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How Texas courts think about abandonment and waiver of covenants and restrictions:
Texas Supreme Court, 1958
There are certain rules of law by which a court of equity must be guided in determining whether to enforce a residential-only restriction. It may refuse to enforce it because of the acquiescence of the lot owners in such substantial violations within the restricted area as to amount to an abandonment of the covenant or a waiver of the right to enforce it. 5 Restatement of the Law of Property § 561; 2 American Law of Property § 9.38; 14 Am.Jur. 644-646, Covenants, Conditions and Restrictions §§ 295-298; 12 Tex.Jur. 172-174, Covenants and Conditions § 108. It may also refuse to enforce it because 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. 5 Restatement of the Law of Property § 564; 2 American Law of Property § 9.39; 14 Am. Jur. 648, § 305.
-- https://law.justia.com/cases/texas/supreme-court/1958/a-6650-0.html
Texas First Court of Appeals, 2017
Absent a nonwaiver provision, abandonment of a restrictive covenant can be
found when lot owners acquiesce in substantial violations within a restricted area,
and that acquiescence can amount to either an abandonment of the covenant or a
waiver of the right to enforce it. See Cowling v. Colligan, 312 S.W.2d 943, 945
(Tex. 1958). To establish abandonment, a party must prove that the violations are
so great as to lead the mind of the average man reasonably to conclude that the
restrictions in question have been abandoned. Tanglewood Homes Ass’n, Inc. v.
Henke, 728 S.W.2d 39, 43 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.).
This determination requires consideration of “‘the number, nature, and severity of
the then existing violations, any prior acts of enforcement of the restriction, and
whether it is still possible to realize to a substantial degree the benefits intended
through the covenant.’” Id. at 43–44 (quoting New Jerusalem Baptist Church, Inc.
v. City of Houston, 598 S.W.2d 666, 669 (Tex. Civ. App.—Houston [14th Dist.]
1980, no writ)).
Deed restrictions are restrictive covenants concerning real property. See
TEX. PROP. CODE § 202.001(4). Restrictive covenants are subject to the general
rules of contract construction. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex.
1998); Elbar Invs., Inc. v. Garden Oaks Maint. Org., 500 S.W.3d 1, 3 (Tex.
App.—Houston [1st Dist.] 2016, pet. denied). Texas has a “strong public policy
favoring freedom of contract,” which “is firmly embedded in our jurisprudence.”
Phila. Indem. Ins. Co. v. White, 490 S.W.3d 468, 471 (Tex. 2016). This
“‘paramount public policy’” mandates that courts “‘are not lightly to interfere with
this freedom of contract.’” Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905,
912 (Tex. 2007) (quoting BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 767
(Tex. 2005)). Parties generally have the right to contract with regard to their
property as they see fit, so long as the contract does not offend public policy and is
not illegal. E.g., Coyote Lake Ranch, LLC v. City of Lubbock, 498 S.W.3d 53, 59
(Tex. 2016); Sonny Arnold, Inc. v. Sentry Sav. Ass’n, 633 S.W.2d 811, 815 (Tex.
1982). Consistent with the freedom of contract, when construing a restrictive
covenant, the court’s primary duty is to ascertain the drafter’s intent as expressed
within the four corners of the instrument. See Altman v. Blake, 712 S.W.2d 117,
118 (Tex. 1986). When a restrictive covenant is unambiguous, we construe it
according to the plain meaning of its express wording and enforce it as written.
See, e.g., Elbar Invs., 500 S.W.3d at 3; Uptegraph v. Sandalwood Civic Club, 312
S.W.3d 918, 925 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
The Cypress Point Estates deed restrictions contain a nonwaiver provision.
Restriction No. 30 states:
No act or omission by any party hereto or any person hereafter
acquiring any interest in any tract in said subdivision through or under
same shall ever be constructed a waiver of the right to enforce any of
these covenants, either against such person or against any other
person.
By its plain language, this nonwaiver provision protects the property owners in
Cypress Point Estates from claims that the deed restrictions had been abandoned or
waived because of a failure to prosecute prior violations. See Simms v. Lakewood
Vill. Prop. Owners Ass’n, Inc., 895 S.W.2d 779, 787 (Tex. App.—Corpus Christi
1995, no pet.).
[See link below for interesting discussion of what it takes to 'waive a Declaration's non-waiver provision.' In this case, the appeals court said the non-waiver provision had not been waived.]
-- https://cases.justia.com/texas/first-court-of-appeals/2017-01-15-00897-cv.pdf
Texas Second Court of Appeals, 2020
Restrictive covenants, such as the Southridge Restrictions, may be
waived. See Clark, 2019 WL 4010771, at *5. To establish waiver by abandonment of a
specific restrictive covenant, a homeowner must have proven that existing violations
were so great as to lead the mind of a reasonable person to conclude that the specific
restriction in question was abandoned and its enforcement waived. See id.; BCH Dev.,
LLC v. Lakeview Heights Addition Prop. Owners’ Ass’n, No. 05-17-01096-CV, 2019 WL
2211479, at *7 (Tex. App.—Dallas May 21, 2019, pets. denied) (mem. op.).
However, the Restrictions here contain a severability paragraph, the purpose of
which is to prevent claims of waiver by abandonment. But a severability clause does
not conclusively negate the possibility that waiver has occurred. EWB-I, LLC v.
PlazAmericas Mall Tex., LLC, 527 S.W.3d 447, 467–68 (Tex. App.—Houston [1st
Dist.] 2017, pet. denied); Vance v. Popkowski, 534 S.W.3d 474, 479 (Tex. App.—
Houston [1st Dist.] 2017, pet. denied); see Shields Ltd. P’ship, 526 S.W.3d at 482–83
(“[W]e affirm that a party’s rights under a nonwaiver provision may indeed be waived
expressly or impliedly.”). As such, the McCarleys cannot prevail on their affirmative
defense of waiver unless they proffered sufficient evidence of conduct constituting a
complete abandonment of the Restrictions as a whole, including the severability
paragraph. See Clark, 2019 WL 4010771, at *5; Vance, 534 S.W.3d at 479–80.
Complete abandonment is shown through “evidence of violations so pervasive that
they have destroyed the fundamental character of the neighborhood.” Vance,
534 S.W.3d at 480; see Musgrove, 2010 WL 976010, at *4.
-- https://cases.justia.com/texas/second-court-of-appeals/2020-02-19-00287-cv.pdf
See also this 2009 memorandum opinion:
https://cases.justia.com/texas/second-court-of-appeals/02-07-00281-cv.pdf
Texas Third Court of Appeals, 2019
A nonwaiver clause will be held to be ineffective only if the party seeking
to avoid the covenants can demonstrate “a complete abandonment of the entire set of restrictions,
including the nonwaiver provision.” Vance v. Popkowski, 534 S.W.3d 474, 479-80 (Tex. App.—
Houston [1st Dist.] 2017, pet. denied); Musgrove, 2009 WL 976010 at *4. “Complete
abandonment is demonstrated when there is evidence of violations so pervasive that they have
destroyed the fundamental character of the neighborhood.” Vance, 534 S.W.3d at 480.
-- https://cases.justia.com/texas/third-court-of-appeals/2019-03-17-00732-cv.pdf
More from the Third Court of Appeals, Memorandum Opinions:
2006 https://cases.justia.com/texas/third-court-of-appeals/03-03-00310-cv.pdf
2010 https://cases.justia.com/texas/third-court-of-appeals/03-09-00313-cv.pdf
Texas Fourth Court of Appeals
In order to establish the affirmative defense of waiver in a deed restriction case, the nonconforming user must prove that the violations then existing are so great as to lead the mind of
the “average man” to reasonably conclude that the restriction in question has been abandoned
and its enforcement waived. New Jerusalem Baptist Church, Inc. v. City of Houston, 598
S.W.2d 666, 669 (Tex. App.—Houston [14th Dist.] 1980, no writ). Among the factors to be
considered by the “average man” are the number, nature, and severity of the then existing
violations, any prior acts of enforcement of the restriction, and whether it is still possible to
realize to a substantial degree the benefits intended through the covenant. Id.; Pebble Beach
Prop. Owners’ Ass’n v. Sherer, 2 S.W.3d 283, 290 (Tex. App.—San Antonio 1999, pet. denied).
-- https://cases.justia.com/texas/fourth-court-of-appeals/04-10-00195-cv.pdf
See also https://law.justia.com/cases/texas/fourth-court-of-appeals/1999/7788.html
Texas Fifth Court of Appeals
To establish waiver in a deed restrictions case,
the nonconforming user must prove that violations then existing are so great as to lead the mind of
the “average man” to reasonably conclude that the restriction in question has been abandoned and
its enforcement waived. Hicks v. Loveless, 714 S.W.2d 30, 35 (Tex. App.—Dallas 1986, writ ref’d
n.r.e.); Forest Hills Improvement Ass’n v. Flaim, No. 09-15-00478-CV, 2017 WL 5179968, at *4
(Tex. App.—Beaumont Nov. 9, 2017, no pet.) (mem. op.); EWB-I, LLC v. PlazAmericas Mall
Tex., LLC, 527 S.W.3d 447, 466 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). Among the
factors to be considered by the average man are the number, nature, and severity of the then
existing violations, any prior acts of enforcement of the restriction, and whether it is still possible to realize to a substantial degree the benefits intended through the covenant. Hicks, 714 S.W.2d at 35.
-- https://cases.justia.com/texas/fifth-court-of-appeals/2019-05-17-01096-cv.pdf
See also https://cases.justia.com/texas/fifth-court-of-appeals/2019-05-18-00278-cv.pdf
Texas Seventh Court of Appeals
To establish waiver by abandonment of a restrictive covenant
running with the land, where there is a nonwaiver provision, a property owner must prove
that the existing violations are so great and the violations so pervasive, that they have
destroyed the fundamental purpose of the restrictions and have caused the average
person to conclude that the entire set of restrictions in question have been abandoned.
Densmore v. McCarley, No. 02-19-00287-CV, 2020 Tex. App. LEXIS 2304, at *1 (Tex.
App.—Fort Worth March 19, 2020, no pet.) (mem. op.); Vance, 534 S.W.3d at 480. Such
determinations are inherently fact-intensive inquisitions to be determined by the trier of
fact on a case-by-case basis. Vance, 534 S.W.3d at 481.
-- https://cases.justia.com/texas/seventh-court-of-appeals/2022-07-21-00036-cv.pdf
Texas Ninth Court of Appeals
A court may refuse to enforce a deed restriction because of the acquiescence by
the landowners in violations so substantial that the acquiescence amounts to an
abandonment of the restriction. Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943, 945
(1958). The acquiescence may simply amount to a waiver of the right to enforce the
restriction. Id. In determining waiver or abandonment in a deed restriction case, the
factors to be considered include the number, nature, and severity of the existing
violations, any prior enforcements of the restriction, and whether it is still possible to
realize to a substantial degree of the benefits of the restriction despite the violations.
Finkelstein v. Southhampton Civic Club, 675 S.W.2d 271, 278 (Tex. App.—Houston [1st
Dist.] 1984, writ ref‟d n.r.e.). Trivial violations do not amount to abandonment, nor do
they preclude enforcement of the restriction. Cowling, 312 S.W.2d at 946.
-- https://cases.justia.com/texas/ninth-court-of-appeals/09-10-00495-cv-0.pdf
See also https://cases.justia.com/texas/ninth-court-of-appeals/2017-09-15-00478-cv.pdf