The deed restriction amendment issue is now before the Texas Supreme Court

May 18, 2022 07:35

Readers of this blog are aware that all over the state, subdivisions are abruptly "amending" restrictive covenants to impose new restrictions on property use. Owners who bought property before the new restrictions were adopted are being told they have lost the rights they purchased! I have been shepherding these cases through trial courts and courts of appeals throughout the state, and now two of the cases have been consolidated in the Texas Supreme Court. The linked petition provides the background and the cases nationwide on this issue. I am hopeful that we will, for the first time, get a statewide answer to this very important question.Content may continue . . .

The reason new restrictions imposed by "amendment" should not be enforceable.

October 16, 2021 07:52

I've filed some 20 cases around the state on behalf of subdivision clients whose rights are being taken away by "amendments" to restrictive covenants, I've continually tried to whittle down the theory of the case to something both "legal" — in a technical sense — and readily comprehensible, even pithy. My current thinking is . . .Content may continue . . .

Deed restriction amendments that take away preexisting rights may not be enforceable

June 16, 2020 18:34

After Tarr v. Timberwood Park held that short-term rentals are allowed under common deed restrictions, HOA's and subdivision owners began amending deed restrictions to bar leasing and require mandatory, physical occupancy of homes for long terms. I get calls every week now from people who always had broad leasing rights who suddenly find that a majority of their neighbors have voted to take away their leasing rights and, even worse, mandate physical occupancy of homes. Is that allowed? Read on!Content may continue . . .

Unfair Attorney Fee Recovery Statute - Tex. Prop. Code § 5.006

June 16, 2020 18:18

Texas has a special law devoted to the recovery of attorney's fees in deed restriction litigation, and it is deeply flawed, unfair, and in my view, unconstitutional. The law, at Tex. Prop. Code § 5.006, states that the party who brings a lawsuit for breach of restrictive covenant can recover attorney's fees. The courts have interpreted this to mean that the homeowner who gets sued for breach of restrictive covenant (deed restriction) cannot recover attorney's fees even if he or she defeats the lawsuit. Unfair? You bet. What it does, in practice, is force someone who thinks they might get sued for breach of restrictive covenant to race to the courthouse and sue first. In that way, the person who thinks he or she may be a target can preserve an attorney-fee claim by using a special procedure (called "declaratory judgment").

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