Opinion
No. 05-05-00854-CV
Opinion July 27, 2006.
On Appeal from the 298th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 04-12231-M.
Affirm.
Before Justices MORRIS, MOSELEY, and O'NEILL.
MEMORANDUM OPINION
Appellants Edwina Syx, Thomas E. Lyman, Ruth Lyman, et al (Homeowners) appeal a summary judgment declaring certain amendments to restrictive covenants void and unenforceable. In a single point of error, homeowners contend the trial court erred in granting the summary judgment because the restrictive covenants were, as a matter of law, effectively amended.
Homeowners own residential property in a Dallas County subdivision which is governed by restrictive covenants originally established in 1953. The covenants were initially effective until January 1, 1983. Thereafter, the covenants would be automatically extended for successive ten year periods absent proper amendment. In 2004, appellee LTG Vegan Ltd. d/b/a Grayson Custom Homes (Grayson Homes) purchased a lot in the subdivision for the purpose of constructing a custom home. The issue in this case is whether Grayson Homes was required to obtain the approval of an architectural control committee before constructing the home. Grayson Homes asserts that under paragraph six of the original covenants no committee approval was required after January 1, 1983. The homeowners, relying upon an amendment to the original covenants, asserted committee approval was required. Because we conclude the original restrictions provided no committee approval was required after January 1, 1983 and that the homeowners did not effectively amend the covenants, we affirm the trial court's judgment.
Paragraph six of the original restrictive covenants required all new buildings be approved by an architectural control committee composed of three specified individuals or their designated representative. The paragraph expressly provided that the powers and duties of that committee ceased on and after January 1, 1983. Paragraph six further provided:
[After January 1, 1983], the approval described in this covenant shall not be required unless, prior to said date and effective thereon, a written instrument shall be executed by the then record owners of a majority of the lots in this subdivision, and duly recorded, appointing a representative or representatives, who shall thereafter exercise the same powers previously exercised by said Committee.
As of January 1, 1983, the property owners did not vote to appoint a new committee. Thus, on that date, the approval described in paragraph six was no longer required. In October 2004, the homeowners attempted to amend the original restrictive covenants to require that any new construction in the subdivision be approved by a new committee. The amended paragraph six provided for virtually the same approval as initially described in the original paragraph six, but the committee was composed of five different individuals. The amendment was approved by over fifty percent of the homeowners at that time. Grayson Homes brought a declaratory judgment seeking to have the purported amendment declared null and void. It moved for summary judgment asserting that, under the plain terms of paragraph six, the homeowners could not appoint a new architectural control committee after January 1, 1983. In their response, the homeowners did not dispute that they did not comply with the provisions of paragraph six when it created the new committee. Instead, they asserted paragraph six was amended pursuant to a general power to amend found in paragraph fifteen of the deed restrictions. Paragraph fifteen provided in pertinent part:
The foregoing restrictions which are hereby made covenants running with the land, shall remain in full force and effect until January 1, 1983, at which time the same shall be automatically extended for successive periods of ten (10) years, unless a majority vote of the then property owners of the lots in said subdivision, shall then agree in writing to change said conditions, covenants and restrictions in whole or in part.
(Emphasis added). The trial court granted Grayson Homes's motion for summary judgment declaring (1) pursuant to the original restrictions the original architectural control committee dissolved and became defunct on January 1, 1983, and (2) any purported amendment to the original covenants was void and unenforceable. This appeal followed.
A trial court may construe and apply the provisions of a restrictive covenant on summary judgment when no fact issue exists. See Voice of Cornerstone Church Corp. v. Pizza Property Partners, 160 S.W.3d 657, 668 (Tex.App.-Austin 2005, no writ) For a subsequent instrument to amend original restrictive covenants, the instrument creating the original restrictions must establish both the right to amend such restrictions and the method of amendment. Scoville v. SpringPark Homeowner's Ass'n, Inc., 784 S.W.2d 498, 504 (Tex.App.-Dallas 1990, writ denied). To be effective, the amendments must be made in the precise manner provided for in the original instrument. Youssefzadeh v. Brown, 131 S.W.3d 641, 645 (Tex.App.-Fort Worth 2004, no writ). Here, it is clear that under the plain terms of the original restrictive covenants no approval of an architectural was required after January 1, 1983. Therefore, such approval could be required only if the original restrictive covenants were properly amended. Whether such an amendment occurred constitutes an affirmative defense on which the homeowners had the burden of proof. See City of Pasedena v. Gennedy, 125 S.W.3d 687, 697 (Tex.App.-Houston [1st Dist] 2003, writ denied); Dyegard Land P'ship v. Hoover, 39 S.W.3d 300, 308 (Tex.App.-Fort Worth 2001, no writ)
According to the homeowners, they amended paragraph six under the terms of paragraph fifteen. To show the method of amendment provided for in paragraph fifteen was complied with, the homeowners rely on evidence that in October 2004, a majority of the property owners at that time voted to create the new committee. The homeowners however completely ignore the temporal requirements of paragraph fifteen. When restrictive covenants permit amendments only at certain times, any amendments outside the relevant time window are not effective. See Simpson v. Afton Oaks Civic Club, Inc., 155 S.W. 3d 674, 675-76 (Tex.App.-Texarkana 2005, writ denied). In this case, the original restrictions specifically state they will be automatically extended for successive ten year periods unless the "then" property owners "then" agree in writing to amend. Any amendment would necessarily have to occur on the expiration of a ten year period and before the provisions were automatically extended. See French v. Diamond Hill-Jarvis Civic League, 724 S.W.2d 921, 923-24 (Tex.App.-Fort Worth 1987, writ ref'd n.r.e.) (discussing whether evidence showed amendment occurred on specific date provided for in restrictive covenants). Here, the times to amend would have been January 1, 1983, January 1, 1993, and January 1, 2003. However, homeowners did not purport to amend until October 2004. We conclude any purported amendment was not effective because it was not made at the time provided for in the restrictions.
We affirm the trial court's judgment.