1 

### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 22

- 00423

- CV

BLF LLC, Bradford W. Bayliff, and Lisa E. W. Bayliff , Appellant s

v.

The Landing at Blanco Property Owners Association , Appellee

FROM THE 33RD DISTRICT COURT OF BLANCO COUNTY

NO. CV09083, THE HONORABLE J. ALLAN GARRETT , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

BLF LLC, Brad ford W. Bayliff , and L i sa E.W. Bayliff ( collectively

, the

“ Bayliffs ” ) filed suit to prevent thei r property owners association

, The Landing at Bl anco

Property Owners Assoc iation ( the “ Assoc iation ”), from se lling a certain tract of common

- area

property. In their petition, t he Bayliff s allege that they hold legal and equitable property rights in

the tract and that any sale without their consent would infringe on those rights.

After the trial granted summary judgment in favor of the Assoc iation and

dismissed their su it, the Bayliffs filed a notice of appeal in this Court. O n appeal, the Bayliff s

contend that the trial court erred in g ranting su mma ry j udgment and

, alternati vely, abused its

discretion in denying their motion for continuan ce. We affirm the trial court ’ s judgment.2 B ACKGROUND

The Landing at Blanco ( the “Landing” ) is a 1,013.71

- acre residential subdivision

in Blanco County

. The L an ding wa s platted in 2004 for 38 lots —de scribed on the plat as

“3 7 reside ntial lots

, ” “1 am enities center, ” and “1 airst rip common area .” That same year

, the

Association was formed as a non profit corp oration. The Landing’ s Declara tio n of Cov enants,

Condit ions, and R estri c ti ons ( the “ Declaration ”), first recorded in January 2005, states that

the Assoc iation ’ s p urpose is “ to further the common interest of the Members, ” the Landing

property owners.

As authorized by the Declaration , i n No vemb e r 2005, the d e veloper c onv eyed one

of the pla tted lots

— Lot 15 , a 39

- acre tract

— to the Association for us e as a common area

. 1 Since

its convey anc e, the Association has used Lo t 15 to provide the Landing property owners with

various ameni ties , including a r anch ho use w ith ca bins, available for rent; a swimming pool ; a

tennis court ; a pond ; and an equestrian c ent e r. Co sts for ma intaining the amenities are paid by

the Assoc iation through assessment funds lev ied on and collect ed from the property own ers

.

In 2 018, th e Asso c iation co mmiss ioned two studies to evaluate the necessity and

cost of repa i rs and mai n tena nce of the a men ities on Lot 15. The Assoc iation first commissio ned

a property-inspect ion service

, licensed by the Texas Real Estate Commission

, to ins pect the

proper ty and it s infrastruc ture and to report on their condition

. Upon comp le tio n of the

inspection, the in spector recommended replac ing the roofs, H VA C systems, and water heaters

,

1 S ecti on 8.03 st a tes: Developer ’ s Righ ts t o Convey Common A rea to t he

Association

. De ve loper shall have and h ereby reserv es th e right, but s ha ll no t be

obligated to, convey Real P ropert y and i mp rov eme n ts thereon, if any, to the

Assoc iatio n fo r use as a Comm on Ar ea at an y time and from time to time in

acc ordance wi th this D eclaration, witho ut the consen t of any o t her O wner or

the Associatio n.3 and add ressing plu mbing leaks and electrical repai rs in the ranc h house

. Th e A s sociation then

commissio ned L one S tar Reserve Studie s

, L L C, t o assess its rese r ve f u nds, pr edict maintenance

costs, and develop a funding pla n for L ot 15

. The results of this s tudy revealed that all but

necessary maintenance to t he po o l an d interi ors of t he buildi ngs ha d been de ferred since 1995

,

tha t the A ssociation had n o t in c reased mem be r s ’ dues in ten years, and that the reserv e fu nd was

$24 4 ,548 short of “ normal accept able funding. ”

A f te r analy z ing the results o f the com m issi oned studi es

, th e Assoc i ation pres ented

the Landi ng p ro perty ow ners wit h a ch o ice with regard t o Lo t 15

, in the form of a proposed

amendment to its Declaration

. A t the Assoc iation ’ s annual meeting in June 2021, propert y

owners were asked to vote on w h ethe r the Asso ciatio n shoul d (1) resto re and maintain existing

amen iti es on L ot 1 5

, whi ch would re q uire a one

- time a ssessment of $ 1 3,850 per lot and a

27% increase in annu al dues

, or (2 ) sell Lot 15, likely resulting in a decrease i n annual d ues

. The

property owners vo ted 26 to 8 t o amend the Declarati on to spe cifi c a lly allow for the sale o f

Lot 1 5 (hereafter

, the “ June 2021 Amendment ” )

.

The B ayliffs filed suit against the Assoc iation to pre vent it f rom se l l ing Lot 15

. 2

Accord ing to the Bayliffs’ allegati ons, t h e Landing was re p re s ented in m arketing materials as

having fifty

- eight

- acre s of common area that included amenities such as tennis court s

, a

swimming pool, a fishing pond, and a ranch house

. The B a yliff s f urther al lege that they re lied

on these re presentations in deciding t o purchas e their lots . As a result, they sought a declaration

2 The D ec laration wa s amended i n June 2015

. Bradf or d and L isa Ba yliff pu rcha sed

Lot 36 in Th e L andin g in 2014; BLF

, L LC

, purcha sed Lot 37 in 20 16

. T he original 2005 v ers ion

of th e Dec laration was in effect when Bradford and Lisa B ayliff purchased their lot , and the

2 015 v ersion of the Declar at ion was in e ff ect when B L F p ur chas ed i ts lot. Because n o cha nges

r elev ant to this d i spute were made to the Declaration when it was amen ded i n 201 5, all

reference s to the Declaration in this op inion a re to both version s, u n less otherw ise noted.4 that any attempt by the Association to s ell Lot 15 was “unlawful, unenforceable, and/or

unconstitutional” because it woul d deprive th em of their equit able own ership i nterests and

easement right s in Lot 15. See Tex. Civ. Prac. & Rem. Code §§ 37.001-.011.

The As sociatio n moved for traditiona l summary judgment on the Ba yliff s’ claims

.

See Tex. R. Civ. P. 166a. The Associatio n ar gued that as a matter of law it possesses b road

authority to act in the common inter est of t he Landing property owners, including the authori ty

to sell common- area proper ty

, such as Lot 15. T he Assoc i ati on further a sserted that the

undisput ed summary -judgment evidence esta blishes that L ot 15 was conveyed to it in fee sim p le

,

that n othing in th e D e cla ration e xpressly proh ibits the sale of p roperty owned b y the Assoc iatio n,

and that the Declarat ion expressly requir es i t to “d o anyth in g t hat may be necess ary or de sir able

t o further the comm on in tere st o f th e [A ssoc iation] me mbe rs .” 3 Fina lly, in the alternative, the

Association argued that to the extent the De claration may be construed as prohibiting such a sale,

it has properly a nd v alid ly ame nded the De claration to permit the sal e of Lot 1 5 by obt ainin g the

vote of at lea st two -thirds of the Landing property owners.

In response, the Ba yliffs filed a motion fo r continuance , asserting that additional

ti me was needed to conduct d iscov ery on t heir claims be fore a su mma r y judgment would be

prop er

. Su b

ject to their request for a continuanc e, the B ayliffs filed a response to the

3 Section 9.01 sta te s : Ge ne ral Du ti e s an d Powers of the Associati on. T he

As soc iati on h as be en formed to further the common i nterest of the Member s. The

As sociation, actin g through the Board of Directors or through persons to whom the

Bo ard of Dir ec tors has del ega te d·s uch po wers (a nd su bjec t to the pro visions of the

By law s ), shal l have the dutie s a nd powers hereinafter set forth and , in general

, th e

pow er to d o anything tha t may be necessary or desirable to fur ther the common

i nter e st o f the memb er s and to improve and enhan ce the attractivenes s, desirab ility

and safety of the P rop e rty

. The Assoc iat ion shall have the aut hority to act as t he

agent to en te r int o any and all contract s on behalf of the Members in or der to

carry out the duties, powe rs

, an d obligations of th e Assoc iation a s set fort h in

this De claration.5 Assoc iation ’ s motion for summary judgment. In their response, the Bayliffs ar g ued that fact

issues exist as to wh ether they have certain lega l and equitable prop erty rig hts in L ot 1 5 that

prevent the Asso c iatio n fro m sell ing Lot 15 over their obj e ctions. T he Ba yliffs supported their

response with th eir own summ ary -judgment evidence , including a copy of the subdivision plat

,

th e deed conveying Lot 15 from the de ve loper to the Ass ociation, and affida vits fr o m

Bradford Bayli ff and L i sa Bayli ff.

The trial cour t denied the Bayliffs ’ motion for continuance, granted th e

Assoc iation ’s moti on for summary jud gment, and di smisse d the Bayliff s’ suit. In three is sues on

appe al , the Bayliffs challeng e the trial court ’s summar y-judgmen t ruling and, in the alte rnative,

th e trial cour t’s denial of their motion for continuance.

STANDARD OF REV IEW

A party movi ng for tra ditional summ ary judgme nt must demo nstr ate that there is

no genuine issue a s to any material fact and t hat it is ent itl e d to ju dgme nt as a mat te r of law. T ex.

R. Civ. P. 166a (c). We review de novo a trial court ’s ru ling on a motion for summar y judgment,

v iewing the evidence in the light most fav orable to the nonmov an t, credit ing evidence favorable

to the nonmovant if r easonable jurors could, and disregarding contra ry evi dence unless

reasonabl e jurors could not. Er iks on v. Renda , 590 S.W.3d 557, 563 (T ex . 2019). When a tria l

court gran ts s umma ry judgment without specif ying the grounds for its decision, su m mary

judgment will be affirme d on appeal if “ any of the theories advanced are merit orious.” Western

I

nvs. , Inc. v. Urena , 162 S.W.3d 547, 550 (Tex. 2005).

To the extent resolution of the A ssoc i ation ’s motion for su mmary judgment

required the trial cou rt to construe the Declaration and its restrictiv e covenants, we review these6 issues de novo. See Tarr v. Tim berwood Park Owners Ass ’n , 556 S.W.3d 274, 279 (Tex. 2018).

In const ruin g the Dec laration , we app ly gene ral rules of contract construction. Purv is v. Stoney

Cre ek C mty. A ss ’n, 631 S.W.3d 287, 292 (Tex. App.—Houston [1 4th Dist.] 2020, no pet.)

(“ Re gardles s of whether the parts of the Declarat ion that we are construing amount to restrictive

co venants, we app ly the same contract -interpr etation rules to th e Declarati on.”). Our p rimary

task is to determ ine the drafter ’s intent from the Declara tion ’s la nguage. Garrett v. Symp son

,

523 S.W.3d 862, 866 (Tex. App.— Fort W orth 2017, p et. denied). To determine the pa rt ies ’ t rue

intentions, we examine the ent i re D eclaratio n in an effort to harmonize and give effect to all of

its provisions so that non e will be rendered meaningless. Purvis , 631 S.W.3d at 292. If the

Declaration is so worded that it ca n be given a certai n or definite legal meaning or interpret a tion

,

it is unambiguous, and we construe it as a matter of law. Id.

DISCUSSION

I n two is sues on appeal, t he B ayliffs asser t that the trial cou rt erred in granting

summary judg ment in favor o f the Assoc iation

. In their first issue, the Bayliffs ar gue that the

plat and th e Declar ation restri ct the Assoc iation ’ s auth ority to sell common- area prop erty,

including Lot 15, because the develop er ’ s “ original scheme ,” as re flect ed i n th e pla t and

Declara tion , wa s “ prem is ed on ce ntrally situa ted community park l and a nd recrea tiona l faciliti es

[that] ca nnot be dest royed.” The Bayliffs also argue that

, for that same rea son, the June 20 21

Ame ndment purporting to authorize t he Assoc ia tion to s ell Lot 15 is inv alid and unenfo rc eable

.

In their second issue , the Bayl i ffs assert that any sal e of Lot 15 would be in v alid b ecause they

have legal and equitable p roperty right s in the property that cannot be conveyed without

their consent.7 In ad dres sing the Bayliffs ’ appellate issu es , w e will assume without decid ing that

p rior to the June 2021 Ame ndment, the As so ciatio n la cked any authority to sell Lot 15, as the

Ba yl iffs contend, and we will examine whether the June 2021 A me ndment, purporting to

aut horize it to do so now, is va lid an d enforc eable.

Law G overning Valid Am en dments

Generally, an instrument containing restrictive covenant s in a subdiv ision de fin es

the rights and obligations of property o wn ership in the subdivision, and the mutual and

r eciprocal obl ig ations und ertaken by all purchasers in a subdivision creat es a property interest,

possessed by all p urchasers. Adlong v. Twi n Shores P rop. Owners As s’n

, No. 09 -21-00166- CV,

2022 Tex. App. LEX IS 19 70 , at *22 (Tex. App. —B ea umont Mar. 24, 2022, pet. denied) (mem.

op.). When bu yers purchase property governed by a d e claration capable of am endment if certain

pro cedures are follow ed

, they are on notice t hat “t he un ique form of ownership they acquire d

wh en they purchased their [p roperty] was su bjec t to change through th e a mendment p roce ss, and

that they would be bound b y properly adopted am en d ments. ” An gelwylde HOA, I n c.

v. Fournier, No . 03 -21-00269- CV, 2 023 Te x. App. LEXIS 1733, at *8 (Tex. App.

— Aus tin

Mar . 17, 2023, pet. fi led ) (mem. op.) (quoting Ad long , 2022 Tex. App. L EXIS 19 70 , at * 23 ).

To validly amend deed res t rictions, three conditions must be met. Poole Po int

Subdiv ision Homeo wne rs ’ Ass ’n v. De Gon

, No. 03 -20-00618- CV, 2022 Tex. App. LEXIS 1935,

at *7 (Tex . App.— Austi n Mar. 24, 2022, pet. denied ) (mem. op.) (cit ing Wil chester W.

Concerned Homeowners LDEF, Inc

. v. Wilchester We st Fund, Inc. , 177 S.W. 3d 552, 562 (Tex.

App.—Houston [1st D ist .] 2005, pet. denied); D yeg ard Land P’ship v. Hoover , 39 S.W.3d 300,

313 (Tex. App

.— Fort Worth 2001, no pet .)). First, the ins tru ment cre atin g the original8 restrictions must e sta blish both the right to amend and the method of ame ndmen t. Id. Sec ond,

the ri ght to amen d i mplie s only those changes contemplating a correction, improvement, or

ref ormation of the ag reem ent rather than i ts complet e de st ructi on. Id . Third, the amend m ent

must not be illeg al or against public policy. Id.

First Condition for a Va lid Amen dment

As to th e f irst condition for amending, it is undisputed that the clear and

unambiguous language of the Decl ara tion pro vi des a “right to a mend and the method of

am end ment .” See id. (se t ting out first condition for valid amendment). Sect ion 10.02 of the

Declara tio n st ates:

Amendments. Except for amendment af fec ting the existing dwel ling and the

a irstrip, this D eclarat ion m ay be amended o r changed, in whole or in pa r t, at any

time by t he writt en agreeme nt or by signed ballots voting fo r s u ch amendment , o f

the ow ner s havin g not less than two

- third s ( 2/3rds) of all of the votes (in c lu ding

Developer) of the S ubdiv is ion. . . . Ame ndment affecting the airstrip requires t h e

abo ve vote and the a greeme nt of seventy -f ive percent (75% ) o f the lot own ers

using t he airstrip.

The Bayliffs do not co ntend th at the As soci ation failed to follow the amending procedures under

Sect ion 10.02 in ad opting the June 2021 Amendme nt, including the requirement of obtaining a

tw o-thirds vote. 4 Inst ead, the B ayliffs ’ a rgu ment, liberally constru ed, is t hat the Ju ne 2021

A me ndment is void b ecause the second and thir d conditions fo r a valid ame ndment are not met

.

4 Chapt er 209 o f t he Pr operty Code provides certain pr o tect ions to resident ial prop erty

o wners whose property is subject to re strictions and as sess ment impo sed by a hom eow ners ’

associa tion

. Even w here t he de claration is si lent as to the voting rig hts for an amendment

, however, the de clara tion may be amended by a vote of s ixty

- seven percent (6 7%) of t he lots

sub je ct to the declarat ion. See Tex. Prop . Code § 209.0041. Howe ver, i f the declaration contains

a lo w er pe rcenta ge, t he perce nt age in the d eclarat ion contro ls. Id. § 209.0041(h-2 ). Here, the

Declar ation provides that it ma y be amende d by sixty- seven perc en t (two

- th irds) of “ all the votes9 Second Condition for a Valid Ame n dment

A s to the second condi tion for a valid ame ndment, t he Bayl iff s conte nd that t he

June 2021 A me ndment cons titutes a “com ple te des truction” of the Declaration rathe r t h an a

“correction, impro vemen t, or r eformati on

. ” See id. at *7 ( set ting out second condition f or valid

am e n d ment ). I n the ir vi ew, the Dec laration establishe s that Lot 15 and its amen i ties are part o f a

uni form sc h eme of t he Land ing deve lop ment

— specifica lly

, a sch eme t o pr ovide and maintain

“ the p arkland and a menit ies a t the center of th e com muni ty ”

— s uch that a n y sale of Lot 15 wo uld

effecti vely “ destroy the original sch eme o f development or change its esse n tial nature

. ” See

Couch v. Southern Methodist U niv

. , 1 0 S.W.2d 973 , 9 74 (Te x. Comm ’ n A pp. 1928, judgm ’ t

adopted) ( “ Now, a change of thes e con ditio ns in any o r all res pects i s n ot a destru ction of the

contract, no r does it change the essential nature of th e same. I t is s ti ll a deed of con veyance. ” ).

B ase d on the pla in language o f the Declaration , we disag r ee

.

T h e De claratio n state s t hat the A ssoci ation “ has been for m ed to furt her the

com mon interests of the Members

. ” To this end, t he Declar ation grant s the Associatio n wi th

“ the power to do anythi ng t hat may be necessa ry or desirable to f urt her the common inter es t o f

the members a nd t o imp rove and enhance th e att r activeness , d esirabil ity a nd sa fety ” of the

Landing subdivision

. T he Declaration a uthori ze s

, but does not require

, the dev e loper to conv ey

addi t ional p rope rty to the Associat ion fo r use as comm on area

, a s the de veloper did fo r Lot 15

.

Conversely

, t he Dec laration t ask s the As sociation with accepting a ny property conveyed by the

developer “ subject to the te rms of

. . . all easements, covena nts , co nditions , restrictions and

in t he sub division

. ” Thus

, t he undisputed summary

- judgment e v idence shows that the voting

r equir ements under both the Declaration and the Property Co de were satisfie d.10 equitable servi tude or ot h er encumb rances set forth in t he transfer. ” The Asso c iation is require d

by the D e claration to levy

, collect, and enforce ma intenance charg e s , w hi c h “ sh all be us ed

, ” in

part, for “ the maint en anc e of t he com mon areas. ” The D eclaration de fine s “ com mon a re a s ” as :

tha t portion of the Sub di vision owned by the As soc iation for the

common us e an d enjoyment of the Mem b ers of the Asso c i atio n

in cluding bu t n ot limit ed to

, all par ks, rec reational facil iti es,

airstrip s, a irstri p facili ties, gates, walkways

, a nd park i n g lots

.

As to specific common areas, t he original 200 5 D eclara tion se ts ou t tha t t he

La nding “ wil l i n clude an air park, with its r e l ated airs tri p, a nd r unways ” and that “ [t]he se [air

park] fe a tur es are e ssential to the devel opment of the P ro perty and t h e [homeowners] are

encourage d to use such feature s. ” Th e De claration de fine s “ [a] irstrip ” as “ appro xima tely 1 4. 34

acres located with i n the prop ert y , ide nt ified as ‘ Air S trip Common Area ’ on the pla t ” and s tates

that the “ Associ ation sha ll have full power and auth ority to do all such thi ngs as are necessary, or

deemed by the As sociation to be advisable, in or der to p reserve and maintain th e air st rip

. ” The

Declar ation provide s that the Asso ci ati on m ay stop maintain ing the airstr ip only i f se venty

- five

per c ent (75%) of all property ow ne r s and a hundred percent ( 10 0 % ) of the p roperty owners using

the airstr ip vote no t t o ma intain the airstrip. Si mil arly, t he Assoc iat io n may “ d em o lish any

ex ist i ng i mp r ovements, except for t he airstrip, ” which re q uires the ap p ro val of se venty

- five ( 7 5 )

p erce n t of all property ow ne r s and 10 0 percent of the property owners using the airstrip.

Although t he plain lang uage of the Dec l ar ation and the plat c o ntemplat e t hat som e

po rti on of the Landi ng subdivi sion may be us ed as commo n area

, it doe s not set as ide any

spec ifi c lot or require the creation o f any particular common area or amen ity

— s ave and excep t

the air par k. Similarly, the Declaration does not mention o r e x pressly refer to park land,

am en ities, a ranch house, a swim ming p ool

, tennis courts

, a fi shing po nd, or similar terms

. I n11 sum , we d isagree that the “ orig inal scheme ” a nd “ es senti al n ature ” of the Landing development

call s for the Associ a tion to indefi nit e ly hold and m aintain common

- a rea property as p arkland or

as a re c reational area when it r ea sonabl y believe s that it would be contrary to t he c ollective

interest of the property owne rs to do so

. As a matt er of law, t h e Ass ociation ’ s June 2021

Ame n dment s at isfies th e se cond conditio n n eces sary for a va lid amendment

.

Th i rd Condition f or a V al id Am en dmen t

As to the third c ondi tion required f or a valid amendment

, the Bayliffs d o no t

expressly state that the June 2021 Am endment of th e Declaration is inval id b ecause it is “ illegal

or again st public policy. ” See De G o n

, 202 2 Tex. App. LEXIS 1935, at *7 ( sett ing o ut third

condition for valid ame ndment ). However, in their second issue on appeal, the B ayli ffs assert

that the June 2021 Amendment is a “ legal nul lity ” be cau se it a uthor izes the As soc iation to

conv ey

, without their consent

, what they conten d are pro p erty interests held by Landing p roperty

owners and no t t he Association

— nam ely, equitable titl e , an express easement

, and a n easement

by estoppe l. The B ayli ffs als o argue that any sal e o f Lot 15 amou nts to an u ncons tit ut i onal

taking of th e se prop er ty inte rest s

. See U. S. Const. amend V ; Tex . C onst. ar t . I, § 17

. In other

w ords

, reasonably con strued, the B ayliffs ’ a rgu ment is t hat the Jun e 2021 Amendment is i l legal

and agains t public poli cy because it woul d allow for the c onveya nce of their individual prop erty

rights in Lot 15 ov er their objection s

. To determine wh ether the Asso c iation met its

summ ary

- judg ment burd en to establish that the t h ird con dition f or a valid amend ment ha s been

sat i sfied

, w e wil l ex amine the Baylif f

s ’ claim for declaratory r el ief as to each of the se all ege d

pr operty interests

.12 E

quitable Title

F irst, the Bayliffs assert that the tr ial court erred in granting sum mary judgment

because the su mmary

- j udg ment evidence i s suff icient t o cr eate a fac t is s ue as to whether they

have “ equi table title in an undivi d ed i nterest of the parkland and amen i ties ” that preven ts the

As sociati on from sell ing Lot 1 5 over their objections.

Eq uitable title i s a rig ht, enforceable in e quity

, to have th e lega l title to rea l e state

transferred to t he owner of t he right upon perfor manc e of s pecified conditions. Eagle O i l & Gas

Co. v. TR O

- X, L.P.

, 619 S.W.3d 699

, 706 (Te x. 2021) ; City of Houst on v. Gu thr ie

, 3 32 S .W.3d 5 78

,

588 (Tex. A pp.

— Houst o n [ 1 st Dist. ] 2009

, pet

. d en ied) ; Langoria v. Lasater

, 292 S.W.3d 156,

165 (Tex. A pp.

— San Anto nio 2009, pet. d en ied)

. I n the trust context, th e holders o f e quitab le

title to prope rty “ are considered the real ow ners, ” a nd th e trust ee vested with legal titl e “ hold s

[t he pro perty ] for the b en e fit of ” the e q uitable

- title h older

. Eagle O i l & Gas Co.

, 619 S.W.3d at

706 (quoting Bradley v. Sh affer

, 53 5 S.W.3d 242

, 248 (Tex. App.

— E astland 2 017, n o pet.) ). In

effect

, the Ba yliffs c ontend that the developer create d a tru st in Lo t 15, with the ho m eowners as

the beneficiar ies and the Ass ociation as the tru s t ee

. See F aulkner v. Bost

, 137 S.W.3d 254, 259

(Tex. App.

— Tyler 2004) ( “ When a v a lid trust is created, the ben eficiari es becom e th e owner s of

the e quitable or ben ef icial title t o the trust prope r ty and are considered the real owners

. ” )

.

A trust i s a m eth o d used t o transfer pro p erty. Sara h v

. Prim arily Prim ates, Inc

. ,

255 S.W.3d 132, 144 (Tex. App.

— San Antonio 2008, pet denied ) ; Res tatemen t (Second) of

Trusts, § 17 ( 1959) (n ot ing tha t a trus t ma y be created by “ a tr ansfer inter vivo s by the o wner o f

pro per ty to anothe r person as trustee for the transfero r or for a t hird person ” )

. T o determine if a

trust ha s been created

, we look to t he settl or ’ s inte nt

. Sara h

, 255 S.W.3d at 1 44 ; Hubb ard

v

. Shan k le

, 138 S.W.3d 4 74

, 48 6 (Te x. App.

— Fo rt W orth 2004, pet

. deni ed )

. Wh ile technical13 wor d s are n ot necessary, the beneficiary, the res

, and th e trust purpose must be ident ified i n the

w ri tten i nstrument

. Sarah

, 2 55 S.W.3d at 145 (c iting Perfect Union Lodge N o. 10 v

. Interf ir

st

B ank

, 748 S.W.2d 218, 220 (Te x. 1988) ).

In this case, n othing in th e deed lang uage conveying Lot 15 from the developer to

the Assoc i ation su ggests t hat th e deve loper i nt ended for the Asso ciation to hold title to th e

property in tru s t

. For exampl e, t he d ee d does not use th e terms “ tru s t, ” “ bene ficiaries, ” or

“ trustee. ” See Rest atement (Second) o f Trusts, § 25 ( “ Precatory W ords ” )

. A lthough the

Declaratio n gene rally def ines “ c ommon area s ” as “ that p ortion of the sub div ision owned b y the

Assoc iation for the common u se a nd enjo y ment of the mem ber s of the Ass oc i atio n

, ” inclu ding

“ those ar eas of land and im provements thereon de e ded to the Assoc iation, ” we c onc lude t hat this

languag e fail s to demo nstrate a clear intent to cr eate a trust f o r the individual benefit o f the

Bayl if f

s in Lot 15

. Id. ( “ No t rust is created unless the settlor manifests an intention to impose

enfor ceable duties. ” ) A t best, the Declarat ion requires the Association to act in the c ollective

inte rest of the Landing pr o perty owners in its maint en ance of the Landing common areas

,

in clu di ng Lot 15

. In short

, n othin g in the lan guage of the Decl aration suggests that th e

Ba yl iffs hav e e quit a ble title to Lot 15

, such that any future transfer of the lot by the

Assoc iation wit h out the Bayliffs ’ consent w ould be “ i l l egal or a gainst publ i c p o li cy

. ” See

De G o n

, 2022 Tex

. App. LEXIS 1935, at *7

.

Easements

Next , we c onsid er the Bayl i ffs ’ argumen t that a fact is sue e xists as to wh ether

the y h ave an expre ss easement or , alternativ e ly, an easem ent by es toppel that prevents the

Assoc iatio n from se l ling Lot 15 wi t hout their consent

. See Fallis v. River Mt. Ra n ch Prop.14 Owners Ass ’n , No. 04 -09-00256- CV, 2010 Tex. App. LE XI S 515 2, at *12 (Te x. App.

— Sa n

Anto nio Ju ly 7, 2010, no pet.) (me m . op.) (explaining that e asement “ may be created by expres s

grant, implication, n ece s sity

, estoppel, o r p res cri ption” ). An easement is a nonpossessory

interest that allows a holder to use an oth er ’ s prop erty for a particular purpose, but w ithout

conveying title

. Stephen F. Aust in v . Flynn , 228 S .W.3d 653, 658 (Tex. 200 7 ). An express

e asement i s considered a n interest in la nd subject to the statute of frauds. Pick v. Barte l

,

659 S.W.2d 636, 637 (Tex. 1 983); se e Tex. Bus. & Com. Co de § 26.01

. “ To be suff i cie nt, the

wr it ing must fur nish wi thin it self, or by refere nce to some other existing writing, the m eans o r

date by which the land to be co nveyed may be id ent ified with reas onable certai nty.” West Beach

Mar ina, Ltd. v. Erde ljac , 94 S.W.3d 248, 264 (Tex. App.— Austin 2002, no pet.).

To determine whether the Landing pro p erty owners , including the Bayliffs, hold

an express easement in Lot 15, we examine the deed transferring ownership of Lot 1 5 from the

developer to the Association

, along with the Declarat i on to determine the scope o f the transfer.

The deed transferring o wnership of Lot 15 to the Association does not contain any language

sugge sting that the developer intended, in the deed itself, to reserve any nonpossessory interests

in Lot 15 for the ben e fit of the property owner s. The deed does, however, state that th e

conveyance to th e Associ ation is made “ subject to . . . easements . . . and other instruments that

affe ct the property.”

The Dec laration includes a section entitled, “Article II, Rese r vations, Exception

and Dedications.” In Sect ion 2.03 of Article I I, the Declaration st ate s:

Title Subject to E asements

. It is expressly agreed and understood

that the title conveyed by the developer to any of the Tr acts . . .

shall be subject to any ea s ement affect ing same for ro adways or

drainage, electr ic lighting, elec tric power, telegrap h or telephone15 purposes and other easements here after granted affectin g

the Tracts.

I n Sections 2.0 4, 2.05, and 2.06, the Decl aration clearly and unequ ivocally set s aside “utility

easements,” an “airspace easemen t,” and a “road ea se ment .” N otably absent in Article II is any

language purporting to set aside any property as a recreation al easement, and t he Declaration

does not include similar “easement” language in d e fining “common areas.” In short, nothing in

the language of the D ecla ra tion su ggests that the developer intended to grant an express

ease ment on Lot 15 or, even more generally, on any proper ty subsequently conveyed to the

Association f or us e as a common a rea. See Sundance at Stone Oak Ass’n v. Northea stern Indep.

Sch. Dist.

, No. 04

- 12

- 00610

- C V, 2013 Tex. App. LEXIS 13857, at * 8 (Tex. App.

— Sa n Anton io

Nov. 13, 2013, no pet.) (mem. op.) (“When considering the express easement’s ter ms, the

pa rt ies’ i ntentio n s

— as expressed in the grant

— determine the scope of the easement.”) . We

disagre e with the Bayliffs’ asserti on that Lot 15 is encumbered by a n express easement held by

Landing property owners.

Next, we consider whether th ere is a fact i ss ue as to whether L ot 15 is

encumber ed by an e asement by estoppel

. E a s e ment by estop p el is an equitable doct r ine whereby

cour ts may, in certain situ ations, ba r a p rop erty o wne r from disputing th e exi stence of an

e asement on his or her prope rty where the own er h as l ed anoth e r property owner t o rely to his or

her de t riment on the easement ’ s exist ence. C a mbridge Holdings, Ltd., v. C ambridge Con dos.

Council of Owners, No. 03

- 08

- 00353

- CV, 2010 Tex. App. LEXIS 44 15, at * 5 0

- 51 ( Te x. App.

—

A ustin June 1 1, 20 10, no pe t) (mem. op.) ; s ee also Byrd v

. Ma h r ou , No. 03

- 14

- 00441

- C V, 2016

Tex. A pp. LEX IS 7805 , a t * 9

- 10 (Tex. App.

— Austin Ju ly 22, 20 16, pet. denied ) (me m. op.)

( “ Th e essence of the doctrine of ease ment by estoppe l is that the ow ner of a servient estate may16 be estopped from deny i ng the existen ce of an easement by making repres entations that the

owne r of the dominant estate then relies o n

. ” ). An easem ent b y estoppel i s an exc ept ion to

the re quirement t hat the convey ance of an inte rest in land b e in wri ting. Storms v. Tuck

,

579 S

. W.2d 447 , 451 (T ex. 1979). The elements fo r est ablishing an ea sement by estoppel are

(1 ) represe nta tion of t he easeme nt com munic ated, either by words o r action, by the owner to the

promis e e ; (2) the commu nication was believed; and (3) the promise e relied upon the

communi ca tion. Sc hwendema n v. B T SFRL I, LLC , No. 02

- 19

- 00007

- CV, 2020 Te x. App.

LEX IS 86 1 , at * 20 (T ex. App.

— Fo rt Worth Jan. 30, 202 0, pet. den ied) (mem. op.)

.

In support of their r esponse t o the Association ’ s motion for summary judg ment,

th e Bayliffs s ubmit te d affidavit s by Bradf o rd and Lis a Bay liff . The Baylif fs also a ttached cop ies

of the L anding ’ s website a nd other mar keti ng materials

, describing the Landing as having

fif t y

- eight acres of commo n area with “ Amenities Galor e ”

— includi ng a n e qu estrian barn,

ca nt ina

- style bar, pool

, and tenni s courts

. B oth Br a d ford and Lisa Bayliff state in th ei r affidavits

tha t th ey relie d on these material s and , specifically, the promise of access to the c ommon area

and its amenities in deciding to purchase and improv e their lots. B a sed on this evidence , w e

conclude that a fact i ssue exists as to whethe r the Bayliffs relied o n r epre sentation s m ade by the

developer that proper ty o w ners at the Landing would have access to and recreation al use of

Lot 15. See B yrd

, 2016 Te x. A pp. LEX IS 7805 , at * 1 3

- 15 (conclud ing that evidence was le gally

sufficient to supp ort finding of easemen t by estoppel where r ep resentation s of cre ek access

,

inc luding dep ictions o f creek, w ere made in adver tising and e

- mails an d induced pl a int iffs to

p urchase p roperty in subdivi sion)

.

Nev ertheless, d es pite the e xistence of a fact iss ue as to whether Lot 1 5 is

encumber e d by an e asement by estoppe l

, we cannot co nclude that the trial court erred in17 dismissing the Bayliffs ’ claim for a decla r ati on that t he Assoc iation is pr ohib ite d from s ell in g

Lot 15 without the ir c onsent. Once crea ted, an eas ement is transf e ra ble with the property ’ s tit le

and is enfor ceable by and against subsequent ow ner s with actual o r constructive notice of its

existenc e

. Goo denberg er v. Ellis , 343 S.W.3d 53 6 , 541 (Tex. App.

— Dallas 20 11, pet . d enied)

.

Therefore, e v en if t he Baylif fs succ essfully prove that they have an easement by estoppel ove r

Lot 15, the exi s tence o f the easement would not prevent the A ssociation fro m sellin g Lot 15 and

,

conseq uently, tran sferring the easement to a bu yer with notice of the easemen t. C on sequen tly,

no ge nuine issue of material fac t ex ists as to the Bayliffs ’ c laim that (1) they hold p roperty

in terest s in Lot 15 tha t prevent the Assoc i a t ion from selling the lot without the ir consent

, and

(2) because the June 202 1 Amendment authorizes such a sale, it is “ il legal and against public

policy. ” See De G o n

, 2022 Tex. A pp. LEXIS 1935, at *7

.

Consti tut i onal Claim

Fin ally

, we consider the Bayli f fs ’ argument th at an y conclusion by th e trial court

o r this Court that the Ju ne 2021 Amendme nt is valid a mount s to an uncons titutional tak ing of

the i r “ v aluabl e property right s

. ” See U. S. Const. amend

. V ( stating

, “ nor sha ll private pr opert y

b e taken for public use without just compensation ” ) ; T ex

. C ons t

. a r t . I, § 17 (statin g th a t “ [n]o

pers on ’ s p roperty shall be t a ke n, d amage d or destroyed for or applied t o public use w ithout

adequate compensat ion bein g made ” ). E ven assuming th at the Bayliffs have a p r o perty right in

Lot 15, as they conte nd, nothing in th e s u mmary

- judgment recor d sug gests that Lo t 15 would be

taken for “ pub li c us e ” with out compe nsat ion. No genuine iss ue of mate rial fact exists as to t h e

Bayliffs ’ claim that the Ju ne 2021 Amendment is u n co ns titutional. S e e also C hu v. Win dermere

Lakes Hom eowne rs Ass ’ n

, 652 S.W.3 d 89 9

, 904 (Tex. A pp.

— Ho uston [ 1 4th Dist.] 20 22, pet.18 fi led ) (ex p laining that “ c ou rt s sh ould refrain from nu llifying a tr an s ac tion because i t is contrary

to public policy

, ‘ unles s the transaction co n travene s some po sitive statute or so me

well

- establis hed r ule o f law ’ ” ).

T he tri al co u rt di d not err in conclud ing that as a matter of law the J u ne 2021

Amendment is not “ il leg a l or against public policy. ” See De G o n

, 2 022 Tex. App. L EXIS 1935,

at *7

. The summary

- judgm en t record es tabl is hes that the three condi tion s for a vali d ame ndmen t

are satisfied and t hat

, conse quently, the June 2021 Ame ndme nt

— authorizing the Assoc iatio n to

sel l Lot 15

— is valid and enforceable. Id. W e con clude that the tr ial court did not err in granting

summary ju d gment against the Ba yli ffs o n their cla im for a declaration tha t any a ttempt by the

Ass oc iat i on to sell Lot 15 is unlawful, une n forceable, or uncon stitutional

. W e overrule the

Bayliffs ’ first and se c ond appellate issues.

Motion for Continuance

I n their third issue , t he Bayliff s argue that “ to the extent the re is any d oubt or

a mbigu ity abou t what the pla t an d governing documents mean, t he trial court abused its

discretion ” in denying th eir moti o n for continuance so that additional d is covery may be

condu ct ed on this iss ue . Becau se w e have c on cluded that the June 2021 Am endment i s valid and

enf orc e abl e ba s e d o n the pla in and una mbiguous language o f the plat and the govern ing

documents, we overrule t his issue.19 CONCLUSION

Having overr uled the appella nt s ’ is sue s on appeal

, we affir m the trial court ’ s

summary judgment

. 5

_ __ _______ _

____________ __ ____________ _____

C hari L . Kell y , J ustice

B efore J us t ices Baker, Kelly , a nd S mith

Affirmed

Filed : December 13, 2023

5 On Nove mber 1, 2 023

, we con d i tionally granted the B ayliffs ’ petition for writ of

injunct io n , prohibiting the Ass ociation from selling Lot 15 during the pen dency of this appeal

. See I n re BL F LLC , No. 03

- 23

- 00487

- CV, 2 023 Tex. App. LEXIS 8301, at * 3 (Tex. A pp.

— Austin Nov. 1, 2023, o r i g. proceeding) (mem. op .). Having resolved th is appeal, w e hereby lift

our injunct ion orde r in cause number 03

- 23

- 00487

- CV

.