No. 03-14-00660-CV 

IN THE 

THIRD DISTRICT COURT OF APPEALS

AT AUSTIN, TEXAS

CRAIG ZGABAY AND TAMMY ZGABAY, 

Appellants

v.

NBRC PROPERTY OWNERS ASSOCIATION, 

Appellee

Appeal from the 433rd Judicial District Court,

Comal County, Texas, Cause No. C2014-0501C

APPELLEE’S BRIEF

Wade C. Crosnoe

State Bar No. 00783903

Brian D. Hensley

State Bar No. 24036759

Thompson, Coe, Cousins & Irons, LLP

701 Brazos, Suite 1500

Austin, Texas 78701

Telephone: (512) 708-8200

Facsimile: (512) 708-8777

E-mail: wcrosnoe@thompsoncoe.com

Tom L. Newton, Jr.

State Bar No. 14982300

Allen, Stein & Durbin, P.C.

6243 IH-10 West, 7th Floor

P. O. Box 101507

San Antonio, Texas 78201

Telephone: (210) 734-7488

Facsimile: (210) 738-8036

E-mail: tnewton@asdh.com

Counsel for Appellee NBRC Property Owners Association

Oral Argument Requested

ACCEPTED

03-14-00660-CV

3999768

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/3/2015 12:09:58 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 2/3/2015 12:09:58 PM JEFFREY D. KYLE Clerk
IDENTITY OF PARTIES AND COUNSEL

1. Appellants/Plaintiffs Craig and Tammy Zgabay

Trial and Appellate Counsel:

J. Patrick Sutton

1706 W. 10th Street

Austin, Texas 78703

Telephone: (512) 417-5903

Facsimile: (512) 355-4155

2. Appellee/Defendant NBRC Property Owners Association

Trial Counsel:

Brian Hensley

Thompson, Coe, Cousins & Irons, L.L.P.

701 Brazos, Suite 1500

Austin, Texas 78701

Telephone: (512) 708-8200

Facsimile: (512) 708-8777

Tom L. Newton, Jr.

Ashley Giordano

Allen Stein & Durbin, P.C.1

6243 IH-10 West, 7th Floor

San Antonio, Texas 78201

Telephone: (210) 734-7488

Facsimile: (210) 738-8036

1 Guillermo M. Hernandez, III also appeared as counsel in the trial court proceedings but is no 

longer with Allen Stein & Durbin, P.C.

i

 
Appellate counsel:

Wade C. Crosnoe

Brian D. Hensley

Thompson, Coe, Cousins & Irons, L.L.P.

701 Brazos, Suite 1500

Austin, Texas 78701

Telephone: (512) 708-8200

Facsimile: (512) 708-8777

Tom L. Newton, Jr.

Allen Stein & Durbin, P.C.

ii
TABLE OF CONTENTS

Identity of Parties and Counsel...................................................................................i

Table of Contents..................................................................................................... iii

Index of Authorities...................................................................................................v

Statement of the Case............................................................................................. viii

Statement Regarding Oral Argument .......................................................................ix

Statement of Facts......................................................................................................1

Summary of the Argument.........................................................................................3

Argument....................................................................................................................5

I. The Rules of Construction for Restrictive Covenants.....................................5

II. Under Texas Law, Short-Term Rentals Are Not a Single-Family 

Residential Use ................................................................................................9

III. The Out-of-State Cases Are Distinguishable and Should Not Be 

Followed by This Court.................................................................................15

IV. The Zgabays’ Challenge to the Alleged Vagueness of the Injunction 

Was Not Preserved and Lacks Merit.............................................................18

Conclusion and Prayer.............................................................................................19

Certificate of Compliance ........................................................................................20

Certificate of Service................................................................................................21

iii
Appendix

Order on Competing Motions for Summary Judgment (CR 127–29) ............ Tab 1

Declaration of Covenants, Conditions and Restrictions for River Chase

Unit Three (CR 67–87) .............................................................................. Tab 2

Tex. Prop. Code §§ 202.002, 202.003............................................................. Tab 3

iv
INDEX OF AUTHORITIES

Cases

Applegate v. Colucci, 908 N.E.2d 1214 (Ind. Ct. App. 2009).......................... 15, 17

Ashcreek Homeowner’s Ass’n v. Smith, 902 S.W.2d 586 (Tex. App.—

Houston [1st Dist.] 1995, no writ) .........................................................................7

Benard v. Humble, 990 S.W.2d 929 (Tex. App.—Beaumont 1999, pet. 

denied)................................................................................................... 8, 9, 10, 14

Cedar Oak Mesa, Inc. v. Altemate Real Estate, LLC, No. 03-10-

00067-CV, 2010 WL 3431703 (Tex. App.—Austin Aug. 31, 2010, 

no pet.)..................................................................................................................11

City of Pasadena v. Gennedy, 125 S.W.3d 687 (Tex. App.—Houston 

[1st Dist.] 2003, pet. denied)..................................................................................8

Dunn v. Aamodt, 695 F.3d 797 (8th Cir. 2012)................................................ 15, 17

Estates at Desert Ridge Trails Homeowners’ Ass’n v. Vazquez, 300 

P.3d 736 (N.M. Ct. App. 2013)............................................................................16

Highlands Mgmt. Co. v. First Interstate Bank, 956 S.W.2d 749 (Tex. 

App.—Houston [14th Dist.] 1997, pet. denied).....................................................7

InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640 

(Tex. 1986)...........................................................................................................18

Int’l Bhd. of Elec. Workers Local Union 479 v. Becon Constr. Co., 

104 S.W.3d 239 (Tex. App.—Beaumont 2003, no pet.) .....................................18

Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492 (Tex. 2013) .................................6

Lowden v. Bosley, 909 A.2d 261 (Md. 2006)..........................................................16

Mason Family Trust v. Devaney, 207 P.3d 1176 (N.M. Ct. App. 2009).......... 16, 17

McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex. 

1993).....................................................................................................................13

Mullin v. Silvercreek Condo. Owner’s Ass’n, Inc., 195 S.W.3d 484 

(Mo. Ct. App. 2006)...................................................................................... 15, 17

v
Munson v. Milton, 948 S.W.2d 813 (Tex. App.—San Antonio

1997, pet. denied)...................................................................... 7, 8, 10, 12, 14, 18

Pinehaven Planning Bd. v. Brooks, 70 P.3d 664 (Idaho 2003)........................ 16, 17

Quinn v. Harris, No. 03-98-00117-CV, 1999 WL 125470 (Tex. 

App.—Austin March 11, 1999, pet. denied)............................................... 7, 8, 12

Reagan Nat’l Adver. of Austin, Inc. v. Capital Outdoors, Inc., 96 

S.W.3d 490 (Tex. App.—Austin 2002, pet. granted, judgm’t 

vacated w.r.m.)............................................................................................ 5, 8, 12

Roaring Lion, LLC v. Exclusive Resorts PBL1, LLC, No. CAAP-11-

0001072, 2013 WL 1759002 (Haw. Ct. App. April 24, 2013)............... 15, 16, 17

Ross v. Bennett, 203 P.3d 383 (Wash. Ct. App. 2009)............................................16

Russell v. Donaldson, 731 S.E.2d 535 (N.C. Ct. App. 2012)........................... 16, 17

Scott v. Walker, 645 S.E.2d 278 (Va. 2007)............................................................16

Shields v. State, 27 S.W.3d 267 (Tex. App.—Austin 2000, no pet.).......................18

Slaby v. Mountain River Estates Residential Ass'n, Inc., 100 So. 3d 

569 (Ala. Civ. App. 2012)....................................................................................16

Slusher v. Streater, 896 S.W.2d 239 (Tex. App.—Houston [1st Dist.] 

1995, no writ).......................................................................................................10

Smith v. Bd. of Regents of Univ. of Houston Sys., 874 S.W.2d 706

(Tex. App.—Houston [1st Dist.] 1994, writ denied)...........................................10

Warehouse Partners v. Gardner, 910 S.W.2d 19 (Tex. App.—Dallas 

1995, writ denied) ................................................................................................10

Wein v. Jenkins, No. 03-04-00568-CV, 2005 WL 2170354 (Tex. 

App.—Austin Sept. 9, 2005, no pet.)...................................................................11

Wilkinson v. Chiwawa Cmtys. Ass’n, 327 P.3d 614 (Wash. 2014) .........................17

Yogman v. Parrott, 937 P.2d 1019 (Or. 1997).................................................. 16, 17

vi
Statutes

Tex. Gov’t Code § 311.021(2)...................................................................................6

Tex. Prop. Code § 92.152(a)....................................................................................10

Tex. Prop. Code § 202.002(a)....................................................................................6

Tex. Prop. Code § 202.003(a)......................................................................... 5, 8, 16

Tex. Prop. Code § 202.004 ........................................................................................2

Rules

Haw. R. App. P. 35 ..................................................................................................15

Tex. R. App. P. 9.4(i)(1)..........................................................................................20

Tex. R. App. P. 9.4(i)(2)(B).....................................................................................20

Tex. R. App. P. 33.1(a)............................................................................................18

Tex. R. Civ. P. 166a(c) ............................................................................................13

Tex. R. Civ. P. 683............................................................................................ 18, 19

vii
STATEMENT OF THE CASE

Nature of the Case: This is a declaratory-judgment action brought by two 

homeowners, Craig and Tammy Zgabay, seeking an 

interpretation of restrictive covenants governing a 

residential subdivision (CR2 6-10). Defendant NBRC 

Property Owners Association counterclaimed for 

injunctive relief, statutory damages, and attorney’s 

fees (CR 11-15). 

Course of Proceedings: The parties filed cross-motions for summary 

judgment (CR 18-51, 54-101; 102-21; SCR 7-35). 

Trial Court’s 

Disposition:

The 433rd District Court of Comal County, the 

Honorable Dib Waldrip presiding, granted the 

Association’s summary judgment motion and denied 

the Zgabays’ motion (CR 127-29; Apx. 1). The 

court’s order enjoined the Zgabays from renting their 

house to any person or the public for temporary or 

transient purposes, and awarded the Association

statutory damages of $500 and attorney’s fees of 

$3,422.50 (CR 129; Apx. 1). 

2 “CR” refers to the Clerk’s Record. As used in this brief, “SCR” refers to the Supplemental 

Clerk’s Record and “Apx.” refers to the appendix attached to this brief. 

viii

 
STATEMENT REGARDING ORAL ARGUMENT

The Association disagrees with the Zgabays’ assertion that no precedent 

squarely addresses the issue in this case. Two published opinions by Texas courts 

address the same or a similar issue. Nevertheless, the Association believes that 

oral argument would help the Court in deciding the appeal because of the unsettled 

question on how to reconcile the statute mandating liberal construction of 

restrictive covenants with the common-law rule of strict construction. 

ix
STATEMENT OF FACTS

The Declaration of Covenants, Conditions and Restrictions for River Chase 

Unit Three—a residential subdivision in Comal County, Texas—was adopted and 

recorded in November 1999 (CR 67-87; Apx. 2). Among other provisions, the 

Declaration has restrictive covenants that (1) limit each tract to one dwelling unit 

to be used for “single family residential purposes” and (2) prohibit activities “not 

related to single family residential purposes” (CR 70, 72 [§§ 3.01, 3.14]; Apx. 2). 

The Declaration states that its “provisions . . . shall be liberally construed as a 

whole to effectuate the purpose of this Declaration” (CR 86 [§ 9.05]; Apx. 2).

The Declaration also created the NBRC Property Owners Association, 

consisting of all record owners of tracts, and the Association’s Board of Directors 

(CR 67-68 [§§ 1.01, 1.02]; Apx. 2). The Board has the authority to enforce the 

Declaration’s provisions, including through legal actions (CR 84 [§ 8.11]; Apx. 2). 

Craig and Tammy Zgabay bought a lot in the River Chase subdivision in 

2000 and built a house in 2004 (CR 50). They did not get around to reading the 

Declaration until later (CR 50). Upon reading the Declaration, Craig Zgabay 

allegedly concluded that it had no restrictions on leasing (CR 50). Early last year,

he and his wife began renting the house for periods ranging from two to eight days, 

1 
and intend to continue with short-term rentals of the house (CR 50).3

 According 

to a neighbor, the Zgabays’ renters have used the neighbor’s pool without 

permission during the night and played loud music at all hours (CR 90).4

 

After receiving complaints from neighbors (CR 88), the Board wrote to the 

Zgabays and demanded that they cease short-term rentals (CR 50). The Zgabays 

responded by filing this declaratory-judgment action seeking a ruling that the 

restrictive covenants do not prohibit short-term leases (CR 6-10). The Association 

responded with a counterclaim for injunctive relief, and also sought to recover 

statutory damages under section 202.004 of the Texas Property Code and 

attorney’s fees (CR 11-14). 

The parties filed cross-motions for summary judgment (CR 18-51, 54-101, 

102-21; SCR 7-35). After a hearing, the trial court granted the Association’s

motion and denied the Zgabays’ motion (CR 127-29; Apx. 1; RR 1:1). The court’s 

summary judgment order enjoined the Zgabays from renting their house to any 

person or the public for temporary or transient purposes (CR 129; Apx. 1). This 

appeal followed (CR 170-71). 

3 Although the Zgabays’ brief asserts that they have moved and have leased the house for a oneyear term (Appellants’ Brief at 6-7), nothing in the record supports either assertion. 

4 The Zgabays’ brief contends that the trial court struck the neighbor’s affidavit and another 

affidavit filed with the Association’s summary judgment motion (Appellants’ Brief at 8). But 

their supporting record cite is to a docket entry that indicates the trial court took the motion to 

strike those affidavits under advisement (CR 173). The record contains no written order or oral 

ruling on the motion to strike. Regardless, the affidavits are cited only for background purposes. 

2 

 
SUMMARY OF THE ARGUMENT

The Zgabays’ brief effectively asks this Court to disregard the Texas statute 

requiring liberal construction of restrictive covenants. But the Legislature must 

have meant to accomplish something when, in the face of the common-law rule 

requiring strict construction of restrictive covenants, it mandated liberal

construction of all such covenants. This Court is not free to disregard the 

Legislature’s pronouncement. And although Texas courts are split on the interplay 

between the statute and common-law rule, under the approach this Court follows 

the common-law rule never comes into play unless the restrictive covenant is 

ambiguous. Neither side in this case argues that the restrictive covenant is 

ambiguous. The common-law rule is therefore irrelevant, and the statutory rule of 

liberal construction controls.

The Texas rule of liberal construction goes a long way toward explaining the 

differing results reached by Texas courts and some out-of-state courts. Texas 

courts have held that virtually-identical or similar restrictive covenants prohibit

short-term rentals. Against the backdrop of liberal construction, those Texas courts 

have reasoned that residency generally requires a fixed place of habitation and an 

intent to remain despite temporary absences. When, as here, a series of families or 

other groups stay in a rental house for a few nights or less, the house is not the 

3
residence of any of them. It certainly is not being used for “single family 

residential purposes” under the wording of the covenants at issue here. 

To be sure, courts in some other states have reached contrary conclusions. 

But those decisions from twelve other states—out of fifty, last we checked—are 

hardly the “overwhelming tide” that the Zgabays portray them to be. More 

importantly, those decisions generally turn on the rule of strict construction 

followed in those states. In this state, the converse rule of construction is mandated 

by statute. The Zgabays should take their complaint that Texas will be out of step

with other states to the Texas Legislature. Meanwhile, this Court should follow the 

legislative rule of liberal construction and the Texas cases holding that similar 

restrictive covenants prohibit short-term rentals. 

4
ARGUMENT

I. The Rules of Construction for Restrictive Covenants

Under the common law, restrictive covenants are subject to the traditional 

rules of contract construction. See, e.g., Reagan Nat’l Adver. of Austin, Inc. v. 

Capital Outdoors, Inc., 96 S.W.3d 490, 493 n.2 (Tex. App.—Austin 2002, pet. 

granted, judgm’t vacated w.r.m.). The goal is to determine the drafters’ objective 

intent by examining the entire instrument. Id. at 493. But any “[d]oubts about the 

meaning of a covenant are resolved against the party seeking to enforce it and in 

favor of the free and unrestricted use of land.” Id.

In 1987, however, the Texas Legislature altered the common-law rule. The 

Legislature amended the Texas Property Code to mandate liberal construction of 

restrictive covenants:

A restrictive covenant shall be liberally construed to give 

effect to its purposes and intent.

Tex. Prop. Code § 202.003(a) (Apx. 3). Notably, the Declaration at issue adopts 

this statutory rule of construction, stating that “[t]he provisions of this Declaration 

shall be liberally construed as a whole to effectuate the purpose of this 

Declaration” (CR 86 [§ 9.05]; Apx. 2). 

 The Zgabays make various arguments about how the common-law rule 

supposedly is more specific and should effectively trump the statute (and the 

contract provision adopting the statute). But just like the common-law rule once 

5 
did, the statute applies to all restrictive covenants. See Tex. Prop. Code § 

202.002(a) (Apx. 3). One is no more specific than the other. 

The Zgabays argue that the trial court gave “undue weight” to the statutory 

rule (Appellants’ Brief at 10). By this they appear to mean that the trial court 

should not have given any weight to the statute. But that approach runs afoul of 

the rule of statutory construction that the entire statute is intended to be effective. 

See Tex. Gov’t Code § 311.021(2). Under the Zgabays’ reading of the statute, the 

Legislature accomplished nothing when it mandated liberal construction of all 

restrictive covenants. The courts are not free, however, to disregard legislative 

pronouncements. See Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 493-94 

(Tex. 2013) (stating that it is not the court’s province to override a legislative 

determination and that the “primary objective in constructing a statute is to 

ascertain and give effect to the Legislature’s intent”). 

In any event, the trial court certainly did not give “undue weight” to the 

statutory rule. The summary judgment order expressly states that the court 

balanced the statute requiring liberal construction of restrictive covenants with the 

common-law rule of strict construction (CR 127; Apx. 1). Given that the statute 

“applies to all restrictive covenants regardless of the date on which they were 

created,” see Tex. Prop. Code § 202.002(a), the only way the trial court erred, if at 

6 
all, was in giving any weight to the common-law rule. But the Zgabays can hardly 

complain about that. 

Though not necessarily correct, the trial court’s attempt to balance the rules 

was certainly understandable in light of (1) the lack of guidance from the Supreme 

Court of Texas on the interplay of the statute and the common-law rule and (2) the 

lack of agreement in the courts of appeals. As this Court has noted, its sister 

courts have taken differing approaches on this question. See Quinn v. Harris, No. 

03-98-00117-CV, 1999 WL 125470, at *2 n.3 (Tex. App.—Austin March 11, 

1999, pet. denied). Some have said that there is no conflict between the rules 

without explaining how they fit together. Id. (citing, e.g., Ashcreek Homeowner’s 

Ass’n v. Smith, 902 S.W.2d 586, 588-89 (Tex. App.—Houston [1st Dist.] 1995, no 

writ)). Other courts seem to have concluded that the statute trumps the commonlaw rule entirely. Id. (citing Highlands Mgmt. Co. v. First Interstate Bank, 956 

S.W.2d 749, 752 (Tex. App.—Houston [14th Dist.] 1997, pet. denied)). And still 

others have attempted to harmonize the standards by liberally construing restrictive 

covenants to determine the drafters’ intent but if that intent is ambiguous, then 

strictly construing the covenant in favor of the unrestricted use of property. Id.

(citing Munson v. Milton, 948 S.W.2d 813, 816 (Tex. App.—San Antonio 1997, 

pet. denied)); see also City of Pasadena v. Gennedy, 125 S.W.3d 687, 693-95 (Tex. 

7
App.—Houston [1st Dist.] 2003, pet. denied) (collecting cases and discussing 

various approaches). 

This Court follows the Munson approach of harmonizing the statute and 

common-law rule. See Quinn, 1999 WL 125470, at *2 n.3; Reagan Nat’l Advert. 

of Austin, Inc., 96 S.W.3d. at 493 n.2. Under this approach, the common-law rule 

does not come into play unless the restrictive covenant is ambiguous. See Quinn 

1999 WL 125470, at *2 n.3 (citing Munson, 948 S.W.2d at 816). As noted by the 

trial court, the parties in this case agree that the applicable restrictive covenants are 

unambiguous (CR 127; Apx. 1). The Zgabays do not contend otherwise on appeal, 

and do not explain how the common-law rule would come into play under the 

Munson approach in the absence of an ambiguity. Thus, the common-law rule has 

no relevance to this appeal. 

For the record, however, the Association does not believe the common-law 

rule survived the enactment of section 202.003(a). That statute mandates liberal 

construction of all restrictive covenants—presumably even ambiguous ones. It is 

difficult to understand why liberal construction should not require interpreting 

ambiguous restrictive covenants in favor of the person seeking enforcement when 

strict construction requires the exact opposite—that is, interpreting ambiguous

covenants against such persons. See Benard v. Humble, 990 S.W.2d 929, 930-31 

(Tex. App.—Beaumont 1999, pet. denied) (concluding that the Legislature 

8 
intended for restrictive covenants to be construed in a manner that might “run hard 

afoul of the strict common law requirements,” and noting that the court would have 

reached a different result if strict construction applied). 

II. Under Texas Law, Short-Term Rentals Are Not a Single-Family 

Residential Use

The Zgabays’ forty-page brief devotes less than two pages to discussing the 

two leading Texas cases on the short-term rental issue: Benard and Munson. In 

the former case, the Beaumont Court of Appeals interpreted a restrictive covenant 

stating that “[n]o lot shall be used except for single-family residential purposes.” 

See Benard, 990 S.W.2d at 930. That covenant is virtually identical to the 

restrictive covenants in this case, which likewise limit use to “single family 

residential purposes” (CR 70, 72 [§3.01, 3.14]; Apx. 2). The Benard court held 

that the trial court did not err in ruling that the covenant prohibited renting for 

periods of less than ninety days. Id. at 930-32. 

Although the Benard court agreed that renting was not prohibited per se, the 

court explained that renting a house on a weekly or weekend basis is more akin to 

temporary or transient housing rather than residential housing. Id. at 931. The 

court analogized to cases involving residency requirements for voting or obtaining 

a divorce, and observed that residency typically requires a fixed place of habitation 

and intent to remain or return despite any temporary absences. Id. at 931-32 

(citing Slusher v. Streater, 896 S.W.2d 239, 243-44 (Tex. App.—Houston [1st 

9 
Dist.] 1995, no writ)). In reaching this result, the Court noted the outcome might 

have been different if the common-law rule of strict construction applied but 

concluded it was compelled to give effect to the statutory mandate of liberal 

construction. Id. at 930-31. 

In Munson, the San Antonio Court of Appeals addressed a restrictive 

covenant requiring that lots be used for “residential, camping or picnicing [sic] 

purposes” and not “for business purposes.” Munson, 948 S.W.2d at 815. The court 

agreed that the trial court’s temporary injunction against all rentals was too broad 

and modified it to prevent only leasing “to the public for temporary or transient 

housing purposes.” Id. at 817. In concluding that such rentals were prohibited, the 

court of appeals reasoned that residence generally requires both physical presence 

and intent to remain. Id. at 816 (citing, e.g., Smith v. Bd. of Regents of Univ. of 

Houston Sys., 874 S.W.2d 706, 712 (Tex. App.—Houston [1st Dist.] 1994, writ 

denied)). Thus, when a person comes to a place temporarily, without any intention 

of making the place his or her home, the place is not the person’s residence. Id. at 

817. The Munson court further reasoned that the Texas Property Code 

distinguishes between a permanent residence and transient housing. Id. (citing

Warehouse Partners v. Gardner, 910 S.W.2d 19, 23 (Tex. App.—Dallas 1995, writ 

denied); Tex. Prop. Code § 92.152(a)). 

10
This Court has not squarely addressed whether a similar restrictive covenant

bars short-term rentals. In one case, however, the Court upheld a permanent 

injunction that interpreted a “single-family, private residential purposes” restriction 

to preclude operating a “bed & breakfast,” hotel, inn, or venue for parties, business 

meetings, or retreats. See Wein v. Jenkins, No. 03-04-00568-CV, 2005 WL 

2170354, at *1-3 (Tex. App.—Austin Sept. 9, 2005, no pet.). In rejecting the

contention that the plaintiffs received greater relief than they requested, this Court 

observed that the trial court’s interpretation of what the phrase “single-family, 

private residential purposes” does not include—e.g., bed & breakfast, inn, etc.—

was “consistent with both the plain language and the underlying purpose” of the 

restriction. Id. at *2. This statement strongly suggests that similarly-transient uses 

(such as short-term rentals) are not single-family residential uses either. 

In another case, this Court held that a restrictive covenant stating that no 

more than one “private dwelling house” could be erected on each lot was 

ambiguous as to whether it prohibited short-term rentals, and remanded that fact 

issue for trial. See Cedar Oak Mesa, Inc. v. Altemate Real Estate, LLC, No. 03-10-

00067-CV, 2010 WL 3431703, at *2-5 (Tex. App.—Austin Aug. 31, 2010, no 

pet.). As noted, however, neither side in this case contends the restrictive 

covenants are ambiguous. Also, the wording of the covenants—“single family 

residential purposes”—is markedly different than the “private dwelling” language 

11
in Cedar Oak Mesa. Presumably because of those distinctions, the Zgabays cite 

Cedar Oak Mesa but do not contend that its reasoning controls here. 

Finally, this Court has found the Munson court’s analysis persuasive on the 

interplay between the statutory and common-law rules of construction. See Reagan 

Nat’l Advert. of Austin, Inc., 96 S.W.3d at 493 n.2; Quinn v. Harris, 1999 WL 

125470, at *2 n.3. In doing so, the Court did not express any doubts about 

Munson’s reasoning on the short-term rental issue. 

The Zgabays nevertheless argue that this Court should not follow Munson on 

the merits. They attempt to distinguish the restrictive covenant in Munson based 

on its express prohibition on business uses, and its language clarifying that motels, 

tourist courts, and trailer parks are business uses. Munson, 948 S.W.2d at 815. On 

the flipside, however, the Munson restrictive covenant lacked the additional 

requirement found in the covenants in this case, which require that the residential 

use be “single family.” Entering into a series of short-term rentals with separate 

families (or other groups) is not a “single family” use. 

Moreover, both Munson and Bernard relied on well-established Texas law in 

distinguishing between temporary and residential housing. Both courts are surely 

correct that residential housing does not encompass the temporary or transient 

presence that is the hallmark of short term-rental housing. This Court should rule 

likewise.

12
Given the unfavorable Texas law, the Zgabays resort to novel appellate 

arguments. They contend that (1) the trial court effectively imposed an occupancy 

requirement the Zgabays cannot meet because they no longer live in the house and 

(2) the restrictive covenants elsewhere distinguish between temporary and 

permanent structures but not between temporary and permanent residence. But 

they never made either argument in their summary judgment papers, and have 

therefore waived them for appeal. See McConnell v. Southside Indep. Sch. Dist., 

858 S.W.2d 337, 341 (Tex. 1993) (stating that grounds for or against summary 

judgment must be expressly presented in the motion or response); Tex. R. Civ. P. 

166a(c) (“Issues not expressly presented to the trial court by written motion, 

answer or other response shall not be considered on appeal as grounds for 

reversal.”) 

Regardless, the trial court’s order imposes no “occupancy” requirement. It 

does not require that the Zgabays or anyone else occupy the house. The order 

simply enjoins the Zgabays from renting to the public for temporary or transient 

purposes (CR 129; Apx. 1). 

The Zgabays’ other argument mixes apples and oranges or, more aptly, 

permitted structures and permitted uses. Section 3.04 of the Declaration generally 

bars temporary residential structures, with certain exceptions (CR 71; Apx. 2). On 

the other hand, the provisions at issue here—sections 3.01 and 3.14—limits use of 

13
the permanent structure to single-family residential purposes (CR. 70; Apx. 2). 

Section 3.04 does not speak to or imply anything about whether a short-term rental 

is a permitted use. But by limiting use to single-family residential purposes, 

sections 3.01 and 3.14 confirm that temporary use for short-term rentals is not 

allowed. See Benard, 990 S.W.2d at 930-32; Munson, 948 S.W.2d at 815-17.

The Zgabays say that the test for single-family residential use should be

“whether natural persons (or a “single family,” whatever that may encompass) 

occupy the property consistent with the property’s nature as a place for dwelling as 

opposed to a place for those persons’ conducting of a trade or commercial 

enterprise on the property” (Appellants’ Brief at 29). They cite no Texas case or 

any other authority for this proposed test. They also fail to recognize that their use 

fails their own test. Even if one accepts the dubious proposition that temporary

occupancy of property equates to residence, a “single family” is not occupying the 

property when it is rented for short periods to either successive families or 

successive other groups. 

Crucially, the Zgabays also concede that the duration of the lease may be 

relevant to their proposed test (Appellants’ Brief at 30). But it is difficult to 

imagine much shorter durations than the periods the Zgabays have leased their 

house for (two to eight days), or the one-night rentals that they say would also be 

14
permissible (CR 50; Appellants’ Brief at 29, 37). Once again, the Zgabays’ use 

fails their own test. 

III. The Out-of-State Cases Are Distinguishable and Should Not Be 

Followed by This Court

Finding no support in Texas law, the Zgabays turn to decisions by courts 

outside the state (Appellants’ Brief at 33-34). But the “overwhelming tide” of outof-state cases they cite consists of decisions from just twelve other states. In seven

of those twelve states, the issue has not been decided by the state’s highest court. 

And one of the decisions—Roaring Lion, LLC v. Exclusive Resorts PBL1, LLC, 

No. CAAP-11-0001072, 2013 WL 1759002 (Haw. Ct. App. April 24, 2013)—is a 

memorandum opinion that is not even precedent under Hawaiian law. See Haw. R. 

App. P. 35. Even at first blush, the out-of-state cases are hardly overwhelming. 

Closer inspection further undermines the Zgabays’ reliance on the out-ofstate cases. First and foremost, the result in most of those cases turned on the 

common-law rule requiring strict construction of ambiguous restrictive covenants. 

See, e.g., Dunn v. Aamodt, 695 F.3d 797, 799-802 (8th Cir. 2012) (applying 

Arkansas law)5

; Applegate v. Colucci, 908 N.E.2d 1214, 1220 (Ind. Ct. App. 

2009); Mullin v. Silvercreek Condo. Owner’s Ass’n, Inc., 195 S.W.3d 484, 490 

(Mo. Ct. App. 2006); Estates at Desert Ridge Trails Homeowners’ Ass’n v. 

5 The Zgabays’ brief cites only the district court’s unpublished decision, which was affirmed by 

the Eighth Circuit. 

15

 
Vazquez, 300 P.3d 736, 740-43 (N.M. Ct. App. 2013); Mason Family Trust v. 

Devaney, 207 P.3d 1176, 1178-79 (N.M. Ct. App. 2009); Russell v. Donaldson, 

731 S.E.2d 535, 538-39 (N.C. Ct. App. 2012); Yogman v. Parrott, 937 P.2d 1019, 

1022-24 (Or. 1997); Scott v. Walker, 645 S.E.2d 278, 283 (Va. 2007); see also

Pinehaven Planning Bd. v. Brooks, 70 P.3d 664, 668-69 (Idaho 2003) (alternative 

holding was based on rule of strict construction).

6

None of the out-of-state cases applies a statute that, like section 202.003(a) 

of the Texas Property Code, requires liberal construction of all restrictive 

covenants. Given the unique Texas statute, it is hardly surprising that Texas courts 

have reached a different result than courts in other states. Needless to say, 

however, foreign cases applying a common-law rule of strict construction have 

little to no relevance in Texas cases where liberal construction is mandated. 

Beyond the diametrically-opposed rules of construction, the out-of-state 

cases are distinguishable for other reasons:

• Several cases involved restrictive-covenant language that does not 

include a residential-use restriction. See Pinehaven Planning Bd., 

70 P.3d at 668 (addressing covenant limiting construction to one 

6 Of the remaining five cases, the two Washington cases indicate that Washington courts no 

longer strictly construe restrictive covenants. See Wilkinson v. Chiwawa Cmtys. Ass’n, 327 P.3d 

614, 619 (Wash. 2014); Ross v. Bennett, 203 P.3d 383, 387 (Wash. Ct. App. 2009). In a third 

case, the court noted the rule of strict construction for ambiguous restrictive covenants but held 

that the covenant at issue was unambiguous. See Lowden v. Bosley, 909 A.2d 261, 266-69 (Md. 

2006). In two other cases, the court mentioned the rule of strict construction but it is not clear 

whether the courts’ holdings on the short-term rental issue turned on strict construction of the 

restrictive covenants. See Slaby v. Mountain River Estates Residential Ass’n, Inc., 100 So. 3d 

569, 578 (Ala. Civ. App. 2012); Roaring Lion, LLC, 2013 WL 1759002, at *4-5. 

16

 
single-family dwelling per lot and prohibiting commercial use; 

distinguishing the San Antonio Court of Appeals’ decision in 

Munson as involving narrower residential-use language); Mason 

Family Trust, 207 P.3d at 1178 (addressing dwelling-use limitation 

and prohibition on commercial use, and distinguishing Munson on 

the same basis); Russell, 731 S.E.2d at 538 (interpreting covenant 

prohibiting use of land for business or commercial purposes and 

distinguishing cases involving residential-use restrictions).

• A number of the cases interpreted covenants that limited use to 

residential or dwelling use but did not add the “single family” 

qualifier present here. See Dunn, 695 F.3d at 798; Applegate, 908 

N.E.2d at 1217; Roaring Lion, LLC, 2013 WL 1759002, at *1-2; 

Mason Family Trust, 207 P.3d at 1177; Russell, 731 S.E.2d at 537; 

Yogman, 937 P.2d at 1020.

• In some cases, there was evidence that short-term rentals were 

widely allowed in the subdivision. See Mullin, 195 S.W.3d at 490-

91 (discussing the evidence that from the beginning, condominium 

units had been rented on a short-term or nightly basis); Wilkinson, 

327 P.3d at 617 (stating that subdivision residents had entered into

short-term rentals for decades without controversy).

• The restrictive covenants in one case incorporated definitions from 

that state’s Uniform Business Code, which defined residential use 

to include apartments and lodging houses. See Pinehaven 

Planning Bd., 70 P.3d at 668.

Viewed in light of all of these distinctions, including the dispositive distinction of 

liberal versus strict construction, the Zgabays’ “overwhelming tide” is a trickle at 

best. This Court should follow the Texas cases and the Texas statute mandating 

liberal construction of restrictive covenants. 

17
IV. The Zgabays’ Challenge to the Alleged Vagueness of the Injunction Was 

Not Preserved and Lacks Merit

The Zgabays also argue that the permanent injunction is too vague to be 

enforced. But they never raised that argument in the trial court, either in their 

summary judgment response or in a motion to modify the injunction. As a result, 

their vagueness challenge is not preserved for appeal. See Shields v. State, 27 

S.W.3d 267, 273 (Tex. App.—Austin 2000, no pet.) (holding that defendant 

waived complaint about order not stating reasons for permanent injunction by 

failing to raise complaint in trial court, citing Tex. R. App. P. 33.1(a)).7

 

In any event, the language in the trial court’s order—enjoining the Zgabays 

“from renting their property . . . to any person or the public for temporary or 

transient purposes” (CR 129; Apx. 1)—is based upon and nearly identical to the 

language approved by the Munson court. See Munson, 948 S.W.2d at 817 

(modifying injunction to enjoin appellants from “renting and/or leasing said 

property to the public for temporary or transient housing purposes.”) Moreover, 

the trial court’s order elaborates that residential use “means to occupy a place over 

7 Other Texas courts have held that complaints about an injunction’s failure to comply with Tex. 

R. Civ. P. 683 cannot be waived because the requirements of that rule are mandatory. See, e.g.,

Int’l Bhd. of Elec. Workers Local Union 479 v. Becon Constr. Co., 104 S.W.3d 239, 243 (Tex. 

App.—Beaumont 2003, no pet.) (citing InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 

S.W.2d 640, 641 (Tex. 1986)). But both cases involved temporary (rather than permanent) 

injunctions, which have differing requirements under Rule 683. Interfirst Bank involved a 

failure to comply with a separate requirement of Rule 683 (the requirement that a temporary 

injunction order set the case for trial), and there apparently was no appellate argument that the 

complaint was waived. See InterFirst Bank San Felipe, N.A., 715 S.W.2d at 640-41. 

18

 
a substantial period such that it is permanent rather than temporary evidenced by 

one’s physical presence simultaneous with a then-existing intent to remain” (CR 

128; Apx. 1). Read in its entirety, the order satisfies the requirement that the act 

sought to be restrained be described in “reasonable detail.” See Tex. R. Civ. P. 

683.8

 

CONCLUSION AND PRAYER

For these reasons, the trial court’s summary judgment order and injunction 

should be affirmed. The Association also requests all other relief to which it is 

justly entitled, including an award of its appeal costs. 

8 The Zgabays are not entitled to remand for an award of attorney’s fees because they have not 

demonstrated any reversible error in the trial court’s judgment. 

19

 
Respectfully submitted,

THOMPSON, COE, COUSINS & IRONS, 

L.L.P.

By: /s/ Wade Crosnoe

Wade C. Crosnoe

State Bar No. 00783903

Brian D. Hensley

State Bar No. 24036759

701 Brazos, Suite 1500

Austin, Texas 78701

Telephone: (512) 708-8200

Facsimile: (512) 708-8777

E-Mail: wcrosnoe@thompsoncoe.com

 bhensley@thompsoncoe.com

Tom L. Newton, Jr.

State Bar No. 14982300

Allen, Stein & Durbin, P.C.

6243 IH-10 West, 7th Floor

P. O. Box 101507

San Antonio, Texas 78201

Telephone: (210) 734-7488

Facsimile: (210) 738-8036

E-Mail: tnewton@asdh.com

Counsel for Appellee NBRC Property Owners 

Association

CERTIFICATE OF COMPLIANCE

This brief complies with the word limit of Tex. R. App. P. 9.4(i)(2)(B) because it contains 4,447 words, excluding the parts of the brief exempted by Tex. R. 

App. P. 9.4(i)(1).

/s/ Wade Crosnoe

Wade Crosnoe

20
CERTIFICATE OF SERVICE

I certify that a true and correct copy of this Appellee’s Brief was served on 

February 3, 2014, via electronic service or email, to the following counsel:

J. Patrick Sutton

1706 W. 10th Street

Austin, Texas 78703

E-Mail: jpatricksutton@jpatricksuttonlaw.com

Counsel for Appellants

/s/ Wade Crosnoe

Wade Crosnoe

21
APPENDIX
APPENDIX

Tab 1

Order on Motions for Summary Judgment
150 N. Seguin, Suite 317 

New Braunfels, Texas 78130 

830-620-5562 

Fax 830-608-2030 

~--< -· - ., 

\ DIB WALDRIP 

PRESIDING JUDGE 

·-·"': ~ ~ .. 

·< 

' ., - : ·- .. . '1 

433RD JUDICIAL DISTRICT COURT 

COMAL COUNTY 

:; :;, 

\ 

\ September 19, 20 14 

Cause No. C2014-0501C 

CRAIG ZGABA Y AND 

TAMMYZGABAY 

§ 

§ 

Plaintiffs/Counter-Defendant § 

vs. 

NBRC PROPERTY OWNERS 

ASSOCIATION 

§ 

§ 

§ 

§ 

Defendant/Counter-Plaintiff § 

IN THE DISTRICT COURT 

433rd JUDICIAL DISTRICT 

COMAL COUNTY, TEXAS 

ORDERS ON COMPETING MOTIONS FOR SUMMARY JUDGMENT 

CAME ON TO BE CONSIDERED Plaintiffs'/Counter-Defendants' Craig and 

Tammy Zgabay (hereinafter "Zgabay") and Defendant's/Counter-Plaintiffs NBRC 

Property Owners Association (hereinafter "NBRC") competing Motions for Summary 

Judgment. 

Among other matters, both parties principally seek reciprocal declarative relief 

regarding the subject Declaration of Covenants, Conditions and Restrictions to River 

Chase Subdivision, Unit Three. The parties agree the applicable provisions of the 

restrictive covenants are not ambiguous. While it is the Court's duty to determine the 

intent of the drafter of the covenants, the Court must do so balancing both statutory 

requirements to liberally construe language within such subdivision covenants with 

common law mandates to strictly construe restrictive clauses in real estate instruments 

resolving all doubt in favor of the free use of real estate. See generally, Benard v. 

Humble, 990 S.W.2d 929, 930 (Tex.App.-Beaumont 1999, writ ref'd n.r.e.) (noting the 

invariable legal conflict). 

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After considering the Motions, the responses, the pleadings, the evidence properly 

before the Court, and the arguments of counsel, the Court determines that the 

Defendant's/Counter-Plaintiffs Motion should be and is hereby GRANTED while the 

Plaintiffs'/Counter-Defendants' Motion should be and is hereby DENIED for the 

following reasons. 

The parties do not differ nor argue about the summary judgment evidence, and 

key word central to the instant dispute from within the subject covenants is the word 

"residential." Common law authorities whose opinions are controlling upon this Court 

from the United States and Texas Supreme Courts along with the 3rd Court of Appeals in 

Austin hold, for various purposes and reasons, that a "residence" is a place occupied over 

a substantial period such that it is permanent rather than temporary evidenced by one's 

physical presence simultaneous with a then-existing intent to remain. See generally, 

Martinez v. Bynum, 461 U.S. 321, 103 S.Ct. 1838, 1843, 75 L.Ed.2d 879 (1983) 

("Although the meaning may vary according to context, 'residence' generally requires 

both physical presence and an intention to remain."), Mills v Bartlett, 377 S.W.2d 636, 

637 (Tex. 1964) ("Neither bodily presence alone nor intention alone will suffice to create 

the residence, but when the two coincide at that moment the residence is fixed and 

determined."); Howell v. Mauzy, 899 S.W.2d 690, 697 n. 9 {Tex.App.-Austin 1994, writ 

denied) (residence is a fixed place of abode occupied substantially enough to become 

permanent). 

Although the legislature has assigned differing minimum lengths of time (i.e., 30 

days to 6 months) in order that a person might obtain some various benefit or avoid some 

various consequence, the Texas Supreme Court held in Mills, supra, that for a purpose of 

residency under the Texas Election Code "no specific length of time [is required] for the 

bodily presence to continue." Mills, supra at 637. The San Antonio Court of Appeals, 

albeit in construction of a more specific set of covenants than are at issue here, noted the 

well-recognized distinction in Texas law between a permanent residence and temporary 

housing. Munson v. Milton, 948 S.W.2d 813, 816-17 (Tex.App.-San Antonio 1997, 

writ denied). Without ascribing any specific length of time or bright-lined rule, the San 

Antonio Court modified the lower court's injunction enjoining a homeowner from 

"renting and/or leasing [the subject] property to the public for lodging, vacation and 

recreation purposes" to prohibit "renting and/or leasing [the subject] property to the 

public for temporary or transient housing purposes." Id. at 815 & 817. 

Based upon the existing and proper summary judgment record, the Court has no 

doubt regarding the intent of the drafter of the instant covenants. The covenants, created 

and filed in 1999, clearly allow properties to be rented or leased for residential purposes 

consistent with the then-existing common law understanding and meaning of that word at 

that time. Thus, the Court declares that, within the Declaration of Covenants, Conditions 

and Restrictions for River Chase Unit Three-as used in the phrase single-family 

residential purposes, to be "residential" means to occupy a place over a substantial period 

such that it is permanent rather than temporary evidenced by one's physical presence 

simultaneous with a then-existing intent to remain. 

128 
·)-~'-.'.·: \/ 

-<~~. 

Accordingly, it is ORDERED that Counter-PlaintiffNBRC is entitled to 

injunctive relief against Counter-Defedants Zgabay restraining them from renting their 

property located at 1175 River Chase Drive, New Braunfels, Texas 78132 (hereinafter the 

"Property") to any person or the public for temporary or transient purposes. 

It is FURTHER ORDERED that consistent with the Declaration of covenants, 

Conditions and Restrictions for River Chase Unit Three, which is applicable to the 

Property, neither Counter-Defendants Zgabay, nor their tenants, assigns, heirs or 

successors, shall allow or cause the Property to be rented, sub-rented, leased or subleased 

to any person or the public for temporary or transient purposes. 

It is FURTHER ORDERED that Plaintiffs/Counter-Defendants Zgabay take 

nothing against Defendant/Counter-PlaintiffNBRC and that all claims asserted by 

Plaintiff/Counter-Defendant Zgabay are denied and that all costs of court be taxed against 

Plaintiff and that Defendant/Counter-PlaintiffNBRC recover from Plaintiffs $3,422.50 as 

reasonable and necessary attorney's fees and $500.00 as statutory damages. 

129 
APPENDIX

Tab 2

Declaration of Covenants, Conditions and 

Restrictions for River Chase Unit Three
I 

I 

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I 

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a 

1 

Doclt 9906031628 

.... vaoso:uua 

Document Numbe~ 9906031412 is re-recorded to correct Page 8. 

This document as re-recorded replaces Document Number 9906031t12 

DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS 

RIVER CHASE UNIT THREE 

STATE OF TEXAS 

COUNTY OF COMAL 

KNOW AU. MEN BY THESE PRESENTS; 

Thle Declaration made on thlt' date hereinafter set forth by TEXAS 

SOUTHERLAND VENTURE, formerly known u TEXAS SUMMERLIN VENTURE, a Maauchuaette Joint Vlt'nture, acting h~~rein by and through iU duly authorized Joint 

Venturer, SOUTHERLAND PROPEFITIES, INC., formerly known a• SUMMERUN 

PROPERTIES, INC., a Texaa Corporation, duly authorized to do busineu in the Statlt' 

of Texu, hereinafter referred to u "Developer". 

WITNESSETH: 

WHEREAS, Developer is the owner of that certain tract of land known ae RIVER 

CHASE UNIT TWO, beiniJ a subdlvlaion containing 741.43 l1Cf8S out of a 1494.571 

acre tract of land situated In ComaJ County, Texas (hereinafter referred to as the 

"Property• or tha "Subdivlalon") with the Plat of RIVER CHASE UNIT THREE, baing 

recorded In the olflca of the County Clerk of Coma! CountY, Texas on the 5111 day of 

November, 1999, after having bean approved 111 provided by 1-. and being recorded 

in Book Volume13, PagR 131-138, of tha Mep Recorde of ComaJ County, Tax••• 

and, 

WHEREAS, it Ia the desire of Developer to place certain reatrictlons. -manta, 

covenants, conditions, atipulatlone and reservation• (herein sometime• referred to u 

(the •Reatrlctlona"l upon and agelntt RIVER CHASE UNIT THREE in order to establish 

a uniform pian for itt development, improvement and sale, and to insure tha 

preservation of IUch uniform plan for the baneflt of both the present and future ownare 

of tracta in RIVER CHASE UNIT THREE. 

NOW, THEREFORE, Developer hereby adopts, eatablishaa and lmpo- upon 

RIVER CHASE UNIT THREE, and daclaras -the following ruarvationa, eaaamente, 

reatrictiona. covenants and conditiona eppllcable thereto all of which are for the 

purpqaae of enhancing and protecting the value. daeirabillty and ettrxtivenesa of said 

Propart'f, which Reatrlctiona shall run with aeid PropertY and title or lntaraat therein, 

or any part thereof, and ahalllnura to the benefit ot each owner thereof. Developer 

also doclaree that RIVER CHASE UNIT THREE shall beaubject to the juriadlctlon of tha 

• Association• (ae hereinafter defined). 

ARTICLE I 

QEFINII!ONS 

Section 1.01 • Association" shall maan and refer to the NBRC PROPERTY OWNERS 

ASSOCIATION, and ita auccasaors and a~algna. Notwithstanding anything herein to 

the contrllfY, the NBRC PROPERTY OWNERS ASSOCIATION ahaU co111iat of members 

from all Sections and Unite within the Property. It is Intended that only one NBRC 

PROPERTY OWNERS ASSOCIATION exista for the whole ofthe 1494.871 acres and 

for any other property hereafter subjected to theee reatrictiona. 

EXHIBIT 

I Jl 

67 
.llac:H 99868iU41il! 

Doctt 9'906031628 

Section1.02 'Bgard gf Qjrectgrs" shall mean and refer to the Board of Directors of the 

Association. 

Section1.03 "Builders• shall mean and refer to persona or antltiaa that purchase tracts 

and build specu latlve or custom homes thereon lor third party purchasers. 

Section1.04 'Cgmmon Area• shall mean all real Property (including the Improvements 

thereon) within the Subdivlaion owned by the Developer and/or tho Aa•oclation for the 

common usa and enjoyment of the Owners. 

Section 1.05 "Cgntragtgr• sheD mean end refer to the parson or entity with whom an 

Owner contracts to construct a residential dwelling on such Owner's Tract. 

Sectlon1.06 "Oevelgoar• shall maan and refer to TEXAS SOUTHERLAND VENTURE, 

a MaaAChuaatta Joint Ventura, acting herein by and through ita duly authorized Joint 

Venturer, SOUTHERLAND PROPERTIES, INC., a Texas Corporation, itsauccesaora and 

aaslgna. 

Section 1 .07 .:.II:G1: shall mean and refer to any plot of land identified as a parcel or 

home site on the Plat of RIVER CHASE UNIT THREE. For purposes of this instrument, 

"T ract• shall not be deemed to includs any portion of tho "Common Araaa • or 

'Unrestricted Reserves•, (defined herein as any Common Areaa and Unrestricted 

Raaarvaa shown on the Plstl in RIVER CHASE UNIT THREE, regardless of the use 

made of such area. 

Sectlon1.08 "Member• shall mean and refer to every parson or entity who holds a 

membership in the Aesoclation. 

Sectlon1.09~ shall mean and refer to the record owner, whether one or more 

persons or entitles, of fee simple title to any tract which is a part of the Subdivision, 

Including (i} contract aellar (a sellar under a Contract for Dead), but excluding those 

having auch interest merely as security for the performance of an obligation, (iii 

Developer (except es otherwise provided heralnl, end IIIII Bulldera. 

Section1.1 0 ~The words 'Sectlon(al' and 'Unitlsl" are uaad interchangeable 

within those Rastrictiona to refer to a particular tract of land designated on each filed 

map or plat of RIVER CHASE. 

ARTICLE II 

RESERVATIONS EXCEPTION ANQ QEQICADONS 

Sectlon2.01 Recgr!led SubdMajgn Map gf tho Prooartv. The Plat ("Piat"l of RIVER 

CHASE UNIT THREE dedicates for use aa such, subject to the limitations aa set forth 

therein, the roada, streets and easements shown thereon. The Plat further establishes 

certain raetrictiona applicable to RIVER CHASE UNIT THREE. All dadicatlona, 

restrictions and reaarvatlons created herein or shown on the Plat, rapists or 

amendment of the Plat of RIVER CHASE UNIT THREE recorded or hereafter recorded 

shall be construed as being included in each contract, dead, or conveyance executed 

2 

63 
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Doell 9906031628 

or to be executed by or on behalf of Developer, whether speclllcellv referred to therein 

or not. 

Section 2.02 Easements. Developer reserves for pubtic use the utility eeaementl 

shown on the Plat or that have bean or hereafter may be cr81ted by separate 

instrument recorded In the Official Public Records of Carnal County, Texaa, for the 

purpose of conetructing, melntainlng and repairing a syatem or syateme of electric 

lighting, electric power, telegraph and telephone line or linea, storm surface drainage, 

cable television, or any other utility the Developer sees fit to lnetall In, acrose and/or 

under the Property. All utility eaaemante In the Subdivision may be used for the 

construction of drainage swalea In order to provide for Improved surface drainage of 

the Reserves, Common Area end/or Tracts. Should any utUity company furnishing a 

service covered by the general sasement herein provided or provided on the plat 

requeat a specific easement within the general easement area by separate recordable 

document, Developer, without the joinder of any other Owner, shall have the right to 

grant such easement on said Property without conflicting with the terms hereof. Any 

utility company serving the Subdivision shall have the right to enter upon any utility 

easement for the purpose of installation, repair and maintenance of their respective 

facilitlas. Neither Developer nor any utility company, political subdivision or other 

authorized entity using the aasemante herein refaned to shall bailable for any damages 

dona by them or their &Siigna, agents, employees, or servants, to fences, shrubbery, 

trees and I aws or any other Property of the Owner on the Property covered by said 

easements. 

Section 2.03 Tjtle Sub!ect to Easamants. It is expressly agreed and understood that 

the title conveyed by developer to any of the Tracts by dead, contract for deed or 

other corrveyanca shall be subject to any easement affecting aama for roadwaya or 

drainage, electric lighting, electric power, telegraph or telephone purposes and other 

easements hereafter granted affecting the Tracta. The Owners of the respective 

Tracts shall not be deemed to own pipes, wires, conduits or other service linea running 

through their Tracts which are utilized for or service to other Tracts, but each Owner 

shall have an easement in and to the aforesaid facilities as shall ba necessary for the 

use, maintenance and enjoyment of his Tract. The Developer may convey title to the 

above said easamenta to the public, a public utility company or the Allocietlon. 

Section 2.04 Utllitv Ea§8menta. 

(a) Utility ground and aerial easement• have been dedicated In accordance 

with tha Plat and by separate recorded easement documents. 

(b) No building shell be located over, under, upon or serosa any portion of 

any utility easement. The Owner of each Tract shall have the right to 

construct, keep and maintain. concrete drives, fences, and similar 

improvements across any utility easement, and shall be entitled to cross 

such easements at ali times for purposes of gaining acceae to and from 

such Tracts, provided, however, any concrete drive, lance or similar 

improvement placed upon such Utility Easement by the Owner shall be 

constructed, maintained end used at Owner's risk and, as such. the 

Owner of each Tract subject to said Utility Easements shall be 

3 

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Doc• 9906031628 

responsible for (i) any and all repairs to the concrete drives, fences and 

similar improvements which erose or are located upon such Utility 

Easamenta and (ill repairing any damaga to said lmprovemanta caused by 

the Utility District or any public utility in the caursa of lnstalftng, 

operating, maintaining, repairing, or removing Ita facilities located within 

the Utility Easamants. 

ARTICLE Ill 

USE RESTRICTIONS 

Section 3.01 SlngiB Family Bujdeotial Construction. Except aa provided below, no 

building shall be erected, altered, placed or permitted to remain on any Tract other than 

one dwelling unit par each Tract to be used for single family residential purposes. One 

guest/aervanta house may be built provided said guest/servants housa contains no lass 

than five hundred (500) square feat, no mora that on•thousand (1 000) square feat, 

is built after or while the main dwelling Is being built and haa prior approval of the 

Architectural Control Committee. All reaidances muat have a garage. Detached 

garagea and work shops may not ba conatructed on the Property prior to the main 

dwelling being built. Barns and/or storage buUdlnga may be conatructad on the 

property prior to the main dwelling being built provided they ere approved In writing 

by the Architectural Control Committee prior to baing erected, altered or placed on the 

property and are placed on the reer half of the property, out of view of any road, and 

behind the Intended dwelling alta. All structure• must be approved In writing by the 

Architectural Control Committee prior to being erected, altered or placed on the 

Property. The term "dwelling• doaa not Include either double wide or manufactured 

homes, or single wide mobile homes, or prefeb houses regardless of whether the aame 

are placed upon permanent foundation, and said homea are not permitted within the 

Subdivision. All dwellings must have at least one thousand eight hundred ( 1800) 

square feet of living area for one story homaa and two thousand 120001 square feat 

of living area for two story homes, with at laaat one thousand (10001squara feat on 

the ground floor, excluding porchee, and be built with new construction material. Any 

building, structure or lmprovamanta commenced on any tract shall be completed aa to 

the exterior finish and appearance within six (61 montha from the commencement date. 

All garagaa, Including detached garagea, wiU be of the same general construction as 

the main dwelling and located on the tract according to the Committee approved 

building aite plan and shell be aultable for not lasa that two (21 automobiles. All 

garages must be aide or rear entry. No carports shall ba allowed. 

Section 3.02 Comgosita Building Sjto, Any Owner of one or mora adjoining Tracts lor 

portions thareofl may, with the prior written approval of the Architectural Control 

Committee, and with approval of the Coma! County Commissioner's Court, If required, 

consolidate such Tracts or portion• Into one bulldlng alta, with the privilege of placing 

or constructing improvements on such resulting site, In which caaa the aida setback 

linea shall be meesured from the raaulting side Property linea rather than from the Tract 

linea as Indicated on the Plat. Public utility and drainage eaeementa era exempt from 

this provision. 

Section 3.03 Location of the lmproyementa upon the Tract, No building of any kind 

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shall be located on any tract nearer than forty feat (40') to the side Property line, 

no nearer than seventy-five feet (76'1 to the front Property Una and no nearer than 

seventy-five feat (76'1 to the rear Property line, provided however, as to any tract, the 

Architectural Control Committee may waive or altar any such setback Una, If the 

Architectural Control Committee In the exercise of the Architectural Control 

Committee's aola discretion, such waiver, or alteration Is necacsary to permit affective 

utilization of a tract. Any such waiver or alteration must be in writing and recorded 

In the Offlclal Publlo Recorda of Comal County, Texas. All dweUings placed on Subject 

Property must be equipped with Class I Aerobic Septic tank system that meet all 

applicable laws, rules, standards and specifications, and all such dwellings must be 

served with water and electricity. 

Section 3.04 Usa pf Temoorarv Structural. No structure of a temporary character, 

whether trailer, motor home, basement, shack, garage, bam or other outbuilding shall 

be maintained or used on any Tract at any time as a residence, either temporarily or 

permanently, except as provided below. No Trect shall be uaed as a camping ground. 

A property owner may usa an RV camper or motor home as hlslhar temporary 

residence for up to six ( 61 months during construction provided an approved septic 

system has bean Installed and the RV camper or motor home Is placed behind the 

construction site. After the dwelling is complete an RV camper or motor home may be 

stored on the tract provided It Ia stored In compliance with Section 3.17 of the1e 

restrictions. The Declarant or the Commlttaa shall have the right to have any RV or 

motor home found to ba in violation of these raatrictions removed end stored at the 

expanse of the owner: and, for these purposea Declarant andlor the representative of 

the Committee Ia granted express written consent to remove the same without penalty 

or offense. 

The Developer resarvea the exclusive right to erect, place and maintain a mobile home, 

camper or motor home In or upon any portion of the Subdivision as In Its sola 

discretion may be necessary or convenient while selling Tracts, selling or constructing 

residences and constructing other Improvements within the Subdivision. The 

Developer Ia not raatrlctad by any of the above time constraint& in thla provision. 

Section 3.06 Repair of Buildjnga. All Improvements upon any of the Property shaD at 

all times be kept in good condition and repair and adequately painted or otherwise 

maintained by the Owner thereof. 

Section 3.06 Alteration or Removal of Improvements Any construction, other than 

normal maintenance, which altars the exterior appearance of any Improvement, or the 

removal of any Improvement, shell ba performed only with the prior written approval 

of the Architectural Control Committee. 

Section 3.07 Roofing Materiels. The roof surface of all principal and secondary 

structures Including garages and domestic living quartera shell be of slate, stone, 

concrete tile, clay tile, or other tile of a ceramic natura, composition shingles with a 

twenty-five (25) year or mora warranty; or they may ba metal, left natural or painted 

a color approved by the Architectural Control Committee, using standing or battened 

seams. The Architectural Control Committee shall have the authority and sola 

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discretion to approve other roof treatments and materials if the form utilized will be 

harmonious with the surrounding homes and subdivision as a whale. 

Section 3.08 Construction In Place. All dweiUngs constructed on the Property shall 

be built In place on the applicable Lot. The use of prefabricated materlala for any 

Improvements, Including but not limited to fences, shall be allowed only with the prior 

written approval of the Architectural Control Committee. 

Section 3.09 ~ All exterior color schemes on any structure must be approved by 

the Architectural Control Committee prior to use. 

Section 3.1 0 Model Hom11. Notwithstanding anything herein contained, Builders shell 

be allowed to construct model homes aa long aa such modal homes conform to these 

restrictions. 

Section 3.11 ~ The exterior walls of the main residence conatructed on any 

lot shall be at leaat sevanty·flve percent (76%1 masonry or masonry veneer, Inclusive 

of door, window and similar openings. However, all exterior walls exposed to view 

from the front property line shall be constructed of no lass that seventy-five percent 

(76%1 masonry or masonry veneer exclusive of all door, window or similar openings. 

Masonry and Masonry veneer lncludea atucco, ceramic tile, clay, brick, rock and all 

other materials commonly referred to In the New Braunfels, Texas area aa masonry. 

Notwithstanding this provision, log housea not meeting the above masonry 

requirements may be allowed with the prior written approval of the Architectural 

Control Committee. 

Section 3.12 Walls. foncaa, qnd Mall Boxes. Walls and fences, if any, must be 

approved prior to construction by the Architectural Control Committee and, unless 

otherwise permitted by the Architectural Control Committee, must be constructed of 

wood, metal, masonry, masonry veneer, smooth wire or barbed wire. Electric wire and 

chain link fencing shall not be permitted. All wooden fencea must be painted and the 

color of such paint muat be approved by the Architectural Control Committee. All 

individual mall boxea (If approved by the poatal department) must be of masonry 

construction and approved by the Architectural Control Committee. 

Section 3.13 Antonnat, Towera. qnd Satellite pjahal. Antennas, towarl, or sateUita 

dlshe1 of any kind shall not exceed ten feat above the roof of the Dwelling or 

Accaasory Building whichever Ia higher. Any anteMae, tower or eatelllte dish rnuat 

be located to the side or rear of the Dwelling or Accessory Building and not within 

forty feat (40'1 of any side Property line or seventy-five feet (76') of any rear Property 

line. Nothing herein shall be construed to conflict with the latest rules and regulations 

set forth by the Federal Communications Commission. 

Section 3.14 Prohibition of Offwjve Actjyitjas. No Activity, whether for profit or nat, 

shall be conducted on any Tract which Is not releted to single family residential 

purposes, unleaa said activity meets the following criteria: (a) no additional exterior 

sign of activity is pre11nt, (b) It Ia the type of action that usually happens In a home, 

(c) no additional traffic, that would not be there normally, Is created, and (d) nothing 

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dangerous Ia present that should not be there. Thla restriction is waived in regard to 

the customary sales activities required to sell homes In the Subdivision. The discharge 

or u.. of firearms is el(presllly prohibited. Hunting Is elCpresaly prohibited. Tha 

Association shall have the sola and ab10lute dlacretion to determine what constitutes 

a nuisance or annoyance. 

Section 3.15 Garbage and Trash Disposal. Garbage and trash or other refuse 

accumulated In thla Subdivision shall not be permitted to be dumped at any place upon 

adjoining land where a nuisance to any residence of this Subdivision Is or may be 

created. No Tract shall be used or maintained as a dumping ground for rubbish. 

Trash, garbage or other waste shall not be allowed to accumulate, shall be kept In 

sanitary containers and shaU be disposed of regularly. All equipment for the storage 

or disposal of such material shall be kept In a clean and sanitary condition. 

Section 3.18 Junked Motor Vehicles Prohjbjted. No tract shall be used as a depository 

for abandoned or junked motor vehicles. No junk of any kind or character shall be kept 

on any Tract. 

Section 3.17 TrajfeCJ. Rys. Boats All trailars, travel trailars, graders, recreational 

vehicles IRV's), trucks (other than pickups of a size one 111 ton or less), boats, 

tractors, campans, wagons, buses, motorcyclea, motor scooters and lawn or garden 

maintenance equipment shall be kept at all times, elCcapt when In actual use, In 

enclosed structures or screened from view from common areas, public or privata 

thoroughfares and adjacent properties. 

Section 3.18 ~. No signs, advertising, billboards or advertising atructure of any 

kind may be aracted or maintained on any Tract without the consent In writing of the 

Architectural Control Committee, elCcept one 111 professionally made sign not more 

than twenty-four Inches 124 "I by thirty Inches (30") advartislng Owner's Tract for sale 

or rant, and one 111 profesaionally made sign, not more than twelve inches 112"1 by 

twenty-four Inches 124"1 identifying the Tract owner's name or names. The term 

"professionally made algn• does not Include the plastic pre-made "for sale" or "for 

rent" signs. No algn shall be nailed to a tree. Daclarant or any member of such 

Committee shall have the right to remove any such sign, advertisement or billboard or 

structure which is placed on any Tract In violation of these reatrlctlons, and In doing 

so, shan not be liable, end are hereby elCpressly relieved from, any liability for trespass 

or other tort in connection therewith, or arising from such removal. 

Section 3. 19 Animal Husbandry. No animals, livestock or poultry of any kind shall be 

raised, bred or kept on any Tract &lCcept that one (1) horse par avery 2.5 acres may 

be kept, ea long as it doaa not become a nuisance or threat to other Owners. 

Provided, however, animals baing raised for 4-H or school sponsored prograrne will be 

permitted. No pigs or hogs will be permitted under any circumstances or programs. 

All horses, cows and 4-H animal• baing raiaed by Individual tract owners must be kept 

In e fenced araa on the owner's tract. No ovargrazlng Is permitted on any portion of 

tha lot. Dogs, cats, or other common housahold pata may be kept on a Tract. Dogs 

must be kept in a kennel, dog run, or fenced In area that confinn aald doglsl to that 

area, and for these purposes chain link fencing shall be permitted provided, however, 

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no such fenced In area shall be located adjacent to any aida, front or rear boundary 

line. Dogs will not be permitted to run loose In the Subdivision and muat be 

vaccinated for rabin according to State law once a year and registered with Comal 

County once a year. 

Section 3.20 Mineral Developmem. No commercial oil drilling, oil development 

operations, oil refining, quarrying or mining operation of any kind shall be permitted 

upon or In any Tract. No demck or other structures daigned for the uaa of boring for 

oil or natural gas shall be erected, maintained or permitted upon any Tract. 

Section 3.21 prajnage, Natural established drainage patterns of atreeta, tracts or 

roadway ditches wiU not ba Impaired by arry person or paraona. Driveway culverts 

must ba Installed and will ba of suHiclant size to afford proper drainage of ditches 

without backlog water up Into ditch or diverting flow. Drainage culvert installation Is 

subject to the inspection and approval of the Architactural Control Committee and to 

County requirements. 

Section 3.22 Ro-sybdjy!sjon. Except as provided below or as otherwise permitted In 

thea& restrictions, no tract shall be re-aubdivlded or spUt. Lots may be combined Into 

one Lot for building purposes and the Interior common boundary line shall be 

extinguished by filing a recordable document of record, joined by the Declarant, or 

Architectural Control Committee. or ita duly authorized represantstlva, declaring the 

same to be extinguished. Thereafter, aU sat back linea shall refer to the exterior 

property llna1. Combined Lots shall nevarthalasl b1 considered as separate Lots for 

assessment purposes, unless otherwise determined by tha Architectural Control 

Committee. Public utility end drainage aaaementa ara exempt from thla provision. 

Builder reserves the right to further subdivide Lot 220. Thla right Ia assignable by 

Developer at ita sole discretion. The assignment, if any, shall be executed at such 

time aa Lot 220 Ia sold by Davalopar and shall ba evidence in writing and filed of 

record, Thl8 right Is exclusive to Developer and shall not be affected by the transfer 

of architectural and property owner aaeociatlon control. 

In the evant of the failure of Owner to comply with the above requirements after ten 

(101 days written notice thereof, the Auoclatlon or their designated agents may, 

without liability to the Owner, Contractor or any occupant• of the Tract In trespass or 

otherwise, enter upon (and/or authorize one or mora othara to enter upon) said Tract, 

causa to be removed, such garbage, traah and rubbish or do any other thing necessary 

to secure compliance with this Declaration at the expanse of Owner. Payment for the 

chargae by such Owner shall be payable on the flrat day of the next calendar month. 

ARTICLE IV 

ARCHITECTURAL CQNTBOL COMM!me 

Section 4.01 Basic Control 

(a) No building or other Improvements of any character shell be erected or 

placed, or the erection or placing thereof commenced or changes made 

In the design or exterior appearance thereof (excluding, without 

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limitation. any staining, painting or aiding), or any addition or exterior 

alteration made thereto after original by construction, or demolition or 

destruction by voluntary action made thereto after originally constructed, 

on any tract in the Subdivision until the obtaining of the neca11ary 

approval (as hereinafter provided) from the Committee of the 

construction plana and specification for the construction or alteration of 

such improvements or demolition or destruction of existing improvements 

by voluntary action. Approval shall be granted or withheld besed on 

matters of compliance with the provisions of thia Instrument. 

(bl Each application made to the Committee. or to the Davalopar, shall be 

accompanied by two seta of plans and specifications for all proposed 

construction (initial or alteration) to be done on auch Tract including plot 

plana showing location on the tract. 

Section 4.02 Architectural Comrol Committee. 

(a) The authority to grant or withhold architectural control approval as 

referred to above ie initially vested In the Oavalopar; provided, however, 

the authority of the Daveloper shall caue and tarmlnate upon the election 

of the Architectural Control Committee of the Association (sometimes 

herein referred to as the "Committee"), In which avant such authority 

shall be vested In and exercised by the Committee (aa provided In (bl 

below), hereinafter referred to, e~ecept aa to plena and specifications and 

plot plans theretofore submitted to the Daveloper which shall continua to 

e~eercise auch authority over all such plana, specifications end plot plans. 

Notwithstanding, attar the Control Transfer Date, both the Davelopar and 

the Architectural Control Committae 1hall have the right to grant a 

variance from the building set-back Una restrictions. Either party may 

grant this variance as It determines In its sole discretion is needed, 

without the consent of the other. The term "Committee•, as used in this 

Declaration, shall mean or refer to the Developer or to the RIVER CHASE 

Architectural Control Committee composed of members of the 

Association, as applicable. 

(b) On or after such time as fifty-one percent (51 %1 of all of the Tracts in all 

sections of the Subdivision are conveyed by Developer I from time to time 

hereafter referred to as the "Control Transfer Data"), the Developer shall 

cause an Instrument transferring control to the Association to be placed 

of record in the Official Public Recorda of Come! County, Texea (the 

effective control Transfer Data shall be the data of its recording). 

Thereupon, the Developer shall appoint a Committee of three (31 

members to be known as the RIVER CHASE Architectural Control 

Committee who ahall serve until the next aucceeding annual meeting 

following the Control Transfer Data. From and after the Control Transfer 

Data, each member of the Committee must be an Owner of the Pro~rty 

in soma Section of RIVER CHASE. Additionally, the Developer shaft have 

the right to discontinue the exercise of architectural control privilegas and 

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arrange for the trans far to the Assoc;iatlon at any time prior to the Control 

Transfer Date by flUng a statement and Instrument to such effect in the 

Official Public Recotda of Coma! CountY, Taxa. 

Section 4.03 Effect of Inaction. Approval or disapproval aa to architectural control 

mettera aa aet forth In tha preceding provisions of thfa Declaratlon ahell be In writing. 

In the event that the authority exarc:ialng the prerog11tlve of approval or disapproval 

(whether the Developer or the Committeel falla to approve or disapprove In writing any 

plana and apeclflc:lltloM and plot plans received by it in compliance with the preceding 

provlalom within thirty (301 days following such submissions, such plana and 

apec:iflcatlona and plot plan shall be deemed approved and the construction of any 

such building and other Improvements may be cornmanced and proceeded with In 

compliance with all such plana and spec;ltlcatlona and plot plan and all of the other 

terma and provislona hereof. 

Section 4.04 Effect of Aoproyal. The granting of the aforesaid approval (whether In 

writing or by lapse of tlrna• shall constitute only an expreatlon of opinion by the 

Committee that the term• and provialone hereof shaft be complied with if the building 

and/or other Improvements are erected in accordance with said plana and 

specificatlone and plot plan; and such approvel shall not constitute any nature of 

waiver or estoppal either ae to the persona expreaaing such approval or any other 

peraon In the avant that such building and/or improvements ate not constructed in 

accordance with such plane and specifications end plot plan, but, nevertheless, fail to 

comply with the provlalona hereof, Further, no pereon exarcblng any prerogative of 

approval of disapproval shaft Incur any liabilitY by reasons of the good faith exarc;ille 

thereof. 

Section 4.05 ~ The Developer or the Committee, aa the case may be. may 

authorize variance• from compftance with any of the provllions of thllt Declaration or 

minimum acceptabto construction standard• or regulations and requirement• aa promulgated from time to time by the Developer or the Committee, when 

clrcumatancaa such 111 topography, natural obstruction•• Tract configuration, Tract 

size, hardahlp, aeathatio or environmental conalderstlona require 1 variance. Tha 

Developer and the Committee reserve the right to grant variances at to building 

set·back nn... Such variances must be evidenced in writing and shall become 

effective whan signed by the Developar or by at laest a majority ot the members of the 

Committee. If any such vlirlancea are granted, no violation of the provlslona of this 

Declaration shall be deamed to have occurred with respect to the matter for which the 

verlance Is granted; provided, however, that the granting of a vlirlance shall not 

operata to waive any of the provtslona of thla Declaration for any purpoaa except as 

to the partiCUlar Property and partlculer provlslons hereof coVered by the vlirlanca, nor 

a hall the granting of any variance affect in any way tha Owner's obligation to comply 

with all governmental law. and regulations affecting the Property concerned and the 

Plat. 

ARTICLE V 

NBBC PROPERTY OWNERS ASSOCIATION 

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Section 5.01 Mambershlo. Every person or entity who Is a record owner of any Tract 

which Ia subject to the Maintenance charge (or could be following the withdrawal of 

an exemption therefrom) and other aasenmenta provided herein, shall be a "Member" 

of the Association. The foregoing Ia not Intended to include persona or antitiea who 

hold an interest merely as sacurity for the performance of an obligation or thosa having 

only an interest In the mineral estate. No Owner ahall have mora than one membership 

for each Tract owned by such Member. Memberships shaH be appurtenant to and may 

not be separated from the ownership of the Tracta, ragardlaaa of the number of 

persona who may own a Tract (such as husband and wife, or joint tenanta, ate.) there 

shall be but one membership for each Tract. Additionally, the Directors of the 

Association must be Members of the Assoclatlon (as more particularly described in the 

By-laws). Ownership of the Tracts ahall be the aole qualification for membership. The 

voting rlghta of the Members are sat forth In the Bylawa of the Association. 

However, the Reatrlctlva covenants will not be construed as to assess the V aterens 

Land Board or the State of Texas. Any asaaumenta are the personal obligation of the 

Veteran purchaser, hla succuaors, hairs and assigns. Any lien Imposed by the 

restrictive covenanta does not affect the Veterana Land Board's Interest In the 

Property. 

Section 5.02 Non·Profjt Corooratlon, NBRC PROPERTY OWNERS ASSOCIATION, a 

non-profit corporation, has bean (or will bel organized and It shall be governed by the 

Articles of Incorporation and Bylaws of said Association; and all duties, obligations, 

benefits, Uens and rights hereunder In favor of the A11oclation shall vest In said 

corporation. 

Section 5.03 .!MutL The Association has adopted or may adopt whatever Bylawa it 

may choose to govern the organization or operation of the Subdivision and the usa and 

enJoyment of the Tracts and Common Areas, provided that the same are not In conflict 

with the terms and provisions hereof. 

Section 5.04 Owner's Rjght of Enloyment, Evvry Owner shall have a banvficial 

Interest of usa and enjoyment In and to the Common Areas and such right shall be 

appurtenant to and shall pasa with tha title to avery assessed Tract, subject to the 

following provisions: 

(a) the right of the Association, with respect to the Common Areas, to limit 

the number of guuta of Owners; 

(b) the right of the Anoclatlon, In accordance with Its Articles and Bylaws 

(and until fifty-one percent (51 %1 of all tracts in the Subdivision are 

sold), subject to the prior written approval of the Oeveloper, to Ill borrow 

money or the purpose of Improving and maintaining the Common Areas 

and facilities (including borrowing from the Developer or any entity 

affiliated with the Developer) and (iil mortgage said Property, however, 

the rights of such mortgage of said Property shall be subordinate to the 

rights of the Owners hereunder; 

(cl the right of the Association to suspend the Members voting rights and 

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the Member' a and Related User• right to use any recreational facilities 

within the Common Areas during any period In which the Maintenance 

Charge or any assestment agalnat this Tract ramalna unpaid; 

ldl the right of the Association to suspend the Mamber'a voting rights and 

the Member" a and Related Users' right to usa any recreational facintles 

within the Common Ares, after notice and hearing by tha Board of 

Dlractors, for the Infraction or violation by such Member or Related Users 

of this Declaration or the "Rules and Reguletlons', as hereinafter defined, 

which auspension shall continue for the duration of such Infraction or 

violation, plue a period not to axceed sixty (601 days following the 

cessation or curing of such Infraction or violation. 

ARnCLEVI 

MAINTENANCE FUNQ 

Section 8.01 Maintenance Fund ObUqatlon. Each Owner of a tract by acceptance 

of a dead therefore, whether or not It shall be axpreuad in any such dead or other 

conveyance, Ia deemed to covenant and agrees to pay to the Association a monthly 

maintenance charge (the "Maintenance Charge"), and any other asaassmenta or 

charges hereby levied. The Maintenance Charge and any other asaassments or 

chargee hereby levied, together with such Interest thereon and costs of collection 

thereof, as hereinafter provided, shell be a charge on the Tracts and shall be a 

continuing lien upon the Property against which each such Maintenance Charge and 

other chargee and aaseasmants ara made. 

Section 8.02 Basis of tho Malntenancg Charge. 

(a) The Maintenance Charge referred to shall bo used to create a fund to ba 

known ae the "Maintenance Fund". which shall be used as herein 

provided; and each such Maintenance Charge (except 111 otherwise 

heralnafter provided) shall be peld by the Owner of each Tract (or 

residential building site) to the Association. The Maintenance Charge for 

the year of purchase shall be pro-rated at closing and then shall be paid 

annually, In advance, on or before the first day of tha first month of each 

calendar yaer. Provided, however If such owner owne mora than one 

tract In the subdivision, such Owner shall pay only twice the aseaesment 

of one I 11 tract no matter how many tracta are owned or In the avant as 

Owner obtains consent from the Committee for a Composite Building site 

pursuant to Section 3.02 hereof, such Composite Building Site shall be 

considered for the Maintenance Charge of one Tract for beginning upon 

the completion of the Improvement& thereon. 

(b) Any Maintenance Charge not paid within thirty (30) days after the due 

data shall bear Interest from the due data at the Iasser of Iii the rata of 

eighteen percent ( 18%) per annum or (Ill the maximum rate permitted by 

law. The Association may bring an action at law against the Owner 

personally obligated to pay the same, or foreclose tha hereinafter 

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described lien against the Owner's Tract. No Owner may waive or 

otherwise escape liability for the Maintenance Charge by non-use of any 

Common Areaa or rec:reationel facilities evailllble for uae by Ownara of 

the Subdivision or by the abandonment of his tract. 

(c) The Initial amount of the Malntenanca Charge applicable to each Tract 

will be $120.00 per year due In advance, payable on January 1 of each 

year. All other mattera relating to the Maintenance Charge and the 

collection, expenditures and administration of the Maintenance Fund shall 

be determined by the Developer or the Board of Dlrectora of the 

Association, subject to the provlaiona hereof. 

ldl The Association, from and attar the Control Tranafer Date, shall have the 

further right at any time, with a majority vote of all esaoclatlon membara, 

to adjust or alter said Maintenance Charge from year to year salt deems 

proper to meat the reasonable operating expanses and reserve 

requirements of the Asaoclatlon In order for the Association to cerry out 

Its duties hereunder. 

Section 6.03 Craatjgn of Uen and Personal Obligation. In order to secure the 

payment of the Maintenance Charge, and other charges and aaaassmanta hereby 

levied, each Owner of a Tract In the Subdivision, by such party's acceptance of a 

dead thereto, hereby granta to the Association a contractual lien on such Tract which 

may ba foreclosed on by non-judicial foreclosure, pursuant to the provisions of Section 

61.002 of the Taxes Property Code (and any aucceaaor statute); end each such owner 

hereby expressly grants the Aesoclation a power of sale In connection therewith. The 

Association shall, whenever It proceeds with non-judicial foreclosure pursuant to the 

provlalona of seld Section 61.002 of the Taxae Property Code and said power of sale, 

designata In writing a Trustee to post or causa to be posted all required notlcaa of 

such foreclosure sale and to conduct such foracloaura sala. The Trustaa may ba 

changed at any time and from time to time by the Association by means of written 

Instrument axacutad by the President or any Vlce-Prallldant of the Association and filed 

for record In the Official Public Recorda of Cornel County, Taxes. In the evant that the 

Association has detarmlnad to non-judicially foreclose tha lien provided harein pursuant 

to tha provisions of said Section 51.002 of tha Texaa Property Coda and to exercise 

tha power of sale haraby granted, the Association, or the Association's agent, shall 

give notice of foreclosure sale as provided by the Texas Property Code as than 

amended. Upon request by Association, the Trustee shall give any further notice of 

foraclosura sale sa may be required by the Texas Property Coda as than amended, and 

shall convey such Tract to the highest bidder for cash by tha General Warranty Deed. 

Out of the proceeds of such sale, if any, there shaU first ba paid all expenses incurred 

by the Association In connection with such default, Including reasonable attornay'a 

teas and a reasonable truataa's faa; second, from such procaads there shall ba paid to 

the Association an amount equal to tha amount In default; and third, the remaining 

balance shall be paid to such Owner. Following any such foreoloaura, each occupant 

of any such Tract foreclosed on and each occupant of any Improvements thereon shall 

ba deemed to be a tenant at suffaranca and may be removed from possession by any 

and all lawful means, Including a judgment for poaaasslon In action of forcible detainer 

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and the Issuance of a writ of restitution thereunder. 

In the event of non-payment by any Owner of any Maintenance Charge or other charge 

or assessment levied hereunder, the Association may,ln addition to foreclosing the lien 

hereby retained, and exercising the remedies provided herein, upon ten 1101 days prior 

written notice thereof to such non-paying Owner, exercise all other rights and remedlee 

available at law or In equity. 

It Is the intent of the provisions of this 6.03 to comply with tha provisions of said 

Section 61.002 of the Texas Property Coda relating to non·judicial sale a by power of 

sale and, In the event of the emandmant of said Section 51.002 of the Taxes Property 

code hereafter, the Pre1ident or any Vice-Praaidant of the A"ociatlon, acting without 

joinder of any other Owner or mortgagee or other person may, by amendment to thla 

Declaration file In the OHiclal Public Recorda of Comal County, Texas, amend the 

provislona hereof so as to comply with said amendments to Section 61.002 of the 

Taxes Property Code. 

Section 6.04 Notice of Lien, In addition to the right of the Aseociatlon to enforce the 

Maintenance Charge or other charge or assessment levied hereunder, the Association 

may file e claim or lien against the Tra11t of the delinquent Owner by recording a notice 

("Notice of Uen") setting forth (a) the amount of the claim of delinquency, lbl the 

Interest thereon, (c) the costs of collection which have accrued thereon, (d) the legal 

description and street address of the Tract against which the lien le claimed and (a) 

the name of the Owner thereof. Such Notice of Lien shall be signed and 

acknowledged by an officer of the Association or other duly authorized agent of the 

Association. The lien shaU continue until the amounts secured hereby end all 

subsequently accruing amounts are fully paid or otherwise satisfied. When allemounta 

claimed under the Notice of Lien and all other costs and assessments which may have 

accrued subsequent to the filing of the Notice of Lien have been fully paid or satisfied, 

the Association shall execute and record a notice releasing the lien upon payment by 

the Owner of a reasonable fee as fixed by the Board of Directors to cover the 

preparation and recordation of such release of lien Instrument. 

Section 6.06 Uena Subordinate to Mortgages. The lien described In this Article VI 

shall be deemed subordinate to a first lien or other Ilene of any bank, Insurance 

company, aavinga and loan association, university, pension and profit sharing truats 

or plans, or any other third party lender, Including Developer, which may have 

heretofore or may hereafter lend money In good faith for the purchase or Improvement 

of any Tract and any renewal, extension, rearrangement or refinancing thereof. Each 

such mortgagee of 11 mortgage encumbering a Tract who obtains title to such Tract 

pursuant to the remedies provided In the deed of trust or mortgage or by judicial 

foreclosure shall take title to the Tract free and clear of any claims for unpaid 

Maintenance Chargea or other charges of assessment• against such Tract which 

accrued prior to the time such holder ecqulred title to such Tract. No such sale or 

transfer shall relieve such holder from liability for any Maintenance Cherge or other 

cherg .. or 81sessmenta thareaftar becoming due or from the lien thereof. Any other 

sale or transfer of a Tract shall not affect the Association's lien for Maintenance 

Charges or other chargee or assessments. The Aaaoclation shall make a good faith 

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effort to give each such mortgagaa sixty (601 days advance written notice of the 

Aaaoclatlon'a proposed foreclosure of lien described In Section 6.01 hereof, which 

notice shall be sent the nearest office of auch mortgagee by prepeid United States 

registered or Certified mail, return receipt requeated, and shall contain a atatemant of 

delinquent Maintenance Charges or other chargea or uaesamenta upon which the 

proposed action Ia baaed provided, however, the Aaaoclation'a failure to give such 

notice shall not Impair or lnvelldate any foreclosure conducted by the Association 

purauant to the provisions of this Article VI. 

Section 6.08 PucDO&a of the Malntrmance Charges. The Maintenance Charge levied 

by the Developer or the A11ociatlon ahaU be used exclusively for the purpose of 

promoting the recreation, health, safety, and welfare of the Ownera of the Subdivision 

which hereafter may become subject to the jurisdiction of the Association. In 

particular, the Maintenance Charge ahall be used for any Improvement or aervicaaln 

furtherance of these purposea and the performance of the Association' a duties 

described In Article VIII, Including the malntenence of any Common Areas, any 

Drainage Easements and the establishment and maintenance of a reserve fund for 

maintenance of any Common Areas. The Maintenance Fund may be expanded by the 

Developer or the Association for any purposes which, In the judgment of the 

Association, will tend to maintain the Property values in the Subdivision, Including, but 

not limited to, providing funds for the actual coat to the Association of all taxes, 

Insurance, repairs, anergy chargaa, replacement and maintenance of the Common Area 

es may from tima to tima be authorized by the Aaaoclatlon. Except for the 

Association's use of the Maintenance Charge to perform Ita duties daacribad In this 

Declaration and In the Bylaws, the usa of the Maintenance Charge for any of these 

purposes Ia permissive and not mandatory. It is understood that the judgment of the 

Association 11 to the expenditure of said fundi shall be final and conclusive so long 

as tuch judgment Ia exercised In good faith. 

Section 6.07 Handling of Malntenanet CharaOI· The collection and management of 

the Maintenance Charge or other charge or assessment levied hereunder, shall be 

performed by the Developer until the Control Transfer Date, at which time the 

Developer shall deliver to the Asaocletlon aH funds on hand together with all books and 

recorda of receipt and dlsburaements. The Devalopar end, upon transfer, the 

Anoclatlon, shall maintain aaparete special accounts for th888 funds, and Owners 

shall be provided at taut annually Information on the Maintenance Fund. 

ARTICLE VII 

DEVELOPER'S RIGHTS AND RESERVATIONS 

Section 7. 01 Par!od gf peve!gpac' 1 BIQhtl and Rtsttvlflon•· Developer shall have, 

retain and reeerve certain rlghta aa aat forth In this declaration with raapect to the 

Association and the Common Area from the dete hereof, until the earlier to occur of 

Iii the Control Transfer Date or 1111 Developer'• written notice to the AHoclatlon of 

Developer' a termination of the rights described In Article VII hereof, lese, save and 

except those rlghta set forth In Sectlona 7 .03, 7.04 and 7 .06. The rights In Sections 

7 .03, 7,04 end 7.06 shall be released et such time as 11 document relinquishing a aid 

rights Ia filed of record or the developer no longer holds record title to any Iota In the 

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subdivision. The rights and reservations hereinafter set forth shall be deemed 

excepted and reserved In each conveyance of a Tract by Developer to an Owner 

whether or not apacifically stated therein and In each dead or other Instrument by 

which any Property within the Control Area Is conveyed by Developer. The rights, 

reservations and easemanta hereafter set forth ahaU be prior and superior to any other 

provisions of thla Declaration and may not, without Developer's prior written consent, 

be modified, amended, rescinded or affected by any amendment of this Declaretlon. 

Developer's consent to any one auch amendment shall not be construed as a consent 

to any other or aubaequent amendment. 

Section 7.02 Bight to Cgnstruct Mdit!pnollmprovomentaln Common Area, Developer 

shall have and hereby reaervn the right !without the consent of any other Owner), 

but shall not be obligated to construct additional Improvements within the Common 

Area at any time and from time to time In accordance with this Declaration for the 

Improvement and anhancemont thereof and for tho benefit of the Aeaoclatlon and 

Ownera, so long oa such construction does not directly result In the Increase of such 

Maintenance Charge. Developer shall, upon the Control Transfer Date, convey or 

transfer such Improvements to the Association and the Association shall bo obligated 

to accept tltlo to care for and maintain the same aa olsewhera provided in this 

Declaration. 

Section 7.03 Develgpgr'a Bights tg Use Common Areas jn P,omotlon and Marketing 

gf thg Proportv. Developer shall have and hereby raservea the right to reasonable use 

of the Common Area and of services offered by the Aaaoclatlon In connection with the 

promotion and marketing of land within the boundaries of the Property. Wrthout 

limiting the generality of the foregoing, Developer may erect and maintain on any part 

of the Common Area such signa, temporary building• and othar structures as 

Developer may reasonably deem necessary or proper in connection with the promotion, 

development and marketing of land within the Property; may usa vehicles and 

equipment within the Common Area for promotional purposes; and may permit 

prospective purchaaera of Property within the boundaries of the Property, who era not 

Owners or Mambera of tho Association, to usa the Common Area at reaaonable times 

and In reaaonable numbers; and may refer to the aervicea offered by the Association 

In connection with the development, promotion and marketing of the Property. 

Section 7.04 Qgyeloper's Rights tg Grant and Creetg Easements Developer shall have 

and hereby reaerves the right, without the consent of any other Owners or the 

Association, to grant or create temporary or permanent easements, for access, 

utllltlea, pipeline easement, cable ta!evlslon systems, communication and aecuritv 

system&, drainage, water and other purposes Incidental to development, sale, 

operation and maintenance of the Subdivision, located In, on, under, over and across 

(I) the Tracts or other Property owned by Developer, (ill the Common Area, and liill 

existing utility easements. Developer also reserves the right, without the consent of 

any other Owner or the Association, to (I) grant or create temporary or permanent 

easements for access over and across the streets and roads within the Subdivision. 

Section 7.05 Deva!goer's Rights tg Cgnygy Additional Cgmmgn Area tg the 

Assocjatlgn. Developer shall have and hereby reserves the right, but shall not be 

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obligated to, convey additional real Property and Improvement& thereon, If any, to the 

Aseoclatlon as Common Area at any time and from time In accordance with this 

Declaration, without the consent of any other Owner or the Auociatlon. 

Section 7.06 Annexation of Additional Areas. Developer may causa additional real 

property to be annexed to the Property, by caua!ng a written Annexation Declaration 

confirming the annexation thereof, adopting these Restrictions, to be placed of record 

In the Official Public Records of Camel County, Texas. At that point the annexed 

property ahaU bec:ome a part of this Subdivision and shall be subject to all of the 

Restrictions herein set forth the same aa If originally Included. No consent shall be 

required of the Asaocletlon or any Member thereof, each Owner baing deemed to have 

appointed Developer as hla agent and attorney·ln-fact to effect this Annexation, which 

power hereby granted to Developer Is and shall b.- a power coupled with an lntereat. 

Thereaftar the Association shall be the Association for the entirety of the Subdivision, 

the same aa It the Property ware Included In the first instance. The Owner of the 

Annexed Property shall be subject to these Reatrictlons and shall be a member of the 

Association and shall be entitled to all of the rights and benefits provided members. 

ARTICLE VIII 

QUilES ANP POWERS OF THE PROPERTY OWNERS ASSOCIATION 

Section 8.01 General Qut!oa and powora of the A§loc!ation. The Assocletlon has 

been formed to further the common Interest of the Members. The Assocletlon, acting 

through the Board of Dlractora or through persona to whom the Board of Directors has 

delegated such powers (and subject to the provisions of the Bylaws), shall have the 

duties and powere hereinafter lit forth and, in general, the power to do anything that 

may ba naceS&ary or desirable to further the common Interest of the members, to 

maintain, Improve and enhance the Common Areas and to Improve and enhance the 

attractiveness, desirability and safety of the Subdivision. The Aaaoclatlon shall have 

the authority to act 111 the agent to enter into any and all contracts on behalf of the 

Members In order to carry out the dutiel, powers and obligations of the Association 

as sat forth In this Declaration. 

Section 8.02 Dutv to Accent tba Property and Eacj!it!es Ironstaaoct bv Deyaloptr. 

The Aaeoclatlon shall accept title to any Property ,Including any Improvements thereon 

and personal property transferred to the Association by Developer, and equipment 

related thereto, together with the responsibility to perform any and all edmlnlstrative 

function• and recreation functions associated therewith (collectlvaly herein referred to 

as "Functions"), provided that such Property and Functions are not lncon•lstant with 

the tsrma of this Declaration. Property Interest transferred to tha Association by 

Developer may Include faa simple title, easements, leasehold Interests and llcenaea to 

usa such Property. Any Property or interest In Property transferred to the Association 

by Developer ahaU be within the boundaries of tha Property. Any Property or lntareat 

in Property transferred to the Association by Developer shall, except to the extent 

otherwise specifically approved by resolution of the Board of Directors, be transferred 

to the Association free and clear of all liens and mortgages (other than the lien for 

Property taxes and asse&lilments not than due and payable), but shall be subject to tha 

terme of this Declaration, the terms of any declaration of covenants, conditions and 

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restrictions llllflexlng such Property to the Common Area, and ell euamenu, 

covenanu, conditions, restrictions and equitable servitude or other encumbrances 

which do not materially affect the Owners authorized to use such Property. Except 

as otherwlae specifically approved by raaolutlon of the Board of Directors, no Property 

or Interest In Property transferred to the Association by the Developer shall Impose 

upon the Association any obligation to make monetary paymanU to Developer or any 

affiUata of Developer Including, but not limited to, any purchase price, rent, charge or 

faa. The Property or Interest In Property transferred to the Aeeaclatlon by Developer 

shall not Impose any unreuonable or special burdens of ownership of Property, 

Including the management maintenance, replacamant and operation thereof. 

Section 8.03 Puty to Maoage and Care fgr the Common Area. The Aasociatlon shall 

manage, operate, care for, maintain and repair all Common Areu and keep the same 

in e safe, attrectlva and desirable condition for the use and enjoyment of the Membare. 

The duty to operate, manage and maintain the Common Araaa shall Include, but not 

be limited to the following: establishment, operation and maintenance of a security 

ayatam, If any, for the Subdivision; landacaplng maintenance, repair and replacement 

of park, end management, maintenance, repair end upkeep of the subdivision 

entrances and other common areas. 

Section 8.04 Other lnsyranca Bgnds, The Association shall obtain such insurance 

as may be required by law, Including workman's compenaation insurance, and shall 

have the power to obtain such other Insurance end such fidelity, Indemnity or other 

bonde as the Aaaociatlon shall deem nacassery or daalrebla. 

Section 8.05 Putv tp Prepare Budgets, The Aaaoclation shall prepare budgets for the 

Association, which budgeU shall include a reserve fund for the maintenance of all 

Common Araaa. 

Section 8.06 pyty tg law and Cgllact the Ma!ntananca Charqa, The Asaociatlon 

shall levy, collect and enforce the Maintenance Charge and other chargea and 

assessment• 11 elsewhere provided In this Declaration. 

Section 8.07 Dyly to Proy!da Annyal Review. The Association shall provide for an 

annual unaudited Independent review of the accounts of the Association. Copies of 

tha review shall be made available to any Member who requeau a copy of the same 

upon payment by such Member of the reasonable coat of copying the same. 

Section 8.08 Putlas wjtb Basooct to Arcbjtocwral Approyals. Tha Association shall 

perform functions to assist the Committee as elsewhere provided In Article IV of this 

Declaration. 

Section 8.09 Power to Acgyjra P,gporty and Cpnstruct lmprgyomwa The 

Association may acquire Property or an Interest In Property (Including leases) for the 

common benefit of Ownara Including Improvements and personal property. The 

Association may construct Improvements on the Property end may demolish existing 

lmprovemanta. 

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Section 8.10. Power to Adopt Byles and Regulations. The Association may adopt, 

amend, repeal and enforce rulea and regulationa ("Rulaund Begulationa"), flnaa,!evlea 

and enforcement provlaiona aa may be deemed necessary or desirable with respect to 

the interpretation and Implementation of thla Declaration, the oparetlon of the 

Association, the use and enjoyment of tha Common Areas, and the usa of any other 

Property, fac!l!tlas or Improvements ownad or operetad by the Association. 

Section 8.11 Powtr to Enforce Bastdct!qns and Byfgs grul Bpgulations. The 

Association (end any Owner with respect only to the ramedlaa described In (Ill below) 

shall have the power to enforce the provisions of this Declaration and the Rulaa and 

Regulations and 1hall taka such action as the Board of Directors daema necessary or 

desirable to caun such compliance by each Member and each Related User. Without 

limiting the ganeralltv of the foregoing, the Association aha!! have the power to enforce 

the provlalona of thla Declaration and of Rulaa and Raguletlona of the Asaoolatlon by 

any one or mora of the following means: Ill By entry upon any Property, excluding 

main residence, within the Subdivision after notice and haerlng (unless a bona fide 

emergency axiata in which event this right of entry may be exercisad without notice 

(written or oral) to the Owner In such manner to avoid any unraa1onabla or 

unnecetsary lntarfersnca with the lawful poussaion, usa or enjoyment of the 

Improvements situated thereon by the Ownar or any other parson), without !lability 

by the Association to the Owner thereof, for the purpose of enforcement of this 

Declaration or the Buies and Regulations; (iii By commencing and maintaining actions 

and sulta to restrain and enjoin any breach or threataned breach of the provialons of 

thle Declaration or the Rulea and Regulationa; (iii) By exclusion, after notice and 

hearing, of any Member of Related User from usa of any recreational facilities within 

the Common Areas during and for up to sixty (60) days following any breach of this 

Declaration or auch Rules and Regulatlona by such Member or any Relatad User, 

unless the breach Is e continuing breach in which case axcluslon shall continua for so 

long as such breach continuea; (lv) By suspension, after notice and hearing, of the 

voting rlghta of a Member during and for up to sixty (801 days following any breach 

by auch Membar or a Related User of a provision of this Declaration or such Rules and 

Regulation•, uniau the breach i1 a continuing breach in which casa IIUCh suspension 

shall continua for so long ss auch breach contlnuea; (vi By levying and collecting, after 

notice and hearing, an asnssmant against any Member for breach of thl1 Declaration 

or such Rulea end Regulations by such Member or a Belated User which asaaument 

reimbursed the Association for the costa Incurred by the Association In connection 

with such breach; (vii by levying and collecting, after notice and hearing, raesonable 

and uniformly applied flnaa and penaltl .. , established in edvanca In the Rulee and 

Regulation• of the Association, from any Member or Related User for breach of this 

Declaration or auch Rules and Ragulatlon• by such Member or • Belated User; and (viii 

By taking action Itself to cure or abate such violation and to charge the expanse• 

theraof, if any, to such vlcletlng Members, plus attorney'a faas Incurred by the 

Association with respect to exercising such remedy. 

Before the Board may invoke the remediet provided above, it aha!! give registered 

notice of such alleged violation to Owner, and shall afford the Owner a hearing. If, 

after tha hearing, a violation is found to exist, the Board's right to proceed with the 

l!stad ramadlet shall become absolute. Each day a violation continues aha!! ba deemad 

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a separate violation. Failure of the Association, the Developer, or of any Owner to 

taka any action upon any breach or dafault with respect to any of tha foregoing 

violations shall not ba deemed a waiver of their right to take enforcement action 

thereafter or upon a subsequent breach or default. 

Section 8. 12 Power to Grant Easomenta, In addition to any blanket easemenw 

described In this Dacleratlon, the A88ociatlon shall hava the power to grant accesa, 

utility, drainage, water facilhy and other easements in, on, over or under the Common 

Area. 

ARTICLE IX 

GENERAL PROVISIONS 

Section 9.01 Imn. The provisions hereof shall run with all Property In RIVER CHASE 

UNIT THREE and shall be binding upon all Owners and all persons claiming under them 

for a period of forty 1401 years from the data this Declaration Ia recorded, after which 

time said Declaration shall be automatically extended for succesalva periods of ten (1 0) 

years each, unless an Instrument, signed by not leas than two-thirda 12/3rdsl of the 

Owners (Including the Developer) of the Tracts has bean recorded agreeing to amend 

or change, In whole or In part, this Declaration. 

Section 9.02 Amendments. This Declaration may be amended or changed, In whole 

or in part, at any time by the written agreement or by signed ballots voting for such 

amendment, of not less than two-thirds 12/3rdal of ell of the Ownere (Including 

Developer) of the Subdivision. There shall be one vote per Tract. Anyone owning 

mora than one Tract shall have one vote for each Tract owned. If the Declaration Is 

amended by a written Instrument signed by those Ownera entitled to cast not leas than 

two-thirds 12/3rdsl of all of the votes of the Owners of the Association, such 

amendment must be approved by said Ownera whhln three hundred sixty-five 1365) 

days of tha data the first Owner executea such amendment. Tha data an Owner's 

signature Is acknowledged shall constitute prima facia evidence of the data of 

execution of said amendment by such Owner. Those Members (Ownara, Including the 

Devaloparl entitled to cast not lasa than two-thirds (2/3rdsl of all of the votes of the 

Membere of the A .. oclatlon may also vote to emend thla Declaration, In person, or by 

proxy, at a meeting of the Members IOwnars, Including tha Oecfarant) duly called for 

such purpoaa, written notice of which shall be given to all Ownefl et least ten (1 01 

days and not mora then sixty 1601 days in advance and ahallaet forth the purpose of 

such meeting, Notwithetandlng any provision contained In the Bylaws to the Contrary, 

a quorum, for purposes of such meeting, shall consist of not less than seventy percent 

(70%1 of all of the Mambara lin parson or by proxy) entitled to vote. Any such 

amendment shall become effective when an Instrument Ia filed for record In the Official 

Publlo Records of Comal County, TeKal, accompanied by a certificate, signed by a 

majorhy of the Board of Trustees, stating that the required number of Members 

(Owners, Including the Developer) executed the Instrument amending this Declaration 

or cast a written vote, In pereon or by proxy, In favor of said amendment et the 

meeting called for such purpo... Copies of the written ballots pertaining to such 

amendment shall be retained by the Association for a period of not less than thraal31 

years after the data filing of the amendment or termination. 

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Section 9.03 Amendment by the Dgyalooar. The Developer shall have and raaarvas 

the right at any time and from time to tima prior to the Control Tranafar Data, without 

the joinder or consent of any Owner or otbar party, to amend thle Declaration by an 

Instrument In writing duly signed, acknowledged, and filed for record for the purpose 

of correcting any typogrephlcal or grammatical error, oversight, ambiguity or 

lnconslatency appearing herein, provided that any such amendment shall be consistent 

with and In furtherance of the general plan and achama of development as evidenced 

by this Declaration and shall not impair or adveraely affect tha vested Property or other 

rigbtl of any Owner or his mortgagae. Additionally, Developer shall have and reserves 

the right at any time and from tlma to tlma prior to the Control Tranafer Date, without 

the joinder or consent of any Owner of other party, to amend thla Declaration by an 

Instrument In writing duly signed, acknowledged and filed for record for the purpose 

of permitting the Owners to enjoy the benefits from technological edvancas, such as 

security, communications or anergy-related davlcaa or equipment which did not al!lsta 

or ware not In common usaln residential subdivisions at the time this Declaration was 

adopted. Ukewise, the Developer shall have and re10rvas the right at IJ/tiY time and 

from time to time prior to the Control Transfer Date, without the joinder or consent of 

any Owner or other party, to amend this Declaration by an Instrument In writing duly 

signed, acknowledged and filed for record fcir the purpose of prohibiting the usa of any 

device or apparatus developed and/or avaDable for residential usa following the data 

of this Declaration if the use of euch device or apparatus will adverealy affect the 

Asaoclatlon or wiH adversely affect the Property values within the Subdivision. 

Section 9.04 Severability. Each of the provisions of this Daclaratlon shall be deemed 

Independent end severable and the invalidity or unenforcaabillty or partial invalidity or 

partially unenforcaablllty of any provision or portion hereof shall not affect the validity 

or enforceability of any other provision. 

Section 9.05 Uberallntgroretatjon. The provisions of this Declaration shall be liberally 

construed as a whole to effectuate the purpose of thla Declaration. 

Section 9.08 Succa11ors and Ats!qns. The provisions hereof shall be binding upon 

and Inure to the benefit of the Owners, the Developer and the Association, and their 

respective hairs, legal rapresentatlvae, executora, administrators, successors and 

assigns. 

Section 9.07 Effect of Ylolotions on Mortgages. No violation of the provisions herein 

contained, or any portion thereof, shall affect the lien of any mortgage or dead of trust 

pra10ntly or hereafter placed of record or otherwise affect the rights of the mortgagee 

under any such mongage, the bolder of any such lien or beneficiary of any such deed 

of trust; and any such mongage, lien or dead of trust may, nevarthela88, be enforced 

In accordance with its terms, subject, naverthelesa, to the provisions herein contained. 

Section 9.08 Terminology All personal pronoune used In this Declaration and all 

exhibits attached berato, whether used In the masculine, feminine or neuter gander, 

sbaU Include all other ganders; the singular aballlnclude the plural and vice versa. Title 

of Articles and Section• are for convenience only and neither limit nor amplify tha 

provisions of this Declaration Itself. The terms "herein", "hereofft and similar terms, as 

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used in this instrument~ refer to the entire agreement and are not limited to referring 

only to the specifiC paragraph, Section or article In which auch tarma appear. All 

reference• In this Declaration to Exhibltl shall refar to the Exhiblta attached hereto. 

VEIEBAN PI,IRCHASER PABDAL RELEASE 

Notwithstanding anything contained In the Restrictions to the contrary, a Veteran 

Purchaser shall be entitled to have a 1. 00 acre tract released from the V etarana Land 

Board for a home Bite and same shall not be construed as a violation of the above 

Restrictive Covenants. 

IN WITNESS WHE~EOF, the und,raigned, being the Developer herein, has hereunto sat 

Its hand of this~ day of )_.;>J v•-kL , 1999. 

TEXAS SOUTHERLAND VENTURE, a Massachusetts Joint V. re by 

SOUTHERLAND P ERT S, INC. 

a Texas C , Join Venturer 

ON, Vice President 

~:.ra603162a 

m: 1~::1J't!'" AI 

THE STATE OF TEXAS 2J~I af 

~ ~s COUNTY OF Y"l)4c • COUIIIT 

Thle inttrument waa acknowledged before me on thl• the " ~ day of 

lL-Ii<r,L."c , 1999, by JAY PATTERSON, Vice President of SOUTHERLAND 

PROPERTIES, INC., a Taxaa Corporation, as Joint Venturer for TEXAS SOUTHERLAND 

VENTURE, a Ma11achusett1 Joint Venture. In the capacity therein stated, on behelf 

of said Corporation. 

AFTER RECORDING RETURN TO: 

BOB R. KIESUNG, P.C. 

P. 0. Box 3l1688 

New Braunfela, TX 78131·1686 

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N~ .i:~f~a~. ~Ari'o~-TEXAS Nort:tm• ~~~t: ... g .. ._ 

My Commitlon Expires: tV·i:l·:;..lJ<'<• 

87 
APPENDIX

Tab 3

Tex. Prop. Code §§ 202.002, 202.003
PROPERTY CODE

TITLE 11. RESTRICTIVE COVENANTS

CHAPTER 202. CONSTRUCTION AND ENFORCEMENT OF RESTRICTIVE 

COVENANTS

* * *

Sec. 202.002. APPLICABILITY OF CHAPTER. (a) This chapter applies to all restrictive 

covenants regardless of the date on which they were created.

(b) This chapter does not affect the requirements of the Community Homes for Disabled Persons 

Location Act (Article 1011n, Vernon's Texas Civil Statutes).

Added by Acts 1987, 70th Leg., ch. 712, Sec. 1, eff. June 18, 1987.

Sec. 202.003. CONSTRUCTION OF RESTRICTIVE COVENANTS. (a) A restrictive 

covenant shall be liberally construed to give effect to its purposes and intent.

(b) In this subsection, "family home" is a residential home that meets the definition of and 

requirements applicable to a family home under the Community Homes for Disabled Persons 

Location Act (Article 1011n, Vernon's Texas Civil Statutes). A dedicatory instrument or 

restrictive covenant may not be construed to prevent the use of property as a family home. 

However, any restrictive covenant that applies to property used as a family home shall be 

liberally construed to give effect to its purposes and intent except to the extent that the 

construction would restrict the use as a family home.

Added by Acts 1987, 70th Leg., ch. 712, Sec. 1, eff. June 18, 1987.

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