Opinion
NO. 01-16-00773-CV
01-31-2019
CLEARPOINT CROSSING PROPERTY OWNERS ASSOCIATION AND CULLEN'S LLC AND 11500 SPACE CENTER, LLC, Appellants v. JOSEPH CHAMBERS AND DEBBIE CHAMBERS, Appellees
On Appeal from the 164th District Court Harris County, Texas
Trial Court Case No. 2011-05504
OPINION CONCURRING IN THE DENIAL OF EN BANC REVIEW
I concur in the court's denial of en banc reconsideration but write to address Joseph and Debbie Chambers's contention about maintenance and repair costs.
This court reversed the trial court's judgment as to the scope of the express easements and the existence of an easement by necessity and remanded the case for further proceedings as to the Appellants' claim for maintenance costs. In their motion for en banc reconsideration, the Chambers contend that we should have rendered a take-nothing judgment on the Appellants' claim because the easements are express and their terms do not expressly require the Chambers contribute to maintenance costs.
The Chambers do not cite any authority in support of their position. Nor does there appear to be any Texas authority deciding who bears the costs of maintenance or repairs when an easement is used by both the dominant and servient estates.
The relevant restatement provision, however, states that, unless an easement states otherwise, joint use by the owners of the dominant and servient estates "gives rise to an obligation to contribute jointly to the costs reasonably incurred for repair and maintenance of the portion of the servient estate or improvements used in common." RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 4.13(3) (2000); see also 28A C.J.S. Easements § 226 (2008) ("When joint regular use of the easement is made by both the dominant and servient estates, both estates have the obligation to contribute jointly to the costs of reasonable repairs unless the easement itself indicates otherwise."). This rule of joint contribution has been adopted in a significant number of other jurisdictions. See, e.g., Village Green Condo Ass'n v. Hodges, 114 A.3d 323, 328-29 (N.H. 2015) (collecting cases and adopting rule of joint contribution); Baker v. Hines, 406 S.W.3d 21, 28-31 (Ky. Ct. App. 2013) (same).
The Supreme Court of Texas likely will adopt the rule of joint contribution articulated in the restatement when called on to decide the question for three reasons.
First, the Court has relied on the restatement as an accurate statement of the law of servitudes. E.g., Tarr v. Timberwood Park Owners Ass'n, 556 S.W.3d 274, 279 (Tex. 2018); Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 701-03 (Tex. 2002). Absent a conflict with existing Texas law, the restatement is a reliable guide for filling this gap.
Second, the joint-contribution rule has a substantial common-law pedigree, dating back at least as far as the first half of the Twentieth Century. See Bina v. Bina, 239 N.W. 68, 71 (Iowa 1931). And the general principle that parties with mutual interests in real property share responsibility for maintenance goes back still further. At common law, a cotenant could compel his fellow cotenants to unite for repairs. See Edmund R. Meitus, The Rights, Duties & Liabilities of Tenants in Common Inter Sese, 24 MARQ. L. REV. 148, 152 (1940) (discussing writs de reparatione facienda). Early in its history, Texas adopted the common law as its own. See George C. Butte, Early Development of Law & Equity in Texas, 26 YALE L.J. 699, 700 (1917) (Republic of Texas in 1840 adopted English common law so far as it was not inconsistent with Texas's constitution and statutes). The principle that parties who have concurrent rights in the same real property must shoulder the costs necessary to preserve it together remains Texas law today. See, e.g., Wooley v. West, 391 S.W.2d 157, 160 (Tex. App.—Tyler 1965, writ ref'd n.r.e.) (cotenant who incurs costs necessary to preserve property entitled to reimbursement from others to extent that he paid their share of costs); Allen v. Allen, 363 S.W.2d 312, 316 (Tex. App.—Houston 1962, no writ) (cotenants collectively responsible for care and upkeep of property).
Third, the joint-contribution rule is consistent with Texas law in another significant respect. Texas law already imposes on an easement holder a duty to maintain any easement that he alone uses and imposes the costs of doing so solely on him, unless he and the owner of the servient estate have agreed otherwise. See Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (holder of easement has duty to maintain it); West v. Giesen, 242 S.W. 312, 320 (Tex. App.—Austin 1922, writ ref'd) (owner of land subject to easement not obligated to maintain or repair it or bear costs of doing so absent contrary agreement). The joint-contribution rule's default imposition of cost-sharing between the owners of the dominant and servient estates absent a contrary agreement between them thus parallels existing Texas law as to the allocation of costs associated with the maintenance of easements when there is no agreement.
I therefore concur in the court's denial of en banc reconsideration.
Gordon Goodman
Justice Justice Goodman, concurring in the denial of en banc reconsideration by separate opinion. En Banc Court consists of: Chief Justice Radack and Justices Keyes, Higley, Lloyd, Kelly, Goodman, Landau, Hightower, and Countiss.