Facts

In 2016, Plaintiff sent Defendants a letter telling them that the dog-breeding building (“kennel”) they built violated the restrictive covenants of the Texas association. The restrictions had been recorded in 1981. The letter stated that the kennel constituted a “noxious or offensive activity.” Defendants tried sound proofing the kennel in response. Plaintiff’s then sued seeking a declaration that the restrictions were valid and enforceable. Defendants pled waiver and abandonment.

Question/Issue for the Court to Answer

Whether or not the restrictions were enforceable.

Trial Court

Denied the Plaintiffs requests to enforce the deed restrictions at issue because 33 of the 43 lots in the association violate the restrictions in some respect.

Appeals Court
  1. The evidence was sufficient to support the Defendants arguments that the right to enforce had been waived.
  2. The fact that the restrictions had been “repeatedly and pervasively violated over the thirty-five-year period” further supported the waiver argument.
Lessons
  1. You can’t selectively enforce restrictions; and
  2. If you are going to change course and start enforcing after a period of non-enforcement, at a minimum provide everyone notice and enforce against ALL violators at the same time.

Densmore v. McCarley ___ SW Rptr ___ (2020 WL 1293696)

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