TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00555-CV
Cliffhanger Developments, LLC, Appellant v.
Michael Lubitz; Tomas Fernandez; and Sarah Moore Lord and Joseph Christopher Lord, as Trustees of The Lord Living Trust, Appellees
FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-23-002215, THE HONORABLE MADELEINE CONNOR, JUDGE PRESIDING
MEMORANDUM OPINION
This is an appeal from a summary judgment construing the restrictive covenant of a subdivision as prohibiting the construction of more than two houses on any lot as originally platted and permanently enjoining the appellant-developer, Cliffhanger Developments, LLC, from building more than two houses on a lot it owns in the subdivision. On appeal, Cliffhanger argues that the district court erred in rendering summary judgment because (1) the restrictive covenant refers not to the original plat but to the plat as it may be amended over time and, as a result, Cliffhanger may subdivide its lot and build two houses on each resubdivided and replatted lot and (2) Cliffhanger produced summary-judgment evidence raising a genuine issue of material fact as to whether the appellee-homeowners waived enforcement of the restrictive covenant. Because the restrictive covenant expressly refers to and incorporates the original plat, and the original plat expressly refers to the restrictive covenant, we hold that the restrictive covenant
2
unambiguously applies to lots as originally platted, not to lots as they may be replatted over time and that, as a result, Cliffhanger cannot resubdivide and replat its lot in order to circumvent the covenant and build more houses than permitted. We further hold that Cliffhanger’s evidence of a few violations over the past 70-some-odd years is insufficient to raise a genuine issue of material fact as to waiver. Therefore, we affirm.
BACKGROUND
The Deed Restriction The subdivision at the center of this dispute is Elm Wood Estates, located in Travis County, Texas. The original plat for Elm Wood Estates was recorded in 1953 in Book 6, Page 140 of the Travis County Plat Records. It includes a handwritten note from the County Clerk referencing certain “Restrictions” that can be found at Volume 1536, Page 207 of the Travis County Deed Records. The Travis County Deed Records, in turn, include a Deed Restriction for Elm Wood Estates. The Deed Restriction was recorded in 1953 in Volume 1536, Page 207, as referenced in the original plat.
The Deed Restriction begins with a preamble, which references the plat just discussed. It provides: “That I, J.A. Shelby, owner of Elm Wood Estates, as shown on plat thereof recorded in Book 6, Page 140, of the Travis County Plat Records, do hereby impress all of the property included in Elm Wood Estates, with the following restrictions and covenants.”
The Deed Restriction then sets out seven paragraphs of restrictive covenants and related provisions. Two are relevant to this dispute. The first is Paragraph 1, which contains restrictions on the size, placement, type, and number of structures allowed on a tract (the Structural Restrictions):
3
No building shall be constructed, placed or permitted to remain upon any tract nearer than 75 feet to the street on which the tract faces, nor shall any dwelling house be constructed nearer than 8 feet to the side property lines.
No dwelling house costing less than $6,500 or containing less than 900 square feet of ground floor area exclusive of attached garages, breezeways and porches shall be constructed, placed or permitted to remain on any tract. Said house shall be of frame or better construction. Not more than two dwelling houses with the necessary out houses and servants’ quarters shall be erected on any one tract as shown on the plat for this subdivision.
No garage or garage apartment or other facilities shall be used for residence purposes until the principal dwelling house is erected.
No sod, earth, sand, gravel, stone or trees shall be removed from said tract to be sold or to the injury of the value or appearance of the property for residential use.
The principal restriction at issue in this dispute is the fourth provision of the Structural Restrictions (the 2-Dwelling Restriction): “Not more than two dwelling houses . . . shall be erected on any one tract as shown on the plat for this subdivision.” The parties disagree over what the restriction means when it refers to “the plat for the subdivision.” The appellee-homeowners contend that it means the original plat, while Cliffhanger contends that it means the plat as amended over time.
The second paragraph relevant to this dispute is Paragraph 7, which includes the following provision: “Invalidation of any one or any part of these restrictions by judgment or court order shall in no wise [sic] affect any of the other provisions or part of provisions which shall remain in full force and effect.” The parties disagree over the proper characterization of this provision. The homeowners contend that it is a nonwaiver provision, while Cliffhanger contends that it is a severability provision.
4
Cliffhanger’s application to resubdivide its lot In 2022, Cliffhanger purchased a lot in Elm Wood Estates. The deed to the lot stated that Cliffhanger took title subject to various “prescriptive rights, whether of record or not” as well as “all presently recorded and validly existing restrictions.” Following its purchase, Cliffhanger applied to resubdivide the lot into four smaller lots so it could build a total of eight new houses—two on each proposed new lot. Several homeowners—Michael Lubitz, Tomas Fernandez, and Sarah Moore Lord and Joseph Christopher Lord, as Trustees of the Lord Living Trust (the Homeowners)—sent Cliffhanger a cease-and-desist letter, demanding that Cliffhanger withdraw its application because Cliffhanger’s proposed construction would violate the 2-Dwelling Restriction’s limit on the number of homes per lot.
The lawsuit Cliffhanger filed a declaratory judgment action, seeking a declaration that the Deed Restriction permits resubdivision and that Cliffhanger’s proposed resubdivision does not violate the 2-Dwelling Restriction or any other restrictive covenant in the Deed Restriction. The Homeowners answered and counterclaimed for a permanent injunction to enjoin Cliffhanger from violating the Deed Restriction by building more than two houses on its lot as originally platted. Cliffhanger answered and asserted the affirmative defense of waiver.
Both sides moved for summary judgment on the proper construction of the Deed Restriction. Cliffhanger argued that the 2-Dwelling Restriction unambiguously applies to lots as resubdivided and replatted over time and therefore permits Cliffhanger to resubdivide its lot and build two houses on each resubdivided and replatted lot. The Homeowners argued that the 2-Dwelling Restriction unambiguously applies to lots as originally platted and therefore prohibits
5
Cliffhanger from resubdividing its lot in order to build more than two houses on the property encompassing the original lot.
Both sides also moved for summary judgment on Cliffhanger’s affirmative defense of waiver. Cliffhanger produced evidence of violations of the 2-Dwelling Restriction as well as evidence of violations of various other restrictive covenants. Cliffhanger argued that this evidence proved as a matter of law that the Homeowners waived enforcement of the 2-Dwelling Restriction or, at the very least, raised a genuine issue of material fact on the issue of waiver.
The Homeowners argued that because of Paragraph 7’s nonwaiver provision, evidence of violations of other Structural Restrictions was irrelevant to whether they waived enforcement of the 2-Dwelling Restriction. The Homeowners further argued that Cliffhanger’s evidence showed a minimal number of violations of the 2-Dwelling Restriction, occurring in disparate parts of the subdivision, over a 71-year period and that this evidence—considered together with the Homeowners’ prior acts of enforcement and the continued realization of the intended benefits of the 2-Dwelling Restriction—failed to raise a genuine issue of material fact as to whether the Homeowners had waived enforcement of the restriction.
Following a hearing and post-submission briefing, the district court granted the Homeowners’ motion for summary judgment. In its final summary judgment, the district court found and held that:
• the 2-Dwelling Restriction’s reference “‘the plat for this subdivision’ is in reference to the Plat of Elm Wood Estates as recorded on September 8, 1953 in Volume 6, Page 140 of the Travis County Plat Records” (i.e., the original plat);
• Covenant 7 contains a nonwaiver provision;
• only evidence of waiver of the 2-Dwelling Restriction is relevant to whether that particular restriction has been waived;
6
• motor homes stored on lots and not used as residences are not “dwelling houses”
for purposes of the 2-Dwelling Restriction; and
• Cliffhanger failed to raise a fact issue as to whether the Homeowners waived enforcement of the 2-Dwelling Restriction.
The district court permanently enjoined Cliffhanger from building more than two houses on its lot as originally platted. Cliffhanger now appeals.
SUMMARY JUDGMENT
On appeal, Cliffhanger contends that the district court erred in rendering final summary judgment for the Homeowners for two reasons. First, Cliffhanger contends that the district court erroneously construed the 2-Dwelling Restriction as applying to lots as originally platted rather than to lots as resubdivided and replatted over time. Second, Cliffhanger contends that even if the district court properly construed the 2-Dwelling Restriction, Cliffhanger produced evidence raising a genuine issue of material fact as to whether the Homeowners waived enforcement of the restriction.
I. Standard of Review We review the district court’s final summary judgment de novo. Tarr v.
Timberwood Park Owners Ass’n, 556 S.W.3d 274, 278 (Tex. 2018). When, as here, the parties file cross-motions for summary judgment, and the trial court grants one motion and denies the other, we review the summary-judgment evidence supporting both motions, determine all issues presented, and render the judgment the trial court should have rendered. See id.
7
II. Construction of 2-Dwelling Restriction We begin by determining whether the district court erred in construing the 2-Dwelling Restriction as applying to lots as originally platted rather than to lots as subdivided and replatted over time. Like other questions of law, we review the district court’s construction of the 2-Dwelling Restriction de novo. Id. at 279; Owens v. Ousey, 241 S.W.3d 124, 129 (Tex. App.—Austin 2007, pet. denied).
A. Applicable law
When construing restrictive covenants, we apply general rules of contract construction. Tarr, 556 S.W.3d at 280; Owens, 241 S.W.3d at 129. Our primary objective is to ascertain and give effect to the true intent of the parties as expressed in the instrument itself. Id. Accordingly, we examine the covenants as a whole in light of the circumstances at the time they were made, giving the words used in the covenants the meaning that they commonly held as of the date they were written and not as of some subsequent date. Id. We must not enlarge, extend, stretch, or change the text by construction, and we must avoid any construction that would render parts superfluous or inoperative. Id.
If a restrictive covenant has a definite or certain meaning, it is unambiguous as a matter of law and should be construed liberally to effectuate the parties’ intent. Tex. Prop. Code § 202.003(a); Tarr, 556 S.W.3d at 280. If, however, the covenant is subject to more than one reasonable interpretation, doubts should be resolved in favor of the free and unrestricted use of the premises, and any ambiguity must be strictly construed against the party seeking to enforce the restrictive covenant. Wilmoth v. Wilcox, 734 S.W.2d 656, 657 (Tex. 1987); Sharp
8
v. deVarga, No. 03-05-00550-CV, 2010 WL 45871, at *3 (Tex. App.—Austin Jan. 8, 2010, pet. denied) (mem. op.).
B. Analysis
Applying these principles here, we begin our de novo review of the district court’s construction of the 2-Dwelling Restriction with the text of the restriction itself. The 2-Dwelling Restriction provides: “Not more than two dwelling houses . . . shall be erected on any one tract as shown on the plat for this subdivision.” Thus, the 2-Dwelling Restriction limits the number of houses that may be built on “any one tract as shown on the plat for this subdivision.”
“The plat for this subdivision” refers to a particular plat. This is made clear when the 2-Dwelling Restriction is read together with the preamble to the Deed Restriction. The preamble states that the restrictive covenants are “impress[ed]” upon the subdivision of Elm Wood Estates “as shown on” the “plat thereof recorded in Book 6, Page 140 of the Travis County Plat Records.” Therefore, reading the Deed Restriction as a whole, the 2-Dwelling’s reference to “the plat for this subdivision” means the plat of Elm Wood Estates “recorded in Book 6, Page 140 of the Travis County Plat Records.”
The plat “recorded in Book 6, Page 140 of the Travis County Plat Records” is the original plat. It includes a handwritten note from the County Clerk stating that “[r]estrictions” on the use of the land (i.e., restrictive covenants) may be found at Volume 1536, Page 207 of the Travis County Deed Records, which is a reference to the Deed Restriction. Thus, the original plat references the Deed Restriction, and the Deed Restriction references the original plat. This mutual cross-reference is further contextual evidence that the 2-Dwelling Restriction is based on
9
a particular plat—i.e., the original plat recorded in Book 6, Page 140 of the Travis County Plat Records.
Cliffhanger ignores these key contextual considerations. Instead, it argues that the 2-Dwelling Restriction’s reference to “the plat for this subdivision” must refer to “the plat as it may be amended and supplemented over time” because the phrase must be construed consistent with an owner’s right to resubdivide and replat its lot. We disagree.
It is true that Texas law disfavors limitations on an owner’s right to resubdivide and replat. EIS Dev. II, LLC v. Buena Vista Area Ass’n, 715 S.W.3d 689, 695 (Tex. 2025) (“Covenants restricting the free use of property are not favored because the right of individuals to use their own property as they wish remains one of the most fundamental rights that individual property owners possess.” (quoting Tarr, 556 S.W.3d at 280 (citation modified))). But it nevertheless permits such limitations so long as the restrictive covenant doing so is “clear” and provides “adequate notice” of the “specific restriction sought to be enforced.” Id. (quoting Davis v. Huey, 620 S.W.2d 561, 565–66 (Tex. 1981)). And we have recognized that a restrictive covenant meets this standard when it “expressly references a particular one-residence-per-lot map” or otherwise includes language “tying the restriction to a specific plat scheme.” Sharp, 2010 WL 45871, at *5; see also Farmer v. Thompson, 289 S.W.2d 351, 353–55 (Tex. App.— Fort Worth 1956, writ ref’d n.r.e.) (owners could not resubdivide and replat lot when restrictive covenant provided “[t]hat only one residence shall be constructed on one lot as per revised plat of said [subdivision]” (emphasis added)). That is what the 2-Dwelling Restriction does here. Read together with the preamble, the 2-Dwelling Restriction ties the limit on the number of houses to a specific plat scheme—i.e., the original plat recorded in Book 6, Page 140 of the Travis County Plat Records.
10
Despite our recognition in Sharp that a restrictive covenant may prohibit resubdivision and replatting if it is tied to a specific plat scheme, Cliffhanger insists the opinion actually supports its position because it held that a restriction limiting the number of houses per lot but not expressly prohibiting replatting did not prevent an owner from replatting its lot in order to build the maximum number of houses on each new lot. Sharp, 2010 WL 45871, at *6. Like the restriction in Sharp, the 2-Dwelling Restriction limits the number of houses per lot but does not expressly prohibit replatting. Because of this similarity, Cliffhanger contends that Sharp supports reading the 2-Dwelling Restriction as permitting resubdivision and replatting. We disagree.
Unlike the 2-Dwelling Restriction, the restrictive covenant in Sharp—“only one residence shall be erected upon each lot hereby conveyed”—did not tie the housing limit to a particular plat. Id. at *5 (noting language of restriction did “not expressly incorporate a specific platting or plat map.”). It was on this very basis that we distinguished the restrictive covenant in Sharp from another, similarly worded restrictive covenant held to prohibit resubdivision and replatting. Id. (discussing Farmer, 289 S.W.2d at 353). We explained that the Farmer restrictive covenant was “distinguishable based on the express wording of the restriction tying the restriction to a specific plat scheme.” Id. Because the 2-Dwelling Restriction here ties the housing limit to a particular plat, it is distinguishable from the restriction in Sharp and more analogous to the restriction in Farmer. Thus, the reasoning in Sharp actually supports the Homeowners’ position, not Cliffhanger’s.
Moreover, Cliffhanger’s complaint about the right to resubdivide and replat is overstated. Under the Homeowners’ construction of the 2-Dwelling Restriction, an owner’s right to subdivide and replat is not wholly abrogated. If an owner wants to build two houses on its lot,
11
the owner may subdivide and replat the lot into two lots to accommodate separate ownership of the two houses that have been built on the original lot. The record shows that this is what happened in 1968, when certain owners divided five lots into ten lots, and in 1970, when another owner divided one lot into two lots. Thus, under the Homeowners’ construction, the 2-Dwelling Restriction partially preserves—and is therefore consistent with—an owner’s right to subdivide and replat.
Furthermore, while the Homeowners’ construction gives meaning to every word of the text, Cliffhanger’s does not. For this reason, Cliffhanger’s construction violates basic rules of construction. Either it requires that the text be rewritten to say something else, such as: “Not more than two dwelling houses with the necessary out houses and servants’ quarters shall be erected on any one tract as may be resubdivided in the future.” Or it requires that part of the text simply be removed so that it reads: “Not more than two dwelling houses with the necessary out houses and servants’ quarters shall be erected on any one tract as shown on the plat for this subdivision.”
In sum, the Deed Restriction’s text, structure, and context indicate that the 2-Dwelling Restriction is based on the original plat. Because the 2-Dwelling Restriction is based on the original plat, it permissibly limits Cliffhanger’s right to resubdivide and replat its lots. Cliffhanger’s proposed contrary construction violates basic canons of contract construction. For these reasons, we hold that the district court did not err in holding that the 2-Dwelling Restriction’s “reference to ‘the plat for this subdivision’ is in reference to the Plat of Elm Wood Estates as recorded on September 8, 1953 in Volume 6, Page 140 of the Travis County Plat Records.” Accordingly, we overrule this part of Cliffhanger’s issue.
12
III. Evidence of Waiver of 2-Dwelling Restriction We now consider whether Cliffhanger produced summary-judgment evidence raising a genuine issue of material fact as to whether the Homeowners waived enforcement of the 2-Dwelling Restriction. Cliffhanger contends that the district court erroneously held that it failed to raise a fact issue for two reasons. First, Cliffhanger contends that the district court erroneously held that Paragraph 7 of the Deed Restriction contains a nonwaiver provision and, as a result, erroneously disregarded evidence of violations of other Structural Restrictions when it determined whether Cliffhanger’s summary-judgment evidence raised a fact issue on the Homeowners’ alleged waiver of the 2-Dwelling Restriction. Second, Cliffhanger contends that even if the district court properly construed Paragraph 7 and considered only evidence of violations of the 2-Dwelling Restriction, the evidence Cliffhanger produced raised a genuine issue of material fact.
A. Applicable law
Under Texas law, waiver is the intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996). Like most rights, the right to enforce a restrictive covenant is a right that may be waived. Thus, in an action to enforce a restrictive covenant, the nonconforming property owner may assert waiver of the restriction as an affirmative defense. See Sharpstown Civic Ass’n v. Pickett, 679 S.W.2d 956, 958 (Tex. 1984).
To establish waiver of a restrictive covenant, the nonconforming owner must prove that the then-existing violations of the restriction are so extensive and material as to lead an average person to reasonably conclude that the restriction has been abandoned and its enforcement waived. See Cox v. Melson-Fulsom, 956 S.W.2d 791, 794 (Tex. App.—Austin
13
1997, no pet.). In making this determination, three principal factors are considered: (1) the number, nature, and severity of the then-existing violations; (2) any prior acts of enforcement; and (3) whether it is still possible to realize to a substantial degree the benefits sought to be obtained through the restriction. Id. Consideration of these factors is necessarily fact-intensive, so a determination of waiver is ordinarily a question of fact. Tenneco, 925 S.W.2d at 643. But when the facts and circumstances are admitted or clearly established, the question becomes one of law. Id.
B. Analysis
We begin by considering Cliffhanger’s contention that the district court erred in holding that Paragraph 7 contains a nonwaiver provision. Cliffhanger contends that the provision in Paragraph 7 is actually a severability provision. Cliffhanger argues that this distinction matters because the type of evidence Cliffhanger may produce in support of its waiver defense depends on whether the provision is a severability provision or a nonwaiver provision. According to Cliffhanger, if the provision is a severability provision, then Cliffhanger may produce, and the district court must consider, evidence of all Structural Restriction violations, not just evidence of violations of the 2-Dwelling Restriction. But if the provision is a nonwaiver provision, then Cliffhanger is limited to producing evidence of violations of the 2-Dwelling Restriction alone.
Assuming without deciding that Paragraph 7 contains a severability provision, Cliffhanger still could not support its waiver defense with evidence of violations of the other Structural Restrictions. In determining whether enforcement of a specific deed restriction has been waived, evidence of violations of a different restriction is irrelevant unless both restrictions serve the same purpose. See Tanglewood Homes Ass’n v. Henke, 728 S.W.2d 39, 42 (Tex.
14
App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.) (when “two restrictions serve entirely different purposes . . . a waiver of one restriction does not constitute a waiver of the other”); see also BCH Dev., LLC v. Lakeview Heights Addition Prop. Owners’ Ass’n, No. 05-17-01096-CV, 2019 WL 2211479, at *8 (Tex. App.—Dallas May 21, 2019, pet. denied) (mem. op.) (“In determining whether deed restrictions have been waived, we look at each covenant separately.”).
Cliffhanger contends that the Structural Restrictions all serve the same purpose of achieving “uniformity” of the buildings they encumber. But as Cliffhanger itself recognizes, each Structural Restriction aims at achieving uniformity of a different aspect of the subdivision, such as uniformity in the buildings’ placement, size, and type. See Tanglewood Homes Ass’n, 728 S.W.2d at 42 (setback line restriction for connected garage and setback line restriction for main residence “serve[d] entirely different purposes”). And the 2-Dwelling Restriction’s limit on the number of buildings per lot is further distinguishable from the other Structural Restrictions in that it does not aim at achieving uniformity of the buildings at all but rather uniformity of the lots, i.e., a uniform level of density. Because the 2-Dwelling Restriction serves a different purpose than the other Structural Restrictions, evidence of violations of the latter do not establish waiver of the former.
Therefore, in determining whether Cliffhanger produced summary-judgment evidence raising a genuine issue of material fact as to whether the Homeowners waived enforcement of the 2-Dwelling Restriction, we consider only evidence of violations of the 2-Dwelling Restriction itself. That evidence primarily consists of a stipulation of fact filed by the parties. In their stipulation, the parties agreed that two or more dwelling houses are located on the following lots:
15
1. original lot 16, which is located on block F, has been resubdivided into current lots 2 and 3, and currently has four dwelling houses;
2. original lot 18, which is located on block C, has been resubdivided into current lots 18A and 18B, and currently has three dwelling houses;
3. original lot 12, which is located on block E, has been resubdivided into current lots 12A, 12B, 12C, 12D, and 12E, and currently has four dwelling houses; and
4. original lot 14, which is located on block E, has never been resubdivided, and currently has three dwelling houses.
The parties further agreed that on original lot 13, there are two fixed homes and three motor homes (RVs) and that if the RVs are not considered, there are only two dwelling houses on the lot. We agree with the district court that the RVs on original lot 13—vacant, winterized, and stored on the lot for future use—do not count as “dwellings” for purposes of the 2-Dwelling Restriction.
Therefore, the number, nature, and severity of existing violations of the 2-Dwelling Restriction are undisputed: 4 of the original 110 lots have more than 2 houses on them, resulting in a violation rate of 3.6%; there are 14 houses on the 4 non-conforming lots, resulting in 6 extra houses, or 2.7% of the total allowable houses (220), having been built since the Deed Restriction was recorded over 70 years ago; and the nonconforming houses are spread out in three different blocks. See Yacoub v. City of Houston, No. 06-21-00092-CV, 2022 WL 2162942, at *7 (Tex. App.—Texarkana June 16, 2022, no pet.) (mem. op.) (holding evidence of three violations of height restriction insufficient to raise fact issue on waiver and commenting that “Texas courts have found that violation rates ranging from 1.9% to 8.9% were not sufficient to support waiver and abandonment”).
In addition to the stipulation, the record contains evidence that the Homeowners and other residents of Elm Wood Estates have enforced the 2-Dwelling Restriction on numerous
16
prior occasions, including by filing a prior lawsuit against Cliffhanger and another developer, Big Paws Construction, which resulted in Cliffhanger and Big Paws withdrawing their resubdivision application and submitting a different application that conformed to the 2-Dwelling Restriction. The evidence further shows that the Homeowners and other residents enforced the restriction by contacting realtors marketing lots to make sure they were aware of the restriction, directly contacting new tract owners, and monitoring resubdivision applications at the City of Austin and then contacting the applicants.
Finally, Cliffhanger has failed to produce evidence showing that it is no longer possible to realize, to a substantial degree, the benefits intended by the 2-Dwelling Restriction.
We hold that the undisputed evidence and stipulated facts do not create a genuine issue of material fact as to whether the Homeowners waived their right to enforce the 2-Dwelling Restriction. That is, the undisputed evidence and stipulated facts do not raise a fact issue as to whether existing violations of the 2-Dwelling Restriction are so extensive and material that an average person would reasonably conclude that the restriction has been abandoned and its enforcement waived. Accordingly, we overrule this part of Cliffhanger’s issue.
CONCLUSION
We affirm the district court’s final summary judgment.
__________________________________________
Maggie Ellis, Justice
Before Chief Justice Byrne, Justices Kelly and Ellis Affirmed Filed: August 14, 2026