ALTHOUGH RESIDENTIAL-ONLY RESTRICTIONS MAY BE NULLIFIED, COURTS ARE RELUCTANT TO DO SO
On July 13, 2012, the Fourth Court of Appeals of Texas (San Antonio) issued its opinion in a case in which it was asked to determine whether antiquated residential-use limitations applied to a subdivision abutting now heavily-developed and largely-commercial Blanco Road in San Antonio.
In upholding the restrictive covenants as requested by the Canyon Creek Estates Homeowners Association, the San Antonio Court court analyzed Texas precedent allowing a court to nullify or void a restrictive covenant limiting property use to residential only. Such nullification may occur when the party seeking modify the restriction proves either that the property owners have acquiesced in violations of the residential restriction so as to amount to an abandonment of the covenant or a waiver of the right to enforce it; OR that there has been “such a change of conditions in the restricted area or surrounding it that it is no longer possible to secure in a substantial degree the benefits sought to be realized through the covenant.” See Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943, 945 (1958). The Court noted that voiding a residential restriction based on changed circumstances or conditions, will only occur when the changed conditions are “radical.”
“Radical” change is evidenced utilizing the following factors: (1) the size of the restricted area; (2) the location of the restricted area with respect to where the change has occurred; (3) the type of change or changes that have occurred; (4) the character and conduct of the parties or their predecessors in title; (5) the purpose of the restrictions; and (6) to some extent, the unexpired term of the restrictions. Id.
In reaching its determination that the Canyon Creek Estates subdivision didn't meet the criteria for nullification of the residential-only restriction, the Court pointed out that Texas law states increased commercial growth and increases in traffic and congestion in streets bounding a restricted subdivision are alone insufficient to warrant nullification of the residential restriction. See Hemphill v. Cayce, 197 S.W.2d 137, 141 (Tex. Civ. App.—Fort Worth 1946, no writ).
The Fourth Court's full opinion can be found HERE.
