Appeal from the 61st District Court Harris County, Texas
Trial Court Case No. 2015-52753
consists of Justices Keyes, Brown, and Lloyd.
V. Keyes Justice.
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. 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
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
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. . . .
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.
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.
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
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.
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 ...