Neighborhood restriction on commercial businesses

[freeflyer]

Jurisdiction

Texas

Hello

I live in a somewhat rural neighborhood that has these restrictions from the original developers: "no hog farms and no commercial businesses". Despite this, we have plenty of businesses in the hood (not cottage businesses). They range from a wedding venue, to a metal fabrication plant, to RV parks and other multi-door rental units (that were erected solely to be rentals). The self-anointed neighborhood watchdog (who also happens to be buddies with the metal fab guy), has said that his attorney told him that for a business to be prohibited in the neighborhood, it would have to be "open to the public", e.g. a retail business. Because of this, he claims the metal fab guy is exempt from the covenant. He does have 2 dedicated commercial structures for his business as well as employees and suppliers that come and go on a daily basis, and a parking lot. In fact, these buildings were erected even before his home was built. He states that there is legal precedent on this and that any legal challenge to metal fab guy would go down in flames. I'm trying to find out what is legally correct in the state of Texas. Thank you.

 

[army judge]

I'm trying to find out what is legally correct in the state of Texas. Thank you.

If THAT is what you seek, it can ONLY be achieved by retaining the services of an attorney licensed to practice law in the Republic of Texas.

 

[adjusterjack]

I live in a somewhat rural neighborhood that has these restrictions from the original developers: "no hog farms and no commercial businesses".

Can't help you without reading the recorded deed restrictions.

Feel free to upload a copy for further comment.

 

[freeflyer]

Can't help you without reading the recorded deed restrictions.

Feel free to upload a copy for further comment.

uploaded, let me know if this helps

 

[adjusterjack]

1 - Date the document was recorded.
2 - I'm guessing that the "undersigned" was the developer and every lot has the same restrictions. Confirm please. Is the developer still around.
3 - Do any of the businesses in the subdivision have the recorded consent of the developer? You'll have to check recorded documents for each lot to find out. That's important. If any of them do have recorded consent there would be nothing anybody can do about it.

General information from my own experience with deed restrictions. YMMV.

Deed restrictions generally are written to allow individual property owners to enforce the restrictions by litigating against a violator. This one does not contain that provision so I think that individual owners do not have standing to sue for violations of the deed restrictions. They may have to rely on private nuisance (google it) lawsuits against offending businesses if appropriate.
Such lawsuits won't get rid of the businesses but could result in abating any behavior that has a disturbing effect on other owners.

I have read case law in my state that provides a defense to violators of deed restrictions. If non-conforming use is unchallenged and the percentage of non-conforming use grows enough to change the over-all nature of the subdivision, then the non-conforming use cannot be successfully challenged.

You would have to check Texas appellate case law to see if that defense applies to Texas deed restrictions. A real estate attorney can probably answer that question quickly.

Your "self-appointed neighborhood watch dog" may be right about a challenge going down in flames but not necessarily for the "open to the public" reason.

 

[freeflyer]

View attachment 4597

1 - Date the document was recorded.
2 - I'm guessing that the "undersigned" was the developer and every lot has the same restrictions. Confirm please. Is the developer still around.
3 - Do any of the businesses in the subdivision have the recorded consent of the developer? You'll have to check recorded documents for each lot to find out. That's important. If any of them do have recorded consent there would be nothing anybody can do about it.

General information from my own experience with deed restrictions. YMMV.

Deed restrictions generally are written to allow individual property owners to enforce the restrictions by litigating against a violator. This one does not contain that provision so I think that individual owners do not have standing to sue for violations of the deed restrictions. They may have to rely on private nuisance (google it) lawsuits against offending businesses if appropriate.
Such lawsuits won't get rid of the businesses but could result in abating any behavior that has a disturbing effect on other owners.

I have read case law in my state that provides a defense to violators of deed restrictions. If non-conforming use is unchallenged and the percentage of non-conforming use grows enough to change the over-all nature of the subdivision, then the non-conforming use cannot be successfully challenged.

You would have to check Texas appellate case law to see if that defense applies to Texas deed restrictions. A real estate attorney can probably answer that question quickly.

Your "self-appointed neighborhood watch dog" may be right about a challenge going down in flames but not necessarily for the "open to the public" reason.

Thanks for the info!
The neighborhood was established in the 1950's and the developer died long ago according to long-time residents. All of the businesses are fairly recent (at least the ones in question), so there is no way they have the consent of the developer.

 

[adjusterjack]

Give me a count.

Total number of lots in the subdivision.

Number of businesses.

How many years since the first business was started?

 

[welkin]

Thanks for the info!
The neighborhood was established in the 1950's and the developer died long ago according to long-time residents. All of the businesses are fairly recent (at least the ones in question), so there is no way they have the consent of the developer.

Anybody that owns property in the subdivision has standing to enforce the deed restriction whether or not there is an enforcement clause in the deed . But the points raised and questions asked by Adjusterjack are all valid.

Here we are talking about a 73 year-old convenient, where apparently there has not been any challenges to enforce it or at least, none that you have found and reported.

Depending on when the first commercial use was established with no challenge, the Texas courts might determine that the convenient has been abandoned.

—a court may refuse to enforce a restrictive covenant "because of the acquiescence of the lot owners in such substantial violations within the restricted area as to amount to an abandonment of the covenant or a waiver of the right to enforce it."
- in Musgrove v. WESTRIDGE STREET PARTNERS I, LLC, 2009 and 18 similar citations

So I suggest you do your best due diligence and search all the records in your county registrar's office and then consult with a land use attorney in your local area.

 

[adjusterjack]

That's what I'm talking about. Thank you.

 

[welkin]

All of the businesses are fairly recent (at least the ones in question)

This may be the only saving grace for OP. But it obviously depends on the history and a commercial use is still a business no matter how small it may be.

 

[freeflyer]

This may be the only saving grace for OP. But it obviously depends on the history and a commercial use is still a business no matter how small it may be.

Actually, in addition to the ones previously mentioned, there are several that have been around for years, decades even. There are probably 15 businesses operating here (not including the many cottage businesses) in a neighborhood of about 250 homes. I kind of figured that "silence equals consent" would apply in this situation, but wanted to see realistically if some of the really annoying and obvious violators could be convinced to set up shop elsewhere. And I was really quite curious (and skeptical) about the "open to the public" thing that our savior has been spouting to protect his pals. Thanks for all of your input.

 

[adjusterjack]

wanted to see realistically if some of the really annoying and obvious violators could be convinced to set up shop elsewhere.

Not without litigation. Litigation costs lots of money with no guarantee of success.