DEED RESTRICTIONS

(For discussion purposes only)

“If the deed restriction violations are not corrected, there can be very negative results. Dr. Barton Smith of the University of Houston Center for Public Policy estimates that property values in a subdivision with an inactive association can fall as much as forty percent due to failure to enforce restrictions.”

1. One purpose of deed restrictions is to protect property values. Violations of deed restrictions most directly affect the value of adjoining lots. Cox v. Melson-Fulsom, 956 S.W. 2nd791, (Tex App. Austin 1997, no writ).

2. One purpose of deed restrictions is to protect property values. See Hicks v. Loveless, 714 S.W.2d 30, 34-35 (Tex.App.-Dallas 1986, writ ref'd n.r.e.). Violations of deed restrictions most directly affect the value of adjoining lots. See id. at 35-36.

3. The failure to object to trivial violations does not preclude enforcement of the covenants. Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506, 508 (1944).

4. It is well established in Texas that a property owner is not precluded from enforcing a deed restriction which materially affects her merely because she previously failed to complain of a violation which did not materially affect her in the enjoyment of her property. Stewart, 178 S.W.2d at 508; Stephenson, 537 S.W.2d at 288-89.

5. An Owner burdens his own land with restrictions because of the fact that a like burden will be imposed on his neighbor’s lot and this will be beneficial to both lots. Curleev. Walker, 244 S.W. 2 497, (Tex 1922).

"The grantees acquire by implication an equitable right,

variously referred to as an implied reciprocal negative

easement or an equitable servitude, to enforce similar

restrictions against the part of the tract retained by the

grantor or subsequently sold without the restrictions to a

purchaser with actual or constructive notice of the restrictions

and covenants"

6. The Board Ultimate responsibility for the enforcement of the Association’s deed restrictions lies with the Board of Directors

a. Failure to act can have legal consequences

b. Attractive Nuisance

c. Foreseeable Crime

7. Enforcement by a County - Texas Property Code Section 203

County Attorney may sue to enforce restrictive covenants

Applies only to counties with a population in excess of 200,000

Smith County Texas Population 213,381 in 2011.

“Sec. 203.003 Texas Property Code

County attorney authorized to enforce restrictions.

(a) The county attorney may sue in a court of competent jurisdiction to enjoin or abate violations of a

restriction contained or incorporated by reference in a properly recorded plan, plat, replat, or other

instrument affecting a real property subdivision located in the county, regardless of the date on which

the instrument was recorded.”

8. This is an appeal from the issuance of a temporary injunction against Calvary

Baptist Church. The church lost, the appeal court affirmed.

Calvary Baptist Church at Tyler v. Adams, 570 S.W. 2d 469, 474 (Civ. App. – Tyler 1978, no writ).

"Nevertheless, defendant seems to take the position that where a church builds a driveway or a parking lot on a subdivision protected by a restrictive covenant, such conduct amounts to a trivial violation, as opposed to a substantial one, and for that reason plaintiffs are not entitled to injunctive relief. We think the construction of a driveway and parking facilities, whose only purposes would be to serve the needs of the church, would amount to a substantial violation of the restrictive covenant in the same manner as if the church had been [ 570 S.W.2d 475 ] constructed thereon. See Smith v. Mobile Oil Corp.,495 S.W.2d 628 (Tex.Civ.App.— Waco 1972, writ ref'd n. r. e.); H. E. Butt Grocery v. Justice,484 S.W.2d 628 (Tex.Civ. App.—Waco 1972, writ ref'd n. r.”

“e.) As pointed out before, we think it obvious that the construction of a parking lot and a driveway or street in a subdivision protected by a residential-only use would substantially interfere with the use and enjoyment of the other lots in the subdivision devoted solely to residential use. Consequently, we think the trial court was authorized to conclude that the defendant's proposed construction plan, if carried out, would result in substantial injury to the plaintiffs. The fourth point is overruled.

By the fifth point defendant contends that the order granting the temporary injunction is in error to the

extent it applies to lot 10. Under this point defendant asserts that the evidence fails to show that any

construction was contemplated with regard to lot 10. Contrary to such contention we think there was

ample evidence of defendant's intention to utilize both lots 9 and 10 for its construction activities as

hereinabove noted. Accordingly, the fifth point is overruled.

The judgment of the trial court is affirmed."

9. “TEX LG. CODE ANN. § 212.153 : Texas Statutes - Section 212.153: SUIT TO 
ENFORCE RESTRICTIONS”
 Search Google: TEX LG. CODE ANN. § 212.153 : Texas Statutes - Section 212.153: SUIT 
TO ENFORCE RESTRICTIONS

“(a) Except as provided by Subsection (b), the municipality may sue in any 
court of competent jurisdiction to enjoin or abate a violation of a 
restriction contained or incorporated by reference in a properly recorded 
plan, plat, or other instrument that affects a subdivision located inside 
the boundaries of the municipality.

(b) The municipality may not initiate or maintain a suit to enjoin or abate 
a violation of a restriction if a property owners' association with the 
authority to enforce the restriction files suit to enforce the restriction.

(c) In a suit by a property owners' association to enforce a restriction, 
the association may not submit into evidence or otherwise use the work 
product of the municipality's legal counsel.

(d) In a suit filed under this section alleging that any of the following 
activities violates a restriction limiting property to residential use, it 
is not a defense that the activity is incidental to the residential use of 
the property:
    (1) storing a tow truck, crane, moving van or truck, dump truck, cement 
     mixer, earth-moving device, or trailer longer than 20 feet; or
    (2) repairing or offering for sale more than two motor vehicles in a 
     12-month period.

(e) A municipality may not enforce a deed restriction which purports to 
regulate or restrict the rights granted to public utilities to install, 
operate, maintain, replace, and remove facilities within 
 easements and private or public rights-of-way.”

Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Renumbered from 
Local Government Code, Sec. 230.003 by Acts 2001, 77th Leg., ch. 1420, Sec. 
12.002, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 1044, Sec. 
2, eff. Sept 1, 2003. Renumbered from Local Government Code, Sec. 212.133 by 
Acts 2003, 78th Leg., ch. 1275, Sec. 2(107), eff. Sept. 1, 2003.