Agenda - Planning Commission - 05/04/2006

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Page 2 -- March 25, 2006 Re, hlctive Covenant--Man clnima neighborhood covenants waived Parks car on lawn, argues others did so as well Citation: Daniels v. Balcones Woods Club Inc., Court of Appeals of Texas, 3rd Dist., Austin, No. 03-03-00310-CV (2006) TEXAS (02/02/06) -- Balcones Woods Club Inc. was a neighborhood associa- tion in Austin. Property in the neighborhood was subject to certain covenants. Importantly, the covenants did not allow any disabled vehicle to be stored or parked in the open on any lot in the neighborhood. Daniels, a neighborhood resident, began parking a disabled car on his lawn. Balcones Woods informed Daniels of the violation, but he failed to remove the vehicle. Balcones Woods sued, and the court ruled in its favor. Daniels appealed, arguing that he was entitled to park his car on his lawn because the restrictive covenants had been waived. DECISION: Affirmed, There was no proof the covenants had been waived. In order to demonstrate a waiver of restrictive covenants, a party had to prove that there were existing violations so extensive and material as to reason- ably lead to the conclusion that the restrictions had been abandoned. The number, nature, and severity of the existing violations; any prior acts of enforcement; and whether it was ~till possible to realize to a substantial de~ee ire benefits sought through the covenants were factors considered in deter- mining any waiver of them. One neighboring property owner testified that he was aware of other viola- tions in the neighborhood, but explained that he did not feel that there were other violations that he was aware of as a homeowner. Another property owner testified that in the five years preceding the lawsuit, he had not seen other vehicles parked on other individuals' front lawns in the neighborhood. Although Daniels testified that other people parked their cars on their front lawns, Daniels did not produce any evidence to support his allegation, includ- ing 'any evidence regarding the number, nature, and severity of the existing violations, any prior acts of enfomement, or specific other violations that were so extensive and material as to reasonably Iead to the conclusion that the restrictions had been abandoned. see also: Dow Chemical Company v. Francis, 46 & W. 3d 237 (200I). see also: Lee Lewis Construction Inc. v. Harrison, 70 S.W.3d 778 (2001). RENEW ONLINE at www. quinlan.com 2006 Quinlan Publishing Group. Any reproduction is proh:bited. For more information please cai[ (617} 542-004u. 46