat designation as TIMBERWOOD PARK, UNIT III, a Subdivision, pursuant
to a plat recorded in the Plat Records of Bexar
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Pages 32-37
Coun~,
Texas, in Volume 8700
for the purpose of enhancing and protecting the value and usefulness
of the lots o:.tracts constituting such Subdivision. Declarant hereby declares
that all the real property described in said Plat, and each part thereof, should be
held, sold and conveyed only subject to the
foll~ng
easements, covenants, .conditions,
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and restrictions, which shall constitute and covenant running w1th the land and shall
be binding on all parties having any right, title or interest in the above described
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property, or any part thereof, their heirs, successors and assigns, and shall inure
to the benefit of each owner thereof:
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1. All tracts shall be used solely for residential purposes, except tracts
designated on the above mentioned plat for business purposes, provided,
however, no business shall be conducted on any of these tracts which is
noxious or harmful by reason of odor, dust, smoke, gas fumes, noise or
vibration, and provided further that the Seller expressly reserves the
right until January 1, 1983 to vary the use of any proper~ notwithstanding the restrictions embodied in this contract, should Seller in
its sole judgment deem it in the best interest of the property to grant
such variances. The granting of any such variance shall be specifically
stated in both the contract of sale and in the Seller's deed conveying
said tract or tracts.
2. Tracts designated as business may be used either for residential or
business purposes, provided, however, that if used for a business, the
nature and purpose of the business use shall first be approved in writing
by Seller, its successors, assigns and des,ignees. No tract may be subdivided unless written approval is given by the seller, i.ts assignees,
successors or designees.
3. No building, other than a single family residence containing not less
than 1,750 square feet, exclusive of open porches, breez~ays, carports
and garages, and having not less than 75S of its exterior ground floor
walls constructed of masonry, i;e,, brick, rock, concrete, or concrete'
products shall be erected or constructed on any residential tract in
Tlmberwood Park Unit III and no garage may be erected except simultaneously
with or subsequent to erection of residence. No less than a 300 lb. per
square asphalt or fiberglass shingle shall be used in any construction
in Timberwood Park Unit III. All other types of roofing shall.be approved
fn writing by the Seller prior to construction. All buildings must be
completed not later than six (6} months after laying foundations and no
structures or house trailers of any kind may be moved on to the property.
Servants quarters and guest liouses may be constructed to the rear of the
permanent residence. All buildings must be completely enclosed fro.
ground level to the lower portion of outside walls so as to maintain a
neat appearance and ~emove posts or piers from outside view.
412
Tarr MSJ Exhibit A-1
•
~
...
-~
•
•
· 4. No iq:~roven~ents shall be erected or constNCted tn TimbentOOCI Part
Unit III, nearer than fifty (50) feet ~the front property line,
except lots 4 throu9h 27, Block 15, Which have a building setback
ltne of seventy (70) feet; nor nearer than five (5) feet to the side
property 1ine except that in case of corner tracts no fiiiProve~~~ents
shall be erected or constructed within ten (10) feet of the side
property line adjacent to the streets. No mterials of any ktnd shall
be placed or stored on the property unless construction of a pe~nent
residence has been c011111enced and fs underway. No used materhl shall
be stored on the property or used in 1111 construction. In the event
th~t materials of any kind are placed on the property which are, in
the opinion of the Seller, In violation of the above stipulation and
agreement, Seller may notify Purchaser by mafl of such violation and
if the violation is not corrected and subject mterial is not removed
within ten (lo) days after mailing such notice, Purchaser agrees that
Seller may remove said material fram the property, dispose of safd
material and charge Purchaser with reft)val costs, the exercise of
which shall leave Seller free of any liabflf~ to Purchaser.
5. No building or structure, or fences shall be erected or constructed
on any tract until the building plans, specifications, plot plans,
and external design have first been approved fn writing by the Seller,
or by such nominee or nominees as it ~ designate tn writing.
·,
'
6. No advertising or •For Sale" signs shall be erected in Timberwood
Park Unit Ill without written approval of Seller. Shooting of fire
a~ or hunting for birds or wild game of aqy kind on any tract Is
strictly prohibited.
·
7. No building or structure shall be occupied or used until the exterior
thereof Is completely finished In accordance with Paragraph 3 above
and any structure or part thereof constrvcted of lllllber shall be finished
with not less than two coats of paint. No outside toilet shall be installed or maintained on any premises and all plumbing shall be connected with
a sanitary sewer or septic tank approved by the State and Local Department of Health. Before any work is done pertaining to the location of
utilities, buildings, etc., approval of said location must be first
obtained from the Seller and the local Deparwnt of Health. No removal
of trees or excavation of any other materials other than for landscaping, construction of buildings~ driveways, etc., will be permitted
without the written permission of Seller. All driveways must be
constructed of concrete or asphalt substance, and must be completed
simultaneously with. the completion of the residence.
'.
annually per tract owner (which may be paid
8. An assessment of S
simi-annually or annually), shall run against each tract In said
property for the use and maintenance of parks and operating costs
according to rules and regulations of Seller. The decision of the Seller,
fts nominee or cosfgnee with respect to the use and expenditure of such
funds shall be conclusive and the Purchaser shall have no right to dictate
how such funds shall be used. Such assessment shall be and is hereby
secured by a lien on each tract respectively. and shall be payable to the
Seller In San Antonio. Texas, 'on the 1st day of June of each year,
commencing June 1,
, or to such other persons as Seller may designate
by instrument ffled""'CiTrecord In the Office of the County Clerk of Bexar
County, Texas. In cases where one owner owns .are than one.(l) tract there
will be only one(l) assessment for such. owner. Provided, however. that If
such an owner should se11 one or more of his tracts to a party who theretofore did not own property, then said tract or tracts so transferred
shall thereafter be subject to the 1ien provided herein. Seller shall
have the option of increasing said~ssessment on an annual basts but
in no case should assessment increase ~more than lOS fn any one year.
'·
413
Tarr M
•
•
9. No noxious., offensive, unlawful or llllnoral use shall be lllilde of
the pre~nises.
10. No livestock or wild antlllills of any kind shtll be raised, bred or
kept on tny tract. Dogs, cats. or other household pets IM.Y 1141 kept
provided that they are not kept, bred, or maintained for any
commercial purpose. No kennels ~ be kept or maintained on any
tract.
11. All covenants and restrictions shall be btndtng upon the Purchaser
or hfs successors, heirs or assigns. Said covenants and restrictions
are for the benefit of the entire Subdivision.
12. The Seller reserves to itself. :Its successors and assigns, an
easement or right-of-way over a five (5) foot strip along the side.
front and rear boundry lines of the tract or tracts hereby conveyed,
for the purpose of installation or lllilintenance of public utilities.
including but not limited to gas. water, "electrtctty, telephone, ·
drainage and sewage and any appurtenance to the supply lines thereof.
including the right to remove and/or trim trees, shrubs or plants.
This reservation is for the purpose of providing for the practical
installation of such utilities as and when any public or private
authority or utility company 1111.)' desire to serve said tracts with
no obligation to Seller to supply such services. Should a utility
pipe line be installed in the rear property easement as herein
reserved, Purchaser agrees to install a gate in any fence that shall
be constructed on such easement for utility company access to such
pipe line.
13. All tracts as subject to easements, liens, and restrictions of
record and tre subject to any applicable zoning rules and regulations.
14. This contract may not be assigned or recorded without the written
consent of Seller. In the event this agreement is assigned, a
transfer fee of $25.00 will be charged by Seller.
15 •. That an assessment for the purpose of bringing water to each tract
of $8.00 per lineal foot of frontage along the front property line;
with a minilllllll charge of $795.00, a lllilximum charge of $1,500.00 on
a~y one tract, shall run against each tract and part thereof in said
property. Such assess~~~ent shall be·"aftcl ls· hereby secured by ii lten on.
each tract respectively~ and when Seller, its successors or assigns,
shall construct a water mafn in the street and/or easement running by
said tract and water fs made available to same, said assessment tforesaid shall become due and payable to Seller, its successors or assigns.
fn San Antonio, Texas, at the time the water supply is made available
to said property. Said assessment may be arranged on a satisfactory
monthly payment basis. Should said assessment not be pafd when due as
specified above, the unpaid amount shall be charged interest at the
rate of eight percent (81) per annum. Jn the event the Purchaser
shall desire water service and has paid his water assessment, Seller,
its successors or assigns, shall furnish water service within ninety
(90) days of payment or upon delivery deed, whichever ts the earliest
date. It is agreed by and between Seller and Purchaser that Purchaser
will not hold Seller or water utility responsible for any acts of God,
including such services and supply as ~ be installed.
16. No trtct shall be used or maintained for a dumping ground for rubb1sb.
Trash, garbage or other waste shall not be kept e~cept in sanitary
containers. All incinerators or other equipment for the storage ~r
disposal of such material shall be kept in a clean and sanitary
condftton. No junk, wrecking or auto storage yards shall be located
on any tract.
.
'·
'--"-:--. ~·------..,.~~-~...;.-----------~-- ...
414
•
•
•
17. The foregoing covenants are l!lilde and adopted to run -.ith the land
and shall be binding on the undersigned and all parties or persons
claiming through and under it, until January 1, 1998. at Mhfch
time said covenants shall be automatically extended for successive
periods of ten years, unless an instrument, signed by a majorf~
of the then owners of the tracts in Timberwood Park hasbeen recorded, agreeing to change said covenants, in wllole or tn
part.
18. Invalidation of any of these covenants or restrictions by judgment
of any Court shall in no "'se affect any of the other provisions
Which shall remain in full force and effect.
EXECUTED this _li day of
Bexar County, Texas.
, 1979.• at San Antonio,.
THE STATE OF TEXAS
t-
COONTY OF BEXAR
I
BEFORE ME, the undersigned authority, on this day personally appeared
G.G. Gale, Jr., General Partner of TJMBERWOOD DEVELOPMENT COMPANY, known to
me to be the person Whose name 1s subscribed to the foregoing instr~~nent. and
he ackn~lwdged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity stated therein, and as the act and deed of
said Corporation.
~
J
\.
\
~
·17
..
GIVEN UND:R IllY hand and seal of office this
~day of_~ej..,.....u~,~.IJ11'("---"'
1979•
No~~,~~ County. Texas·
JODIE 8L.AI;I(
HaW)o l'llllk. Bexar Counl)l. T t:xp~~es ~rdl 14. 1980
,.,. e o -
f.
t
·....
415
Timberwood Park Owners Association, Inc.
17319 San Pedro Ave. Suite 318
San Antonio TX, 78232
July 29, 2014
Kenneth H Tarr
26331 Romance Point
San Antonio, TX 78260
1111111111111
~1111111111111111111111111111111111111111111111111111
RE: First Notice of Violation For 26331 Romance Point
Via Certified Mail- Return Receipt Requested
Dear Kenneth H Tarr:
Owning a home in a homeowners association offers many advantages. The policies found in the deed restrictions, rules, and
regulations for your community are not intended as an inconvenience or invasion of your freedom, but rather as a means of
maintaining harmony for all homeowners.
The Association is responsible for enforcing regulations contained in the deed restrictions and/or the rules and regulations. In
fulfilling this responsibility, the community is inspected regularly. During a recent inspection, the following was noted on your
property:
There is a property maintenance violation on your property. Please take steps to correct the problem. Your
residence has been posted online as rental property. It is a violation to use any property as a commercial rental
property other than single family residence. This is a violation of Article 1 of the Deed Restrictions for Unit 3.
This violation will remain in effect until the posting is removed from the website thus stopping the use for
commercial purposes.
We ask you take action to correct this matter within fourteen ( 14) calendar days from the date of this letter. If the violation
remains umesolved at that time, the association will impose a fine on your account in the amount of twenty five (25) dollars.
You will continue to be charged $25 a day until the violation has been corrected. Once the violation is corrected, please
contact Spectrum immediately at the number listed below in order for them to validate the violation has been corrected and
stop any planned fines. You can review a complete copy of the deed restrictions for your unit at the Spectrum web site
(www.spectrumam.com). You can also speak to your site manager to confirm all necessary material required for your
submission. If you are able to correct the violation before the ten day period has elapsed, please contact Spectrum (at the
number shown below) to ensure the violation is not escalated and fines assessed. If you are unable to resolve this matter
within the time allotted, please contact our office and ask to speak with representative in the site management department to
make arrangements.
Also, you are entitled to request a hearing before a designated committee appointed by the Board of Directors (the Board)
to discuss and verify facts regarding the matter(s) on or before the 30th day from the date you receive this notice. ANY
REQUESTS FOR A HEARING MUST BE IN WRITING. Please direct all hearing requests to the above address. If the
hearing is held before a designated committee, you have the right to appeal the committee's decision by written notice to the
Board at the same address. You may have special rights to relief related to the enforcement action under federal law,
including the Service Members Relief Act (50 U.S.C. app. Section 501 et seq,) if the owner is serving on active military
duty. We appreciate your prompt attention to this matter.
462
Tarr Exhibit C-4
Este es un aviso concerniente una violaci6n de las restricciones de Ia escritura en su hagar. Quisieramos ayudarle
en resolver esta violaci6n tan pronto possible, asi es que hable a nuestra oficina a/877-269-9092 y pida hablar con
un Gerenta de Sitio que hable Espaiiol, a su primer conveniencia. Favor de /lamar dentro de 10 dias para prevenir
Ia posibilidad de que esta violaci6n ascienda a un asunto legal. iSera nuestro gusto atenderle!
Sincerely,
Site Management Department
Phone: (210) 494-0659
Fax: (210) 494-0887
463
Tarr Exhibit C-4
From: Scott Myles [majlto:scmyles@gytc.com]
Sent: Tuesday, August 12, 2014 9:30 PM
To: 'Von Shows'; 'Kristine Spirt'; greg.matula@newstarenergy,com; doug.eberle@gmajl.com;
texzen03@gmajl.com; karenoslp@yahoo.com; martybartlett@satx.rr.com
Subject: RE: 26331 Romance Point- House Listed as Vacation Rental
Great questions so I'll try to shed some light.
The way this violation was discovered is that it was reported by another resident because they came
across the post on line on a vacation rental website. The violation is valid because a vacation rental
is not a residence. By definition, a residential use is where one resides or lives. Clearly a vacation
rental is not where the person lives.
The deed restrictions were written like this to deter transient rentals and folks coming in and out of
the neighborhood without having stake in the community.
You are correct in that we would have to catch them renting it which is basically what has happened
by them posting it on a vacation rental website. If they were to rent it out for someone to live in
there, then that is a different story. There is nothing in the restrictions about renting out homes for
people to have permanent residences. There are many families and individuals that live in the
neighborhood that are renting the homes.
The easiest way for the owner to come back into compliance is to stop posting the house on a
vacation rental website.
It would be very difficult to prove they were renting it out if they had not posted it on a vacation
rental website.
Thanks Von.
Scott Myles
From: Von Shows [mai!to:showsjnc@satx.rr.com]
Sent: Tuesday, August 12, 2014 9:09 PM
To: 'Scott Myles'; 'Kristine Spirt'; greg.matula@newstarenergy,com; doug.eberle@gmajl.com;
texzen03@gmail.com; karenoslp@yahoo.com; martybartlett@satx.rr.com
Subject: RE: 26331 Romance Point- House Listed as Vacation Rental
I can do either day.
However, I believe we are in a very gray area. Article one states the property can be used for
"Residential Purposes".
Although I don't agree with vacation rentals I for one don't know if we can
legally hold someone accountable for an electronic posting for rental. The only thing I read was you
couldn't physical post a 'for sale" sign but nothing in regards to rental. I am naive on what we really
can or cant do in regards to requiring an internet posting being removed or charging fines for
posting it.
Also, wouldnt we have to catch them renting it as a commercial rental or temp rental
before we could actually impose a violation?
505
TPOA000148
From:
To:
Subject:
Date:
Scott Myles
"C@jg Zenner"; "Yon Shows"; "Greg Matula"; "Doug Eberle"; "Martv Bartlem"; "Karen Oneil"
RE: Benard v. Humble, 990 S.W.2d 929 (Tex. App. 1999)
Tuesday, September 02, 2014 9:00:32 PM
Great info Craig a.k.a. Perry Mason Jr .. I can pass this info on to Kristine so she can supply it to
Markell. I honestly think we have an open and shut case.
I think Mr. Tarr is reaching big time and is only trying to stall.
Scott Myles
From: Craig Zenner [mailto:texzen03@gmail.com]
Sent: Tuesday, September 02, 2014 8:50 PM
To: Scott Myles; Von Shows; Greg Matula; Doug Eberle; Marty Bartlettt; Karen Oneil
Cc: Craig Zenner
Subject: Benard v. Humble, 990 S.W.2d 929 {Tex. App. 1999)
All,
I believe this case Benard v. Humble, 990 S.W.2d 929 (Tex. App. 1999)
supports our position.
Here is an excerpt of the case. The case in its entirety can be found at the
link below.
"The case was submitted to the trial court on stipulated facts. The trial court held that the use of the
property in question "as a vacation rental for weekends and/or weekly rentals to different groups of
people by JENNIE ATTAWAY BENARD is a violation of Deed Restriction No. 1" for Point Lookout Estates.
The trial court further held that any renting for a period of less than ninety days would also be a violation
of Deed Restriction No. 1. Appellants lone appellate issue for review asks:"
https:Uwww.courtlistener.com/texapp/dfrB/benard-v-humble/
Happy reading!
Thanks,
Craig
506
TPOA 000163
Timberwood Park Owners Association, Inc.
17319 San Pedro Ave. Suite 318
San Antonio TX, 78232
Phone: (210) 494-0659
Fax: (210) 494-0887
September 17, 2014
Kenneth H Tarr
26 Silent Brook Place
The Woodlands, TX 77381
RE: Board of Directors Hearing Decision for Violation at 26331 Romance Point
Dear Kenneth H Tarr:
The Board of Directors has made a decision regarding your hearing on September 2, 2014.
The Timberwood Park Board of Directors, after consulting with legal counsel, have decided to uphold the violation on your
property as listed; It is a violation to use any property as a commercial rental property other than single family residence. This
is a violation of Article 1 of the Deed Restrictions for Unit 3. This violation will remain in effect until the posting is removed
from the website thus stopping the use for commercial purposes and after you have notified Spectrum of its removal. Failure
to notify Spectrum will result in the continuation of the fines. Any future postings similar to this posting on other websites
result in a reopening of the violation.
Please call me at (210) 494-0659 if you have any questions or concerns.
Sincerely,
Rod Thomas
Site Management Department
464
Tarr Exhibit C-5
TAPE TRANSCRIPTION
TARR v. TIMBERWOOD PARK
2
TAPE TRANSCRIPTION
September 02, 2014
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Date of Recording:
Tarr v. Timberwood Park HOA
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SCOTI MYLES: Basically it's
just your time to tell us why you think this is not a
violation or whatever you want to say.
KENNETH TARR: I came here-- are you recording?
MYLES: 1 am.
KENNETH TARR: Okay. I don't fully understand
why I got the violation. So first off I'd like to start
if someone can explain that.
SCOTI MYLES: Okay.
KENNETH TARR: And we can go from there.
SCOTI MYLES: You did get this letter, correct?
KENNETH TARR: [Inaudible].
SCOTI MYLES: Okay. So in Article 1 of the Deed
Restrictions for Unit 3, it says that each
let me see so I don't get it wrong. Okay. So
Article 1 says all tracts shall be used solely for
residential purposes except tracts designated on the
above-mentioned plaque for business purposes, provided
however that business shall be conducted on any of these
tracts, which is not just harmful reason of blah, blah,
blah. So that's pretty much it. That's why it's not a
violation-- or that's why it is a violation, because if
you're not using -- if you're advertising the property
on a commercial real estate for a part-time rental or a
vacation rental, it's not as a residential-- it's not
scon
b .
d
.d .
Jt'A.be"
Page 3
1 e1ng use as a res1 entia 11 ~e!Jrem'B~fl~. ~
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2 commercial lot for commercial income. If you were doing
3 long-term rental for a residence, then that's a
4 different story.
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KENNETH TARR: I guess I don't understand what the
difference is. People are living in the residence.
As long as - I thought people aren't cutting haircuts,
they're not.
SCOTT MYLES: I understand.
KENNETH TARR: It's a dentist office. It's not a
gas station. There's no business being conducted on
the site.
SCOTI MYLES: But you are renting it as a commercial
real estate rental property, correct?
KENNETH TARR: Every rental is for income. It's notpeople don't rent properties not to make money.
SCOTI MYLES: Okay. So when those people show up, are
they using that as a residence or is it a temporary
staying place?
KENNETH TARR: They're treating it like a home. They're
sleeping. They're eating. They're taking showers,
enjoying the pool, the barbecue. Doing what people do
normally. They're not engaging in business.
SCOTI MYLES: Well, I've given you the explanation.
That's why it was a violation, because it's not a
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residence. It is a part-time commercial rental.
Residence would mean they're paying the bills. They're
getting their mail. They are living there. And in a
vacation rental, they are temporarily using that as a
vacation, like a condo down at the beach or you know.
KENNETH TARR: A condo has residential purposes.
SCOTT MYLES: Right. Well, and your interpretation of
what a residential property is, is different than what
is the board's interpretation. So I guess that's where
we're at.
KENNETH TARR: Did you consult an attorney?
SCOTT MYLES: Do we? No, we don't need to consult an
attorney.
KENNETH TARR: I know the case laws against that
position.
SCOTT MYLES: Okay. At this point, it's a violation and
if you want to consult an attorney then -KENNETH TARR: No, I don't need to consult an attorney.
SCOTT MYLES: Okay.
KENNETH TARR: I know what the case law is. I've been
renting properties for over twenty years.
SCOTT MYLES: Okay.
KENNETH TARR: I'm well aware of what the issues are and
24 the legal standing of what8t18~~!i~~~~!976)
25 scoTT MYLES: Okay. EsquireSo/utions.com
800.211.DEPO (3376)
EsquireSolutions. com
500
TAPE TRANSCRIPTION
September 02, 2014
5-8
Page 5
1 K~p"{!i ~NS'eR!Jb~l()tfderstand what harm it's
2 d~'R~.eiJI~~OOOIP~ is- I cut
3 the - mow the grass every week, I water the grass, and
Page 7
3 the issue.
4 my house is maintained better than a lot of the people.
4 KENNETH TARR: Well, I mean, it's been decided by,
1 KENNETH TARR: No, there·~wp~WffiffifF02, 2014
2 SCOTT MYLES: Okay. Well, that seems to be the crux of
5 SCOTT MYLES: I don't think there's a dispute there.
5 Texas law--
6 KENNETH TARR: I don't understand where the commercial
6 SCOTT MYLES: Okay.
7 side of things come in.
7 KENNETH TARR: Arkansas, Alabama, the case history does
8 SCOTT MYLES: I don't know what to tell you other than
8 not support that.
9 what I just told you. What's the case law that
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interprets a temporary [Inaudible] that treat a
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it at three days?
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KENNETH TARR: We have, yep. We rent it three days,
3
a week, two weeks, whatever or living in it, just
4
like we have.
5
SCOTT MYLES: I think another potential issue,
6
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further potential issue we have is that advertising with
8
park amenities, like tennis courts and things like that.
9
KENNETH TARR: [Inaudible] park amenities.
10
UNIDENTIFIED MALE SPEAKER: [Inaudible].
SCOTT MYLES: Okay. But on your website there is. I
11
remember seeing it.
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KENNETH TARR: Well, like I said I can't-- they're only
13
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able to get in the gate with my card.
SCOTT MYLES: Okay.
15
KENNETH TARR: It's a-- I mean, I'm not a hundred
16
percent sure where this is coming from, honestly. The
17
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advertisement doesn't advertise the address, the street, or the
subdivision. Do you guys just randomly search Internet
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sites looking for things? What happened? Where did this come 20
up? I mean I can go on the Internet right now and find it.
21
You know, I went on there last week and there's twenty
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advertisements and homes for rentals, for lease or longterm rental.
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SCOTT MYLES: So there is a difference?
10
condominium as a residence person's short-term
11
rental versus 12
KENNETH TARR: As long as there's not being business
13
conducted on the premises.
14
SCOTT MYLES: Isn't the rental of the property for
15
vacation rental, business in itself?
16
KENNETH TARR: Any rental is a business. It's all for
17
profit, right? You don't rent properties to lose money.
18
I wouldn't. I don't think anyone in here would. It's
19
not charity, it's money.
20
UNIDENTIFIED MALE SPEAKER: What's your average rental? 21
What's your average stay from a resident that goes
22
there?
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KENNETH TARR: We have a three-day minimum.
24
UNIDENTIFIED MALE SPEAKER: A three-day minimum? So 25
SCOTT MYLES: Okay.
KENNETH TARR: If you want references I'll be glad
to provide.
SCOTT MYLES: If you want to.
UNIDENTIFIED FEMALE SPEAKER: [Inaudible].
SCOTT MYLES: Anybody have any other questions? Do you
have any other -UNIDENTIFIED MALE SPEAKER: Those graphics [Inaudible]
@gmail.com.
UNIDENTIFIED FEMALE SPEAKER: What's that?
KENNETH TARR: Well no, she said inspector.
UNIDENTIFIED MALE SPEAKER: Oh okay. How long do you
think it would take to get those references?
KENNETH TARR: I have no idea, a couple weeks?
UNIDENTIFIED MALE SPEAKER: A couple of weeks?
SCOTT MYLES: Okay. Well, at this point, it still is a
violation. We'll discuss wherever you want to take it from
Page 6
it's a temporary residence and you have been renting
PageS
here, and if we decide that it's still a violation, it
will remain a violation and any action or whatever will
be spelled out in the violation itself. We may consult
with an attorney or we may not.
KENNETH TARR: I would encourage you to.
SCOTT MYLES: And if you have some case law, or
something that you're aware of, that would prove your
point, that would be very helpful in expediting the
whole affair.
KENNETH TARR: Is that the only -- the term of the
rental, is that the only issue?
SCOTT MYLES: What do you mean the term of the rental?
KENNETH TARR: It sounds like it's coming down to-SCOTT MYLES: Temporary basis of residential.
Residential means it's more long-term than a temporary
resident, that's where we have the issue based on the
restriction or the deed restriction, so.
UNIDENTIFIED FEMALE SPEAKER: You could see where that
would come from if you had a whole street of temporary
rentals. You would have people coming in and out, in
and out, every three, five, seven days. It's different
than a neighborhood full of families that live here. It
would be a difference- right? You would have a street
full of, like beach cottages 'BfJIJ.r21if.Li:J~oYf!l376)
people coming in and out? ~~~~I:Ytleff1s:com
800.211.DEPO (3376)
501
September 02, 2014
9-12
TAPE TRANSCRIPTION
l"'age
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Page 11
was still a violation-September 02, 2014
KENNETH TARR: And still a lot of people have air?
SCOTT MYLES: It was a pretty simple process.
3 KENNETH TARR: I can see any reservations with a condo because you,
3
4 have people running up and down the stairs, but these are quarter
4
Then again this is just a hearing.
5 -acre plots [Inaudible] my neighbors up to my house. It's not--
5
We haven't made a decision yet.
6 SCOTT MYLES: But you do have --
6
KENNETH TARR: I understand.
7 UNIDENTIFIED FEMALE SPEAKER: We have to protect what
7
SCOTT MYLES: So whenever you present to us, you give us
8 might happen if it was more than just you? You know
8
anything you've got. We'll take a look at that and then
9 those restrictions are to protect everybody.
9
we'll make a determination if we keep the letters coming
10 SCOTT MYLES: Wherever for three days here, four days
10
to you, and whether or not we tum this over to the
11 here, five days here -- it's not a residence. They're
11
attorney to make a decision on this or it's sufficient
12 not living there. They're just temporarily staying
12
enough that we don't need to do that. So as it stands,
13 there. They're not getting mail. They're not paying
13
we stand by the letter. So you know you present
something back to us and we'll go from there. But
14 bills. They're not paying -- I mean they're paying the
14
15 rental fee, but it's not a residence. If you look up
15 delaying it by two weeks, ain't helping anything, so
16 the definition of residence, that's not-
16
whatever you have, we're going to go by the dates of
17 KENNETH TARR: What is the definition of residence? Do
17
the letter.
18 you have it?
18
KENNETH TARR: I understand.
19 SCOTT MYLES: I don't have it with me. But I believe
19
SCOTT MYLES: Okay. If you look at the dates right
20 it's something along the lines of a place where someone
20
here, we asked you to take action, corrective action
21 resides or lives for long term.
21
fourteen calendar days from the date of this letter.
22 KENNETH TARR: A judge in Arkansas stated.
22
The date is July 29th and you're already a month into
23 SCOTT MYLES: We're in Texas.
23
it. Then you start getting assessed fines. Unless
24 KENNETH TARR: I realize that.
24
you've got something else that you can present to us,
25
you're going to start getting assessed fines based on
Page 12
Page 10
1 KENNETH TARR: I mean it's case law.
1 the letter.
2 UNIDENTIFIED MALE SPEAKER: So is it still being
3 KENNETH TARR: So long as renters continue to relax,
3 advertised as a vacation rental?
4 eat, sleep, bathe, and engage in other incidental
4 KENNETH TARR: Yes, it is.
5 activities, they are using the home for residential
5
UNIDENTIFIED MALE SPEAKER: It is. Okay.
6 purposes. It does not matter if you realize an economic
6
KENNETH TARR: I don't understand how advertising can be
7 gain, either financial benefit or advertisement of
7 (Inaudible]. I mean there's nothing in the deed
8 property or admittance of logic tax transforms the
8
9 nature use of the property from residential to
9 SCOTT MYLES: No, there's not. No, there's a deed
10 commercial. Pretty much-
10
restriction against using a property for nonresidential
11
11
purposes. That's the only thing here. I mean if you
SCOTT MYLES: An upheld case law?
12 KENNETH TARR: Yeah. A couple cases of [Inaudible].
restriction against advertising.
12 want - like I said before, if somebody wants to rent
13 SCOTT MYLES: Do you have any of those with you?
13 their house out for six months, eight, nine months on a
14 KENNETH TARR: No. I don't.
14 lease and that person is residing in that residence,
15 UNIDENTIFIED MALE SPEAKER: So, why did you read us the one from 15 that's a totally different situation than what we
16 Arkansas?
16 have here.
17 KENNETH TARR: Because I thought he very eloquently stated that.
17 KENNETH TARR: What about corporate rentals?
18 UNIDENTIFIED MALE SPEAKER: Okay. We'll need to have
18 SCOTT MYLES: Those wouldn't be- are they residing
19 you come back with your references.
19 there?
20 KENNETH TARR: Okay. I'm a little disappointed that
20
KENNETH TARR: Of course. [Inaudible].
21
21
SCOTT MYLES: Are they getting mail? Are they paying bills?
nobody looked this up before they came to these conclusions, so.
22 SCOTT MYLES: Looked what up? Oh, case law?
22
Not if it's forthree days, or five days -
23 KENNETH TARR: Anything. I mean-
23
KENNETH TARR: It's usually longer than that, a couple of weeks
24 SCOTT MYLES: Well, we looked up what the deed
800. 211.DEPO (3376)
24 or for a month.
25 UNIDENTIFIED FEMALE S~~Bfhl$~/tY~~l'Yfflills
25 restrictions were and by our definition agreed that it
800.211.DEPO (3376)
502
TAPE TRANSCRIPTION
September 02, 2014
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[~iplf! s~l~r're same time).
S<Wt."R'"ftvtY.LfiMB'E~W6<!m'P'M.Itas a case by case
basis. But we're not really talking about corporate
rentals. We're talking about -KENNETH TARR: I mean you're making a decision but
you're not-- I mean, when does it become a residence?
SCOTT MYLES: I think it becomes a residence when
someone is living there in my termination, definition.
I don't know if I can speak for everybody else, but my
definition of a residence is somebody who is living
there. I may have somebody that comes in for three days
or five days, comes in for vacation, you know, pops
around the area and does tourism and they are out.
The whole spirit of the deed restrictions is that
they're not invested in the property.
KENNETH TARR: That's right. I've invested in my
property.
SCOTT MYLES: I can understand. Why don't you
understand I am not trying to argue with you? I'm
just saying what the interpretation of the deed
restrictions are.
KENNETH TARR: I've got rentals-- nice rentals;
[lnaudible)3000-square feet brick homes.
SCOTT MYLES: That's a very nice house. Looks good.
KENNETH TARR: [Inaudible) just because you're getting
Page 15
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02, 2014
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Esquire Deposition Solutions, does hereby certify
10 that through an independent contractor we have
11 transcribed the audio, and that the foregoing is a true
12 and complete transcription of the audio transcribed.
IN WITNESS WHEREOF, I do hereunto set my
13
14 hand on this 29th day of January, 2015.
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Esquire Depositions Solutions
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1 your mail doesn't mean that you're going to be
2 living there.
3 SCOTT MYLES: I know it doesn't. I drive by my house
4 (Inaudible] better. I don't think that's an argument.
5 KENNETH TARR: Yeah. Nothing. Nobody's complaining.
6 There is no issue.
7 SCOTT MYLES: You're right it doesn't. I'm glad you
8 thought of that.
9 UNIDENTIFIED MALE SPEAKER: It's out of your
10 interpretation. We'll take a look at what you send us. We've
11
heard what you've said. We will discuss it among ourselves, do
12 some more research. All right. So that's it?
13 SCOTT MYLES: Does anybody have anything else? Not a
14 fan of [Inaudible].
15 UNIDENTIFIED MALE SPEAKER: I know.
16 SCOTT MYLES: Why are we using that?
17 UNIDENTIFIED MALE SPEAKER: [Inaudible].
18
UNIDENTIFIED FEMALE SPEAKER: I think the management company
19 [Inaudible].
20
KENNETH TARR: Well, I am not just·- I left several messages and
21
he wouldn'tcall back [Inaudible].
22
SCOTT MYLES: All right. Appreciate it.
23
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800.211.DEPO (3376)
EsquireSolutions.com
25
800.211.DEPO (3376)
503
DEFENDANT TIMBERWOOD PARK OWNERS ASSOCIATION, INC.'S
SUPPLEMENTAL OBJECTIONS AND ANSWERS TO PLAINTIFF
KENNETH H. TARR'S INTERROGATORIES
I.
SPECIFIC OBJECTIONS AND ANSWERS
What minimum number of days do you contend is
INTERROGATORY NO.1.
capable of constituting a residential purpose for the lease of a residential tract or
property?
Response: Defendant objects to this request as it seeks work product and
calls for a legal conclusion. Subject to the foregoing objection, the United
States Supreme Court has stated that "residence" encompasses both residing,
coupled with a present intent to remain. Accordingly, any length of time
whereby a person resides absent a present intent to remain is not "residing"
under well-established Supreme Court case law and is a violation of the
"residential restriction" contained in the DCC&Rs. See also case law
contained in the Carnal County trial court opinion.
INTERROGATORY NO. 3.
If you contend that residential tracts at
Timberwood Park Unit III may only be used by a single-family, what do you
contend is the definition of "single-family" that Mr. Tarr must comply with when
using his tract?
Response: Defendant objects to this request as it seeks work product and
calls for a legal conclusion. Subject to the foregoing objection, the
Associations defense is not presently based on the "single-family" definition,
but rather, the "residential purpose" definition. See Response to
Interrogatory 1.
INTERROGATORY NO. 4.
If you contend that the Partial Assignment is
ambiguous concerning the rights, title, authority, and interest assigned to you,
explain how the ambiguity could be construed to confer power on you to enforce the
violations of the "residential purposes" requirement of Paragraph 1 of the
Restrictive Covenants or Paragraph 9 of the Restrictive Covenants.
DEFENDANT'S SUPPLEMENTAL ANSWERS AND OBJECTIONS TO
PLAINTIFF'S INTERROGATORIES
492
PAGE 3 OF4
Tarr MSJ Exhibit G
Appeal Appendix 0024a
DEFENDANT TIMBERWOOD PARK OWNERS ASSOCIATION, INC.'S
OBJECTIONS AND RESPONSES TO PLAINTIFF KENNETH H. TARR'S
REQUESTS FOR ADMISSIONS
I.
SPECIFIC OBJECTIONS AND ANSWERS
REQUEST FOR ADMISSION NO. 1.
You contend that the restrictive
covenants place anyone who purchases a Timberwood Park Unit III residential
tract on notice that leasing is restricted by a minimum duration.
Response: Admit. Also, well-established United States Supreme Court case
law places homeowners on notice as well.
covenants place anyone who purchases a Timberwood Park Unit III residential
tract on notice that leasing is restricted by a maximum duration.
Response: Deny.
covenants are clear and unambiguous that the leasing of residential tracts is
restricted by minimum duration.
Response: Admit. Also, well-established United States Supreme Court case
law places homeowners on notice as well.
REQUEST FOR ADMISSION NO.4.
covenants are clear and unambiguous that the leasing of a residential tract is
restricted by maximum duration.
Response: Deny.
You contend that it is ambiguous
whether the restrictive covenants impose some duration limit on the leasing of
residential tracts.
Response: Deny. Also, well-established United States Supreme Court case
law is unambiguous as well.
covenants allow an owner of a residential tract or property at Timberwood Park
Unit III to lease that tract.
Response: Admit.
DEFENDANT'S SUPPLEMENTAL OBJECTIONS AND RESPONSES TO
PLAINTIFF'S REQUESTS FOR ADMISSIONS
494
PAGE30F7
Tarr MSJ Exhibit G
Appeal Appendix 24b
Response: Deny.
You do not contend that an owner of a
tract or property at Timberwood Park Unit III is required to personally occupy his
or her own tract or property.
Response: Admit.
You contend that there is a specific,
minimum number of days that an owner of a tract or property must personally
occupy his or her own tract or property according to the restrictive covenants.
Response: Admit.
You do not contend that there is any
specific, minimum number of days that an owner of a tract or property must
personally occupy his or her own tract or property according to the restrictive
covenants.
Response: Deny.
covenants place a different minimum duration on a residential owner's personal
occupancy of a tract or property than on a tenant's occupancy of that residential
tract or property.
Response: Deny.
You do not contend that the restrictive
covenants place a different minimum duration on a residential owner's personal
occupancy of a tract or property than on a tenant's occupancy of that residential
tract or property.
Response: Admit.
You contend that
residential tracts is a nuisance under the restrictive covenants
all
leasing
of
Response: Deny.
You do not contend that all leasing of
residential tracts is a nuisance under the restrictive covenants.
496
PAGE 5 OF 7
Tarr MSJ Exhibit G
Appeal Appendix 24c
Response: Admit.
You contend that all
residential tracts is a commercial use under the restrictive covenants.
leasing
of
Response: Deny.
You do not contend that all leasing of
residential tracts is a commercial use under the restrictive covenants.
Response: Admit.
You contend that all leasing of
residential tracts for some specific minimum duration is a "noxious, offensive,
unlawful, or immoral" use under Paragraph 9 of the restrictive covenants.
Response: Deny.
covenants regulate a residential tract owner's leasing differently than that owner's
own personal use.
Response: Deny.
You do not contend that the restrictive
covenants regulate a residential tract owner's leasing differently than that owner's
personal use.
Response: Admit.
covenants address in any fashion an owner's advertising of a Timberwood Park Unit
III residential tract.
Response: Deny.
covenants address in any fashion an owner's internet of a Timberwood Park Unit III
residential tract.
Response: Deny.
497
PAGE 6 OF 7
Tarr MSJ Exhibit G
Appeal Appendix 24d
Texas Property Code Ch. 202.
CONSTRUCTION AND ENFORCEMENT OF RESTRICTIVE
COVENANTS
Sec. 202.001. DEFINITIONS. In this chapter:
(1) "Dedicatory instrument" means each document governing the
establishment, maintenance, or operation of a residential subdivision,
planned unit development, condominium or townhouse regime, or any
similar planned development. The term includes a declaration or similar
instrument subjecting real property to:
(A) restrictive covenants, bylaws, or similar instruments governing
the administration or operation of a property owners' association;
(B) properly adopted rules and regulations of the property owners'
association; or
(C) all lawful amendments to the covenants, bylaws, instruments,
rules, or regulations.
(2) "Property owners' association" means an incorporated or
unincorporated association owned by or whose members consist primarily
of the owners of the property covered by the dedicatory instrument and
through which the owners, or the board of directors or similar governing
body, manage or regulate the residential subdivision, planned unit
development, condominium or townhouse regime, or similar planned
development.
...
(4) "Restrictive covenant" means any covenant, condition, or restriction
contained in a dedicatory instrument, whether mandatory, prohibitive,
permissive, or administrative.
...
Added by Acts 1987, 70th Leg., ch. 712, Sec. 1, eff. June 18, 1987.
Amended by: Acts 2011, 82nd Leg., R.S., Ch. 1142 (H.B. 1821), Sec. 2, eff.
January 1, 2012. Acts 2013, 83rd Leg., R.S., Ch. 1389 (H.B. 680), Sec. 1,
eff. June 14, 2013.
Sec. 202.002. APPLICABILITY OF CHAPTER. (a) This chapter applies
to all restrictive covenants regardless of the date on which they were
created.
...
Sec. 202.003. CONSTRUCTION OF RESTRICTIVE COVENANTS.
(a) A restrictive covenant shall be liberally construed to give effect to its
purposes and intent.
...
Sec. 202.004. ENFORCEMENT OF RESTRICTIVE COVENANTS. (a)
An exercise of discretionary authority by a property owners' association or
other representative designated by an owner of real property concerning a
restrictive covenant is presumed reasonable unless the court determines
by a preponderance of the evidence that the exercise of discretionary
authority was arbitrary, capricious, or discriminatory.
(b) A property owners' association or other representative designated by
an owner of real property may initiate, defend, or intervene in litigation or
an administrative proceeding affecting the enforcement of a restrictive
covenant or the protection, preservation, or operation of the property
covered by the dedicatory instrument.
(c) A court may assess civil damages for the violation of a restrictive
covenant in an amount not to exceed $200 for each day of the violation.
Tex. Prop. Code Sec. 209.0041. ADOPTION OR AMENDMENT OF
CERTAIN DEDICATORY INSTRUMENTS.
...
(b) This section applies to a residential subdivision in which
property owners are subject to mandatory membership in a property
owners' association.
...
(e) This section applies to a dedicatory instrument regardless of the
date on which the dedicatory instrument was created.
(f) This section supersedes any contrary requirement in a
dedicatory instrument.
(g) To the extent of any conflict with another provision of this title,
this section prevails.
(h) Except as provided by Subsection (h-1) or (h-2), a declaration
may be amended only by a vote of 67 percent of the total votes allocated to
property owners entitled to vote on the amendment of the declaration, in
addition to any governmental approval required by law.
(h-1) If the declaration contains a lower percentage than
prescribed by Subsection (h), the percentage in the declaration
controls.
(h-2) If the declaration is silent as to voting rights for an
amendment, the declaration may be amended by a vote of owners
owning 67 percent of the lots subject to the declaration.
(i) A bylaw may not be amended to conflict with the declaration.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1217 (S.B. 472), Sec. 2, eff.
September 1, 2011. Amended by: Acts 2015, 84th Leg., R.S., Ch. 1183 (S.B.
1168), Sec. 6, eff. September 1, 2015. Acts 2015, 84th Leg., R.S., Ch. 1183
(S.B. 1168), Sec. 24, eff. September 1, 2015.
Tex. Educ. Code Sec. 25.001. ADMISSION.
(a) A person who, on the first day of September of any school year,
is at least five years of age and under 21 years of age, or is at least 21
years of age and under 26 years of age and is admitted by a school district
to complete the requirements for a high school diploma is entitled to the
benefits of the available school fund for that year. Any other person
enrolled in a prekindergarten class under Section 29.153 or Subchapter E1, Chapter 29, is entitled to the benefits of the available school fund.
(b) The board of trustees of a school district or its designee shall
admit into the public schools of the district free of tuition a person who is
over five and younger than 21 years of age on the first day of September of
the school year in which admission is sought, and may admit a person who
is at least 21 years of age and under 26 years of age for the purpose of
completing the requirements for a high school diploma, if:
(1) the person and either parent of the person reside in the school
district;
(2) the person does not reside in the school district but a parent of
the person resides in the school district and that parent is a joint
managing conservator or the sole managing conservator or possessory
conservator of the person;
(3) the person and the person's guardian or other person having
lawful control of the person under a court order reside within the school
district;
(4) the person has established a separate residence under
Subsection (d);
(5) the person is homeless, as defined by 42 U.S.C. Section 11302,
regardless of the residence of the person, of either parent of the person, or
of the person's guardian or other person having lawful control of the
person;
(6) the person is a foreign exchange student placed with a host
family that resides in the school district by a nationally recognized foreign
exchange program, unless the school district has applied for and been
granted a waiver by the commissioner under Subsection (e);
(7) the person resides at a residential facility located in the district;
(8) the person resides in the school district and is 18 years of age or
older or the person's disabilities of minority have been removed; or
(9) the person does not reside in the school district but the
grandparent of the person:
(A) resides in the school district; and
(B) provides a substantial amount of after-school care for the
person as determined by the board.
...
(d) For a person under the age of 18 years to establish a residence
for the purpose of attending the public schools separate and apart from the
person's parent, guardian, or other person having lawful control of the
person under a court order, it must be established that the person's
presence in the school district is not for the primary purpose of
participation in extracurricular activities. The board of trustees shall
determine whether an applicant for admission is a resident of the school
district for purposes of attending the public schools and may adopt
reasonable guidelines for making a determination as necessary to protect
the best interests of students . . . .
(f) A child placed in foster care by an agency of the state or by a political
subdivision shall be permitted to attend the public schools in the district in
which the foster parents reside free of any charge to the foster parents or the
agency. A durational residence requirement may not be used to prohibit that
child from fully participating in any activity sponsored by the school district.
Tex. Educ. Code Sec. 54.052. DETERMINATION OF
RESIDENT STATUS. (a) Subject to the other applicable provisions of
this subchapter governing the determination of resident status, the
following persons are considered residents of this state for purposes of this
title:
(1) a person who:
(A) established a domicile in this state not later than one year
before the census date of the academic term in which the person is
enrolled in an institution of higher education; and
(B) maintained that domicile continuously for the year preceding
that census date;
(2) a dependent whose parent:
(A) established a domicile in this state not later than one year
before the census date of the academic term in which the dependent is
enrolled in an institution of higher education; and
(B) maintained that domicile continuously for the year preceding
that census date; and
(3) a person who:
(A) graduated from a public or private high school in this state or
received the equivalent of a high school diploma in this state; and
(B) maintained a residence continuously in this state for:
(i) the three years preceding the date of graduation or receipt of the
diploma equivalent, as applicable; and
(ii) the year preceding the census date of the academic term in
which the person is enrolled in an institution of higher education.
(b) For purposes of this section, the domicile of a dependent's
parent is presumed to be the domicile of the dependent unless the person
establishes eligibility for resident status under Subsection (a)(3).
Tex. Election Code Sec. 11.001. ELIGIBILITY TO VOTE.
(a) Except as otherwise provided by law, to be eligible to vote in an
election in this state, a person must:
(1) be a qualified voter as defined by Section 11.002 on the day the
person offers to vote;
(2) be a resident of the territory covered by the election for the
office or measure on which the person desires to vote; and
(3) satisfy all other requirements for voting prescribed by law for
the particular election.
(b) For a person who resides on property located in more than one
territory described by Subsection (a)(2), the person shall choose in which
territory the residence of the person is located.
Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.
Amended by:
Acts 2005, 79th Leg., Ch. 1107 (H.B. 2309), Sec. 1.06, eff.
September 1, 2005.
Tex. Fam. Code Sec. 6.301. GENERAL RESIDENCY RULE FOR
DIVORCE SUIT.
A suit for divorce may not be maintained in this state unless at the
time the suit is filed either the petitioner or the respondent has been:
(1) a domiciliary of this state for the preceding six-month
period; and
(2) a resident of the county in which the suit is filed for the
preceding 90-day period.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Tex. Prop. Code § 209.006. NOTICE REQUIRED BEFORE
ENFORCEMENT ACTION.
(a) Before a property owners' association may suspend an owner's right to
use a common area, file a suit against an owner other than a suit to collect
a regular or special assessment or foreclose under an association's lien,
charge an owner for property damage, or levy a fine for a violation of the
restrictions or bylaws or rules of the association, the association or its
agent must give written notice to the owner by certified mail.
(b) The notice must:
(1) describe the violation or property damage that is the basis for the
suspension action, charge, or fine and state any amount due the
association from the owner;
(2) except as provided by Subsection (d), inform the owner that the owner:
(A) is entitled to a reasonable period to cure the violation and avoid the
fine or suspension if the violation is of a curable nature and does not pose
a threat to public health or safety;
(B) may request a hearing under Section 209.007 on or before the 30th
day after the date the notice was mailed to the owner; and
(C) may have special rights or relief related to the enforcement action
under federal law, including the Servicemembers Civil Relief Act (50
U.S.C. App. Section 501 et seq.), if the owner is serving on active military
duty;
(3) specify the date by which the owner must cure the violation if the
violation is of a curable nature and does not pose a threat to public health
or safety; and
(4) be sent by verified mail to the owner at the owner's last known address
as shown on the association records.
(c) The date specified in the notice under Subsection (b)(3) must provide a
reasonable period to cure the violation if the violation is of a curable
nature and does not pose a threat to public health or safety.
...
Added by Acts 2001, 77th Leg., ch. 926, Sec. 1, eff. Jan. 1, 2002.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 252 (H.B. 1127), Sec. 3, eff. January 1,
2012.
Acts 2015, 84th Leg., R.S., Ch. 1183 (S.B. 1168), Sec. 17, eff. September 1,
2015.
Tex. Prop. Code § 209.007. HEARING BEFORE BOARD;
ALTERNATIVE DISPUTE RESOLUTION.
(a) If the owner is entitled to an opportunity to cure the violation, the
owner has the right to submit a written request for a hearing to discuss
and verify facts and resolve the matter in issue before a committee
appointed by the board of the property owners' association or before the
board if the board does not appoint a committee.
(b) If a hearing is to be held before a committee, the notice prescribed by
Section 209.006 must state that the owner has the right to appeal the
committee's decision to the board by written notice to the board.
(c) The association shall hold a hearing under this section not later than
the 30th day after the date the board receives the owner's request for a
hearing and shall notify the owner of the date, time, and place of the
hearing not later than the 10th day before the date of the hearing. The
board or the owner may request a postponement, and, if requested, a
postponement shall be granted for a period of not more than 10 days.
Additional postponements may be granted by agreement of the parties.
The owner or the association may make an audio recording of the meeting.
(d) The notice and hearing provisions of Section 209.006 and this section
do not apply if the association files a suit seeking a temporary restraining
order or temporary injunctive relief or files a suit that includes foreclosure
as a cause of action. If a suit is filed relating to a matter to which those
sections apply, a party to the suit may file a motion to compel mediation.
The notice and hearing provisions of Section 209.006 and this section do
not apply to a temporary suspension of a person's right to use common
areas if the temporary suspension is the result of a violation that occurred
in a common area and involved a significant and immediate risk of harm
to others in the subdivision. The temporary suspension is effective until
the board makes a final determination on the suspension action after
following the procedures prescribed by this section.
(e) An owner or property owners' association may use alternative dispute
resolution services.
Added by Acts 2001, 77th Leg., ch. 926, Sec. 1, eff. Jan. 1, 2002.
Tex. Prop. Code § 209.0041. ADOPTION OR AMENDMENT OF
CERTAIN DEDICATORY INSTRUMENTS.
(a) Repealed by Acts 2015, 84th Leg., R.S., Ch. 1183 , Sec. 24, eff.
September 1, 2015.
(b) This section applies to a residential subdivision in which property
owners are subject to mandatory membership in a property owners'
association.
...
(e) This section applies to a dedicatory instrument regardless of the date
on which the dedicatory instrument was created.
(f) This section supersedes any contrary requirement in a dedicatory
instrument.
(g) To the extent of any conflict with another provision of this title, this
section prevails.
(h) Except as provided by Subsection (h-1) or (h-2), a declaration may be
amended only by a vote of 67 percent of the total votes allocated to
property owners entitled to vote on the amendment of the declaration, in
addition to any governmental approval required by law.
(h-1) If the declaration contains a lower percentage than prescribed by
Subsection (h), the percentage in the declaration controls.
(h-2) If the declaration is silent as to voting rights for an amendment, the
declaration may be amended by a vote of owners owning 67 percent of the
lots subject to the declaration.
(i) A bylaw may not be amended to conflict with the declaration.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1217 (S.B. 472), Sec. 2, eff.
September 1, 2011.
Amended by:
2015.
2015.
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00660-CV
Craig Zgabay and Tammy Zgabay, Appellants
v.
NBRC Property Owners Association, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 433RD JUDICIAL DISTRICT
NO. C2014-0501C, HONORABLE DIB WALDRIP, JUDGE PRESIDING
MEMORANDUM OPINION
Appellants Craig and Tammy Zgabay appeal from the trial court’s order granting
summary judgment in favor of appellee NBRC Property Owners Association, the homeowners
association in the River Chase subdivision, and denying their motion for summary judgment.
Because the restrictive covenants on which the Association relies allow for the leasing of a home but
do not impose any term of duration, we reverse the trial court’s order in favor of the Association,
render judgment in favor of the Zgabays, and remand the cause for consideration of attorney’s fees.
Factual and Procedural Background
Properties in the subdivision are subject to a Declaration of Covenants, Conditions,
and Restrictions (the “restrictive covenants”), which provide that properties in the subdivision are
only to be used “for single family residential purposes.” The Zgabays bought land in the subdivision
in 2000, built a house on it, and lived there for a number of years. In 2014, they began to rent the
house when they were not in occupancy, for terms of fewer than thirty days. They later moved to
a different home, retaining their house in the subdivision as a rental property. At the time of trial,
the house was rented under a one-year lease, and the Zgabays intend to continue advertising and
renting the house for varying lengths of time, paying hotel and lodging taxes when the house is
rented for fewer than thirty days. In 2014, the Association demanded that the Zgabays cease shortterm and vacation rentals and online advertising of their property, asserting that such use was in
violation of the restrictive covenants.
The Zgabays responded by filing suit seeking declaratory relief that the restrictive
covenants do not prohibit short-term rentals or restrict rentals based on duration and that renting the
house to an individual or single family for residential use is considered a “single family residential
purpose” that is allowed under the restrictive covenants . The Association counterclaimed, seeking
injunctive relief and statutory damages under the property code.1 Both the Zgabays and the
Association moved for traditional summary judgment, and the trial court granted summary judgment
in favor of the Association, denying the Zgabays’ motion.
Standard of Review
We review a trial court’s ruling on a motion for summary judgment de novo. Joe v.
Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). Summary judgment is proper
only if the movant establishes that there is no genuine issue as to any material fact and that it is
entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Joe, 145 S.W.3d at 156. When, as
1
A trial court “may assess civil damages for the violation of a restrictive covenant in an
amount not to exceed $200 for each day of the violation.” Tex. Prop. Code § 202.004(c).
2
here, both parties seek summary judgment and the court grants one and denies the other, we render
the judgment that the trial court should have rendered. City of Garland v. Dallas Morning News,
22 S.W.3d 351, 356 (Tex. 2000).
When interpreting restrictive covenants, we apply the general rules of contract
construction. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998). We construe the covenants
“as a whole in light of the circumstances at the time the parties entered into the agreement, giving
effect to every sentence, clause, and word of a covenant, and avoiding constructions that would
render parts of the covenant superfluous or inoperative.” Sharp v. deVarga, No. 03-05-00550-CV,
2010 WL 45871, at *3 (Tex. App.—Austin Jan. 8, 2010, pet. denied) (mem. op.) (citing Pilarcik,
966 S.W.2d at 478; Owens v. Ousey, 241 S.W.3d 124, 129 (Tex. App.—Austin 2007, pet. denied)).
In construing restrictive covenants, we seek to give effect to the parties’ true intention, Owens,
241 S.W.3d at 129, and our focus is on “their objective intent, as it is reflected in the written
contract,” Sharp, 2010 WL 45871, at *3 (citing Tien Tao Ass’n v. Kingsbridge Park Cmty. Ass’n,
953 S.W.2d 525, 528 (Tex. App.—Houston [1st Dist.] 1997, no pet.); Travis Heights Improvement
Ass’n v. Small, 662 S.W.2d 406, 410 (Tex. App.—Austin 1983, no writ)).
If a restrictive covenant can be given definite legal meaning, it is unambiguous and
should be construed liberally to effectuate its intent.2 See Tex. Prop. Code § 202.003; Jennings v.
Bindseil, 258 S.W.3d 190, 195 (Tex. App.—Austin 2008, no pet.). However, when a restrictive
2
Although neither the Association nor the Zgabays assert that the covenants are ambiguous,
we are not bound by those conclusions. “Whether a contract is ambiguous is a question of law for
the court to decide by looking at the contract as a whole in light of the circumstances present when
the contract was entered.” Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983).
3
covenant may reasonably be interpreted in more than one way, it is ambiguous, and we will resolve
all doubts in favor of the free and unrestricted use of the property, strictly construing any ambiguity
against the party seeking to enforce the restriction. Wilmoth v. Wilcox, 734 S.W.2d 656, 657 (Tex.
1987); Hicks v. Falcon Wood Prop. Owners Ass’n, No. 03-09-00238-CV, 2010 WL 3271723, at *7
(Tex. App.—Austin Aug. 19, 2010, no pet.) (mem. op.); Sharp, 2010 WL 45871, at *3; Jennings,
258 S.W.3d at 195; Dyegard Land P’ship v. Hoover, 39 S.W.3d 300, 308-09 (Tex. App.—Fort Worth
2001, no pet.); Pebble Beach Prop. Owners’ Ass’n v. Sherer, 2 S.W.3d 283, 288 (Tex. App.—San
Antonio 1999, pet. denied). The party seeking to enforce a restrictive covenant has the burden of
showing that the restriction is valid and enforceable. Sharp, 2010 WL 45871, at *3; Gillebaard v.
Bayview Acres Ass’n, 263 S.W.3d 342, 347 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).
Discussion
Under the restrictive covenants, the Zgabays’ house may be used “for single family
residential purposes.” The Association asserts that short-term rental of a property is not single
family residential use; the Zgabays assert that rental of the property by an individual or a family,
regardless of the term of the lease, is a single family residential purpose.3
3
The trial court, in considering the parties’ motions for summary judgment, determined that
in using the term “residential,” the restrictive covenants meant “to occupy a place over a substantial
period” without explaining exactly what a “substantial period” would be, thus injecting ambiguity
into its ruling.
4
The restrictive covenants do not define “single family residential purposes.”4 They
do, however, permit signs advertising a property for sale or rent, subject to specific limitations. This
informs the meaning of “single family residential use” in that we know that leasing of homes was
contemplated by the drafters and is permissible under the covenants. As for whether the covenants
state a minimum permissible duration for the leasing of homes, the covenants do not provide any
minimum term for which a property may be leased but do address the use of a temporary structure
such as a mobile home, a barn, or a garage as a residence, stating that such a structure may never be
used as a residence except for up to six months while the permanent house is under construction.
Therefore, it is clear that the drafters of the covenants considered and knew how to impose a duration
on particular uses or types of structures.
Looking at the restrictive covenants as a whole, we conclude: (1) that the leasing or
renting of residences in the subdivision is permissible, (2) that the covenants themselves do not place
any limit on the duration of the leasing of a residence, and (3) that the drafters were familiar with the
concept of time limits with regard to uses that may be made of structures in the subdivision and did
4
Reference to common usage does not lead to a definitive answer of what was intended
by the phrase “single family residential purposes.” For example, Merriam-Webster defines
“residential” as “used as a residence,” “restricted to or occupied by residences”; “residence” is
defined as “a building used as a home.” Merriam-Webster’s Collegiate Dictionary (11th ed.)
(http://www.merriam-webster.com/dictionary/residential). Webster’s defines “residential” as “used,
serving, or designed as a residence” or “restricted to or occupied by residences,” and defines
“residence” as “the act or fact of abiding or dwelling in a place for some time” or “the place where
one actually lives or has his home as distinguished from his technical domicile.” Webster’s Third
New Int’l Dictionary 1931 (2002) (synonyms include “dwell,” “sojourn,” “lodge,” “stay,” and “put
up”). Black’s defines “residence” as “living in a given place for some time” or as a “house or other
fixed abode; a dwelling,” and notes that it usually “just means bodily presence as an inhabitant,”
whereas “domicile” usually “requires bodily presence plus an intention to make the place one’s
home.” Black’s Law Dictionary 1423 (9th ed. 2009).
5
not impose any duration limits with regard to the leasing of homes. Under these circumstances, the
absence of a specific minimum duration for leasing at best renders the restrictive covenants
ambiguous. Therefore, the requirement of section 202.003 that we liberally construe a restrictive
covenant to effectuate its intent does not apply, see Tex. Prop. Code § 202.003, and instead, we
must resolve the ambiguity against the Association and in favor of the Zgabays’ free and unrestricted
use of their property. See Wilmoth, 734 S.W.2d at 657; Hicks, 2010 WL 3271723, at *7; Sharp,
2010 WL 45871, at *3; Jennings, 258 S.W.3d at 195; Hoover, 39 S.W.3d at 308-09.
The drafters of the restrictive covenants recognized and permitted the leasing of
homes. They recognized and disallowed most temporary residencies in the context of temporary
structures. They did not define “single family residential purposes” to exclude temporary or transitory
use of permanent homes as dwellings.5 Thus, the restrictive covenants are ambiguous and should
5
In Munson v. Milton, the restrictions specifically barred the use of properties for business
purposes, stating that tracts in the subdivision could be used for “residential, camping or picnicing
purposes and shall never be used for business purposes. Motel, tourist courts, and trailer parks shall
be deemed to be a business use.” 948 S.W.2d 813, 815 (Tex. App.—San Antonio 1997, pet. denied).
As observed by Justice Burgess in his dissent in Benard v. Humble, by specifying that use of a
property as a motel or the like was a business use, the subdivision showed some intent to bar the
short-term renting of properties. 990 S.W.2d 929, 932 (Tex. App.—Beaumont 1999, pet. denied)
(Burgess, J., dissenting) (further observing that although covenants in Benard barred use of property
for anything other than “single-family residential purposes,” they contained no additional covenants
to discern whether drafters intended to bar short-term rentals). The restrictions in this case do not
include such an absolute bar. They merely prohibit structures other than dwellings “to be used for
single family residential purposes” and go on to state that:
No Activity, whether for profit or not, shall be conducted on any Tract which is not
related to single family residential purposes, unless said activity meets the following
criteria: (1) no additional exterior sign of activity is present, (b) it is the type of action
that usually happens in a home, (c) no additional traffic, that would not be there
normally, is created, and (d) nothing dangerous is present that should not be there.
That provision can be read as stating that a for-profit activity related to single family residential
purposes may be conducted.
6
be interpreted in favor of the Zgabays. See Hicks, 2010 WL 3271723, at *7; Sharp, 2010 WL 45871,
at *3; Jennings, 258 S.W.3d at 195; Hoover, 39 S.W.3d at 308-09; Sherer, 2 S.W.3d at 288. The
trial court erred in granting summary judgment in favor of the Association.
Conclusion
The restrictive covenants the Association sought to enforce against the Zgabays lack
any unambiguous minimum duration for rentals. We therefore reverse the trial court’s order granting
summary judgment in favor of the Association, render judgment in favor of the Zgabays, dissolve
the injunction imposed by the trial court, and remand the cause to the trial court for consideration
of the issue of attorney’s fees.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Pemberton, and Bourland
Reversed and Rendered in Part; Remanded in Part
Filed: August 28, 2015
7
Munson v. Milton, 948 S.W.2d 813 (1997)
KeyCite Yellow Flag - Negative Treatment
Declined to Follow by City of Pasadena v. Gennedy,
Tex.App.-Hous. (1 Dist.),
December 8, 2003
948 S.W.2d 813
Court of Appeals of Texas,
San Antonio.
James S. MUNSON, Marilyn A. Munson, and Dora E. Colley, Appellants,
v.
Frank MILTON, Lucille Milton, C.F. Morse, J.M. Hardwick, Sr., Frances Hardwick, Ken
Hardcastle, Sandy Hardcastle, Dewey Pinegar, Jack Harlan, Arnell Harlan, F.H. Cherrington,
Virginia Cherrington, William Aymes, Mary Jo Aymes, Curtis & Carrie Boyles, Appellees.
No. 04–96–00694–CV.
|
April 30, 1997.
|
Rehearing Overruled Aug. 6, 1997.
Residents of subdivision sought temporary and permanent injunctions against homeowners who rented their house to third
parties for short periods of time, allegedly in violation of “residential use” restrictive covenant. The 38th Judicial District
Court, Uvalde County, Herb Marsh, J., granted temporary injunction enjoining homeowners from renting their property to the
public for “lodging, vacation and recreation purposes.” Homeowners appealed. On accelerated appeal, the Court of Appeals,
Stone, J., held that: (1) residents were not required to show proof of irreparable injury to obtain temporary injunction; (2)
residents established probable violation of restrictive covenant; (3) scope of temporary injunction was overbroad, and it would
be modified to restrain only rental activity that resulted in property being used for transient-type housing; and (4) as modified,
temporary injunction did not impose unreasonable restraint on alienation.
Affirmed as modified.
Duncan, J., filed dissenting opinion.
Attorneys and Law Firms
*815 Phillip M. Hughes, Crawford, Crawford & Hughes, Uvalde, James S. Munson, Wharton, Michael C. Boyle, Matthews
& Branscomb, P.C., Uvalde, for Appellants.
W. Patrick Dodson, Dodson, & Lowe, Uvalde, Joe M. Davis, Nunley & Jolley, L.L.P., Boerne, Thomas B. Black, San Antonio,
for Appellees.
Before STONE, DUNCAN and ANGELINI, JJ.
OPINION
STONE, Justice.
This is an accelerated appeal of an order granting a temporary injunction. Appellants own one lot in the Chisum's Subdivision
located in Uvalde, Texas. The remaining lots are owned by appellees. Since the fall of 1995, appellants have rented the house
© 2016 Thomson Reuters. No claim to original U.S. Government Works. Appeal
1
Appendix 0044
located on their lot to third parties through “Rio Frio Bed n Breakfast and Lodging,” a professional rental agent. The third
parties are generally vacationers who use the property for short periods of time, generally two to five days.
Paragraph six of the Reservations, Restrictions and Covenants Pertaining to Chisum's Subdivision restricts the use of the lots
as follows:
All tracts within the Chisum's subdivision shall be used solely for residential, camping or picnicing
purposes and shall never be used for business purposes. Motel, tourist courts, and trailer parks shall be
deemed to be a business use.
Appellees filed suit seeking a temporary and permanent injunction to prohibit appellants from renting their house in violation
of the foregoing restriction.
The trial court granted appellees a temporary injunction enjoining appellants from “renting and/or leasing said property to the
public for lodging, vacation and recreation purposes.” Appellants now appeal the trial court's order, contending the trial court
abused its discretion in granting the temporary injunction because appellees failed to establish a probable right of recovery or
the possibility of irreparable injury in the absence of temporary relief. Appellants also contend the temporary injunction imposes
an unlawful restraint on the alienation of the appellants' property.
STANDARD OF REVIEW
[1] [2] [3] [4] At a temporary injunction hearing, the only issue before the trial court is whether the status quo should
be preserved pending trial on the merits. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961); Ramsey v. Lewis, 874
S.W.2d 320, 322 (Tex.App.—El Paso 1994, no writ). The only issue on appeal is whether the trial court clearly abused its
discretion in resolving that issue by granting or denying the temporary injunction. City of San Antonio v. Rankin, 905 S.W.2d
427, 430 (Tex.App.—San Antonio 1995, no writ); Ramsey v. Lewis, 874 S.W.2d at 323. The trial court abuses its discretion
when it “misapplies the law to the established facts or when the evidence does not reasonably support the conclusion that the
applicant has a probable right of recovery.” City of San Antonio v. Rankin, 905 S.W.2d at 430. All legitimate inferences from
the evidence are drawn in favor of the trial court's judgment, and the trial court does not abuse its discretion where the evidence
“tends to sustain the cause of action as alleged.” Id.
PROOF OF IRREPARABLE INJURY
[5] [6] Generally, a movant qualifies for temporary injunctive relief by showing: (1) a probable right of recovery; (2)
imminent, irreparable harm will occur in the interim if the request is denied; and (3) no adequate remedy at law exists. Id.
Despite this general rule, however, a movant seeking a temporary injunction to enforce a restrictive covenant is not required to
show proof of irreparable injury. Guajardo v. Neece, 758 S.W.2d 696, 698 (Tex.App.—Fort Worth 1988, no writ). Instead, the
movant is only required to prove that the defendant intends to do an act that would breach the covenant. Id.
Appellants contend the trial court abused its discretion in granting the temporary injunction because the evidence fails to
establish *816 that appellees would suffer irreparable injury if the relief were not granted. This contention has no effect on the
trial court's ability to grant temporary relief in the instant case. As previously noted, appellees were not required to show proof
of irreparable injury because they were seeking a temporary injunction to enforce a restrictive covenant. Guajardo v. Neece,
758 S.W.2d at 698. Therefore, this contention is without merit.
2
Appendix 0045
VIOLATION OF RESTRICTIVE COVENANT
Appellants also contend that appellees failed to establish a probable right of recovery because there was no showing that the
action undertaken by appellants violated the restrictive covenant. Appellants then cite various cases to support the proposition
that the rental of property used for living purposes does not violate a residential use restriction. Appellees counter with cases
that suggest that the rental of property may violate a residential use restriction under certain circumstances.
[7] [8] [9] In construing a restrictive covenant, a court's primary task is to determine the intent of the framers of the restrictive
covenant. Wilmoth v. Wilcox, 734 S.W.2d 656, 658 (Tex.1987). In determining this intent, the court must liberally construe
the covenant's language and must ensure that every provision is given effect. TEX. PROP.CODE ANN. § 202.003(a) (Vernon
1995); Crispin v. Paragon Homes, Inc., 888 S.W.2d 78, 81 (Tex.App.—Houston [1st Dist.] 1994, writ denied)(entire instrument
must be examined and considered); Imperial Interplaza II, Inc. v. Corrections Corp. of America, Inc., 717 S.W.2d 422, 424
(Tex.App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.)(none of instrument's provisions should be rendered meaningless). If
there is ambiguity or doubt as to the intent, the covenant is to be strictly construed against the party seeking to enforce it in favor
of the free and unrestricted use of the premises. See, e.g., Wilmoth, 734 S.W.2d at 657; Silver Spur Addition Homeowners v.
Clarksville Seniors Apartments, 848 S.W.2d 772, 774 (Tex.App.—Texarkana 1993, writ denied) (ambiguity resolved in favor
of least restrictive interpretation); Dempsey v. Apache Shores Property Owners Ass'n, Inc., 737 S.W.2d 589, 592 (Tex.App.—
Austin 1987, no writ)(covenant construed in favor of grantee only when intent not ascertainable); Covered Bridge Condominium
Ass'n, Inc. v. Chambliss, 705 S.W.2d 211, 214 (Tex.App.—Houston [14th Dist.] 1985, writ ref'd n.r.e.).
Neither party to this appeal asserts that the restrictive covenant at issue is ambiguous. Therefore, our goal is to determine
whether the trial court was correct in finding that the objective intent of the covenant, or the intent expressed in the writing,
was probably violated by the appellants' actions. Silver Spur Addition Homeowners, 848 S.W.2d at 774; Candlelight Hills Civic
Ass'n, Inc. v. Goodwin, 763 S.W.2d 474, 477 (Tex.App.—Houston [14th Dist.] 1988, writ denied).
[10] A residential use restriction generally does not prohibit the use of property for duplexes, apartments or condominiums.
See MacDonald v. Painter, 441 S.W.2d 179, 182 (Tex.1969); Travis Heights Improvement Ass'n v. Small, 662 S.W.2d 406,
408 (Tex.App.—Austin 1983, no writ); Stephenson v. Perlitz, 537 S.W.2d 287, 289 (Tex.Civ.App.—Beaumont 1976, writ ref'd
n.r.e.); Cuiper v. Wolf, 242 S.W.2d 830, 831 (Tex.Civ.App.—San Antonio 1951, no writ). The covenant at issue here, however,
contains an additional sentence that clarifies the framers' intent in distinguishing between “residential” and “business” use for
purposes of the covenant. This additional sentence provides that “[m]otel, tourist courts, and trailer parks shall be deemed to
be a business use.” In determining what the framers intended by adding this sentence, we look to the law defining residence.
[11] [12] Although the term “residence” is given a variety of meanings, residence generally requires both physical presence
and an intention to remain. See Smith v. Board of Regents of the University of Houston System, 874 S.W.2d 706, 712 (Tex.App.
—Houston [1st Dist.] 1994, writ denied)(citing Martinez v. Bynum, 461 U.S. 321, 330, 103 S.Ct. 1838, 1843, 75 L.Ed.2d 879
(1983)), cert. denied, *817 514 U.S. 1111, 115 S.Ct. 1964, 131 L.Ed.2d 855 (1995). If a person comes to a place temporarily,
without any intention of making that place his or her home, that place is not considered the person's residence. Slusher v.
Streater, 896 S.W.2d 239, 243 (Tex.App.—Houston [1st Dist.] 1995, no writ).
[13] The Texas Property Code draws a distinction between a permanent residence and transient housing, which includes rooms
at hotels, motels, inns and the like. See Warehouse Partners v. Gardner, 910 S.W.2d 19, 23 (Tex.App.—Dallas 1995, writ
denied); see also TEX. PROP.CODE ANN. § 92.152(a) (Vernon 1995). For purposes of the hotel occupancy tax, the Texas Tax
Code defines hotel to include “a hotel, motel, tourist home, tourist house, tourist court, lodging house, inn, rooming house, or
bed and breakfast.” TEX. TAX CODE ANN. § 156.001 (Vernon Supp.1997). Although the venue statutes permit a defendant
to have a residence in two or more counties, the residence must be occupied over a substantial period of time and must be
permanent rather than temporary in order to qualify as a second residence. Howell v. Mauzy, 899 S.W.2d 690, 697 (Tex.App.
—Austin 1994, writ denied).
3
Appendix 0046
[14] Just as the foregoing cases and statutory provisions draw distinctions between temporary or transient housing and a
residence, we believe the framers of the restrictive covenant intended to draw a similar distinction between residential and
business use by adding the third sentence to paragraph six of the Reservations, Restrictions and Covenants. At least two of
the activities listed as business uses in this sentence are directed at transient-type housing, and in order to give effect to this
sentence, we believe the covenant must be read to prohibit the use of the restricted property for this type of housing. We further
believe that the nature of the rental activity in which appellants have been engaged results in the property being used for the
type of transient housing that the third sentence of paragraph six intended to designate as a business use. For this reason, we
agree with the trial court that the appellees have established a probable violation of the restrictive covenant.
Despite our agreement with the trial court that a probable violation of the restrictive covenant has been demonstrated, we believe
that the scope of the temporary injunction is overbroad. See Keystone Life Ins. Co. v. Marketing Management, Inc., 687 S.W.2d
89, 93 (Tex.App.—Dallas 1985, no writ) (modifying overbroad injunction). Only rental activity that results in the property
being used for transient-type housing should be restrained. Therefore, we modify the temporary injunction to enjoin appellants
from “renting and/or leasing said property to the public for temporary or transient housing purposes.”
[15] [16] [17] [18] In their amended brief, appellants assert that the trial court abused its discretion in crafting its temporary
injunction order as a restraint upon alienation of appellants' property. When restrictions are confined, however, to a lawful
purpose and are reasonable, such covenants will be enforced. Wilmoth, 734 S.W.2d at 657; Davis v. Huey, 620 S.W.2d 561,
565 (Tex.1981). Property owners are permitted to create binding restrictions on the use of their property, Wiley v. Schorr, 594
S.W.2d 484, 487 (Tex.Civ.App.—San Antonio 1979, writ ref'd n.r.e.), and restrictions limiting the use of property to residential
purposes and prohibiting business use are not unenforceable restraints on alienation. Moore v. Smith, 443 S.W.2d 552, 554, 556
(Tex.1969). As modified, the temporary injunction enforces a reasonable restraint on the use of property contractually imposed
with the agreement of the property owners. Therefore, it does not impose an unreasonable restraint on alienation.
CONCLUSION
Appellees have established a probable violation of the restrictive covenant at issue by appellants; therefore, they are entitled
to a temporary injunction. Nevertheless, the temporary injunction ordered by the trial court is overly broad because it enjoins
appellants from activities the restrictive covenant was not intended to prohibit. Therefore, the temporary injunction is modified
to enjoin appellants from “renting and/or leasing said property to the public for temporary *818 or transient housing purposes.”
As modified, the trial court's order is affirmed.
Dissenting opinion by DUNCAN, J.
DUNCAN, Justice, dissenting.
I respectfully dissent. In my view, the restrictive covenant at issue does not unambiguously prohibit renting single-family homes
on a tract within the Chisum Subdivision for living purposes, whether temporary or permanent. At the very least, I would hold
the covenant ambiguous and therefore resolve “[a]ll doubts ... in favor of the free and unrestricted use of the premises,” as
mandated by the Supreme Court of Texas in Wilmoth v. Wilcox, 734 S.W.2d 656, 657 (Tex.1987).
STANDARD OF REVIEW
As the majority notes, the sole issue to be determined at a temporary injunction hearing is whether the status quo should be
preserved pending a trial on the merits. To make this determination, the trial court is required to determine “the last peaceable
4
Appendix 0047
status quo,” that is “the status which existed at the time of the filing of the ... suit.” City of Lubbock v. Stubbs, 160 Tex. 111,
327 S.W.2d 411, 415 (1959). In Stubbs, the City of Lubbock sought to enjoin Stubbs from using his land as a mobile trailer
home park. At the time suit was filed, Stubbs had placed 48 mobile trailer homes on his property. The parties conceded, and
the court held, that the injunction would not apply to these 48 mobile trailer homes because they existed at the time suit was
filed. Id. 327 S.W.2d at 415.
In this case, the status quo at the time suit was filed was that the appellants were renting the house to third parties. As a
preliminary matter, I fail to see how a temporary injunction precluding the use existing at the time suit was filed preserves
the status quo.
RESTRICTIVE COVENANT
The rules for construing restrictive covenants were set forth by the Supreme Court of Texas a decade ago. Our essential “task
is to determine the intent of the framers of the restrictive covenants.” Wilmoth, 734 S.W.2d at 658. But in doing so, we must
be mindful that “covenants restricting the free use of land are not favored by the courts,” and they will be enforced only “when
confined to a lawful purpose and are clearly worded.” Id. at 657. Accordingly, “[a]ll doubts must be resolved in favor of the free
and unrestricted use of the premises, and the restrictive clause must be construed strictly against the party seeking to enforce it.”
Id. “The words used in the restriction, and the restriction as a whole, may not be enlarged, extended, stretched or changed by
construction.” Id. Rather, the words must be given their “commonly accepted meaning” at the time the covenant was written.
Id. at 657–58. 1
1
Although the Texas Legislature has mandated that “[a] restrictive covenant shall be liberally construed to give effect to its purposes
and intents,” TEX. PROP.CODE ANN. § 202.003(a) (Vernon 1995), this mandate does not conflict with the common law rule that
covenants are to be construed “either to favor the free and unrestricted use of land or to strictly construe it against the party seeking
to enforce it.” Crispin v. Paragon Homes, Inc., 888 S.W.2d 78, 81 n. 1 (Tex.App.—Houston [1st Dist.] 1994, writ denied) (citing
Wilmoth v. Wilcox, 734 S.W.2d 656, 657 (Tex.1987)); see also Ashcreek Homeowner's Ass'n v. Smith, 902 S.W.2d 586, 588–89
(Tex.App.—Houston [1st Dist.] 1995, no writ) (following Crispin ).
As noted by the majority, the covenant at issue states that “[a]ll tracts within the Chisum's subdivision shall be used solely for
residential, camping or picnicing [sic] purposes. Motel[s], tourist courts, and trailer parks shall be deemed to be a business
use.” The use sought to be enjoined is renting a residence to third parties. Our task, therefore, is two-fold. First, we must
determine whether restricting the use of a tract to “residential purposes” precludes renting a single-family residence. Second, we
must determine whether renting a single-family residence is to be deemed a “business purpose,” along with “motel[s], tourist
courts, and trailer parks.”
Residential Purposes
As the majority implicitly recognizes, “[t]he terms ‘residence purposes,’ and ‘residences' require the use of property for living
*819 purposes as distinguished from uses for business or commercial purposes.” MacDonald v. Painter, 441 S.W.2d 179, 182
(Tex.1969). In MacDonald, the court held that “the terms, without other limiting words, do not prohibit duplex living units.” Id.
Indeed, this court has specifically held that restricting lot usage to “residential purposes” does not preclude the construction of
a four-unit apartment house, “so long as the building is used exclusively for residential purposes.” Cuiper v. Wolf, 242 S.W.2d
830, 831 (Tex.Civ.App.—San Antonio 1951, no writ).
From these cases, it is apparent that restricting the use of tracts in the Chisum Subdivision to “residential purposes” precludes
using a tract for business or commercial purposes, such as a machine shop, commercial child care facility, florist shop, beauty
shop, or an animal clinic; 2 it does not preclude renting one's home to third parties so long as the third parties use the tract for
5
Appendix 0048
living purposes. To hold otherwise would violate not only the rule of strict construction but also the rule prohibiting this court
from “enlarg[ing], extend[ing], stretch[ing] or chang[ing]” the words of the covenant through judicial construction.
2
Hicks v. Loveless, 714 S.W.2d 30 (Tex.App.—Dallas 1986, writ ref'd n.r.e.); Mills v. Kubena, 685 S.W.2d 395 (Tex.App.—Houston
[1st Dist.] 1985, writ ref'd n.r.e.); Fowler v. Brown, 535 S.W.2d 46 (Tex.Civ.App.—Waco 1976, no writ); Vaccaro v. Rougeou, 397
S.W.2d 501 (Tex.Civ.App.—Houston 1965, writ ref'd n.r.e.); Brite v. Gray, 377 S.W.2d 223 (Tex.Civ.App.—Beaumont 1964, no
writ).
Motels, Tourist Courts, Trailer Parks
The majority holds, however, that the second sentence in the covenant precludes renting one's home to third parties, because
the framers intended this sentence to preclude “transient-type housing.” As even the majority recognizes, however, this label
at most applies to motels and tourist courts, not trailer parks—which are generally used as permanent, rather than transient,
multi-family housing. It is thus not only patently illogical, but contrary to the rule of strict construction, to construe the second
sentence as precluding “transient-type housing.”
What then is the reach of the second sentence? Plainly, the second sentence of the covenant does not preclude using a tract for
financial gain; if that were the framers' intent, they surely would have said so or at least included apartment houses, duplexes,
and the incidental renting of a room as prohibited uses. In my view, therefore, the second sentence appears to have been intended
to reach the use that has historically been permitted by a “residential purposes” covenant—multi-family use, whether permanent
or temporary. Construing the second sentence of the covenant in this fashion is both logical and consistent with the rule of strict
construction. Under this construction, the covenant would not preclude renting a residence to a third party for living purposes.
At the very least, however, the covenant is ambiguous, and we must construe it in favor of the freer and less restrictive use
of the land and against the party seeking enforcement. In either event, renting one's home to a third party for living purposes,
whether temporarily or permanently, would not be precluded by the covenant.
CONCLUSION
The restrictive covenant at issue nowhere speaks to renting a residence to a third party. To the contrary, “residential purposes” is
plainly defined by Texas case law to require that land be used for living purposes, whether single or multi-family, temporary or
permanent, and to preclude business uses. And the tie binding “motel[s], tourist courts, and trailer parks” is not transient housing,
but multi-family housing, both temporary and permanent. I would therefore hold that the restrictive covenant at issue does not
preclude renting a single-family residence to a third party for living purposes, regardless of whether that use is temporary or
permanent. Accordingly, I respectfully dissent.
All Citations
948 S.W.2d 813
End of Document
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
6
Appendix 0049
Benard v. Humble, 990 S.W.2d 929 (1999)
KeyCite Yellow Flag - Negative Treatment
Disagreed With by Estates at Desert Ridge Trails Homeowners' Ass'n v. Vazquez,
N.M.App.,
February 8, 2013
990 S.W.2d 929
Court of Appeals of Texas,
Beaumont.
Gerald John BENARD and Jennie Attaway Benard, Appellants,
v.
Asa Henry HUMBLE and Point Lookout Owners' Association, Inc., Appellees.
No. 09–98–239CV.
|
Submitted Feb. 11, 1999.
|
Decided April 22, 1999.
Three civil actions concerning homeowners' violation of deed restrictions were consolidated. The 258th District Court, San
Jacinto County, Joe Ned Dean, J., held that use of property by homeowner as vacation rentals was violation of deed restriction.
Homeowner appealed. The Court of Appeals, Walker, C.J., held that homeowners' weekly and/or weekend rentals of property
violated deed restriction that property could only be used for single-family residence purposes.
Affirmed.
Burgess, J., dissented and filed separate opinion.
Attorneys and Law Firms
*929 Kenna M. Seiler, Hope & Causey, Conroe, for appellants.
Travis E. Kitchens, Jr., Evans and Kitchens, Groveton, for appellees.
Before WALKER, C.J., BURGESS and STOVER, JJ.
*930 OPINION
RONALD L. WALKER, Chief Justice.
This case involves alleged violations of the Deed Restriction of Point Lookout Estates. Appellants, Gerald John Benard and
Jennie Attaway Benard, rented their homes to various families and individuals on a weekly or weekend basis. Appellee, Asa
Henry Humble, originally filed suit against Appellants alleging several causes of action which included Deed Restriction
violations. Appellants filed a separate suit against Humble and Point Lookout Owners' Association, Inc. alleging multiple causes
of action. Point Lookout also brought suit against Appellants. These three lawsuits were consolidated into the original suit from
which this appeal is taken.
All claims, with the exception of whether there was a violation of the Deed Restrictions were settled and compromised between
the parties. The parties filed an Agreed Motion to Dismiss which was granted by the trial court. The case was submitted to the
trial court on stipulated facts. The trial court held that the use of the property in question “as a vacation rental for weekends
1
Appendix 0050
and/or weekly rentals to different groups of people by JENNIE ATTAWAY BENARD is a violation of Deed Restriction No.
1” for Point Lookout Estates. The trial court further held that any renting for a period of less than ninety days would also be a
violation of Deed Restriction No. 1. Appellants lone appellate issue for review asks:
Whether the trial court erred in holding that the Restriction that states: “No lot shall be used except for single-family residence
purposes” prohibits renting for a period of less than ninety days and prohibits renting to anyone other than a single family.
[1] We find no need to set forth details from the stipulated facts, choosing to focus solely upon whether the trial court erred
in its interpretation of the “single-family residence purposes” language.
[2] [3] [4] [5] It is the duty of this Court, as it was the duty of the trial court, to review the wording of the restrictive
language and determine therefrom, the intent of the drafter. See Wilmoth v. Wilcox, 734 S.W.2d 656, 658 (Tex.1987). Most
importantly however, in our effort to determine such intent, we must give liberal construction to the covenant's language,
seeking to insure that its provisions are given effect. TEX. PROP.CODE ANN. § 202.003(a) (Vernon 1995); see Crispin v.
Paragon Homes, Inc., 888 S.W.2d 78, 81 (Tex.App.—Houston [1st Dist.] 1994, writ denied). Though statutorily we are to
liberally construe the questioned language, liberality must be toned to the given facts. For example, our Texas Supreme Court
has stated: “Restrictive clauses in instruments concerning real estate must be construed strictly, favoring the grantee and against
the grantor, and all doubt should be resolved in favor of the free and unrestrictive use of the premises.” Davis v. Huey, 620
S.W.2d 561, 565 (Tex.1981). Words used in restrictions and the restriction as a whole, may not be enlarged, extended, stretched,
or changed by construction; rather, the words must be given their commonly accepted meaning at the time the covenant was
written. Wilmoth, 734 S.W.2d at 657–58. Further, should there exist ambiguity or doubt as to intent or meaning, the covenant
is to be strictly construed against the party seeking to enforce same, and favorably toward the free and unrestricted use of the
premises. Id. at 657.
[6] This judicial toning however, must never lose sight of legislative intent. We believe that the legislature, in its enactment
of § 202.003(a) intended that restrictive covenants be construed in a manner which may occasionally run hard afoul of strict
common law requirements, i.e., strict construction favoring grantee, and strict construction against the drafter. Invariably, the
strong but clear statutory language of § 202.003(a) does not mesh with established common law contract principles, *931
creating a perpetual need for reconciliation.
The present case is a prime example of the dilemma: The deed restrictions in question do not explicitly contain language
covering temporary renting of property. Were we to give construction against the drafter of the covenant, we would be required
to reverse the trial court's judgment. However, understanding the mandate of § 200.003(a), and paragraph II, § 1 of the deed
restrictions, which provides that, “No lot shall be used except for single-family residence purposes,” we must attempt to give
purpose to the intended meaning of “single-family residence purposes.”
In the present case, Appellants were “renting” subdivision property on a weekly and/or weekend basis. Appellants use of their
property as rental property could be more aptly described as temporary, or for retreat purposes, or transient housing, rather than
for residential purposes. The trial court made nineteen findings of fact and four conclusions of law supportive of its declaratory
judgment. This Court in Sargent v. Smith, 863 S.W.2d 242, 250 (Tex.App.—Beaumont 1993, no writ), provided the following
observation:
Therefore, in construing the pertinent and relevant covenants so that their purposes, intents, intendments,
and intentions be made effective, it is mandatory that the fact-finder ascertain such element as the
purposes, intents, and intentions of the developers in preparing and making a public record of the
restrictive covenants, restrictions, and other limitations governing Lake Renee Subdivisions. See and
compare Travis Heights Imp. Ass'n v. Small, 662 S.W.2d 406 (Tex.App.—Austin 1983, no writ).
Ostensibly, Appellants argue that the restrictive covenant does not exclude renting as an owner's option for use of his or her
property for “residential purposes.” We believe such perspective to be overbroad. Renting per se is certainly non-violative of
2
Appendix 0051
the restrictions in question. However, we agree with the trial court that the types of rental use runs afoul of the single-family
residential purposes provision. Our trial court having no definitive case law guidance covering this particular fact situation
apparently resorted to good common sense in its application of existing case law and statutory law. Judge Dean, in attempting
to give liberal protection to the single-family residential purpose provisions, considered TEX. FAM.CODE ANN. § 6.301
(Vernon 1998), which requires ninety days to establish residency for the purposes of filing a divorce action. In Slusher v.
Streater, 896 S.W.2d 239, 243–44 (Tex.App.—Houston [1st Dist.] 1995, no writ), the Houston Court dealt with the issue of
residency in the context of voting and the Texas Election Code:
Section 1.015 provides that “ ‘residence’ means domicile, that is, one's home and fixed place of habitation to which he intends
to return after any temporary absence.” TEX. ELEC.CODE ANN. § 1.015 (Vernon 1986). Residency is determined in
accordance with the common law, except as otherwise provided by the Code. TEX. ELEC.CODE ANN. § 1.015(b) (Vernon
1986). A person does not lose his or her residence by leaving home temporarily. TEX. ELEC.CODE ANN. § 1.015(c)
(Vernon 1986). A person does not acquire a residence in a place to which he or she has come temporarily and without the
intention of making that place his or her home. TEX. ELEC.CODE ANN. § 1.015(d) (Vernon 1986).
The term “residence” is an elastic one and is extremely difficult to define. Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex.1964).
The meaning that must be given to it depends on the circumstances surrounding the person involved and largely depends
upon the present intention of the individual. Id.Volition, intention, and action are all elements to be considered in determining
where a person resides, and such elements are equally pertinent in denoting the permanent *932 residence or domicile.
Id.“Neither bodily presence alone nor intention alone will suffice to create the residence, but when the two coincide at that
moment the residence is fixed and determined.” Id.There is no specific length of time for the bodily presence to continue. Id.
Thus the focus in determining the residence of a voter is on the voter's home and fixed place of habitation. Espinoza, 844
S.W.2d at 247. “Intention and residence are important evidentiary factors, and a temporary move from one place to another
will neither create a new residence nor lose an old one.” Id.In assessing presence, the cases have considered such conduct as
where the voter sleeps and keeps clothes and furniture, and the length of time spent in the alleged residence. Id.
It is apparent to this Court that Judge Dean went to great lengths to reconcile statutory and common law principles with this
given fact situation. We cannot say that the trial court abused its discretion in declaring that Appellants use of their property
violated the deed restrictions in question. We affirm the trial court's declaratory judgment.
AFFIRMED.
DON BURGESS, Justice, dissenting.
I reluctantly dissent. My dissent is reluctant because it is clear the trial judge approached the matter with great care and fashioned
what he believed to be a just result. The majority places some emphasis on the language of TEX. PROP.CODE ANN. §
202.003(a) (Vernon 1995). However, two cases have determined there is no meaningful distinction between the statute and the
rule announced in Wilmoth v. Wilcox, 734 S.W.2d 656, 657 (Tex.1987) that “[a]ll doubts must be resolved in favor of the free
and unrestricted use of the premises, and the restrictive clause must be construed strictly against the party seeking to enforce
it.” See Ashcreek Homeowner's Ass'n, Inc. v. Smith, 902 S.W.2d 586, 588–89 (Tex.App.—Houston [1st Dist.] 1995, no writ);
Crispin v. Paragon Homes, Inc., 888 S.W.2d 78, 81 n. 1 (Tex.App.—Houston [1st Dist.] 1994, writ denied).
The majority and the trial court are quite correct in holding that the covenant in question does not prohibit the renting of the
residences. Furthermore, a residential use restriction generally does not prohibit the use of property for duplexes, apartments
or condominiums. See MacDonald v. Painter, 441 S.W.2d 179, 182 (Tex.1969); Stephenson v. Perlitz, 532 S.W.2d 954, 955
(Tex.1976).
While the majority is technically correct when they state the trial court had no definitive case law covering this particular
situation, Munson v. Milton, 948 S.W.2d 813, 816–17 (Tex.App.—San Antonio 1997, writ denied) is somewhat similar. In
3
Appendix 0052
that case the use of a residence for transient housing was deemed to be prohibited by the restrictive covenants only because
those covenants specifically declared that “[m]otel, tourist courts, and trailer parks shall be deemed to be a business use” and
the restrictive covenants allowed only residential use. The court read the provisions together in determining the intent of the
covenants.
Here there is no additional covenant to discern the intent of the drafter. Therefore, I believe the still viable rule that allows for the
free and unrestricted use of property should control. Therefore, I would reverse the judgment and render in favor of appellants.
All Citations
990 S.W.2d 929
End of Document
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
4
Appendix 0053
Tex. Prop. Code § 209.015. REGULATION OF LAND USE:
RESIDENTIAL PURPOSE.
(a) In this section:
(1) "Adjacent lot" means:
(A) a lot that is contiguous to another lot that fronts on
the same street;
(B) with respect to a corner lot, a lot that is contiguous
to the corner lot by either a side property line or a back property line; or
(C) if permitted by the dedicatory instrument, any lot
that is contiguous to another lot at the back property line.
(2) "Residential purpose" with respect to the use of a lot:
(A) means the location on the lot of any building,
structure, or other improvement customarily appurtenant to a residence,
as opposed to use for a business or commercial purpose; and
(B) includes the location on the lot of a garage,
sidewalk, driveway, parking area, children's swing or playscape, fence,
septic system, swimming pool, utility line, or water well and, if otherwise
specifically permitted by the dedicatory instrument, the parking or storage
of a recreational vehicle.
(b) Except as provided by this section, a property owners'
association may not adopt or enforce a provision in a dedicatory
instrument that prohibits or restricts the owner of a lot on which a
residence is located from using for residential purposes an adjacent lot
owned by the property owner.
(c) An owner must obtain the approval of the property owners'
association or, if applicable, an architectural committee established by the
association or the association's dedicatory instruments, based on criteria
prescribed by the dedicatory instruments specific to the use of a lot for
residential purposes, including reasonable restrictions regarding size,
location, shielding, and aesthetics of the residential purpose, before the
owner begins the construction, placement, or erection of a building,
structure, or other improvement for the residential purpose on an adjacent
lot.
(d) An owner who elects to use an adjacent lot for residential
purposes under this section shall, on the sale or transfer of the lot
containing the residence:
(1) include the adjacent lot in the sales agreement and
transfer the lot to the new owner under the same dedicatory conditions; or
(2) restore the adjacent lot to the original condition before the
addition of the improvements allowed under this section to the extent that
the lot would again be suitable for the construction of a separate residence
as originally platted and provided for in the conveyance to the owner.
(e) An owner may sell the adjacent lot separately only for the
purpose of the construction of a new residence that complies with existing
requirements in the dedicatory instrument unless the lot has been
restored as described by Subsection (d)(2).
(f) A provision in a dedicatory instrument that violates this section
is void.
Added by Acts 2013, 83rd Leg., R.S., Ch. 219, Sec. 1, eff. June 14, 2013.

In The Court of Appeals For the Fourth District of Texas at San Antonio

Transcription

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