Craig Zgabay and Tammy Zgabay v. NBRC Property Owners Association ( 2015 )

ACCEPTED
03-14-00660-CV
3999768
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/3/2015 12:09:58 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00660-CV
FILED IN
3rd COURT OF APPEALS
IN THE AUSTIN, TEXAS
THIRD DISTRICT COURT OF APPEALS 2/3/2015 12:09:58 PM
AT AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
CRAIG ZGABAY AND TAMMY ZGABAY,
Appellants
v.
NBRC PROPERTY OWNERS ASSOCIATION,
Appellee
Appeal from the 433rd Judicial District Court,
Comal County, Texas, Cause No. C2014-0501C
APPELLEE’S BRIEF
Wade C. Crosnoe Tom L. Newton, Jr.
State Bar No. 00783903 State Bar No. 14982300
Brian D. Hensley Allen, Stein & Durbin, P.C.
State Bar No. 24036759 6243 IH-10 West, 7th Floor
Thompson, Coe, Cousins & Irons, LLP P. O. Box 101507
701 Brazos, Suite 1500 San Antonio, Texas 78201
Austin, Texas 78701 Telephone: (210) 734-7488
Telephone: (512) 708-8200 Facsimile: (210) 738-8036
Facsimile: (512) 708-8777 E-mail: tnewton@asdh.com
E-mail: wcrosnoe@thompsoncoe.com
Counsel for Appellee NBRC Property Owners Association
Oral Argument Requested
IDENTITY OF PARTIES AND COUNSEL
1. Appellants/Plaintiffs Craig and Tammy Zgabay
Trial and Appellate Counsel:
J. Patrick Sutton
1706 W. 10th Street
Austin, Texas 78703
Telephone: (512) 417-5903
Facsimile: (512) 355-4155
2. Appellee/Defendant NBRC Property Owners Association
Trial Counsel:
Brian Hensley
Thompson, Coe, Cousins & Irons, L.L.P.
701 Brazos, Suite 1500
Austin, Texas 78701
Telephone: (512) 708-8200
Facsimile: (512) 708-8777
Tom L. Newton, Jr.
Ashley Giordano
Allen Stein & Durbin, P.C.1
6243 IH-10 West, 7th Floor
San Antonio, Texas 78201
Telephone: (210) 734-7488
Facsimile: (210) 738-8036
1
Guillermo M. Hernandez, III also appeared as counsel in the trial court proceedings but is no
longer with Allen Stein & Durbin, P.C.
i
Appellate counsel:
Wade C. Crosnoe
Brian D. Hensley
Thompson, Coe, Cousins & Irons, L.L.P.
701 Brazos, Suite 1500
Austin, Texas 78701
Telephone: (512) 708-8200
Facsimile: (512) 708-8777
Tom L. Newton, Jr.
Allen Stein & Durbin, P.C.
ii
TABLE OF CONTENTS
Identity of Parties and Counsel ...................................................................................i
Table of Contents ..................................................................................................... iii
Index of Authorities ...................................................................................................v
Statement of the Case............................................................................................. viii
Statement Regarding Oral Argument .......................................................................ix
Statement of Facts ......................................................................................................1
Summary of the Argument.........................................................................................3
Argument....................................................................................................................5
I. The Rules of Construction for Restrictive Covenants ..................................... 5
II. Under Texas Law, Short-Term Rentals Are Not a Single-Family
Residential Use ................................................................................................9
III. The Out-of-State Cases Are Distinguishable and Should Not Be
Followed by This Court .................................................................................15
IV. The Zgabays’ Challenge to the Alleged Vagueness of the Injunction
Was Not Preserved and Lacks Merit .............................................................18
Conclusion and Prayer .............................................................................................19
Certificate of Compliance ........................................................................................20
Certificate of Service................................................................................................21
iii
Appendix
Order on Competing Motions for Summary Judgment (CR 127–29) ............ Tab 1
Declaration of Covenants, Conditions and Restrictions for River Chase
Unit Three (CR 67–87) .............................................................................. Tab 2
Tex. Prop. Code §§ 202.002, 202.003 ............................................................. Tab 3
iv
INDEX OF AUTHORITIES
Cases
Applegate v. Colucci, 908 N.E.2d 1214 (Ind. Ct. App. 2009) .......................... 15, 17
Ashcreek Homeowner’s Ass’n v. Smith, 902 S.W.2d 586 (Tex. App.—
Houston [1st Dist.] 1995, no writ) .........................................................................7
Benard v. Humble, 990 S.W.2d 929 (Tex. App.—Beaumont 1999, pet.
denied) ................................................................................................... 8, 9, 10, 14
Cedar Oak Mesa, Inc. v. Altemate Real Estate, LLC, No. 03-10-
00067-CV, 2010 WL 3431703 (Tex. App.—Austin Aug. 31, 2010,
no pet.)..................................................................................................................11
City of Pasadena v. Gennedy, 125 S.W.3d 687 (Tex. App.—Houston
[1st Dist.] 2003, pet. denied) ..................................................................................8
Dunn v. Aamodt, 695 F.3d 797 (8th Cir. 2012) ................................................ 15, 17
Estates at Desert Ridge Trails Homeowners’ Ass’n v. Vazquez, 300
P.3d 736 (N.M. Ct. App. 2013)............................................................................16
Highlands Mgmt. Co. v. First Interstate Bank, 956 S.W.2d 749 (Tex.
App.—Houston [14th Dist.] 1997, pet. denied) .....................................................7
InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640(Tex. 1986) ...........................................................................................................18
Int’l Bhd. of Elec. Workers Local Union 479 v. Becon Constr. Co.,
104 S.W.3d 239 (Tex. App.—Beaumont 2003, no pet.) .....................................18
Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492 (Tex. 2013) .................................6
Lowden v. Bosley, 909 A.2d 261 (Md. 2006) ..........................................................16
Mason Family Trust v. Devaney, 207 P.3d 1176 (N.M. Ct. App. 2009) .......... 16, 17
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex.
1993).....................................................................................................................13
Mullin v. Silvercreek Condo. Owner’s Ass’n, Inc., 195 S.W.3d 484(Mo. Ct. App. 2006) ...................................................................................... 15, 17
v
Munson v. Milton, 948 S.W.2d 813 (Tex. App.—San Antonio
1997, pet. denied) ...................................................................... 7, 8, 10, 12, 14, 18
Pinehaven Planning Bd. v. Brooks, 70 P.3d 664 (Idaho 2003) ........................ 16, 17
Quinn v. Harris, No. 03-98-00117-CV, 1999 WL 125470 (Tex.
App.—Austin March 11, 1999, pet. denied)............................................... 7, 8, 12
Reagan Nat’l Adver. of Austin, Inc. v. Capital Outdoors, Inc., 96
S.W.3d 490 (Tex. App.—Austin 2002, pet. granted, judgm’t
vacated w.r.m.) ............................................................................................ 5, 8, 12
Roaring Lion, LLC v. Exclusive Resorts PBL1, LLC, No. CAAP-11-
0001072, 2013 WL 1759002 (Haw. Ct. App. April 24, 2013) ............... 15, 16, 17
Ross v. Bennett, 203 P.3d 383 (Wash. Ct. App. 2009) ............................................16
Russell v. Donaldson, 731 S.E.2d 535 (N.C. Ct. App. 2012) ........................... 16, 17
Scott v. Walker, 645 S.E.2d 278 (Va. 2007) ............................................................16
Shields v. State, 27 S.W.3d 267 (Tex. App.—Austin 2000, no pet.).......................18
Slaby v. Mountain River Estates Residential Ass'n, Inc., 100 So. 3d
569 (Ala. Civ. App. 2012)....................................................................................16
Slusher v. Streater, 896 S.W.2d 239 (Tex. App.—Houston [1st Dist.]
1995, no writ) .......................................................................................................10
Smith v. Bd. of Regents of Univ. of Houston Sys., 874 S.W.2d 706(Tex. App.—Houston [1st Dist.] 1994, writ denied) ...........................................10
Warehouse Partners v. Gardner, 910 S.W.2d 19 (Tex. App.—Dallas
1995, writ denied) ................................................................................................10
Wein v. Jenkins, No. 03-04-00568-CV, 2005 WL 2170354 (Tex.
App.—Austin Sept. 9, 2005, no pet.) ...................................................................11
Wilkinson v. Chiwawa Cmtys. Ass’n, 327 P.3d 614 (Wash. 2014) .........................17
Yogman v. Parrott, 937 P.2d 1019 (Or. 1997).................................................. 16, 17
vi
Statutes
Tex. Gov’t Code § 311.021(2) ...................................................................................6
Tex. Prop. Code § 92.152(a) ....................................................................................10
Tex. Prop. Code § 202.002(a) ....................................................................................6
Tex. Prop. Code § 202.003(a) ......................................................................... 5, 8, 16
Tex. Prop. Code § 202.004 ........................................................................................2
Rules
Haw. R. App. P. 35 ..................................................................................................15
Tex. R. App. P. 9.4(i)(1) ..........................................................................................20
Tex. R. App. P. 9.4(i)(2)(B) .....................................................................................20
Tex. R. App. P. 33.1(a) ............................................................................................18
Tex. R. Civ. P. 166a(c) ............................................................................................13
Tex. R. Civ. P. 683 ............................................................................................ 18, 19
vii
STATEMENT OF THE CASE
Nature of the Case: This is a declaratory-judgment action brought by two
homeowners, Craig and Tammy Zgabay, seeking an
interpretation of restrictive covenants governing a
residential subdivision (CR2 6-10). Defendant NBRC
Property Owners Association counterclaimed for
injunctive relief, statutory damages, and attorney’s
fees (CR 11-15).
Course of Proceedings: The parties filed cross-motions for summary
judgment (CR 18-51, 54-101; 102-21; SCR 7-35).
Trial Court’s The 433rd District Court of Comal County, the
Disposition: Honorable Dib Waldrip presiding, granted the
Association’s summary judgment motion and denied
the Zgabays’ motion (CR 127-29; Apx. 1). The
court’s order enjoined the Zgabays from renting their
house to any person or the public for temporary or
transient purposes, and awarded the Association
statutory damages of $500 and attorney’s fees of
$3,422.50 (CR 129; Apx. 1).
2
“CR” refers to the Clerk’s Record. As used in this brief, “SCR” refers to the Supplemental
Clerk’s Record and “Apx.” refers to the appendix attached to this brief.
viii
STATEMENT REGARDING ORAL ARGUMENT
The Association disagrees with the Zgabays’ assertion that no precedent
squarely addresses the issue in this case. Two published opinions by Texas courts
address the same or a similar issue. Nevertheless, the Association believes that
oral argument would help the Court in deciding the appeal because of the unsettled
question on how to reconcile the statute mandating liberal construction of
restrictive covenants with the common-law rule of strict construction.
ix
STATEMENT OF FACTS
The Declaration of Covenants, Conditions and Restrictions for River Chase
Unit Three—a residential subdivision in Comal County, Texas—was adopted and
recorded in November 1999 (CR 67-87; Apx. 2). Among other provisions, the
Declaration has restrictive covenants that (1) limit each tract to one dwelling unit
to be used for “single family residential purposes” and (2) prohibit activities “not
related to single family residential purposes” (CR 70, 72 [§§ 3.01, 3.14]; Apx. 2).
The Declaration states that its “provisions . . . shall be liberally construed as a
whole to effectuate the purpose of this Declaration” (CR 86 [§ 9.05]; Apx. 2).
The Declaration also created the NBRC Property Owners Association,
consisting of all record owners of tracts, and the Association’s Board of Directors
(CR 67-68 [§§ 1.01, 1.02]; Apx. 2). The Board has the authority to enforce the
Declaration’s provisions, including through legal actions (CR 84 [§ 8.11]; Apx. 2).
Craig and Tammy Zgabay bought a lot in the River Chase subdivision in
2000 and built a house in 2004 (CR 50). They did not get around to reading the
Declaration until later (CR 50). Upon reading the Declaration, Craig Zgabay
allegedly concluded that it had no restrictions on leasing (CR 50). Early last year,
he and his wife began renting the house for periods ranging from two to eight days,
1
and intend to continue with short-term rentals of the house (CR 50).3 According
to a neighbor, the Zgabays’ renters have used the neighbor’s pool without
permission during the night and played loud music at all hours (CR 90).4
After receiving complaints from neighbors (CR 88), the Board wrote to the
Zgabays and demanded that they cease short-term rentals (CR 50). The Zgabays
responded by filing this declaratory-judgment action seeking a ruling that the
restrictive covenants do not prohibit short-term leases (CR 6-10). The Association
responded with a counterclaim for injunctive relief, and also sought to recover
statutory damages under section 202.004 of the Texas Property Code and
attorney’s fees (CR 11-14).
The parties filed cross-motions for summary judgment (CR 18-51, 54-101,
102-21; SCR 7-35). After a hearing, the trial court granted the Association’s
motion and denied the Zgabays’ motion (CR 127-29; Apx. 1; RR 1:1). The court’s
summary judgment order enjoined the Zgabays from renting their house to any
person or the public for temporary or transient purposes (CR 129; Apx. 1). This
appeal followed (CR 170-71).
3
Although the Zgabays’ brief asserts that they have moved and have leased the house for a one-
year term (Appellants’ Brief at 6-7), nothing in the record supports either assertion.
4
The Zgabays’ brief contends that the trial court struck the neighbor’s affidavit and another
affidavit filed with the Association’s summary judgment motion (Appellants’ Brief at 8). But
their supporting record cite is to a docket entry that indicates the trial court took the motion to
strike those affidavits under advisement (CR 173). The record contains no written order or oral
ruling on the motion to strike. Regardless, the affidavits are cited only for background purposes.
2
SUMMARY OF THE ARGUMENT
The Zgabays’ brief effectively asks this Court to disregard the Texas statute
requiring liberal construction of restrictive covenants. But the Legislature must
have meant to accomplish something when, in the face of the common-law rule
requiring strict construction of restrictive covenants, it mandated liberal
construction of all such covenants. This Court is not free to disregard the
Legislature’s pronouncement. And although Texas courts are split on the interplay
between the statute and common-law rule, under the approach this Court follows
the common-law rule never comes into play unless the restrictive covenant is
ambiguous. Neither side in this case argues that the restrictive covenant is
ambiguous. The common-law rule is therefore irrelevant, and the statutory rule of
liberal construction controls.
The Texas rule of liberal construction goes a long way toward explaining the
differing results reached by Texas courts and some out-of-state courts. Texas
courts have held that virtually-identical or similar restrictive covenants prohibit
short-term rentals. Against the backdrop of liberal construction, those Texas courts
have reasoned that residency generally requires a fixed place of habitation and an
intent to remain despite temporary absences. When, as here, a series of families or
other groups stay in a rental house for a few nights or less, the house is not the
3
residence of any of them. It certainly is not being used for “single family
residential purposes” under the wording of the covenants at issue here.
To be sure, courts in some other states have reached contrary conclusions.
But those decisions from twelve other states—out of fifty, last we checked—are
hardly the “overwhelming tide” that the Zgabays portray them to be. More
importantly, those decisions generally turn on the rule of strict construction
followed in those states. In this state, the converse rule of construction is mandated
by statute. The Zgabays should take their complaint that Texas will be out of step
with other states to the Texas Legislature. Meanwhile, this Court should follow the
legislative rule of liberal construction and the Texas cases holding that similar
restrictive covenants prohibit short-term rentals.
4
ARGUMENT
I. The Rules of Construction for Restrictive Covenants
Under the common law, restrictive covenants are subject to the traditional
rules of contract construction. See, e.g., Reagan Nat’l Adver. of Austin, Inc. v.
Capital Outdoors, Inc., 96 S.W.3d 490, 493 n.2 (Tex. App.—Austin 2002, pet.
granted, judgm’t vacated w.r.m.). The goal is to determine the drafters’ objective
intent by examining the entire instrument. Id. at 493. But any “[d]oubts about the
meaning of a covenant are resolved against the party seeking to enforce it and in
favor of the free and unrestricted use of land.” Id.In 1987, however, the Texas Legislature altered the common-law rule. The
Legislature amended the Texas Property Code to mandate liberal construction of
restrictive covenants:
A restrictive covenant shall be liberally construed to give
effect to its purposes and intent.
Tex. Prop. Code § 202.003(a) (Apx. 3). Notably, the Declaration at issue adopts
this statutory rule of construction, stating that “[t]he provisions of this Declaration
shall be liberally construed as a whole to effectuate the purpose of this
Declaration” (CR 86 [§ 9.05]; Apx. 2).
The Zgabays make various arguments about how the common-law rule
supposedly is more specific and should effectively trump the statute (and the
contract provision adopting the statute). But just like the common-law rule once
5
did, the statute applies to all restrictive covenants. See Tex. Prop. Code §
202.002(a) (Apx. 3). One is no more specific than the other.
The Zgabays argue that the trial court gave “undue weight” to the statutory
rule (Appellants’ Brief at 10). By this they appear to mean that the trial court
should not have given any weight to the statute. But that approach runs afoul of
the rule of statutory construction that the entire statute is intended to be effective.
See Tex. Gov’t Code § 311.021(2). Under the Zgabays’ reading of the statute, the
Legislature accomplished nothing when it mandated liberal construction of all
restrictive covenants. The courts are not free, however, to disregard legislative
pronouncements. See Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 493-94
(Tex. 2013) (stating that it is not the court’s province to override a legislative
determination and that the “primary objective in constructing a statute is to
ascertain and give effect to the Legislature’s intent”).
In any event, the trial court certainly did not give “undue weight” to the
statutory rule. The summary judgment order expressly states that the court
balanced the statute requiring liberal construction of restrictive covenants with the
common-law rule of strict construction (CR 127; Apx. 1). Given that the statute
“applies to all restrictive covenants regardless of the date on which they were
created,” see Tex. Prop. Code § 202.002(a), the only way the trial court erred, if at
6
all, was in giving any weight to the common-law rule. But the Zgabays can hardly
complain about that.
Though not necessarily correct, the trial court’s attempt to balance the rules
was certainly understandable in light of (1) the lack of guidance from the Supreme
Court of Texas on the interplay of the statute and the common-law rule and (2) the
lack of agreement in the courts of appeals. As this Court has noted, its sister
courts have taken differing approaches on this question. See Quinn v. Harris, No.
03-98-00117-CV, 1999 WL 125470, at *2 n.3 (Tex. App.—Austin March 11,
1999, pet. denied). Some have said that there is no conflict between the rules
without explaining how they fit together. Id. (citing, e.g., Ashcreek Homeowner’s
Ass’n v. Smith, 902 S.W.2d 586, 588-89 (Tex. App.—Houston [1st Dist.] 1995, no
writ)). Other courts seem to have concluded that the statute trumps the common-
law rule entirely. Id. (citing Highlands Mgmt. Co. v. First Interstate Bank, 956
S.W.2d 749, 752 (Tex. App.—Houston [14th Dist.] 1997, pet. denied)). And still
others have attempted to harmonize the standards by liberally construing restrictive
covenants to determine the drafters’ intent but if that intent is ambiguous, then
strictly construing the covenant in favor of the unrestricted use of property. Id.(citing Munson v. Milton, 948 S.W.2d 813, 816 (Tex. App.—San Antonio 1997,
pet. denied)); see also City of Pasadena v. Gennedy, 125 S.W.3d 687, 693-95 (Tex.
7
App.—Houston [1st Dist.] 2003, pet. denied) (collecting cases and discussing
various approaches).
This Court follows the Munson approach of harmonizing the statute and
common-law rule. See Quinn, 1999 WL 125470, at *2 n.3; Reagan Nat’l Advert.
of Austin, Inc., 96 S.W.3d. at 493 n.2. Under this approach, the common-law rule
does not come into play unless the restrictive covenant is ambiguous. See Quinn
1999 WL 125470, at *2 n.3 (citing Munson, 948 S.W.2d at 816). As noted by the
trial court, the parties in this case agree that the applicable restrictive covenants are
unambiguous (CR 127; Apx. 1). The Zgabays do not contend otherwise on appeal,
and do not explain how the common-law rule would come into play under the
Munson approach in the absence of an ambiguity. Thus, the common-law rule has
no relevance to this appeal.
For the record, however, the Association does not believe the common-law
rule survived the enactment of section 202.003(a). That statute mandates liberal
construction of all restrictive covenants—presumably even ambiguous ones. It is
difficult to understand why liberal construction should not require interpreting
ambiguous restrictive covenants in favor of the person seeking enforcement when
strict construction requires the exact opposite—that is, interpreting ambiguous
covenants against such persons. See Benard v. Humble, 990 S.W.2d 929, 930-31
(Tex. App.—Beaumont 1999, pet. denied) (concluding that the Legislature
8
intended for restrictive covenants to be construed in a manner that might “run hard
afoul of the strict common law requirements,” and noting that the court would have
reached a different result if strict construction applied).
II. Under Texas Law, Short-Term Rentals Are Not a Single-Family
Residential Use
The Zgabays’ forty-page brief devotes less than two pages to discussing the
two leading Texas cases on the short-term rental issue: Benard and Munson. In
the former case, the Beaumont Court of Appeals interpreted a restrictive covenant
stating that “[n]o lot shall be used except for single-family residential purposes.”
See Benard, 990 S.W.2d at 930. That covenant is virtually identical to the
restrictive covenants in this case, which likewise limit use to “single family
residential purposes” (CR 70, 72 [§3.01, 3.14]; Apx. 2). The Benard court held
that the trial court did not err in ruling that the covenant prohibited renting for
periods of less than ninety days. Id. at 930-32.
Although the Benard court agreed that renting was not prohibited per se, the
court explained that renting a house on a weekly or weekend basis is more akin to
temporary or transient housing rather than residential housing. Id. at 931. The
court analogized to cases involving residency requirements for voting or obtaining
a divorce, and observed that residency typically requires a fixed place of habitation
and intent to remain or return despite any temporary absences. Id. at 931-32
(citing Slusher v. Streater, 896 S.W.2d 239, 243-44 (Tex. App.—Houston [1st
9
Dist.] 1995, no writ)). In reaching this result, the Court noted the outcome might
have been different if the common-law rule of strict construction applied but
concluded it was compelled to give effect to the statutory mandate of liberal
construction. Id. at 930-31.
In Munson, the San Antonio Court of Appeals addressed a restrictive
covenant requiring that lots be used for “residential, camping or picnicing [sic]
purposes” and not “for business purposes.” Munson, 948 S.W.2d at 815. The court
agreed that the trial court’s temporary injunction against all rentals was too broad
and modified it to prevent only leasing “to the public for temporary or transient
housing purposes.” Id. at 817. In concluding that such rentals were prohibited, the
court of appeals reasoned that residence generally requires both physical presence
and intent to remain. Id. at 816 (citing, e.g., Smith v. Bd. of Regents of Univ. of
Houston Sys., 874 S.W.2d 706, 712 (Tex. App.—Houston [1st Dist.] 1994, writ
denied)). Thus, when a person comes to a place temporarily, without any intention
of making the place his or her home, the place is not the person’s residence. Id. at
817. The Munson court further reasoned that the Texas Property Code
distinguishes between a permanent residence and transient housing. Id. (citing
Warehouse Partners v. Gardner, 910 S.W.2d 19, 23 (Tex. App.—Dallas 1995, writ
denied); Tex. Prop. Code § 92.152(a)).
10
This Court has not squarely addressed whether a similar restrictive covenant
bars short-term rentals. In one case, however, the Court upheld a permanent
injunction that interpreted a “single-family, private residential purposes” restriction
to preclude operating a “bed & breakfast,” hotel, inn, or venue for parties, business
meetings, or retreats. See Wein v. Jenkins, No. 03-04-00568-CV, 2005 WL
2170354, at *1-3 (Tex. App.—Austin Sept. 9, 2005, no pet.). In rejecting the
contention that the plaintiffs received greater relief than they requested, this Court
observed that the trial court’s interpretation of what the phrase “single-family,
private residential purposes” does not include—e.g., bed & breakfast, inn, etc.—
was “consistent with both the plain language and the underlying purpose” of the
restriction. Id. at *2. This statement strongly suggests that similarly-transient uses
(such as short-term rentals) are not single-family residential uses either.
In another case, this Court held that a restrictive covenant stating that no
more than one “private dwelling house” could be erected on each lot was
ambiguous as to whether it prohibited short-term rentals, and remanded that fact
issue for trial. See Cedar Oak Mesa, Inc. v. Altemate Real Estate, LLC, No. 03-10-
00067-CV, 2010 WL 3431703, at *2-5 (Tex. App.—Austin Aug. 31, 2010, no
pet.). As noted, however, neither side in this case contends the restrictive
covenants are ambiguous. Also, the wording of the covenants—“single family
residential purposes”—is markedly different than the “private dwelling” language
11
in Cedar Oak Mesa. Presumably because of those distinctions, the Zgabays cite
Cedar Oak Mesa but do not contend that its reasoning controls here.
Finally, this Court has found the Munson court’s analysis persuasive on the
interplay between the statutory and common-law rules of construction. See Reagan
Nat’l Advert. of Austin, Inc., 96 S.W.3d at 493 n.2; Quinn v. Harris, 1999 WL
125470, at *2 n.3. In doing so, the Court did not express any doubts about
Munson’s reasoning on the short-term rental issue.
The Zgabays nevertheless argue that this Court should not follow Munson on
the merits. They attempt to distinguish the restrictive covenant in Munson based
on its express prohibition on business uses, and its language clarifying that motels,
tourist courts, and trailer parks are business uses. Munson, 948 S.W.2d at 815. On
the flipside, however, the Munson restrictive covenant lacked the additional
requirement found in the covenants in this case, which require that the residential
use be “single family.” Entering into a series of short-term rentals with separate
families (or other groups) is not a “single family” use.
Moreover, both Munson and Bernard relied on well-established Texas law in
distinguishing between temporary and residential housing. Both courts are surely
correct that residential housing does not encompass the temporary or transient
presence that is the hallmark of short term-rental housing. This Court should rule
likewise.
12
Given the unfavorable Texas law, the Zgabays resort to novel appellate
arguments. They contend that (1) the trial court effectively imposed an occupancy
requirement the Zgabays cannot meet because they no longer live in the house and
(2) the restrictive covenants elsewhere distinguish between temporary and
permanent structures but not between temporary and permanent residence. But
they never made either argument in their summary judgment papers, and have
therefore waived them for appeal. See McConnell v. Southside Indep. Sch. Dist.,
858 S.W.2d 337, 341 (Tex. 1993) (stating that grounds for or against summary
judgment must be expressly presented in the motion or response); Tex. R. Civ. P.
166a(c) (“Issues not expressly presented to the trial court by written motion,
answer or other response shall not be considered on appeal as grounds for
reversal.”)
Regardless, the trial court’s order imposes no “occupancy” requirement. It
does not require that the Zgabays or anyone else occupy the house. The order
simply enjoins the Zgabays from renting to the public for temporary or transient
purposes (CR 129; Apx. 1).
The Zgabays’ other argument mixes apples and oranges or, more aptly,
permitted structures and permitted uses. Section 3.04 of the Declaration generally
bars temporary residential structures, with certain exceptions (CR 71; Apx. 2). On
the other hand, the provisions at issue here—sections 3.01 and 3.14—limits use of
13
the permanent structure to single-family residential purposes (CR. 70; Apx. 2).
Section 3.04 does not speak to or imply anything about whether a short-term rental
is a permitted use. But by limiting use to single-family residential purposes,
sections 3.01 and 3.14 confirm that temporary use for short-term rentals is not
allowed. See Benard, 990 S.W.2d at 930-32; Munson, 948 S.W.2d at 815-17.
The Zgabays say that the test for single-family residential use should be
“whether natural persons (or a “single family,” whatever that may encompass)
occupy the property consistent with the property’s nature as a place for dwelling as
opposed to a place for those persons’ conducting of a trade or commercial
enterprise on the property” (Appellants’ Brief at 29). They cite no Texas case or
any other authority for this proposed test. They also fail to recognize that their use
fails their own test. Even if one accepts the dubious proposition that temporary
occupancy of property equates to residence, a “single family” is not occupying the
property when it is rented for short periods to either successive families or
successive other groups.
Crucially, the Zgabays also concede that the duration of the lease may be
relevant to their proposed test (Appellants’ Brief at 30). But it is difficult to
imagine much shorter durations than the periods the Zgabays have leased their
house for (two to eight days), or the one-night rentals that they say would also be
14
permissible (CR 50; Appellants’ Brief at 29, 37). Once again, the Zgabays’ use
fails their own test.
III. The Out-of-State Cases Are Distinguishable and Should Not Be
Followed by This Court
Finding no support in Texas law, the Zgabays turn to decisions by courts
outside the state (Appellants’ Brief at 33-34). But the “overwhelming tide” of out-
of-state cases they cite consists of decisions from just twelve other states. In seven
of those twelve states, the issue has not been decided by the state’s highest court.
And one of the decisions—Roaring Lion, LLC v. Exclusive Resorts PBL1, LLC,
No. CAAP-11-0001072, 2013 WL 1759002 (Haw. Ct. App. April 24, 2013)—is a
memorandum opinion that is not even precedent under Hawaiian law. See Haw. R.
App. P. 35. Even at first blush, the out-of-state cases are hardly overwhelming.
Closer inspection further undermines the Zgabays’ reliance on the out-of-
state cases. First and foremost, the result in most of those cases turned on the
common-law rule requiring strict construction of ambiguous restrictive covenants.
See, e.g., Dunn v. Aamodt, 695 F.3d 797, 799-802 (8th Cir. 2012) (applying
Arkansas law)5; Applegate v. Colucci, 908 N.E.2d 1214, 1220 (Ind. Ct. App.
2009); Mullin v. Silvercreek Condo. Owner’s Ass’n, Inc., 195 S.W.3d 484, 490
(Mo. Ct. App. 2006); Estates at Desert Ridge Trails Homeowners’ Ass’n v.
5
The Zgabays’ brief cites only the district court’s unpublished decision, which was affirmed by
the Eighth Circuit.
15
Vazquez, 300 P.3d 736, 740-43 (N.M. Ct. App. 2013); Mason Family Trust v.
Devaney, 207 P.3d 1176, 1178-79 (N.M. Ct. App. 2009); Russell v. Donaldson,
731 S.E.2d 535, 538-39 (N.C. Ct. App. 2012); Yogman v. Parrott, 937 P.2d 1019,
1022-24 (Or. 1997); Scott v. Walker, 645 S.E.2d 278, 283 (Va. 2007); see also
Pinehaven Planning Bd. v. Brooks, 70 P.3d 664, 668-69 (Idaho 2003) (alternative
holding was based on rule of strict construction).6
None of the out-of-state cases applies a statute that, like section 202.003(a)
of the Texas Property Code, requires liberal construction of all restrictive
covenants. Given the unique Texas statute, it is hardly surprising that Texas courts
have reached a different result than courts in other states. Needless to say,
however, foreign cases applying a common-law rule of strict construction have
little to no relevance in Texas cases where liberal construction is mandated.
Beyond the diametrically-opposed rules of construction, the out-of-state
cases are distinguishable for other reasons:
• Several cases involved restrictive-covenant language that does not
include a residential-use restriction. See Pinehaven Planning Bd.,
70 P.3d at 668 (addressing covenant limiting construction to one
6
Of the remaining five cases, the two Washington cases indicate that Washington courts no
longer strictly construe restrictive covenants. See Wilkinson v. Chiwawa Cmtys. Ass’n, 327 P.3d
614, 619 (Wash. 2014); Ross v. Bennett, 203 P.3d 383, 387 (Wash. Ct. App. 2009). In a third
case, the court noted the rule of strict construction for ambiguous restrictive covenants but held
that the covenant at issue was unambiguous. See Lowden v. Bosley, 909 A.2d 261, 266-69 (Md.
2006). In two other cases, the court mentioned the rule of strict construction but it is not clear
whether the courts’ holdings on the short-term rental issue turned on strict construction of the
restrictive covenants. See Slaby v. Mountain River Estates Residential Ass’n, Inc., 100 So. 3d
569, 578 (Ala. Civ. App. 2012); Roaring Lion, LLC, 2013 WL 1759002, at *4-5.
16
single-family dwelling per lot and prohibiting commercial use;
distinguishing the San Antonio Court of Appeals’ decision in
Munson as involving narrower residential-use language); Mason
Family Trust, 207 P.3d at 1178 (addressing dwelling-use limitation
and prohibition on commercial use, and distinguishing Munson on
the same basis); Russell, 731 S.E.2d at 538 (interpreting covenant
prohibiting use of land for business or commercial purposes and
distinguishing cases involving residential-use restrictions).
• A number of the cases interpreted covenants that limited use to
residential or dwelling use but did not add the “single family”
qualifier present here. See Dunn, 695 F.3d at 798; Applegate, 908
N.E.2d at 1217; Roaring Lion, LLC, 2013 WL 1759002, at *1-2;
Mason Family Trust, 207 P.3d at 1177; Russell, 731 S.E.2d at 537;
Yogman, 937 P.2d at 1020.
• In some cases, there was evidence that short-term rentals were
widely allowed in the subdivision. See Mullin, 195 S.W.3d at 490-
91 (discussing the evidence that from the beginning, condominium
units had been rented on a short-term or nightly basis); Wilkinson,
327 P.3d at 617 (stating that subdivision residents had entered into
short-term rentals for decades without controversy).
• The restrictive covenants in one case incorporated definitions from
that state’s Uniform Business Code, which defined residential use
to include apartments and lodging houses. See Pinehaven
Planning Bd., 70 P.3d at 668.
Viewed in light of all of these distinctions, including the dispositive distinction of
liberal versus strict construction, the Zgabays’ “overwhelming tide” is a trickle at
best. This Court should follow the Texas cases and the Texas statute mandating
liberal construction of restrictive covenants.
17
IV. The Zgabays’ Challenge to the Alleged Vagueness of the Injunction Was
Not Preserved and Lacks Merit
The Zgabays also argue that the permanent injunction is too vague to be
enforced. But they never raised that argument in the trial court, either in their
summary judgment response or in a motion to modify the injunction. As a result,
their vagueness challenge is not preserved for appeal. See Shields v. State, 27
S.W.3d 267, 273 (Tex. App.—Austin 2000, no pet.) (holding that defendant
waived complaint about order not stating reasons for permanent injunction by
failing to raise complaint in trial court, citing Tex. R. App. P. 33.1(a)).7
In any event, the language in the trial court’s order—enjoining the Zgabays
“from renting their property . . . to any person or the public for temporary or
transient purposes” (CR 129; Apx. 1)—is based upon and nearly identical to the
language approved by the Munson court. See Munson, 948 S.W.2d at 817
(modifying injunction to enjoin appellants from “renting and/or leasing said
property to the public for temporary or transient housing purposes.”) Moreover,
the trial court’s order elaborates that residential use “means to occupy a place over
7
Other Texas courts have held that complaints about an injunction’s failure to comply with Tex.
R. Civ. P. 683 cannot be waived because the requirements of that rule are mandatory. See, e.g.,
Int’l Bhd. of Elec. Workers Local Union 479 v. Becon Constr. Co., 104 S.W.3d 239, 243 (Tex.
App.—Beaumont 2003, no pet.) (citing InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715
S.W.2d 640, 641 (Tex. 1986)). But both cases involved temporary (rather than permanent)
injunctions, which have differing requirements under Rule 683. Interfirst Bank involved a
failure to comply with a separate requirement of Rule 683 (the requirement that a temporary
injunction order set the case for trial), and there apparently was no appellate argument that the
complaint was waived. See InterFirst Bank San Felipe, N.A., 715 S.W.2d at 640-41.
18
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” (CR
128; Apx. 1). Read in its entirety, the order satisfies the requirement that the act
sought to be restrained be described in “reasonable detail.” See Tex. R. Civ. P.
683.8
CONCLUSION AND PRAYER
For these reasons, the trial court’s summary judgment order and injunction
should be affirmed. The Association also requests all other relief to which it is
justly entitled, including an award of its appeal costs.
8
The Zgabays are not entitled to remand for an award of attorney’s fees because they have not
demonstrated any reversible error in the trial court’s judgment.
19
Respectfully submitted,
THOMPSON, COE, COUSINS & IRONS,
L.L.P.
By: /s/ Wade Crosnoe
Wade C. Crosnoe
State Bar No. 00783903
Brian D. Hensley
State Bar No. 24036759
701 Brazos, Suite 1500
Austin, Texas 78701
Telephone: (512) 708-8200
Facsimile: (512) 708-8777
E-Mail: wcrosnoe@thompsoncoe.com
bhensley@thompsoncoe.com
Tom L. Newton, Jr.
State Bar No. 14982300
Allen, Stein & Durbin, P.C.
6243 IH-10 West, 7th Floor
P. O. Box 101507
San Antonio, Texas 78201
Telephone: (210) 734-7488
Facsimile: (210) 738-8036
E-Mail: tnewton@asdh.com
Counsel for Appellee NBRC Property Owners
Association
CERTIFICATE OF COMPLIANCE
This brief complies with the word limit of Tex. R. App. P. 9.4(i)(2)(B) be-
cause it contains 4,447 words, excluding the parts of the brief exempted by Tex. R.
App. P. 9.4(i)(1).
/s/ Wade Crosnoe
Wade Crosnoe
20
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Appellee’s Brief was served on
February 3, 2014, via electronic service or email, to the following counsel:
J. Patrick Sutton
1706 W. 10th Street
Austin, Texas 78703
E-Mail: jpatricksutton@jpatricksuttonlaw.com
Counsel for Appellants
/s/ Wade Crosnoe
Wade Crosnoe
21
APPENDIX
APPENDIX
Tab 1
Order on Motions for Summary Judgment
150 N. Seguin, Suite 317 830-620-5562
New Braunfels, Texas 78130 Fax 830-608-2030
.......~
~-
-< -
-· .,
~
--,.,
-~ '·--,...,
DIB WALDRIP \
·-·"': ~ (/)
__/
..
PRESIDING JUDGE
~
·-o .....,
., ·<
' ·- - N ')
.: .. '1 N .J
:; :;,
.,-,
433RD JUDICIAL DISTRICT COURT -u ~ 1
-~
. __ ....
COMAL COUNTY
~
•:-)
0
:'"-; ..
.<::"
0
:J
...-..,
~,·l ..J
0
September 19, 20 14 \
\
-l
-<
Cause No. C2014-0501C
CRAIG ZGABAY AND § IN THE DISTRICT COURT
TAMMYZGABAY §
Plaintiffs/Counter-Defendant§
vs. § 433rd JUDICIAL DISTRICT
§
NBRC PROPERTY OWNERS §
ASSOCIATION §
Defendant/Counter-Plaintiff § COMAL COUNTY, TEXAS
ORDERS ON COMPETING MOTIONS FOR SUMMARY JUDGMENT
CAME ON TO BE CONSIDERED Plaintiffs'/Counter-Defendants' Craig and
Tammy Zgabay (hereinafter "Zgabay") and Defendant's/Counter-Plaintiffs NBRC
Property Owners Association (hereinafter "NBRC") competing Motions for Summary
Judgment.
Among other matters, both parties principally seek reciprocal declarative relief
regarding the subject Declaration of Covenants, Conditions and Restrictions to River
Chase Subdivision, Unit Three. The parties agree 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 balancing both statutory
requirements to liberally construe language within such subdivision covenants with
common law mandates to strictly construe restrictive clauses in real estate instruments
resolving all doubt in favor of the free use of real estate. See generally, Benard v.
Humble, 990 S.W.2d 929, 930 (Tex.App.-Beaumont 1999, writ ref'd n.r.e.) (noting the
invariable legal conflict).
127
After considering the Motions, the responses, the pleadings, the evidence properly
before the Court, and the arguments of counsel, the Court determines that the
Defendant's/Counter-Plaintiffs Motion should be and is hereby GRANTED while the
Plaintiffs'/Counter-Defendants' Motion should be and is hereby DENIED for the
following reasons.
The parties do not differ nor argue about the summary judgment evidence, and
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 "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. 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 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."); 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).
Although the legislature has assigned differing minimum lengths of time (i.e., 30
days to 6 months) in order 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." Mills, supra at 637. 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. Munson v. Milton, 948 S.W.2d 813, 816-17 (Tex.App.-San Antonio 1997,
writ denied). Without ascribing any specific length of time or bright-lined 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." Id. at 815 & 817.
Based upon the existing and proper summary judgment record, the Court has no
doubt regarding the intent of the drafter of the instant covenants. The covenants, created
and filed in 1999, clearly allow properties 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 River Chase Unit Three-as used in the phrase single-family
residential purposes, 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.
128
(·)-~'-.'.·:
\/
-<``.
Accordingly, it is ORDERED that Counter-PlaintiffNBRC is entitled to
injunctive relief against Counter-Defedants Zgabay restraining them from renting their
property located at 1175 River Chase Drive, New Braunfels, Texas 78132 (hereinafter the
"Property") to any person or the public for temporary or transient purposes.
It is FURTHER ORDERED that consistent with the Declaration of covenants,
Conditions and Restrictions for River Chase Unit Three, which is applicable to the
Property, neither Counter-Defendants Zgabay, nor their 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 Plaintiffs/Counter-Defendants Zgabay take
nothing against Defendant/Counter-PlaintiffNBRC and that all claims asserted by
Plaintiff/Counter-Defendant Zgabay are denied and that all costs of court be taxed against
Plaintiff and that Defendant/Counter-PlaintiffNBRC recover from Plaintiffs $3,422.50 as
reasonable and necessary attorney's fees and $500.00 as statutory damages.
129
APPENDIX
Tab 2
Declaration of Covenants, Conditions and
Restrictions for River Chase Unit Three
Doclt 9906031628
.... vaoso:uua
Document Numbe~ 9906031412 is re-recorded to correct Page 8.
This document as re-recorded replaces Document Number 9906031t12
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
RIVER CHASE UNIT THREE
STATE OF TEXAS
KNOW AU. MEN BY THESE PRESENTS;
COUNTY OF COMAL
Thle Declaration made on thlt' date hereinafter set forth by TEXAS
SOUTHERLAND VENTURE, formerly known u TEXAS SUMMERLIN VENTURE, a
Maauchuaette Joint Vlt'nture, acting h``rein by and through iU duly authorized Joint
Venturer, SOUTHERLAND PROPEFITIES, INC., formerly known a•
SUMMERUN
PROPERTIES, INC., a Texaa Corporation, duly authorized to do busineu in the Statlt'
of Texu, hereinafter referred to u "Developer".
WITNESSETH:
WHEREAS, Developer is the owner of that certain tract of land known ae RIVER
CHASE UNIT TWO, beiniJ a subdlvlaion containing 741.43 l1Cf8S out of a 1494.571
acre tract of land situated In ComaJ County, Texas (hereinafter referred to as the
"Property• or tha "Subdivlalon") with the Plat of RIVER CHASE UNIT THREE, baing
recorded In the olflca of the County Clerk of Coma! CountY, Texas on the 5111 day of
November, 1999, after having bean approved 111 provided by 1-.
and being recorded
in Book Volume13, PagR 131-138, of tha Mep Recorde of ComaJ County, Tax•••
and,
WHEREAS, it Ia the desire of Developer to place certain reatrictlons. -manta,
covenants, conditions, atipulatlone and reservation• (herein sometime• referred to u
(the •Reatrlctlona"l upon and agelntt RIVER CHASE UNIT THREE in order to establish
a uniform pian for itt development, improvement and sale, and to insure tha
preservation of IUch uniform plan for the baneflt of both the present and future ownare
of tracta in RIVER CHASE UNIT THREE.
NOW, THEREFORE, Developer hereby adopts, eatablishaa and lmpo- upon
RIVER CHASE UNIT THREE, and daclaras -the following ruarvationa, eaaamente,
reatrictiona. covenants and conditiona eppllcable thereto all of which are for the
purpqaae of enhancing and protecting the value. daeirabillty and ettrxtivenesa of said
Propart'f, which Reatrlctiona shall run with aeid PropertY and title or lntaraat therein,
or any part thereof, and ahalllnura to the benefit ot each owner thereof. Developer
also doclaree that RIVER CHASE UNIT THREE shall beaubject to the juriadlctlon of tha
• Association• (ae hereinafter defined).
I ARTICLE I
QEFINII!ONS
I
Section 1.01 • Association" shall maan and refer to the NBRC PROPERTY OWNERS
ASSOCIATION, and ita auccasaors and a~algna. Notwithstanding anything herein to
the contrllfY, the NBRC PROPERTY OWNERS ASSOCIATION ahaU co111iat of members
from all Sections and Unite within the Property. It is Intended that only one NBRC
i PROPERTY OWNERS ASSOCIATION exista for the whole ofthe 1494.871 acres and
I for any other property hereafter subjected to theee reatrictiona.
~
ta
1
EXHIBIT
I Jl
67
.llac:H 99868iU41il!
Doctt 9'906031628
Section1.02 'Bgard gf Qjrectgrs" shall mean and refer to the Board of Directors of the
Association.
Section1.03 "Builders• shall mean and refer to persona or antltiaa that purchase tracts
and build specu latlve or custom homes thereon lor third party purchasers.
Section1.04 'Cgmmon Area• shall mean all real Property (including the Improvements
thereon) within the Subdivlaion owned by the Developer and/or tho Aa•oclation for the
common usa and enjoyment of the Owners.
Section 1.05 "Cgntragtgr• sheD mean end refer to the parson or entity with whom an
Owner contracts to construct a residential dwelling on such Owner's Tract.
Sectlon1.06 "Oevelgoar• shall maan and refer to TEXAS SOUTHERLAND VENTURE,
a MaaAChuaatta Joint Ventura, acting herein by and through ita duly authorized Joint
Venturer, SOUTHERLAND PROPERTIES, INC., a Texas Corporation, itsauccesaora and
aaslgna.
Section 1 .07 .:.II:G1: shall mean and refer to any plot of land identified as a parcel or
home site on the Plat of RIVER CHASE UNIT THREE. For purposes of this instrument,
"T ract• shall not be deemed to includs any portion of tho "Common Araaa • or
'Unrestricted Reserves•, (defined herein as any Common Areaa and Unrestricted
Raaarvaa shown on the Plstl in RIVER CHASE UNIT THREE, regardless of the use
made of such area.
Sectlon1.08 "Member• shall mean and refer to every parson or entity who holds a
membership in the Aesoclation.
Sectlon1.09~ shall mean and refer to the record owner, whether one or more
persons or entitles, of fee simple title to any tract which is a part of the Subdivision,
Including (i} contract aellar (a sellar under a Contract for Dead), but excluding those
having auch interest merely as security for the performance of an obligation, (iii
Developer (except es otherwise provided heralnl, end IIIII Bulldera.
Section1.1 0 ~The words 'Sectlon(al' and 'Unitlsl" are uaad interchangeable
within those Rastrictiona to refer to a particular tract of land designated on each filed
map or plat of RIVER CHASE.
ARTICLE II
RESERVATIONS EXCEPTION ANQ QEQICADONS
Sectlon2.01 Recgr!led SubdMajgn Map gf tho Prooartv. The Plat ("Piat"l of RIVER
CHASE UNIT THREE dedicates for use aa such, subject to the limitations aa set forth
therein, the roada, streets and easements shown thereon. The Plat further establishes
certain raetrictiona applicable to RIVER CHASE UNIT THREE. All dadicatlona,
restrictions and reaarvatlons created herein or shown on the Plat, rapists or
amendment of the Plat of RIVER CHASE UNIT THREE recorded or hereafter recorded
shall be construed as being included in each contract, dead, or conveyance executed
2
63
- - - - - - - - - t '}•?- - - - - - - - . . . ~r--------
Doell 9906031628
or to be executed by or on behalf of Developer, whether speclllcellv referred to therein
or not.
Section 2.02 Easements. Developer reserves for pubtic use the utility eeaementl
shown on the Plat or that have bean or hereafter may be cr81ted by separate
instrument recorded In the Official Public Records of Carnal County, Texaa, for the
purpose of conetructing, melntainlng and repairing a syatem or syateme of electric
lighting, electric power, telegraph and telephone line or linea, storm surface drainage,
cable television, or any other utility the Developer sees fit to lnetall In, acrose and/or
under the Property. All utility eaaemante In the Subdivision may be used for the
construction of drainage swalea In order to provide for Improved surface drainage of
the Reserves, Common Area end/or Tracts. Should any utUity company furnishing a
service covered by the general sasement herein provided or provided on the plat
requeat a specific easement within the general easement area by separate recordable
document, Developer, without the joinder of any other Owner, shall have the right to
grant such easement on said Property without conflicting with the terms hereof. Any
utility company serving the Subdivision shall have the right to enter upon any utility
easement for the purpose of installation, repair and maintenance of their respective
facilitlas. Neither Developer nor any utility company, political subdivision or other
authorized entity using the aasemante herein refaned to shall bailable for any damages
dona by them or their &Siigna, agents, employees, or servants, to fences, shrubbery,
trees and Iaws or any other Property of the Owner on the Property covered by said
easements.
Section 2.03 Tjtle Sub!ect to Easamants. It is expressly agreed and understood that
the title conveyed by developer to any of the Tracts by dead, contract for deed or
other corrveyanca shall be subject to any easement affecting aama for roadwaya or
drainage, electric lighting, electric power, telegraph or telephone purposes and other
easements hereafter granted affecting the Tracta. The Owners of the respective
Tracts shall not be deemed to own pipes, wires, conduits or other service linea running
through their Tracts which are utilized for or service to other Tracts, but each Owner
shall have an easement in and to the aforesaid facilities as shall ba necessary for the
use, maintenance and enjoyment of his Tract. The Developer may convey title to the
above said easamenta to the public, a public utility company or the Allocietlon.
Section 2.04 Utllitv Ea§8menta.
(a) Utility ground and aerial easement• have been dedicated In accordance
with tha Plat and by separate recorded easement documents.
(b) No building shell be located over, under, upon or serosa any portion of
any utility easement. The Owner of each Tract shall have the right to
construct, keep and maintain. concrete drives, fences, and similar
improvements across any utility easement, and shall be entitled to cross
such easements at ali times for purposes of gaining acceae to and from
such Tracts, provided, however, any concrete drive, lance or similar
improvement placed upon such Utility Easement by the Owner shall be
constructed, maintained end used at Owner's risk and, as such. the
Owner of each Tract subject to said Utility Easements shall be
3
I
I
I
69
---------r.:fi)._---------:.,.``--------
Doc• 9906031628
responsible for (i) any and all repairs to the concrete drives, fences and
similar improvements which erose or are located upon such Utility
Easamenta and (ill repairing any damaga to said lmprovemanta caused by
the Utility District or any public utility in the caursa of lnstalftng,
operating, maintaining, repairing, or removing Ita facilities located within
the Utility Easamants.
ARTICLE Ill
USE RESTRICTIONS
Section 3.01 SlngiB Family Bujdeotial Construction. Except aa provided below, no
building shall be erected, altered, placed or permitted to remain on any Tract other than
one dwelling unit par each Tract to be used for single family residential purposes. One
guest/aervanta house may be built provided said guest/servants housa contains no lass
than five hundred (500) square feat, no mora that on•thousand (1 000) square feat,
is built after or while the main dwelling Is being built and haa prior approval of the
Architectural Control Committee. All reaidances muat have a garage. Detached
II
garagea and work shops may not ba conatructed on the Property prior to the main
dwelling being built. Barns and/or storage buUdlnga may be conatructad on the
property prior to the main dwelling being built provided they ere approved In writing
by the Architectural Control Committee prior to baing erected, altered or placed on the
property and are placed on the reer half of the property, out of view of any road, and
behind the Intended dwelling alta. All structure• must be approved In writing by the
Architectural Control Committee prior to being erected, altered or placed on the
Property. The term "dwelling• doaa not Include either double wide or manufactured
homes, or single wide mobile homes, or prefeb houses regardless of whether the aame
are placed upon permanent foundation, and said homea are not permitted within the
Subdivision. All dwellings must have at least one thousand eight hundred (1800)
I square feet of living area for one story homaa and two thousand 120001 square feat
l of living area for two story homes, with at laaat one thousand (10001squara feat on
the ground floor, excluding porchee, and be built with new construction material. Any
building, structure or lmprovamanta commenced on any tract shall be completed aa to
the exterior finish and appearance within six (61 montha from the commencement date.
All garagaa, Including detached garagea, wiU be of the same general construction as
the main dwelling and located on the tract according to the Committee approved
building aite plan and shell be aultable for not lasa that two (21 automobiles. All
garages must be aide or rear entry. No carports shall ba allowed.
Section 3.02 Comgosita Building Sjto, Any Owner of one or mora adjoining Tracts lor
portions thareofl may, with the prior written approval of the Architectural Control
Committee, and with approval of the Coma! County Commissioner's Court, If required,
consolidate such Tracts or portion• Into one bulldlng alta, with the privilege of placing
or constructing improvements on such resulting site, In which caaa the aida setback
linea shall be meesured from the raaulting side Property linea rather than from the Tract
linea as Indicated on the Plat. Public utility and drainage eaeementa era exempt from
this provision.
Section 3.03 Location of the lmproyementa upon the Tract, No building of any kind
4
7J
i
!
I
Beall 990i03l,.ll!
Doell 9906031628
l shall be located on any tract nearer than forty feat (40') to the side Property line,
no nearer than seventy-five feet (76'1 to the front Property Una and no nearer than
I
seventy-five feat (76'1 to the rear Property line, provided however, as to any tract, the
Architectural Control Committee may waive or altar any such setback Una, If the
Architectural Control Committee In the exercise of the Architectural Control
Committee's aola discretion, such waiver, or alteration Is necacsary to permit affective
utilization of a tract. Any such waiver or alteration must be in writing and recorded
I
In the Offlclal Publlo Recorda of Comal County, Texas. All dweUings placed on Subject
Property must be equipped with Class I Aerobic Septic tank system that meet all
applicable laws, rules, standards and specifications, and all such dwellings must be
served with water and electricity.
Section 3.04 Usa pf Temoorarv Structural. No structure of a temporary character,
whether trailer, motor home, basement, shack, garage, bam or other outbuilding shall
be maintained or used on any Tract at any time as a residence, either temporarily or
permanently, except as provided below. No Trect shall be uaed as a camping ground.
A property owner may usa an RV camper or motor home as hlslhar temporary
residence for up to six (61 months during construction provided an approved septic
system has bean Installed and the RV camper or motor home Is placed behind the
construction site. After the dwelling is complete an RV camper or motor home may be
stored on the tract provided It Ia stored In compliance with Section 3.17 of the1e
restrictions. The Declarant or the Commlttaa shall have the right to have any RV or
motor home found to ba in violation of these raatrictions removed end stored at the
l
I
expanse of the owner: and, for these purposea Declarant andlor the representative of
the Committee Ia granted express written consent to remove the same without penalty
or offense.
I
i The Developer resarvea the exclusive right to erect, place and maintain a mobile home,
i camper or motor home In or upon any portion of the Subdivision as In Its sola
Ii discretion may be necessary or convenient while selling Tracts, selling or constructing
residences and constructing other Improvements within the Subdivision. The
Developer Ia not raatrlctad by any of the above time constraint& in thla provision.
l Section 3.06 Repair of Buildjnga. All Improvements upon any of the Property shaD at
l all times be kept in good condition and repair and adequately painted or otherwise
maintained by the Owner thereof.
i Section 3.06 Alteration or Removal of Improvements Any construction, other than
i
1
3
normal maintenance, which altars the exterior appearance of any Improvement, or the
removal of any Improvement, shell ba performed only with the prior written approval
of the Architectural Control Committee.
i' Section 3.07 Roofing Materiels. The roof surface of all principal and secondary
structures Including garages and domestic living quartera shell be of slate, stone,
i. concrete tile, clay tile, or other tile of a ceramic natura, composition shingles with a
1 twenty-five (25) year or mora warranty; or they may ba metal, left natural or painted
J a color approved by the Architectural Control Committee, using standing or battened
~ seams. The Architectural Control Committee shall have the authority and sola
A
J 6
~
ll
l.
7l.
Doctl 9906031628
DeaN 991UiOat. ua
discretion to approve other roof treatments and materials if the form utilized will be
harmonious with the surrounding homes and subdivision as a whale.
Section 3.08 Construction In Place. All dweiUngs constructed on the Property shall
be built In place on the applicable Lot. The use of prefabricated materlala for any
Improvements, Including but not limited to fences, shall be allowed only with the prior
written approval of the Architectural Control Committee.
Section 3.09 ~ All exterior color schemes on any structure must be approved by
the Architectural Control Committee prior to use.
Section 3.1 0 Model Hom11. Notwithstanding anything herein contained, Builders shell
be allowed to construct model homes aa long aa such modal homes conform to these
restrictions.
Section 3.11 ~ The exterior walls of the main residence conatructed on any
lot shall be at leaat sevanty·flve percent (76%1 masonry or masonry veneer, Inclusive
of door, window and similar openings. However, all exterior walls exposed to view
from the front property line shall be constructed of no lass that seventy-five percent
(76%1 masonry or masonry veneer exclusive of all door, window or similar openings.
Masonry and Masonry veneer lncludea atucco, ceramic tile, clay, brick, rock and all
other materials commonly referred to In the New Braunfels, Texas area aa masonry.
Notwithstanding this provision, log housea not meeting the above masonry
requirements may be allowed with the prior written approval of the Architectural
Control Committee.
Section 3.12 Walls. foncaa, qnd Mall Boxes. Walls and fences, if any, must be
approved prior to construction by the Architectural Control Committee and, unless
otherwise permitted by the Architectural Control Committee, must be constructed of
wood, metal, masonry, masonry veneer, smooth wire or barbed wire. Electric wire and
chain link fencing shall not be permitted. All wooden fencea must be painted and the
color of such paint muat be approved by the Architectural Control Committee. All
individual mall boxea (If approved by the poatal department) must be of masonry
construction and approved by the Architectural Control Committee.
Section 3.13 Antonnat, Towera. qnd Satellite pjahal. Antennas, towarl, or sateUita
dlshe1 of any kind shall not exceed ten feat above the roof of the Dwelling or
Accaasory Building whichever Ia higher. Any anteMae, tower or eatelllte dish rnuat
be located to the side or rear of the Dwelling or Accessory Building and not within
forty feat (40'1 of any side Property line or seventy-five feet (76') of any rear Property
line. Nothing herein shall be construed to conflict with the latest rules and regulations
I set forth by the Federal Communications Commission.
l
~
Section 3.14 Prohibition of Offwjve Actjyitjas. No Activity, whether for profit or nat,
shall be conducted on any Tract which Is not releted to single family residential
purposes, unleaa said activity meets the following criteria: (a) no additional exterior
sign of activity is pre11nt, (b) It Ia 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
I 6
II
72
--------------;\..}.
,..
·•'.·."'''·------------~)------------
·.tt'- /.·-.-.·
r
'"hell .,,06031412"
Doclt 9'30&03162&
dangerous Ia present that should not be there. Thla restriction is waived in regard to
the customary sales activities required to sell homes In the Subdivision. The discharge
or u.. of firearms is el(presllly prohibited. Hunting Is elCpresaly prohibited. Tha
Association shall have the sola and ab10lute dlacretion to determine what constitutes
a nuisance or annoyance.
Section 3.15 Garbage and Trash Disposal. Garbage and trash or other refuse
accumulated In thla Subdivision shall not be permitted to be dumped at any place upon
adjoining land where a nuisance to any residence of this Subdivision Is or may be
created. No Tract shall be used or maintained as a dumping ground for rubbish.
Trash, garbage or other waste shall not be allowed to accumulate, shall be kept In
sanitary containers and shaU be disposed of regularly. All equipment for the storage
or disposal of such material shall be kept In a clean and sanitary condition.
Section 3.18 Junked Motor Vehicles Prohjbjted. No tract shall be used as a depository
for abandoned or junked motor vehicles. No junk of any kind or character shall be kept
on any Tract.
Section 3.17 TrajfeCJ. Rys. Boats All trailars, travel trailars, graders, recreational
vehicles IRV's), trucks (other than pickups of a size one 111 ton or less), boats,
tractors, campans, wagons, buses, motorcyclea, motor scooters and lawn or garden
maintenance equipment shall be kept at all times, elCcapt when In actual use, In
enclosed structures or screened from view from common areas, public or privata
thoroughfares and adjacent properties.
Section 3.18 ~. No signs, advertising, billboards or advertising atructure of any
kind may be aracted or maintained on any Tract without the consent In writing of the
Architectural Control Committee, elCcept one 111 professionally made sign not more
than twenty-four Inches 124 "I by thirty Inches (30") advartislng Owner's Tract for sale
or rant, and one 111 profesaionally made sign, not more than twelve inches 112"1 by
twenty-four Inches 124"1 identifying the Tract owner's name or names. The term
"professionally made algn• does not Include the plastic pre-made "for sale" or "for
rent" signs. No algn shall be nailed to a tree. Daclarant or any member of such
Committee shall have the right to remove any such sign, advertisement or billboard or
structure which is placed on any Tract In violation of these reatrlctlons, and In doing
so, shan not be liable, end are hereby elCpressly relieved from, any liability for trespass
or other tort in connection therewith, or arising from such removal.
Section 3. 19 Animal Husbandry. No animals, livestock or poultry of any kind shall be
raised, bred or kept on any Tract &lCcept that one (1) horse par avery 2.5 acres may
be kept, ea long as it doaa not become a nuisance or threat to other Owners.
Provided, however, animals baing raised for 4-H or school sponsored prograrne will be
permitted. No pigs or hogs will be permitted under any circumstances or programs.
All horses, cows and 4-H animal• baing raiaed by Individual tract owners must be kept
In e fenced araa on the owner's tract. No ovargrazlng Is permitted on any portion of
tha lot. Dogs, cats, or other common housahold pata may be kept on a Tract. Dogs
must be kept in a kennel, dog run, or fenced In area that confinn aald doglsl to that
area, and for these purposes chain link fencing shall be permitted provided, however,
7
73
------------!,~li--------/~J)~------
Doell 9906031628
no such fenced In area shall be located adjacent to any aida, front or rear boundary
line. Dogs will not be permitted to run loose In the Subdivision and muat be
vaccinated for rabin according to State law once a year and registered with Comal
County once a year.
Section 3.20 Mineral Developmem. No commercial oil drilling, oil development
operations, oil refining, quarrying or mining operation of any kind shall be permitted
upon or In any Tract. No demck or other structures daigned for the uaa of boring for
oil or natural gas shall be erected, maintained or permitted upon any Tract.
Section 3.21 prajnage, Natural established drainage patterns of atreeta, tracts or
roadway ditches wiU not ba Impaired by arry person or paraona. Driveway culverts
must ba Installed and will ba of suHiclant size to afford proper drainage of ditches
without backlog water up Into ditch or diverting flow. Drainage culvert installation Is
subject to the inspection and approval of the Architactural Control Committee and to
County requirements.
Section 3.22 Ro-sybdjy!sjon. Except as provided below or as otherwise permitted In
thea& restrictions, no tract shall be re-aubdivlded or spUt. Lots may be combined Into
one Lot for building purposes and the Interior common boundary line shall be
extinguished by filing a recordable document of record, joined by the Declarant, or
Architectural Control Committee. or ita duly authorized represantstlva, declaring the
same to be extinguished. Thereafter, aU sat back linea shall refer to the exterior
property llna1. Combined Lots shall nevarthalasl b1 considered as separate Lots for
assessment purposes, unless otherwise determined by tha Architectural Control
Committee. Public utility end drainage aaaementa ara exempt from thla provision.
Builder reserves the right to further subdivide Lot 220. Thla right Ia assignable by
Developer at ita sole discretion. The assignment, if any, shall be executed at such
time aa Lot 220 Ia sold by Davalopar and shall ba evidence in writing and filed of
record, Thl8 right Is exclusive to Developer and shall not be affected by the transfer
of architectural and property owner aaeociatlon control.
In the evant of the failure of Owner to comply with the above requirements after ten
(101 days written notice thereof, the Auoclatlon or their designated agents may,
without liability to the Owner, Contractor or any occupant• of the Tract In trespass or
otherwise, enter upon (and/or authorize one or mora othara to enter upon) said Tract,
causa to be removed, such garbage, traah and rubbish or do any other thing necessary
to secure compliance with this Declaration at the expanse of Owner. Payment for the
chargae by such Owner shall be payable on the flrat day of the next calendar month.
ARTICLE IV
ARCHITECTURAL CQNTBOL COMM!me
Section 4.01 Basic Control
(a) No building or other Improvements of any character shell be erected or
placed, or the erection or placing thereof commenced or changes made
In the design or exterior appearance thereof (excluding, without
8
74
--------t--;)'}--------::"(J~_~::- - - - -
Doell 990603161!8
Duclf !1986eitl4:1:1!
limitation. any staining, painting or aiding), or any addition or exterior
alteration made thereto after original by construction, or demolition or
destruction by voluntary action made thereto after originally constructed,
on any tract in the Subdivision until the obtaining of the neca11ary
approval (as hereinafter provided) from the Committee of the
construction plana and specification for the construction or alteration of
such improvements or demolition or destruction of existing improvements
by voluntary action. Approval shall be granted or withheld besed on
matters of compliance with the provisions of thia Instrument.
(bl Each application made to the Committee. or to the Davalopar, shall be
accompanied by two seta of plans and specifications for all proposed
construction (initial or alteration) to be done on auch Tract including plot
plana showing location on the tract.
Section 4.02 Architectural Comrol Committee.
(a) The authority to grant or withhold architectural control approval as
referred to above ie initially vested In the Oavalopar; provided, however,
the authority of the Daveloper shall caue and tarmlnate upon the election
of the Architectural Control Committee of the Association (sometimes
herein referred to as the "Committee"), In which avant such authority
shall be vested In and exercised by the Committee (aa provided In (bl
below), hereinafter referred to, e~ecept aa to plena and specifications and
plot plans theretofore submitted to the Daveloper which shall continua to
e~eercise auch authority over all such plana, specifications end plot plans.
Notwithstanding, attar the Control Transfer Date, both the Davelopar and
the Architectural Control Committae 1hall have the right to grant a
variance from the building set-back Una restrictions. Either party may
grant this variance as It determines In its sole discretion is needed,
without the consent of the other. The term "Committee•, as used in this
Declaration, shall mean or refer to the Developer or to the RIVER CHASE
Architectural Control Committee composed of members of the
Association, as applicable.
(b) On or after such time as fifty-one percent (51 %1 of all of the Tracts in all
sections of the Subdivision are conveyed by Developer I from time to time
hereafter referred to as the "Control Transfer Data"), the Developer shall
cause an Instrument transferring control to the Association to be placed
of record in the Official Public Recorda of Come! County, Texea (the
effective control Transfer Data shall be the data of its recording).
Thereupon, the Developer shall appoint a Committee of three (31
members to be known as the RIVER CHASE Architectural Control
Committee who ahall serve until the next aucceeding annual meeting
following the Control Transfer Data. From and after the Control Transfer
Data, each member of the Committee must be an Owner of the Pro~rty
in soma Section of RIVER CHASE. Additionally, the Developer shaft have
the right to discontinue the exercise of architectural control privilegas and
9
75
------i.~,j~--.------(3l)~t- - - - -
'
,!
-\
1
l
.!
»••• 990,0~&4~
noctl 99060311>2&
arrange for the trans far to the Assoc;iatlon at any time prior to the Control
Transfer Date by flUng a statement and Instrument to such effect in the
Official Public Recotda of Coma! CountY, Taxa.
Section 4.03 Effect of Inaction. Approval or disapproval aa to architectural control
mettera aa aet forth In tha preceding provisions of thfa Declaratlon ahell be In writing.
In the event that the authority exarc:ialng the prerog11tlve of approval or disapproval
(whether the Developer or the Committeel falla to approve or disapprove In writing any
plana and apeclflc:lltloM and plot plans received by it in compliance with the preceding
provlalom within thirty (301 days following such submissions, such plana and
apec:iflcatlona and plot plan shall be deemed approved and the construction of any
such building and other Improvements may be cornmanced and proceeded with In
compliance with all such plana and spec;ltlcatlona and plot plan and all of the other
terma and provislona hereof.
Section 4.04 Effect of Aoproyal. The granting of the aforesaid approval (whether In
writing or by lapse of tlrna• shall constitute only an expreatlon of opinion by the
Committee that the term• and provialone hereof shaft be complied with if the building
and/or other Improvements are erected in accordance with said plana and
specificatlone and plot plan; and such approvel shall not constitute any nature of
waiver or estoppal either ae to the persona expreaaing such approval or any other
peraon In the avant that such building and/or improvements ate not constructed in
accordance with such plane and specifications end plot plan, but, nevertheless, fail to
comply with the provlalona hereof, Further, no pereon exarcblng any prerogative of
approval of disapproval shaft Incur any liabilitY by reasons of the good faith exarc;ille
thereof.
Section 4.05 ~ The Developer or the Committee, aa the case may be. may
authorize variance• from compftance with any of the provllions of thllt Declaration or
minimum acceptabto construction standard• or regulations and requirement• aa
promulgated from time to time by the Developer or the Committee, when
clrcumatancaa such 111 topography, natural obstruction•• Tract configuration, Tract
size, hardahlp, aeathatio or environmental conalderstlona require 1 variance. Tha
Developer and the Committee reserve the right to grant variances at to building
set·back nn... Such variances must be evidenced in writing and shall become
effective whan signed by the Developar or by at laest a majority ot the members of the
Committee. If any such vlirlancea are granted, no violation of the provlslona of this
Declaration shall be deamed to have occurred with respect to the matter for which the
verlance Is granted; provided, however, that the granting of a vlirlance shall not
operata to waive any of the provtslona of thla Declaration for any purpoaa except as
to the partiCUlar Property and partlculer provlslons hereof coVered by the vlirlanca, nor
ahall the granting of any variance affect in any way tha Owner's obligation to comply
with all governmental law. and regulations affecting the Property concerned and the
Plat.
ARTICLE V
NBBC PROPERTY OWNERS ASSOCIATION
10
76
----------t,:~:----------"'7'!()110:"'"c- - - - - - - -
Doell 9906031628
Section 5.01 Mambershlo. Every person or entity who Is a record owner of any Tract
which Ia subject to the Maintenance charge (or could be following the withdrawal of
an exemption therefrom) and other aasenmenta provided herein, shall be a "Member"
of the Association. The foregoing Ia not Intended to include persona or antitiea who
hold an interest merely as sacurity for the performance of an obligation or thosa having
only an interest In the mineral estate. No Owner ahall have mora than one membership
for each Tract owned by such Member. Memberships shaH be appurtenant to and may
not be separated from the ownership of the Tracta, ragardlaaa of the number of
persona who may own a Tract (such as husband and wife, or joint tenanta, ate.) there
shall be but one membership for each Tract. Additionally, the Directors of the
Association must be Members of the Assoclatlon (as more particularly described in the
By-laws). Ownership of the Tracts ahall be the aole qualification for membership. The
voting rlghta of the Members are sat forth In the Bylawa of the Association.
However, the Reatrlctlva covenants will not be construed as to assess the Vaterens
Land Board or the State of Texas. Any asaaumenta are the personal obligation of the
Veteran purchaser, hla succuaors, hairs and assigns. Any lien Imposed by the
restrictive covenanta does not affect the Veterana Land Board's Interest In the
Property.
Section 5.02 Non·Profjt Corooratlon, NBRC PROPERTY OWNERS ASSOCIATION, a
non-profit corporation, has bean (or will bel organized and It shall be governed by the
Articles of Incorporation and Bylaws of said Association; and all duties, obligations,
benefits, Uens and rights hereunder In favor of the A11oclation shall vest In said
corporation.
Section 5.03 .!MutL The Association has adopted or may adopt whatever Bylawa it
may choose to govern the organization or operation of the Subdivision and the usa and
enJoyment of the Tracts and Common Areas, provided that the same are not In conflict
with the terms and provisions hereof.
Section 5.04 Owner's Rjght of Enloyment, Evvry Owner shall have a banvficial
Interest of usa and enjoyment In and to the Common Areas and such right shall be
appurtenant to and shall pasa with tha title to avery assessed Tract, subject to the
following provisions:
(a) the right of the Association, with respect to the Common Areas, to limit
the number of guuta of Owners;
(b) the right of the Anoclatlon, In accordance with Its Articles and Bylaws
(and until fifty-one percent (51 %1 of all tracts in the Subdivision are
sold), subject to the prior written approval of the Oeveloper, to Ill borrow
money or the purpose of Improving and maintaining the Common Areas
and facilities (including borrowing from the Developer or any entity
affiliated with the Developer) and (iil mortgage said Property, however,
the rights of such mortgage of said Property shall be subordinate to the
rights of the Owners hereunder;
(cl the right of the Association to suspend the Members voting rights and
11
77
-oaall &9e&eat ue
Doell 990603162&
the Member' a and Related User• right to use any recreational facilities
within the Common Areas during any period In which the Maintenance
Charge or any assestment agalnat this Tract ramalna unpaid;
ldl the right of the Association to suspend the Mamber'a voting rights and
the Member" a and Related Users' right to usa any recreational facintles
within the Common Ares, after notice and hearing by tha Board of
Dlractors, for the Infraction or violation by such Member or Related Users
of this Declaration or the "Rules and Reguletlons', as hereinafter defined,
which auspension shall continue for the duration of such Infraction or
violation, plue a period not to axceed sixty (601 days following the
cessation or curing of such Infraction or violation.
ARnCLEVI
MAINTENANCE FUNQ
Section 8.01 Maintenance Fund ObUqatlon. Each Owner of a tract by acceptance
of a dead therefore, whether or not It shall be axpreuad in any such dead or other
conveyance, Ia deemed to covenant and agrees to pay to the Association a monthly
maintenance charge (the "Maintenance Charge"), and any other asaassmenta or
charges hereby levied. The Maintenance Charge and any other asaassments or
chargee hereby levied, together with such Interest thereon and costs of collection
thereof, as hereinafter provided, shell be a charge on the Tracts and shall be a
continuing lien upon the Property against which each such Maintenance Charge and
other chargee and aaseasmants ara made.
Section 8.02 Basis of tho Malntenancg Charge.
(a) The Maintenance Charge referred to shall bo used to create a fund to ba
known ae the "Maintenance Fund". which shall be used as herein
provided; and each such Maintenance Charge (except 111 otherwise
heralnafter provided) shall be peld by the Owner of each Tract (or
residential building site) to the Association. The Maintenance Charge for
the year of purchase shall be pro-rated at closing and then shall be paid
annually, In advance, on or before the first day of tha first month of each
calendar yaer. Provided, however If such owner owne mora than one
tract In the subdivision, such Owner shall pay only twice the aseaesment
of one I 11 tract no matter how many tracta are owned or In the avant as
Owner obtains consent from the Committee for a Composite Building site
pursuant to Section 3.02 hereof, such Composite Building Site shall be
considered for the Maintenance Charge of one Tract for beginning upon
the completion of the Improvement& thereon.
(b) Any Maintenance Charge not paid within thirty (30) days after the due
data shall bear Interest from the due data at the Iasser of Iii the rata of
eighteen percent ( 18%) per annum or (Ill the maximum rate permitted by
law. The Association may bring an action at law against the Owner
personally obligated to pay the same, or foreclose tha hereinafter
12
73
-----------~·]r---------+1·~
., '.yr----------
l)oc:M '990603lb.:o
-Doc:tt 9'9o&eat ue
described lien against the Owner's Tract. No Owner may waive or
otherwise escape liability for the Maintenance Charge by non-use of any
Common Areaa or rec:reationel facilities evailllble for uae by Ownara of
the Subdivision or by the abandonment of his tract.
(c) The Initial amount of the Malntenanca Charge applicable to each Tract
will be $120.00 per year due In advance, payable on January 1 of each
year. All other mattera relating to the Maintenance Charge and the
collection, expenditures and administration of the Maintenance Fund shall
be determined by the Developer or the Board of Dlrectora of the
Association, subject to the provlaiona hereof.
ldl The Association, from and attar the Control Tranafer Date, shall have the
further right at any time, with a majority vote of all esaoclatlon membara,
to adjust or alter said Maintenance Charge from year to year salt deems
proper to meat the reasonable operating expanses and reserve
requirements of the Asaoclatlon In order for the Association to cerry out
Its duties hereunder.
Section 6.03 Craatjgn of Uen and Personal Obligation. In order to secure the
payment of the Maintenance Charge, and other charges and aaaassmanta hereby
levied, each Owner of a Tract In the Subdivision, by such party's acceptance of a
dead thereto, hereby granta to the Association a contractual lien on such Tract which
may ba foreclosed on by non-judicial foreclosure, pursuant to the provisions of Section
61.002 of the Taxes Property Code (and any aucceaaor statute); end each such owner
hereby expressly grants the Aesoclation a power of sale In connection therewith. The
Association shall, whenever It proceeds with non-judicial foreclosure pursuant to the
provlalona of seld Section 61.002 of the Taxae Property Code and said power of sale,
designata In writing a Trustee to post or causa to be posted all required notlcaa of
such foreclosure sale and to conduct such foracloaura sala. The Trustaa may ba
changed at any time and from time to time by the Association by means of written
Instrument axacutad by the President or any Vlce-Prallldant of the Association and filed
for record In the Official Public Recorda of Cornel County, Taxes. In the evant that the
Association has detarmlnad to non-judicially foreclose tha lien provided harein pursuant
to tha provisions of said Section 51.002 of tha Texaa Property Coda and to exercise
tha power of sale haraby granted, the Association, or the Association's agent, shall
give notice of foreclosure sale as provided by the Texas Property Code as than
amended. Upon request by Association, the Trustee shall give any further notice of
foraclosura sale sa may be required by the Texas Property Coda as than amended, and
shall convey such Tract to the highest bidder for cash by tha General Warranty Deed.
Out of the proceeds of such sale, if any, there shaU first ba paid all expenses incurred
by the Association In connection with such default, Including reasonable attornay'a
teas and a reasonable truataa's faa; second, from such procaads there shall ba paid to
the Association an amount equal to tha amount In default; and third, the remaining
balance shall be paid to such Owner. Following any such foreoloaura, each occupant
of any such Tract foreclosed on and each occupant of any Improvements thereon shall
ba deemed to be a tenant at suffaranca and may be removed from possession by any
and all lawful means, Including a judgment for poaaasslon In action of forcible detainer
13
'
'i
j
7~
---------------------+. "~ '3\,
':11\ii....--------------------.:\,,TJ ..--------------------
Doell 9906031628
Doell ,.,08081411!
and the Issuance of a writ of restitution thereunder.
In the event of non-payment by any Owner of any Maintenance Charge or other charge
or assessment levied hereunder, the Association may,ln addition to foreclosing the lien
hereby retained, and exercising the remedies provided herein, upon ten 1101 days prior
written notice thereof to such non-paying Owner, exercise all other rights and remedlee
available at law or In equity.
It Is the intent of the provisions of this 6.03 to comply with tha provisions of said
Section 61.002 of the Texas Property Coda relating to non·judicial sale a by power of
sale and, In the event of the emandmant of said Section 51.002 of the Taxes Property
code hereafter, the Pre1ident or any Vice-Praaidant of the A"ociatlon, acting without
joinder of any other Owner or mortgagee or other person may, by amendment to thla
Declaration file In the OHiclal Public Recorda of Comal County, Texas, amend the
provislona hereof so as to comply with said amendments to Section 61.002 of the
Taxes Property Code.
Section 6.04 Notice of Lien, In addition to the right of the Aseociatlon to enforce the
Maintenance Charge or other charge or assessment levied hereunder, the Association
may file e claim or lien against the Tra11t of the delinquent Owner by recording a notice
("Notice of Uen") setting forth (a) the amount of the claim of delinquency, lbl the
Interest thereon, (c) the costs of collection which have accrued thereon, (d) the legal
description and street address of the Tract against which the lien le claimed and (a)
the name of the Owner thereof. Such Notice of Lien shall be signed and
acknowledged by an officer of the Association or other duly authorized agent of the
Association. The lien shaU continue until the amounts secured hereby end all
subsequently accruing amounts are fully paid or otherwise satisfied. When allemounta
claimed under the Notice of Lien and all other costs and assessments which may have
accrued subsequent to the filing of the Notice of Lien have been fully paid or satisfied,
the Association shall execute and record a notice releasing the lien upon payment by
the Owner of a reasonable fee as fixed by the Board of Directors to cover the
preparation and recordation of such release of lien Instrument.
Section 6.06 Uena Subordinate to Mortgages. The lien described In this Article VI
shall be deemed subordinate to a first lien or other Ilene of any bank, Insurance
company, aavinga and loan association, university, pension and profit sharing truats
or plans, or any other third party lender, Including Developer, which may have
heretofore or may hereafter lend money In good faith for the purchase or Improvement
of any Tract and any renewal, extension, rearrangement or refinancing thereof. Each
such mortgagee of 11 mortgage encumbering a Tract who obtains title to such Tract
pursuant to the remedies provided In the deed of trust or mortgage or by judicial
foreclosure shall take title to the Tract free and clear of any claims for unpaid
Maintenance Chargea or other charges of assessment• against such Tract which
accrued prior to the time such holder ecqulred title to such Tract. No such sale or
transfer shall relieve such holder from liability for any Maintenance Cherge or other
cherg.. or 81sessmenta thareaftar becoming due or from the lien thereof. Any other
sale or transfer of a Tract shall not affect the Association's lien for Maintenance
Charges or other chargee or assessments. The Aaaoclation shall make a good faith
14
80
------+/jitt-----------+(':)a-------
DacM '9'906031628
nan• V99603141E
effort to give each such mortgagaa sixty (601 days advance written notice of the
Aaaoclatlon'a proposed foreclosure of lien described In Section 6.01 hereof, which
notice shall be sent the nearest office of auch mortgagee by prepeid United States
registered or Certified mail, return receipt requeated, and shall contain a atatemant of
delinquent Maintenance Charges or other chargea or uaesamenta upon which the
proposed action Ia baaed provided, however, the Aaaoclation'a failure to give such
notice shall not Impair or lnvelldate any foreclosure conducted by the Association
purauant to the provisions of this Article VI.
.!
Section 6.08 PucDO&a of the Malntrmance Charges. The Maintenance Charge levied
by the Developer or the A11ociatlon ahaU be used exclusively for the purpose of
promoting the recreation, health, safety, and welfare of the Ownera of the Subdivision
which hereafter may become subject to the jurisdiction of the Association. In
particular, the Maintenance Charge ahall be used for any Improvement or aervicaaln
furtherance of these purposea and the performance of the Association' a duties
described In Article VIII, Including the malntenence of any Common Areas, any
Drainage Easements and the establishment and maintenance of a reserve fund for
maintenance of any Common Areas. The Maintenance Fund may be expanded by the
Developer or the Association for any purposes which, In the judgment of the
Association, will tend to maintain the Property values in the Subdivision, Including, but
not limited to, providing funds for the actual coat to the Association of all taxes,
Insurance, repairs, anergy chargaa, replacement and maintenance of the Common Area
es may from tima to tima be authorized by the Aaaoclatlon. Except for the
Association's use of the Maintenance Charge to perform Ita duties daacribad In this
Declaration and In the Bylaws, the usa of the Maintenance Charge for any of these
purposes Ia permissive and not mandatory. It is understood that the judgment of the
Association 11 to the expenditure of said fundi shall be final and conclusive so long
as tuch judgment Ia exercised In good faith.
Section 6.07 Handling of Malntenanet CharaOI· The collection and management of
the Maintenance Charge or other charge or assessment levied hereunder, shall be
performed by the Developer until the Control Transfer Date, at which time the
Developer shall deliver to the Asaocletlon aH funds on hand together with all books and
recorda of receipt and dlsburaements. The Devalopar end, upon transfer, the
Anoclatlon, shall maintain aaparete special accounts for th888 funds, and Owners
shall be provided at taut annually Information on the Maintenance Fund.
ARTICLE VII
DEVELOPER'S RIGHTS AND RESERVATIONS
Section 7. 01 Par!od gf peve!gpac'1 BIQhtl and Rtsttvlflon•· Developer shall have,
retain and reeerve certain rlghta aa aat forth In this declaration with raapect to the
Association and the Common Area from the dete hereof, until the earlier to occur of
Iii the Control Transfer Date or 1111 Developer'• written notice to the AHoclatlon of
Developer' a termination of the rights described In Article VII hereof, lese, save and
except those rlghta set forth In Sectlona 7.03, 7.04 and 7 .06. The rights In Sections
7 .03, 7,04 end 7.06 shall be released et such time as 11 document relinquishing aaid
rights Ia filed of record or the developer no longer holds record title to any Iota In the
15
81
----------~-:}j~---------:~,)ll---------
Doclt 9906031626
lteelt 'J1J8603141&-
subdivision. The rights and reservations hereinafter set forth shall be deemed
excepted and reserved In each conveyance of a Tract by Developer to an Owner
whether or not apacifically stated therein and In each dead or other Instrument by
which any Property within the Control Area Is conveyed by Developer. The rights,
reservations and easemanta hereafter set forth ahaU be prior and superior to any other
provisions of thla Declaration and may not, without Developer's prior written consent,
be modified, amended, rescinded or affected by any amendment of this Declaretlon.
Developer's consent to any one auch amendment shall not be construed as a consent
to any other or aubaequent amendment.
Section 7.02 Bight to Cgnstruct Mdit!pnollmprovomentaln Common Area, Developer
shall have and hereby reaervn the right !without the consent of any other Owner),
but shall not be obligated to construct additional Improvements within the Common
Area at any time and from time to time In accordance with this Declaration for the
Improvement and anhancemont thereof and for tho benefit of the Aeaoclatlon and
Ownera, so long oa such construction does not directly result In the Increase of such
Maintenance Charge. Developer shall, upon the Control Transfer Date, convey or
transfer such Improvements to the Association and the Association shall bo obligated
to accept tltlo to care for and maintain the same aa olsewhera provided in this
II
Declaration.
Section 7.03 Develgpgr'a Bights tg Use Common Areas jn P,omotlon and Marketing
gf thg Proportv. Developer shall have and hereby raservea the right to reasonable use
of the Common Area and of services offered by the Aaaoclatlon In connection with the
promotion and marketing of land within the boundaries of the Property. Wrthout
limiting the generality of the foregoing, Developer may erect and maintain on any part
of the Common Area such signa, temporary building• and othar structures as
t Developer may reasonably deem necessary or proper in connection with the promotion,
I
development and marketing of land within the Property; may usa vehicles and
equipment within the Common Area for promotional purposes; and may permit
prospective purchaaera of Property within the boundaries of the Property, who era not
Owners or Mambera of tho Association, to usa the Common Area at reaaonable times
l and In reaaonable numbers; and may refer to the aervicea offered by the Association
~
i In connection with the development, promotion and marketing of the Property.
l
! Section 7.04 Qgyeloper's Rights tg Grant and Creetg Easements Developer shall have
and hereby reaerves the right, without the consent of any other Owners or the
l\ Association, to grant or create temporary or permanent easements, for access,
utllltlea, pipeline easement, cable ta!evlslon systems, communication and aecuritv
system&, drainage, water and other purposes Incidental to development, sale,
operation and maintenance of the Subdivision, located In, on, under, over and across
(I) the Tracts or other Property owned by Developer, (ill the Common Area, and liill
existing utility easements. Developer also reserves the right, without the consent of
J any other Owner or the Association, to (I) grant or create temporary or permanent
j easements for access over and across the streets and roads within the Subdivision.
Section 7.05 Deva!goer's Rights tg Cgnygy Additional Cgmmgn Area tg the
Assocjatlgn. Developer shall have and hereby reserves the right, but shall not be
16
82
-------t·:l)~---------,t,}r-------
Doell 9906.0316.28
obligated to, convey additional real Property and Improvement& thereon, If any, to the
Aseoclatlon as Common Area at any time and from time In accordance with this
Declaration, without the consent of any other Owner or the Auociatlon.
Section 7.06 Annexation of Additional Areas. Developer may causa additional real
property to be annexed to the Property, by caua!ng a written Annexation Declaration
confirming the annexation thereof, adopting these Restrictions, to be placed of record
In the Official Public Records of Camel County, Texas. At that point the annexed
property ahaU bec:ome a part of this Subdivision and shall be subject to all of the
Restrictions herein set forth the same aa If originally Included. No consent shall be
required of the Asaocletlon or any Member thereof, each Owner baing deemed to have
appointed Developer as hla agent and attorney·ln-fact to effect this Annexation, which
power hereby granted to Developer Is and shall b.- a power coupled with an lntereat.
Thereaftar the Association shall be the Association for the entirety of the Subdivision,
the same aa It the Property ware Included In the first instance. The Owner of the
Annexed Property shall be subject to these Reatrictlons and shall be a member of the
Association and shall be entitled to all of the rights and benefits provided members.
ARTICLE VIII
QUilES ANP POWERS OF THE PROPERTY OWNERS ASSOCIATION
Section 8.01 General Qut!oa and powora of the A§loc!ation. The Assocletlon has
been formed to further the common Interest of the Members. The Assocletlon, acting
through the Board of Dlractora or through persona to whom the Board of Directors has
delegated such powers (and subject to the provisions of the Bylaws), shall have the
duties and powere hereinafter lit forth and, in general, the power to do anything that
may ba naceS&ary or desirable to further the common Interest of the members, to
maintain, Improve and enhance the Common Areas and to Improve and enhance the
attractiveness, desirability and safety of the Subdivision. The Aaaoclatlon shall have
the authority to act 111 the agent to enter into any and all contracts on behalf of the
Members In order to carry out the dutiel, powers and obligations of the Association
as sat forth In this Declaration.
Section 8.02 Dutv to Accent tba Property and Eacj!it!es Ironstaaoct bv Deyaloptr.
The Aaeoclatlon shall accept title to any Property ,Including any Improvements thereon
and personal property transferred to the Association by Developer, and equipment
related thereto, together with the responsibility to perform any and all edmlnlstrative
function• and recreation functions associated therewith (collectlvaly herein referred to
as "Functions"), provided that such Property and Functions are not lncon•lstant with
the tsrma of this Declaration. Property Interest transferred to tha Association by
Developer may Include faa simple title, easements, leasehold Interests and llcenaea to
usa such Property. Any Property or interest In Property transferred to the Association
by Developer ahaU be within the boundaries of tha Property. Any Property or lntareat
in Property transferred to the Association by Developer shall, except to the extent
otherwise specifically approved by resolution of the Board of Directors, be transferred
to the Association free and clear of all liens and mortgages (other than the lien for
Property taxes and asse&lilments not than due and payable), but shall be subject to tha
terme of this Declaration, the terms of any declaration of covenants, conditions and
17
- - - - - - - - r · . ~..__--------:.:;,...-------
Doell 990&031628
:Dvolt 990503l4J 2
restrictions llllflexlng such Property to the Common Area, and ell euamenu,
covenanu, conditions, restrictions and equitable servitude or other encumbrances
which do not materially affect the Owners authorized to use such Property. Except
as otherwlae specifically approved by raaolutlon of the Board of Directors, no Property
or Interest In Property transferred to the Association by the Developer shall Impose
upon the Association any obligation to make monetary paymanU to Developer or any
affiUata of Developer Including, but not limited to, any purchase price, rent, charge or
faa. The Property or Interest In Property transferred to the Aeeaclatlon by Developer
shall not Impose any unreuonable or special burdens of ownership of Property,
Including the management maintenance, replacamant and operation thereof.
Section 8.03 Puty to Maoage and Care fgr the Common Area. The Aasociatlon shall
manage, operate, care for, maintain and repair all Common Areu and keep the same
in e safe, attrectlva and desirable condition for the use and enjoyment of the Membare.
The duty to operate, manage and maintain the Common Araaa shall Include, but not
be limited to the following: establishment, operation and maintenance of a security
ayatam, If any, for the Subdivision; landacaplng maintenance, repair and replacement
of park, end management, maintenance, repair end upkeep of the subdivision
entrances and other common areas.
Section 8.04 Other lnsyranca Bgnds, The Association shall obtain such insurance
as may be required by law, Including workman's compenaation insurance, and shall
have the power to obtain such other Insurance end such fidelity, Indemnity or other
bonde as the Aaaociatlon shall deem nacassery or daalrebla.
Section 8.05 Putv tp Prepare Budgets, The Aaaoclation shall prepare budgets for the
Association, which budgeU shall include a reserve fund for the maintenance of all
Common Araaa.
Section 8.06 pyty tg law and Cgllact the Ma!ntananca Charqa, The Asaociatlon
shall levy, collect and enforce the Maintenance Charge and other chargea and
assessment• 11 elsewhere provided In this Declaration.
Section 8.07 Dyly to Proy!da Annyal Review. The Association shall provide for an
annual unaudited Independent review of the accounts of the Association. Copies of
tha review shall be made available to any Member who requeau a copy of the same
upon payment by such Member of the reasonable coat of copying the same.
Section 8.08 Putlas wjtb Basooct to Arcbjtocwral Approyals. Tha Association shall
perform functions to assist the Committee as elsewhere provided In Article IV of this
Declaration.
Section 8.09 Power to Acgyjra P,gporty and Cpnstruct lmprgyomwa The
Association may acquire Property or an Interest In Property (Including leases) for the
common benefit of Ownara Including Improvements and personal property. The
Association may construct Improvements on the Property end may demolish existing
lmprovemanta.
18
83
------------------------------``~.~
p..··.' ~----------------------------~ .·``:;:~::--~--- ",.t'
·-'~"
Doell 9906031628
Section 8.10. Power to Adopt Byles and Regulations. The Association may adopt,
amend, repeal and enforce rulea and regulationa ("Rulaund Begulationa"), flnaa,!evlea
and enforcement provlaiona aa may be deemed necessary or desirable with respect to
the interpretation and Implementation of thla Declaration, the oparetlon of the
Association, the use and enjoyment of tha Common Areas, and the usa of any other
Property, fac!l!tlas or Improvements ownad or operetad by the Association.
Section 8.11 Powtr to Enforce Bastdct!qns and Byfgs grul Bpgulations. The
Association (end any Owner with respect only to the ramedlaa described In (Ill below)
shall have the power to enforce the provisions of this Declaration and the Rulaa and
Regulations and 1hall taka such action as the Board of Directors daema necessary or
desirable to caun such compliance by each Member and each Related User. Without
limiting the ganeralltv of the foregoing, the Association aha!! have the power to enforce
the provlalona of thla Declaration and of Rulaa and Raguletlona of the Asaoolatlon by
l
any one or mora of the following means: Ill By entry upon any Property, excluding
main residence, within the Subdivision after notice and haerlng (unless a bona fide
emergency axiata in which event this right of entry may be exercisad without notice
(written or oral) to the Owner In such manner to avoid any unraa1onabla or
unnecetsary lntarfersnca with the lawful poussaion, usa or enjoyment of the
I Improvements situated thereon by the Ownar or any other parson), without !lability
by the Association to the Owner thereof, for the purpose of enforcement of this
I Declaration or the Buies and Regulations; (iii By commencing and maintaining actions
and sulta to restrain and enjoin any breach or threataned breach of the provialons of
thle Declaration or the Rulea and Regulationa; (iii) By exclusion, after notice and
hearing, of any Member of Related User from usa of any recreational facilities within
the Common Areas during and for up to sixty (60) days following any breach of this
Declaration or auch Rules and Regulatlona by such Member or any Relatad User,
unless the breach Is e continuing breach in which case axcluslon shall continua for so
long as such breach continuea; (lv) By suspension, after notice and hearing, of the
voting rlghta of a Member during and for up to sixty (801 days following any breach
by auch Membar or a Related User of a provision of this Declaration or such Rules and
Regulation•, uniau the breach i1 a continuing breach in which casa IIUCh suspension
shall continua for so long ss auch breach contlnuea; (vi By levying and collecting, after
notice and hearing, an asnssmant against any Member for breach of thl1 Declaration
or such Rulea end Regulations by such Member or a Belated User which asaaument
reimbursed the Association for the costa Incurred by the Association In connection
with such breach; (vii by levying and collecting, after notice and hearing, raesonable
and uniformly applied flnaa and penaltl.., established in edvanca In the Rulee and
Regulation• of the Association, from any Member or Related User for breach of this
Declaration or auch Rules and Ragulatlon• by such Member or • Belated User; and (viii
By taking action Itself to cure or abate such violation and to charge the expanse•
theraof, if any, to such vlcletlng Members, plus attorney'a faas Incurred by the
Association with respect to exercising such remedy.
Before the Board may invoke the remediet provided above, it aha!! give registered
notice of such alleged violation to Owner, and shall afford the Owner a hearing. If,
after tha hearing, a violation is found to exist, the Board's right to proceed with the
l!stad ramadlet shall become absolute. Each day a violation continues aha!! ba deemad
19
84
---------r·)
Doclt '9'90603162&
........ 9'9e6&at ua
a separate violation. Failure of the Association, the Developer, or of any Owner to
taka any action upon any breach or dafault with respect to any of tha foregoing
violations shall not ba deemed a waiver of their right to take enforcement action
thereafter or upon a subsequent breach or default.
Section 8. 12 Power to Grant Easomenta, In addition to any blanket easemenw
described In this Dacleratlon, the A88ociatlon shall hava the power to grant accesa,
utility, drainage, water facilhy and other easements in, on, over or under the Common
Area.
ARTICLE IX
GENERAL PROVISIONS
Section 9.01 Imn. The provisions hereof shall run with all Property In RIVER CHASE
UNIT THREE and shall be binding upon all Owners and all persons claiming under them
for a period of forty 1401 years from the data this Declaration Ia recorded, after which
time said Declaration shall be automatically extended for succesalva periods of ten (1 0)
years each, unless an Instrument, signed by not leas than two-thirda 12/3rdsl of the
Owners (Including the Developer) of the Tracts has bean recorded agreeing to amend
or change, In whole or In part, this Declaration.
Section 9.02 Amendments. This Declaration may be amended or changed, In whole
or in part, at any time by the written agreement or by signed ballots voting for such
amendment, of not less than two-thirds 12/3rdal of ell of the Ownere (Including
Developer) of the Subdivision. There shall be one vote per Tract. Anyone owning
mora than one Tract shall have one vote for each Tract owned. If the Declaration Is
amended by a written Instrument signed by those Ownera entitled to cast not leas than
two-thirds 12/3rdsl of all of the votes of the Owners of the Association, such
amendment must be approved by said Ownera whhln three hundred sixty-five 1365)
days of tha data the first Owner executea such amendment. Tha data an Owner's
signature Is acknowledged shall constitute prima facia evidence of the data of
execution of said amendment by such Owner. Those Members (Ownara, Including the
Devaloparl entitled to cast not lasa than two-thirds (2/3rdsl of all of the votes of the
Membere of the A..oclatlon may also vote to emend thla Declaration, In person, or by
proxy, at a meeting of the Members IOwnars, Including tha Oecfarant) duly called for
such purpoaa, written notice of which shall be given to all Ownefl et least ten (1 01
days and not mora then sixty 1601 days in advance and ahallaet forth the purpose of
such meeting, Notwithetandlng any provision contained In the Bylaws to the Contrary,
a quorum, for purposes of such meeting, shall consist of not less than seventy percent
(70%1 of all of the Mambara lin parson or by proxy) entitled to vote. Any such
amendment shall become effective when an Instrument Ia filed for record In the Official
Publlo Records of Comal County, TeKal, accompanied by a certificate, signed by a
majorhy of the Board of Trustees, stating that the required number of Members
(Owners, Including the Developer) executed the Instrument amending this Declaration
or cast a written vote, In pereon or by proxy, In favor of said amendment et the
meeting called for such purpo... Copies of the written ballots pertaining to such
amendment shall be retained by the Association for a period of not less than thraal31
years after the data filing of the amendment or termination.
20
85
---------r')l>-:;------,~,,r--------
Doell 9906031628
Daett 99860314:J:i!
Section 9.03 Amendment by the Dgyalooar. The Developer shall have and raaarvas
the right at any time and from time to tima prior to the Control Tranafar Data, without
the joinder or consent of any Owner or otbar party, to amend thle Declaration by an
Instrument In writing duly signed, acknowledged, and filed for record for the purpose
of correcting any typogrephlcal or grammatical error, oversight, ambiguity or
lnconslatency appearing herein, provided that any such amendment shall be consistent
with and In furtherance of the general plan and achama of development as evidenced
by this Declaration and shall not impair or adveraely affect tha vested Property or other
rigbtl of any Owner or his mortgagae. Additionally, Developer shall have and reserves
the right at any time and from tlma to tlma prior to the Control Tranafer Date, without
the joinder or consent of any Owner of other party, to amend thla Declaration by an
Instrument In writing duly signed, acknowledged and filed for record for the purpose
of permitting the Owners to enjoy the benefits from technological edvancas, such as
security, communications or anergy-related davlcaa or equipment which did not al!lsta
or ware not In common usaln residential subdivisions at the time this Declaration was
adopted. Ukewise, the Developer shall have and re10rvas the right at IJ/tiY time and
from time to time prior to the Control Transfer Date, without the joinder or consent of
any Owner or other party, to amend this Declaration by an Instrument In writing duly
signed, acknowledged and filed for record fcir the purpose of prohibiting the usa of any
device or apparatus developed and/or avaDable for residential usa following the data
of this Declaration if the use of euch device or apparatus will adverealy affect the
Asaoclatlon or wiH adversely affect the Property values within the Subdivision.
Section 9.04 Severability. Each of the provisions of this Daclaratlon shall be deemed
Independent end severable and the invalidity or unenforcaabillty or partial invalidity or
partially unenforcaablllty of any provision or portion hereof shall not affect the validity
or enforceability of any other provision.
Section 9.05 Uberallntgroretatjon. The provisions of this Declaration shall be liberally
construed as a whole to effectuate the purpose of thla Declaration.
Section 9.08 Succa11ors and Ats!qns. The provisions hereof shall be binding upon
and Inure to the benefit of the Owners, the Developer and the Association, and their
respective hairs, legal rapresentatlvae, executora, administrators, successors and
assigns.
Section 9.07 Effect of Ylolotions on Mortgages. No violation of the provisions herein
contained, or any portion thereof, shall affect the lien of any mortgage or dead of trust
pra10ntly or hereafter placed of record or otherwise affect the rights of the mortgagee
under any such mongage, the bolder of any such lien or beneficiary of any such deed
of trust; and any such mongage, lien or dead of trust may, nevarthela88, be enforced
In accordance with its terms, subject, naverthelesa, to the provisions herein contained.
Section 9.08 Terminology All personal pronoune used In this Declaration and all
exhibits attached berato, whether used In the masculine, feminine or neuter gander,
sbaU Include all other ganders; the singular aballlnclude the plural and vice versa. Title
of Articles and Section• are for convenience only and neither limit nor amplify tha
provisions of this Declaration Itself. The terms "herein", "hereofft and similar terms, as
21
86
Doc:tt 9906031628
used in this instrument~ refer to the entire agreement and are not limited to referring
only to the specifiC paragraph, Section or article In which auch tarma appear. All
reference• In this Declaration to Exhibltl shall refar to the Exhiblta attached hereto.
VEIEBAN PI,IRCHASER PABDAL RELEASE
Notwithstanding anything contained In the Restrictions to the contrary, a Veteran
Purchaser shall be entitled to have a 1.00 acre tract released from the Vetarana Land
Board for a home Bite and same shall not be construed as a violation of the above
Restrictive Covenants.
IN WITNESS WHE~EOF, the und,raigned, being the Developer herein, has hereunto sat
Its hand of this~ day of )_.;>J v•-kL , 1999.
TEXAS SOUTHERLAND VENTURE, a
Massachusetts Joint V. re by
SOUTHERLAND P ERT S, INC.
a Texas C , Join Venturer
ON, Vice President
1~:.ra603162a
THE STATE OF TEXAS
m: 1~::1J't!'"
2J~I af
AI
~ ~s
COUNTY OF Y"l)4c • COUIIIT
Thle inttrument waa acknowledged before me on thl• the "~ day of
lL-Ii