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Tower Oaks Community Organization v. Ham

Court of Appeals of Texas, First District

May 17, 2018


          On Appeal from the 61st District Court Harris County, Texas Trial Court Case No. 2015-52753

          Panel consists of Justices Keyes, Brown, and Lloyd.


          Evelyn V. Keyes Justice.

         Appellant, Tower Oaks Community Organization ("TOCO"), is an unincorporated non-profit association comprised of eight residents of the Tower Oaks subdivision and formed for the purpose of monitoring the enforcement of restrictive covenants in the subdivision when the Tower Oaks Civic Club fails or refuses to do so. TOCO sued the appellees, Gregory D. and Colin E. Ham ("the Hams"), based on the Hams' alleged violation of the subdivision's restrictive covenants ("Covenants"), and the trial court rendered a take-nothing judgment against TOCO. TOCO argues, in relevant part, that the trial court erred in failing to find that the Hams violated the Covenants' "requirement" of one house per developed lot and, because the Hams allegedly violated this requirement, TOCO is entitled to injunctive relief and attorney's fees as a matter of law.[1] We conclude that TOCO's construction of the Covenants is not supported by their plain language and that the evidence demonstrates, as a matter of law, that TOCO failed to establish that the Hams violated the Covenants. Accordingly, we affirm the trial court's take-nothing judgment.


         The Tower Oaks community was originally developed in the 1950s and 1960s. The development included the creation, in 1968, of the Covenants concerning the use of property within the subdivision. The Covenants were to remain in effect initially for a period of fifty years and are automatically extended for ten-year terms following the initial effective period. The Covenants include the following relevant provisions:

3. It is expressly understood that all lots and land in this subdivision shall be known and described as residential lots and property and shall not during the effective dates and periods of this instrument be used or permitted to be used for any other purpose.
4. No more than one single family residential dwelling shall be built on any one lot. . . .
5. No building shall be erected, placed, or altered upon any building plot in this subdivision until the building plans, specifications and plot plans showing the location of such building have been approved in writing by the architectural committee as to quality of workmanship and materials and to conformity and harmony of external design with the existing structures in the subdivision and as to location of the building with respect to topography and finished ground elevation. . . .
8. No animals, livestock, poultry, dogs, cats and such may be kept or permitted on the premises, except as pets or for domestic use. . . . In this connection it is further understood that all barns, stables, and outhouses must be placed and so situated that no part of them is closer to the front of said lot than a line parallel to the front property line lying at the rear of the principal dwelling situated on said lot. . . . All such structures and shelters for animals and pets shall conform to the structures in the neighborhood and shall not be maintained in any unsightly manner. . . .
9. No residential structure shall be erected or placed on any lot that has actual living space of less the 1, 600 square feet, exclusive of porches and garages.
10. No trailer, basement, tent, shack, garage, barn or other building or outbuilding erected on any lot shall at any time be used for residential purposes, either temporarily or permanently. No structure of whatever character, including the structures built for residential purposes, shall ever be occupied or used for such residential purposes until the same is complete outside. No second-hand houses shall be moved on any lot.
13. No building or structure shall be located closer than Fifty feet (50′) to the front line of each residential lot or nearer to the side street lines than Twenty-Five feet (25′). Eaves, steps and open porches shall not be considered as part of a building, but this definition shall not permit any portion of a building, including the aforesaid, to encroach upon an adjoining lot, except when two or more adjacent lots are used as one building plot.
19. The exterior of all residential structures shall be of at least 2/3 masonry construction and shall be completely and permanently finished, and if any part of such exterior is of wood or of material requiring painting, then same shall be finished. . . .

         The Tower Oaks Civic Club generally oversees the enforcement of these Covenants, including by forming an Architectural Committee to approve construction as required by the Covenants. However, the Tower Oaks Civic Club does not impose mandatory membership fees on residents of the community, and thus it has limited resources with which to enforce the Covenants. Accordingly, a group of residents, currently including four married couples who reside in the neighborhood, decided to form TOCO for the purpose of enforcing the Covenants.

         On August 29, 2014, the Hams purchased the property located at 11510 Mile Drive in Houston, Texas ("the Property"). The Property was comprised of two lots-Lots 5 and 6. The purchase price was for the combined lots, and the entire Property was conveyed in a single transaction.

         In early 2015, the Hams contacted the Tower Oaks Civic Club's Architectural Committee to request permission to build an auxiliary building ("the Building") on Lot 6 of their Property. Their request was considered by the Architectural Committee, which requested that the Hams construct the Building toward the back of the Property and that they construct a privacy fence between the Building and the street. The Hams agreed to these conditions; and the Architectural Committee, and ultimately the Tower Oaks Civic Club Board, approved the Hams' request to construct the Building.

         The Architectural Committee informed the Hams by phone of the approval to build in early April 2015, and on April 18, 2015, the Hams entered into a contract with Hawthorne Steel Buildings to construct the Building, paying it one-third of the contract price of $49, 747.19 as a deposit. On April 28, 2015, the Hams obtained written approval from the Architectural Committee to build and the construction process began shortly after.

         On July 22, 2015, Nancy McCreary, a member of TOCO-an organization the Hams had never heard of or had any dealings with-inquired into the activity on the Hams' property by contacting the Tower Oaks Civic Club's president, Dwayne Harthorn. Harthorn provided the requested information to McCreary and notified a member of the Architectural Committee of ...

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