We review de novo a trial court's construction of a community's dedicatory instruments, such as restrictive covenants. Garrett v. Sympson, 523 S.W.3d 862, 866 (Tex. App.—Fort Worth 2017, pet. denied); see Tex. Prop. Code Ann. § 202.001 (defining "dedicatory instrument" to mean "each document governing the establishment, maintenance, or operation of a . . . townhouse regime" and "includes a declaration or similar instrument subjecting real property to restrictive covenants" as well as "properly adopted rules and regulations of the property owners' association"). We apply general rules of contract construction when interpreting restrictive covenants.
When interpreting restrictive covenants, we apply the general rules of contract construction. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998); Garrett v. Sympson, 523 S.W.3d 862, 866 (Tex. App.—Fort Worth 2017, pet. filed); Elbar Invs., Inc., 500 S.W.3d at 3. Our primary task is to determine the drafter's intent from the instrument's language by examining the covenant as a whole in light of the circumstances present when the covenant was made.
Yogman v. Parrott, 325 Or. 358, 937 P.2d 1019, 1021 (Or. 1997) ("[A] ‘residence’ … can refer to a place where one intends to live for a long time."); Garrett v. Sympson, 523 S.W.3d 862, 867 (Tex. Ct. App. 2017) (concluding that "residential purposes" could reasonably be interpreted to require "an intention to be physically present in a home for more than a transient stay"); Scott v. Walker, 274 Va. 209, 645 S.E.2d 278, 283 (2007) (noting possibility that "a residential purpose requires an intention to be physically present in a home for more than a transient stay"). But because the term "residential" can also refer to stays of a shorter duration, these courts ultimately found the covenants at issue ambiguous and held that they did not clearly prohibit short-term rentals.
We review the trial court’s construction of restrictive covenants de novo. SeeGarrett v. Sympson , 523 S.W.3d 862, 866 (Tex. App.—Fort Worth 2017, pet. denied). When interpreting restrictive covenants, we apply the general rules of contract construction.
Our primary task is to determine the drafter's intent from the Declaration's language. Garrett v. Sympson, 523 S.W.3d 862, 866 (Tex. App.-Fort Worth 2017, pet. denied).
Garrett v. Sympson, 523 S.W.3d 862, 866 (Tex. App.-Fort Worth 2017, pet. denied), see also Tex. Prop. Code Ann. § 202.003(a)
While the deed restriction in Boatner limited use "for residence purposes only, and not for business[,]" it did not define "residence purposes" or "business" or specify what activities constitute business use. Id.; cf. Garrett v. Sympson, 523 S.W.3d 862 (Tex. App.—Fort Worth 2017, pet. filed) (court determined that short-term rentals were not prohibited where disputed deed restriction did not define residential or commercial purposes).
Facing a challenge to the short-term rental of property based on analogous deed restrictions, one of our sister courts recently found the restrictions ambiguous and that they "must be interpreted in favor of the [property owners'] free and unrestricted use of the Property, thus allowing the Property to be used for short-term rentals." Garrett v. Sympson, No. 02-16-00437-CV, 2017 Tex. App. LEXIS 5266, at *12 (Tex. App.—Fort Worth June 8, 2017, no pet. h.) (mem. op.). In that case, the restrictions stated in relevant part that "[n]o lot or plot shall ever be used for other than single family residence purposes" and that "use of any lot or plot for other purposes including but not limited to commercial or professional purposes is hereby expressly prohibited."