RESTRICTIONS,
COVENANTS, REVERTERS
2015 Texas Land Title Institute
Leslie S. Johnson
Winstead PC
Dallas, TX
Leslie Johnson
Associate
Practices: Commercial Litigation
Leslie Johnson is a senior associate in Winstead's Commercial Litigation
Practice Group. She represents local, regional and national clients in
complex commercial and business disputes in a wide array of matters,
including real estate, financial services, and banking and lending disputes.
Leslie also participated in the Dallas County District Attorney Lawyer on Loan
Program in 2013, where she successfully tried nine jury trials to verdict.
Representative Experience
 Representation of lenders and loan servicers in loan enforcement and
collection matters, real property foreclosures, and other disputes
involving notes, guaranties, letters of credit, indemnification
agreements, credit enhancement structures, and related contract, tort
and statutory claims
Defended national bank in a class action lawsuit alleging violations of
the Electronic Fund Transfer Act and argued appeal to the Fifth Circuit
Representation of title insurers, title agents and insureds in title and
real property disputes, including lien priority, escrow, title insurance
and breach of fiduciary duty claims
Representation of broker/dealers, investment advisors, and registered
persons in defense of FINRA arbitrations and state and federal
lawsuits
Defended rail carrier and property owners against regulatory and
compliance claims in federal bench trial and obtained favorable verdict
that was affirmed by the Fifth Circuit
Dallas Office
214.745.5640 Direct
214.745.5390 Fax
ljohnson@winstead.com
Education
Tulane University Law School
 J.D., 2007
 cum laude
 Order of the Barristers
 Tulane Journal of International and
Comparative Law
 Winner, Tulane Intraschool Appellate
Competition
Texas A&M University
 B.A., Political Science, 2004
 summa cum laude
 Phi Beta Kappa
Professional & Community Service
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State Bar of Texas
Dallas Bar Association
Dallas Association of Young Lawyers
2013 Dallas Association of Young Lawyers Leadership Class
Dallas Volunteer Attorney Program
Tulane University Alumni Association, Dallas Club
Alpha Delta Pi Alumni Association
Admissions
 Texas, 2007
 U.S. District Court Northern, Southern, Eastern and Western Districts
of Texas
 U.S. Court of Appeals, Fifth Circuit
winstead.com
RESTRICTIONS, COVENANTS, REVERTERS
By: Leslie S. Johnson, Winstead PC
I.
DEED RESTRICTIONS GENERALLY
Deed restrictions are the means by which a
grantor may limit the grantee’s use of real property in
a conveyance instrument. See Curlee v. Walker, 244
S.W. 497, 498 (Tex. 1922) (“The law recognizes the
right of parties to contract with relation to property as
they see fit, provided they do not contravene public
policy and their contracts are not otherwise illegal.”).1
There are three primary types of deed restrictions:
(1) restrictive covenants; (2) conditions subsequent,
and (3) special limitations. See Circle Ridge Prod. v.
Kittrell Family Minerals, LLC, No. 06-13-00009-CV,
2013 Tex. App. LEXIS 8790, at *27 (Tex. App.—
Texarkana July 17, 2013, pet. denied) (citing Vinson
Minerals, Ltd. v. XTO Energy, Inc., 335 S.W.3d 344,
354 n.12 (Tex. App.—Fort Worth 2010, pet. denied)).
A restrictive covenant is a specific type of
deed restriction “that restricts the use or occupancy of
real property, esp[ecially] by specifying lot sizes,
building lines, architectural styles, and the uses to
which the property may be put.” In re La, 415 S.W.3d
561, 566 (Tex. App.—Fort Worth 2013, pet. denied)
(citing BLACK’S LAW DICTIONARY 421 (9th ed.
2009)). Texas Property Code Section 202.001(4)
more generally defines the term as “any covenant,
condition, or restriction contained in a dedicatory
instrument,
whether
mandatory,
prohibitive,
permissive, or administrative.”2 See also Voice of
1
Examples of illegal and unenforceable restrictions include
limitations or prohibitions on the use or transfer of property
on the basis of race, color, religion, or national origin. TEX.
PROP. CODE § 5.026.
2
The Property Code also defines a “dedicatory instrument”
as “each document governing the establishment,
maintenance, or operation of a residential subdivision,
planned unit development, condominium or townhouse
regime, or any similar planned development. The term
includes a declaration or similar instrument subjecting real
property to: (A) restrictive covenants, bylaws, or similar
instruments governing the administration or operation of a
property owners’ association; (B) A properly adopted rules
and regulations of the property owners’ association; or
(C) all lawful amendments to the covenants, bylaws,
instruments, rules, or regulations.” TEX. PROP. CODE
§ 202.001(1).
Cornerstone Church Corp. v. Pizza Prop. Partners,
Inc., 160 S.W.3d 657, 665 (Tex. App.—Austin 2005,
no pet.) (defining “restrictive covenant” as “a negative
covenant that limits permissible uses of land.”) (citing
RESTATEMENT (THIRD) OF PROP.: Servitudes § 1.3(3)
(2000)).
The term “restrictions” is often used
interchangeably with “covenant.”
Unlike a restrictive covenant, a condition
subsequent “unambiguously and unequivocally
reveals an intent to create a conditional estate.” In re
Tex. Equip. Co., Case No. 01-50829-RLJ-7,
Adversary No. 02-50012002, Bankr. LEXIS 1965, at
*16 (Bankr. N.D. Tex. Apr. 8, 2002) (citing Hearne v.
Bradshaw, 312 S.W.2d 948, 951 (Tex. 1958);
Humphrey v. C.G. Jung Educ. Ctr. of Houston, Tex.,
714 F.2d 477, 480 (5th Cir. 1983)); see also Calce v.
Dorado Exploration, Inc., 309 S.W.3d 719, 742 (Tex.
App.—Dallas 2010, no pet.) (“While no particular
words are necessary for the existence of a condition,
such terms as ‘if,’ ‘provided that,’ ‘on condition that,’
or some other phrase that conditions performance,
usually connote an intent for a condition, rather than a
promise.”). A condition subsequent exists where the
duration of the estate is limited by the happening of a
designated event which, if and when it occurs, is cause
for termination of the estate. Field v. Shaw, 535
S.W.2d 3, 5 (Tex. Civ. App.—Amarillo 1976, no writ)
(citing Eyssen v. Zeppa, 100 S.W.2d 417 (Tex. Civ.
App.—Texarkana 1936, writ ref’d)).
But the
termination is not automatic; the grantor must exercise
his right of reentry in order to effectively terminate the
estate. Singer v. State, 391 S.W.3d 627, 632 n.1 (Tex.
App.—El Paso 2012, pet. denied); Deviney v.
Nationsbank, 993 S.W.2d 443, 448 (Tex. App.—
Waco 1999, pet. denied) (citing Lawyers Trust Co. v.
City of Houston, 359 S.W.2d 887, 890 (Tex. 1962)).
Like a condition subsequent, a special
limitation conveys a conditional estate to grantor.
However, upon the occurrence of the designated
terminating event, “the grantee’s estate terminates
automatically and reverts to the grantor if the
terminating event ever occurs.” Singer, 391 S.W.3d at
632 n.1 (citing BLACK’S LAW DICTIONARY 1284 (9th
ed. 2009)) (emphasis added). Texas case law often
fails to differentiate between conditions subsequent
and special limitations.
2015 Texas Land Title Institute – Restrictions, Covenants, Reverters
Page 1
II.
DISTINGUISHING AND CONSTRUING
RESTRICTIONS
Restrictive covenants are typically used in
connection with planned community developments,
while conditions subsequent and special limitations
are more often utilized in oil and gas leases. See
Curlee v. Walker, 244 S.W. 497, 498 (Tex. 1922)
(recognizing use of restrictive covenants in connection
with residential developments); Baywood Estates
Prop. Owners Ass’n v. Caolo, 392 S.W.3d 776, 782
(Tex. App.—Tyler 2012, no pet.) (“A property owner
may subdivide property into lots and create a
subdivision in which all property owners agree to the
same or similar restrictive covenants designed to
further the owner’s general plan or scheme of
development.”); Vinson Minerals, Ltd. v. XTO Energy,
Inc., 335 S.W.3d 344, 354 n.12 (Tex. App.—Fort
Worth 2010, pet. denied) (“There are three primary
qualifications generally imposed on the various
ownership interests created by an oil and gas lease:
(1) general and special limitations, (2) conditions
subsequent, and (3) covenants.”).
Examples of a restrictive covenant, condition
subsequent and special limitation are illustrated
below:
Restrictive
Covenant:
The
property
conveyed herein shall be used for purposes of
X.
Condition Subsequent: The Property
conveyed herein shall be used for purposes of
X, but in the event that the property conveyed
herein should ever be used other than for X,
then Grantor shall have the right to re-enter
the property.
Special Limitation: The Property conveyed
herein shall be used for purposes of X, but in
the event that the property conveyed herein
should ever be used other than for X, then the
ownership of the realty conveyed herein shall
automatically revert to Grantor, his heirs,
successors and assigns.
One of the primary distinctions between the
restrictions is the appropriate remedy for a breach.
“Breach of a condition results in automatic
termination of the leasehold estate upon the happening
of stipulated events. Breach of a covenant does not
automatically terminate the estate, but instead subjects
the breaching party to liability for monetary damages .
. . .” Rogers v. Ricane Enterprises, Inc., 772 S.W.2d
76, 79 (Tex. 1989); see also Rosek v. Kotzur, 267
S.W. 759, 762 (Tex. Civ. App.—San Antonio 1924,
no writ) (holding that cancellation of a conveyance of
land is not the correct remedy for a breach of a
covenant).
When a party violates a condition
subsequent or a special limitation and the title reverts
to the grantor, the grantor is vested with the original
fee simple estate of the grantor, freed of the burden of
the limitation, just as though no such limitation had
been conveyed. See City of Dallas v. Etheridge, 253
S.W.2d 640, 643 (Tex. 1952). This possibility of
reverter is considered a presently vested interest and
therefore not subject to the rule against perpetuities.
BP Am. Prod. Co. v. Laddex, Ltd., 458 S.W.3d 683,
686 (Tex. App.—Amarillo 2015, pet. filed); Hamman
v. Bright & Co., 924 S.W.2d 168, 171 (Tex. App.—
Amarillo 1996, writ granted w.r.m.)
Although Texas courts favor a finding that the
parties intended a restrictive covenant, if the language
is clear and unambiguous, a condition subsequent or
special limitation will be enforced. Humphrey v. C.G.
Jung Educ. Ctr., 714 F.2d 477, 480 (5th Cir. Tex.
1983) (citing Henshaw v. Tex. Natural Res. Found.,
216 S.W.2d 566, 570 (Tex. 1949)); In re Tex. Equip.
Co., Case No. 01-50829-RLJ-7, Adversary No. 0250012002, Bankr. LEXIS 1965, at *15 (Bankr. N.D.
Tex. Apr. 8, 2002); City of Celina v. Stambaugh, No.
05-13-00480-CV, 2013 Tex. App. LEXIS 13147, at
*4-5 (Tex. App.—Dallas Oct. 22, 2013, no pet.) (“It is
well-settled that conditions that have the effect of
preventing title from vesting or that work a forfeiture
of title that has already vested are not favored.
Therefore, a promise or obligation of the grantee will
be construed as a covenant unless an intention to
create a conditional estate is ‘clearly and
unequivocally revealed by the language of the
instrument.’”) (citing Hearne v. Bradshaw, 312
S.W.2d 948, 951 (Tex. 1958); Sewell v. Dallas Indep.
Sch. Dist., 727 S.W.2d 586, 589 (Tex. App.—Dallas
1987, writ ref’d n.r.e.)). If there is any doubt as to
whether the restriction is a special limitation or
condition subsequent, that doubt must be resolved in
favor of a condition subsequent because it is less
onerous on the grantee since the estate does not
terminate automatically but only after re-entry by the
grantor. Lawyers Trust Co. v. Houston, 359 S.W.2d
2015 Texas Land Title Institute – Restrictions, Covenants, Reverters
Page 2
such royalties shall be paid monthly
thereafter without the necessity of
Lessor executing a division or transfer
order. If said initial royalty payment is
not so made under the terms hereof, this
lease shall terminate as of 7 A.M. the
first day of the month following
expiration of said 120-day period. After
said initial royalty payment, with respect
to oil or gas produced during any month,
if royalty is not paid hereunder on or
before the last day of the second
succeeding month, this lease shall
terminate at midnight of such last day.
887, 890 (Tex. 1962); Unknown Stockholders of K.M.
Van Zandt Land Co. v. Whitehead Equities, JV, No. 206-294-CV, 2008 Tex. App. LEXIS 4605, at *9 (Tex.
App.—Fort Worth June 19, 2008, pet. denied). The
use of terms of art is not conclusive of the parties’
intent; rather, the entire instrument must be read as a
whole. Lawyers Trust Co., 359 S.W.2d at 890.
For example, in the court in City of Celina v.
Stambaugh held that a provision in an easement
agreement between the City of Celina and landowners
could only be construed as a covenant, not a condition
subsequent. No. 05-13-00480-CV, 2013 Tex. App.
LEXIS 13147, at *6 (Tex. App.—Dallas Oct. 22,
2013, no pet.). The landowners had agreed to convey
an easement to the City so that the City could build a
sewer line to service its new high school. Id. at *1.
As consideration for the easement, the City agreed
that “[t]op soil shall be excavated to a depth of one
foot in the construction area, then removed before the
sewer installation commences, and then replaced,
backfilled, and compacted after the sanitary sewer
main is installed.” Id. at *2. The landowners claimed
that this provision was a condition subsequent, and
because the City failed to replace the topsoil, the
easement was void and the City’s occupation of the
easement was a taking. Id. In finding that this
provision was a covenant and not a condition
subsequent, the court noted the absence of any
conditional language or reverter provisions in the
easement agreement and relied on case precedent
favoring a covenant over a condition precedent. Id. at
*4-*5 (citing Hearne v. Bradshaw, 158 Tex. 453, 312
S.W.2d 948, 951 (Tex. 1958); West v. Thomas, 441
S.W.2d 209, 211 (Tex. Civ. App.—Houston [1st Dist]
1969, no writ)).
948 S.W.2d 497, 504 (Tex. App.—Waco 1997, pet.
denied). Because paragraph (g) clearly stated that the
lease would automatically terminate upon the failure
to make the required royalty payments, the court held
that paragraph was a special limitation. Id. at 506.
Similarly, in Davis v. Skipper, the court found
that the following grant language in a deed constituted
a condition subsequent:
On the other hand, the conditional language in
a conveyance may be unambiguous and support the
finding of a condition subsequent or special limitation.
In Hitzelberger v. Samedan Oil Corp., the court was
asked to determine whether the following paragraph
(g) in an oil and gas lease was a covenant or condition
subsequent:
(g) Within 120 days following the first
sale of oil or gas produced from the
leased premises, settlement shall be
made by Lessee or by its agent for
royalties due hereunder with respect to
such oil or gas sold off the premises and
2015 Texas Land Title Institute – Restrictions, Covenants, Reverters
Know all men by these presents: That
we, H. T. Elder and his wife, Sarah E.
Elder, of the County of Gregg, State of
Texas, for and in consideration of the
sum of Ten and No/100 Dollars, to us in
hand paid by Curtis Booty, Frank
Dodson, Peter Coxon, Wm. Baxter and
Sam Moore, Trustees of the African
Methodist Episcopal Church of Kilgore,
Texas, and known as Butler Chapel, the
receipt
of
which
is
hereby
acknowledged,
and
the
further
consideration of agreement made that
said premises shall be used for church
purposes only and that in case the same
is abandoned as such, that the title shall
be revested in the said H. T. Elder, have
Granted, Sold and Conveyed, and by
these presents do Grant, Sell and
Convey unto the said Curtis Booty,
Frank Dodson, Peter Coxon, Wm.
Baxter and Sam Moore, Trustees as
aforesaid, and their successors in office,
of the County of Gregg, State of Texas,
all that certain tract, or lot, lying and
Page 3
being situated in Gregg County, Texas,
and described as follows….
83 S.W.2d 318, 319 (Tex. Comm’n App. 1935, op.
adopted). According to the court, a mere requirement
that a grantee must take certain actions or the property
may only be used in a specific manner does not
“create an estate upon a condition subsequent.” Id. at
320. However, the inclusion of the reverter of title to
the grantor created an explicit condition subsequent.
Id. Because all the heirs of the deceased H. T. Elder
and his wife had was a “possibility of reverter,” they
were not entitled to recover the property, nor were
they entitled to injunctive relief to prevent the drilling
of an oil well on the property as the property was still
being used for church purposes. Id.
III.
RESTRICTIVE COVENANTS
A.
Creation and Construction3
Texas has used restrictive covenants in the
development of real estate subdivisions for over 100
years.
See Raman Chandler Props., L.C. v.
Caldwell’s Creek Homeowners Ass’n, 178 S.W.3d
384, 391 (Tex. App.—Fort Worth 2005, pet. denied)
(citing Davis v. Huey, 620 S.W.2d 561, 565 (Tex.
1981); City of Corsicana v. Zorn, 78 S.W. 924, 925
(1904)); Baywood Estates Prop. Owners Ass’n v.
Caolo, 392 S.W.3d 776, 782 (Tex. App.—Tyler 2012,
no pet.) (“Neighborhood and subdivision developers
in Texas have been using covenants that run with the
land as described in the seminal 1914 case of Hooper
v. Lottman, 171 S.W. 270 (Tex. Civ. App.—El Paso
1914, no writ)”).
In the common scenario, a developer will
impose restrictive covenants on property by filing a
declaration in the real property records, which
describes the covenants to which the property is
subject. See TEX. PROP. CODE § 202.001(1). The
restrictive covenants in the declaration will be treated
as contracts between the parties.
Mitchell v.
Laflamme, 60 S.W.3d 123, 128 (Tex. App.—Houston
[14th Dist.] 2000, no pet.). Further, purchasers of the
property will have constructive notice of the
restrictive covenants in the declaration and thus be
3
This paper does not address the statutory provisions
applicable to certain subdivisions found in Texas Property
Code Chapter 201.
bound by them. See Cooksey v. Sinder, 682 S.W.2d
252, 253 (Tex. 1984) (purchasers are charged with
knowledge of the contents of recorded instruments
and the terms of deeds in their chain of title); Inwood
North Homeowners’ Ass’n, Inc. v. Harris, 736 S.W.2d
632, 635 (Tex. 1987) (a purchaser with constructive
notice of restrictive covenants becomes bound by
them)).
The doctrine of implied reciprocal negative
easements (also known as implied equitable servitudes
and negative implied restrictive covenants) allows for
the enforcement of restrictive covenants against
property owners whose deeds do not contain express
restrictions. Evans v. Pollock, 796 S.W.2d 465, 466
(Tex. 1990). The doctrine applies where a developer
subdivides property and sells the lots to third party
purchasers with restrictive covenants designed to
further the general plan of development. Id. If the
developer retains additional lots or sells lots without
express restrictions to a grantee who has notice of the
restrictions in the other deeds previously conveyed,
then those lots will be burdened with an implied
reciprocal negative easement so that they cannot be
used in violation of the express restrictive covenants
that already apply to the prior lots. Id. A plan or
scheme of development can be established “by
implication from a filed map, or by parole
representations made in sales brochures, maps,
advertising, and oral statements on which the
purchaser relied in making his purchase.” Lehmann v.
Wallace, 510 S.W.2d 675, 680 (Tex. App.—San
Antonio 1974, writ ref’d n.r.e.).
But a conveyance is not required to create a
restriction. Property owners may privately contract
with one another to create use restrictions that benefit
the property of each. Wiley v. Schorr, 594 S.W.2d
484, 487 (Tex. Civ. App.—San Antonio 1979, writ
ref’d n.r.e.) (“It is well settled in this state that owners
of property may by agreement, apart from a
conveyance, create binding restrictions on the use of
their property.”) (citing Wald v. West MacGregor
Protective Ass’n, 332 S.W.2d 338, 343 (Tex. Civ.
App.—Houston [1st Dist.] 1960, writ ref’d n. r. e.)).
Restrictive covenants that are personal to the
original parties to the covenant will only bind the
parties to the covenant and subsequent purchasers of
the property who have notice of the restrictive
covenant. First Permian, L.L.C. v. Graham, 212
2015 Texas Land Title Institute – Restrictions, Covenants, Reverters
Page 4
S.W.3d 368, 372 (Tex. App.—Amarillo 2006, pet.
denied) (citing Tarrant Appraisal Dist. v. Colonial
Country Club, 767 S.W.2d 230, 235 (Tex. App.—Fort
Worth 1989, writ denied) (noting that deed restriction
filed by the country club that restricted the use of its
land to recreational, park and open-space use was a
personal covenant and therefore “would not be
binding upon subsequent owners purchasing the land
without notice of the restriction”)).
However, a covenant that “runs with the land”
will bind the heirs, assignees and vendees of the
covenanting parties. Montfort v. Trek Res., Inc., 198
S.W.3d 344, 355 (Tex. App.—Eastland 2006, no pet.).
A covenant runs with the land if (1) it touches and
concerns the land, (2) it relates to a thing in existence
or specifically binds the parties and their assigns, (3) it
is intended by the original parties to run with the land,
and (4) the successor to the burden has notice.
Inwood N. Homeowners’Ass’n v. Harris, 736 S.W.2d
632, 635 (Tex. 1987). For example, in Monfort v.
Trek Resources, Inc., the court held that a surface
estate seller’s promise in a special warranty deed to
“furnish fresh water to the house and to Grantee for
the purpose of watering Grantee’s livestock”
constituted a covenant running with the land. 198
S.W.3d at 354-56.
The covenant touched and
concerned the land, and the water and the water
gathering system at issue were in existence at the
execution of the deed. Id. at 355. Although the deed
did not explicitly state that the covenant flowed to the
“successors and assigns” of the grantee, the court
found from the entirety of the deed that the parties
intended the obligation to provide water to run with
the land. Id. at 355-56. The seller’s obligation to
furnish water was not limited to only the time that the
grantee lived in the house, and the use of water was a
necessity for the surface owner, without which the
grantee’s ability to sell the property could have been
severely restricted. Id.
Courts are in agreement that a restrictive
covenant is subject to the same rules of construction
and interpretation as other contracts. See Davis v.
Canyon Creek Estates Homeowners Ass’n, 350
S.W.3d 301, 313 (Tex. App.—San Antonio 2011, pet.
denied). However, there is a split of authority among
the courts of appeal regarding how to specifically
construe restrictive covenants.
See Wiese v.
Heathlake Cmty. Ass’n, 384 S.W.3d 395, 401 (Tex.
App.—Houston [14th Dist.] 2012, no pet.) and
Bridgewater Cmty. Ass’n v. Green, No. 14-14-00333CV, 2015 Tex. App. LEXIS 6786, at *12 (Tex.
App.—Houston [14th Dist.] July 2, 2015, no pet.).
Pursuant to Texas common law, “covenants restricting
the free use of land are not favored by the courts, but
when they are confined to a lawful purpose and are
clearly worded, they will be enforced. All doubts
must be resolved in favor of the free and unrestricted
use of the premises, and the restrictive clause must be
construed strictly against the party seeking to enforce
it.” Wilmoth v. Wilcox, 734 S.W.2d 656, 657 (Tex.
1987) (citing Davis v. Huey, 620 S.W.2d 561 (Tex.
1981); Brown v. Wehner, 610 S.W.2d 168, 170 (Tex.
Civ. App.–Houston [1st Dist.] 1980, writ ref’d n.r.e.))
(emphasis added). However, in 1987, the Texas
legislature amended the Property Code to state that
restrictive
covenants
in
certain
residential
developments must be liberally construed to give
effect to their purpose and intent. See TEX. PROP.
CODE §§ 202.002, 202.003 (emphasis added). While
the Texas Supreme Court noted the potential conflict
between the common law rule and the statutory rule in
Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex.
1998), it has not addressed that conflict as of the date
of this writing. Many courts have simply avoided the
apparent conflict by holding that the same result
would be reached under either approach.
B.
Standing to Enforce
A person has standing to enforce a restrictive
covenant only where the covenant was intended to
inure to that person’s benefit.
Country Cmty.
Timberlake Vill., L.P. v. HMW Special Util. Dist. of
Harris & Montgomery Counties, 438 S.W.3d 661, 667
(Tex. App.—Houston [1st Dist.] 2014, pet. denied)
(citing Wasson Interests, Ltd. v. Adams, 405 S.W.3d
971, 974 (Tex. App.—Tyler 2013, no pet.); Calvary
Temple v. Taylor, 288 S.W.2d 868, 870 (Tex. Civ.
App.—Galveston 1956, no writ)). This includes the
covenanting parties and those in direct privity of
estate with them. Ski Masters of Tex., LLC v.
Heinemeyer, 269 S.W.3d 662, 668-69 (Tex. App.—
San Antonio 2008, no pet.) (citing Davis v. Skipper,
83 S.W.2d 318, 321-22 (Tex. 1935); Wayne Harwell
Props. v. Pan Am. Logistics Ctr., Inc., 945 S.W.2d
216, 218 (Tex. App.—San Antonio 1997, writ
denied)); Westland Oil Dev. Corp. v. Gulf Oil, 637
S.W.2d 903, 910-11 (Tex. 1992) (privity of estate
means a mutual or successive relationship exists to the
same rights in property). It also includes property
2015 Texas Land Title Institute – Restrictions, Covenants, Reverters
Page 5
owners subject to implied reciprocal negative
easements, discussed supra, whose deeds do not
contain express deed restrictions. Ski Masters, 269
S.W.2d at 668-69 (citing Curlee v. Walker, 244 S.W.
497, 498 (Tex. 1922)).
Conversely, a property owner does not have
standing to enforce a covenant where that covenant
does not burden his or her property. “[I]t is well
settled that a restriction on a piece of property may not
be enforced by one who owns land not subject to the
restriction, absent privity of contract or a general plan
or scheme of development applicable to the land that
the plaintiff does own.” Timberlake Vill., 438 S.W.3d
at 668; see also Wasson Interests, Ltd. v. Adams, 405
S.W.3d 971, 974 (Tex. App.—Tyler 2013, no pet.)
(same). In Sills v. Excel Services, Inc., homeowners
within the Oak Forest Country Club Estates Unit No.
1 sought to enforce a single family residential
restrictive covenant on a separate 4 acre tract they
claimed was a part of their subdivision so as to
prevent the construction of an apartment complex on
that tract. 617 S.W.2d 280, 281 (Tex. App.—Tyler
1981, no writ). Upon determining that the 4 acre tract
was not within the boundaries of the Oak Forest
Country Club Estates Unit No. 1 nor subject to the
declaration of restrictions pertaining to the
subdivision, the court affirmed the denial of injunctive
relief. Id. at 283-85.
C.
Amendment, Modification and
Termination
“Generally, landowners have the unilateral or
‘ex parte’ right . . . to impose any restrictions they
choose, to alter or cancel restrictions, or to abrogate
them in their entirety, so long as no lots in a
subdivision have been sold.” Dyegard Land P’ship v.
Hoover, 39 S.W.3d 300, 308–09 (Tex. App.—Fort
Worth 2001, no pet.). After the lots have been sold,
the developer may still have authority to amend the
restrictions if the dedicating instrument grants that
power and establishes a method for doing so. City of
Pasadena v. Gennedy, 125 S.W.3d 687, 698 (Tex.
App.—Houston [1st Dist.] 2003, pet. denied). Any
amendments to the restrictions must be made in the
precise manner as permitted by the dedicating
instrument. Id. (citing Norwood v. Davis, 345 S.W.2d
944, 948 (Tex. Civ. App.—Austin 1961, no writ)).
Termination of a restrictive covenant may
occur pursuant to the express terms of the covenant,
on the agreement of all owners of the burdened
property, or where a court finds that the covenant is no
longer enforceable. Courts may refuse to enforce a
covenant that has been waived or abandoned. Giles v.
Cardenas, 697 S.W.2d 422, 427 (Tex. App.—San
Antonio 1985, writ ref’d n.r.e.). In order to establish
the affirmative defense of waiver, the party disputing
the violation of the covenant must prove that the
landowners voluntarily and intentionally relinquished
their right to enforce the restrictive covenant. Colton
v. Silsbee State Bank, 952 S.W.2d 625, 629 (Tex.
App.—Beaumont 1997, no writ). Specifically, the
party must show that “the violations then existing
were so extensive and material as to reasonably lead
to the conclusion that the restrictions had been
abandoned.” Cox v. Melson-Fulsom, 956 S.W.2d 791,
794 (Tex. App.—Austin 1997, no pet.).
In
determining whether waiver has occurred, courts will
consider the number, nature and severity of the
existing violations, any prior acts of enforcement, and
whether substantial benefits may still be obtained
through the covenants. Id. (citing Finkelstein v.
Southampton Civic Club, 675 S.W.2d 271, 278 (Tex.
App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.);
New Jerusalem Baptist Church, Inc. v. City of
Houston, 598 S.W.2d 666, 669 (Tex. Civ. App.—
Houston [14th Dist.] 1980, no writ)). A covenant may
still be enforced even if a party has failed to object to
trivial violations. See Stewart v. Welsh, 178 S.W.2d
506, 508 (Tex. 1944). While the term abandonment is
distinct from waiver and indicates a specific intent to
forgo a benefit under a covenant as opposed to
acquiescence to a violation of a covenant, Texas
courts have tended to use these terms interchangeably.
See Ortiz v. Jeter, 479 S.W.2d 752, 756 (Tex. Civ.
App.—San Antonio 1972, writ ref’d n.r.e.).
Courts may also refuse to enforce restrictive
covenants upon changed conditions. In order to assert
this defense, the property owner must prove that
“there has been such a change of conditions in the
restricted area or surrounding it that it is no longer
possible to secure in a substantial degree the benefits
sought to be realized through the covenant.” Cowling
v. Colligan, 312 S.W.2d 943, 945 (Tex. 1958); see
also Davis v. Canyon Creek Estates Homeowners
Ass’n, 350 S.W.3d 301, 309 (Tex. App.—San Antonio
2011, pet. denied) (“It has long been the law in this
State that a court may nullify or void a restrictive
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covenant limiting property use to residential only
when the party seeking to nullify or modify the
restriction proves either: (1) the property owners have
acquiesced in violations of the residential restriction
so as to amount to an abandonment of the covenant or
a waiver of the right to enforce it; or (2) as is pertinent
in this case, there has been “such a change of
conditions in the restricted area or surrounding it that
it is no longer possible to secure in a substantial
degree the benefits sought to be realized through the
covenant.”). To justify voiding a restrictive covenant
on these grounds, the alleged changed circumstances
must be “radical,” and courts will consider: “(1) the
size of the restricted area; (2) the location of the
restricted area with respect to where the change has
occurred; (3) the type of change or changes that have
occurred; (4) the character and conduct of the parties
or their predecessors in title; (5) the purpose of the
restrictions; and (6) to some extent, the unexpired
term of the restrictions.” Davis, 350 S.W.3d at 309
(citing Simon v. Henrichson, 394 S.W.2d 249, 254
(Tex. Civ. App.—Corpus Christi 1965, writ ref’d
n.r.e.)). However, a property owner cannot rely on
events that occurred prior to his or her purchase of the
property to support a changed circumstances defense.
Oldfield v. City of Houston, 15 S.W.3d 219, 228 (Tex.
App.—Houston [14th Dist.] 2000, pet. denied)
(superseded by statute on other grounds). In Oldfield,
the property owner argued that due to the construction
of the I-610 South Loop in Houston, his property
abutted the feeder road to the interstate and was
subject to commercial traffic; therefore, his property
should not be subject to the deed restriction
prohibiting its commercial use. Id. The court rejected
this argument, finding that interstate was constructed
before his grantee’s acquisition of the property and
therefore the alleged “changed circumstances” were
already in existence at the time he came into title. Id.
The traditional defenses of estoppel, laches
and statute of limitations may provide additional
defenses to application of restrictive covenants.
Estoppel precludes enforcement of a restriction
against a party who has in good faith relied on another
party’s voluntary act, detrimentally changed his or her
position, and acquired some corresponding right in
property. See Finkelstein v. Southampton Civic Club,
675 S.W.2d 271, 278 (Tex. App.—Houston [1st Dist.]
1984, writ ref’d n.r.e.) (citing Farmer v. Thompson,
289 S.W.2d 351 (Tex. Civ. App.—Fort Worth 1956,
writ ref'd n.r.e.)). The defense of laches is applicable
where there is delay on the part of the complaining
party which results in injury to the property owner
accused of violating the covenant. Dempsey v.
Apache Shores Property Owners Ass’n, 737 S.W.2d
589, 596 (Tex. App.—Austin 1987, no writ) (citing
Culver v. Pickens, 176 S.W.2d 167, 170-71 (Tex.
1943)). Causes of action for breach of a restrictive
covenant are subject to a four-year statute of
limitations, and those limitations begin to run on the
breach of the covenant. Girsh v. St. John, 218 S.W.3d
921, 925 (Tex. App.—Beaumont 2006, no pet.); TEX.
CIV. PRAC. & REM. CODE § 16.051.
D.
Judicial Enforcement
As stated supra, a breach of a restrictive
covenant subjects the breaching property owner to a
lawsuit for damages. Rogers v. Ricane Enterprises,
Inc., 772 S.W.2d 76, 79 (Tex. 1989). An action for a
declaratory judgment is also available to determine the
validity, applicability or enforceability of restrictive
covenants. Lovelace v. Bandera Cemetery Ass’n, 545
S.W.2d 194, 198 (Tex. Civ. App.—San Antonio 1976,
writ ref’d n.r.e.) (citing McGuire v. Davis, 483 S.W.2d
553, 556 (Tex. Civ. App.—Waco 1972, writ ref’d
n.r.e.)). Attorney’s fees are available under Texas
Civil Practice and Remedies Code § 37.009 (“In any
proceeding under this chapter, the court may award
costs and reasonable and necessary attorney’s fees as
are equitable and just”) as well as Texas Property
Code § 5.006 (“In an action based on breach of a
restrictive covenant pertaining to real property, the
court shall allow to a prevailing party who asserted the
action reasonable attorney’s fees in addition to the
party’s costs and claim”). However, in a suit by a
property owner against a homeowner’s association to
invalidate a restrictive covenant, each property owner
is a necessary party to the lawsuit. April Sound Mgmt.
Corp. v. Concerned Prop. Owners for April Sound,
Inc., 153 S.W.3d 519, 524-26 (Tex. App.—Amarillo
2004, no pet.). If all property owners are not joined in
the suite, a plea in abatement should be filed and an
abatement granted. Id.
A party suing for breach or intended breach of
a restrictive covenant may also seek injunctive relief
to enforce those restrictions. See Radney v. Clear
Lake Forest Community Ass’n, Inc., 681 S.W.2d 191,
198 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d
n.r.e.) (holding that “[t]he granting of a mandatory
injunction ordering the removal of non-conforming
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structures is a proper way to enforce deed
restrictions.”).
Unlike a typical application for
injunctive relief, in a suit to enforce restrictive
covenants, the petitioner need not provide proof of
actual damages or irreparable injury so long as a
distinct or substantial breach of the restrictions is
shown. Park v. Escalera Ranch Owners’ Ass’n, 457
S.W.3d 571, 600 (Tex. App.—Austin 2015, no pet.);
Voice of the Cornerstone Church Corp. v. Pizza Prop.
Partners, 160 S.W.3d 657, 668 (Tex. App.—Austin
2005, no pet.). In determining whether to grant
injunctive relief, a court must weigh the equities of the
owner in violation of the covenant against the equities
favoring other lot owners who acquired their property
on the strength of the restriction. Gigowski v. Russell,
718 S.W.2d 16, 22 (Tex. App.—Tyler 1986, writ ref’d
n.r.e.) (citing Cowling v. Colligan, 158 Tex. 458, 312
S.W.2d 943, 946 (1958)). “A disproportion between
the harm the injunctive relief causes and the benefit it
produces must be of considerable magnitude to justify
a refusal to enforce the restrictions.” Park, 457
S.W.3d at 601 (citing Cowling, 312 S.W.2d at 946).
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