Abandonment of Deed Restrictions

by clara hogue
(flint, texas smith)

Visitor Question: I live in a subdivision in a county that has 49 plots. The original covenants were written in 1976 for a period of 20 years with an automatic renewal every 10 years. There are numerous violations, some trivial, some major, such as the types of driveways not in compliance, the type of veneers on the home, types of homes and the square footage of homes.

Is there anytime that the covenants can be deemed abandoned since they have never really been enforced? Do you know of any case law where this has been successful?

Also when the restrictions were listed, it stated you had to have approval of the architectural committee for any improvements or for all buildings erected on new or existing lots. If there was never a committee implemented after the original owners of the subdivision sold all the plots in 1932, no other committee was formed, and the restrictions were never followed, is this a way they can be deemed abandoned?

Also is there some sort of rule that after $ years some things are considered grandfathered? We had carports and garages that are not connected with breezeways, driveways that are not as required, and as stated earlier not the type of veneers, type of homes, size of homes etc. originally required.

The neighborhood seems divided, but I feel that we are in the county and this neighborhood is so established. There are so many major violations as stated and RVs parked everywhere, fences, outbuildings, etc. and if there is no committee how was this approved. Did there have to be meetings with minutes? Did the homeowners need to be told who the committee was?

Editors Reply: We have combined two questions from the same visitor on related topics.

First and foremost, we have to emphasize that we are city planners, not attorneys. For the definitive answer to your questions, you need to consult a Texas attorney who can gather all the relevant facts and weigh against applicable case law. We offer some general observations about how to think about these questions.

While awaiting your appointment with an attorney, obtain the original wording of the deed restrictions. Sometimes this is quoted in your own deed, but often if the restriction was in place long before you purchased the property, the restriction may not be shown in your deed. It should have been noted in any title search performed when you purchased your property.

If you do not have the original wording, go to your county courthouse and ask personnel there to help you research it.

One intriguing element of your question is the automatic renewal every ten years after an initial period of validity. This leads us to believe that the deed restrictions themselves would provide a way to interrupt that ten-year automatic renewal cycle. So it is important to have the wording of the restrictions available.

If the deed restrictions (also called restrictive covenants) contain a procedure for setting aside the covenants, you must follow those directions. Your issue could be resolved relatively easily.

In fact, in 1987 the Texas legislature clarified some statutes about when and how covenants (deed restrictions) can be changed, and your attorney can analyze how this relates to your particular situation. Our understanding is that you still would need an attorney even if that legislative action made it easier to change the restrictions.

Generally in our experience, non-enforcement is not grounds for automatic abandonment of the deed restrictions. But again, if the deed restrictions themselves say that after two, five, or ten years of non-enforcement, everything is grandfathered, that would be your answer.

In many states, you could go to a judge to seek what is known as a declaratory judgment that would clarify the situation. An individual judge might rule that if something had not been enforced since 1976, those deed restriction can be set aside.

This is a bit of a long shot, but as you suggest, a search of past judgments would reveal whether this would be worth pursuing.

From the community development perspective, our advice would be that your subdivision should reach some degree of consensus about what rules you would like to keep before you seek a judgment. This situation might be more persuasive to a judge, but regardless of that factor, it would help prevent more chaos and confusion if you are successful in obtaining a judgment allowing some deed restrictions to be dropped.

As for your question about the required architectural committee that was never formed, a judge might be fairly sympathetic to this. It's hard to argue that someone should be required to tear down a building because it was not approved by a non-existent committee. However, instead of saying that the deed restriction is no longer valid, a judge might well take the position that an architectural committee should be appointed within a certain number of days. So this is not a certain bet.

Next you wondered if there is a provision that after a certain number of years without enforcement, a deed restriction can be considered "abandoned," to use your word. The answer is no, unless state law provides for this, the deed restrictions themselves address non-enforcement, or you obtain a court judgment.

Your next question was whether there had to be minutes showing that driveways, building materials, and so forth had been approved. If a homeowner's association board is empowered by the deed restrictions themselves to change or waive those restrictions, written minutes should record those decisions.

Lastly you ask whether the homeowners should have been told who the committee was. We presume you are speaking of the architecture committee, which you said earlier did not meet. If there was a committee, the homeowners at the time should have been told who the committee was, and records should show that information. However, in most states, officers of the homeowners association have broad latitude about how transparent they want to be. So the particulars of how much the HOA board is required to disclose would be contained within the HOA by-laws in most cases.

We hope these general observations are helpful to you, even if we cannot give definite answers because we are not attorneys in Texas. We suspect that even the Texas attorney that you or your neighbors consult will not be able to say something with 100 percent certainty until there is either a lot of research or a court judgment.

As an aside, these are somewhat typical problems with deed restrictions. If any readers are HOA board members, let this be a cautionary tale about how important it is to either enforce your deed restrictions, or act to have them changed or repealed.

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