CHAPTER 201. RESTRICTIVE COVENANTS APPLICABLE TO CERTAIN SUBDIVISIONS
PROPERTY CODE
TITLE 11. RESTRICTIVE COVENANTS
CHAPTER 201. RESTRICTIVE COVENANTS APPLICABLE TO CERTAIN
SUBDIVISIONS
Sec. 201.001. APPLICATION. (a) This chapter applies to a
residential real estate subdivision that is located in whole or
in part:
(1) within a city that has a population of more than 100,000, or
within the extraterritorial jurisdiction of such a city;
(2) in the unincorporated area of:
(A) a county having a population of 2,400,000 or more; or
(B) a county having a population of 30,000 or more that is
adjacent to a county having a population of 2,400,000 or more; or
(3) in the incorporated area of a county having a population of
30,000 or more that is adjacent to a county having a population
of 2,400,000 or more.
(b) The provisions of this chapter relating to extension of the
term of, renewal of, or creation of restrictions do not apply to
a subdivision if, by the express terms of the instrument creating
existing restrictions, some or all of the restrictions affecting
the real property within the subdivision provide:
(1) for automatic extensions of the term of the restrictions for
an indefinite number of successive specified periods of at least
10 years subject to a right of waiver or termination, in whole or
in part, by a specified percentage of less than 50 percent plus
one of the owners of real property interests in the subdivision,
as set forth in the instrument creating the restrictions; or
(2) for an indefinite number of successive extensions of at
least 10 years of the term of the restrictions by written and
filed agreement of a specified percentage of less than 50 percent
plus one of the owners of real property interests in the
subdivision, as authorized by the instrument creating the
restrictions.
(c) The provisions of this chapter relating to addition to or
modification of existing restrictions do not apply to a
subdivision if, by the express terms of the instrument creating
the restrictions, the restrictions affecting the real property
within the subdivision provide for addition to or modification of
the restrictions by written and filed agreement of a specified
percentage of less than 75 percent of the owners of real property
interests in the subdivision, as set forth in the instrument
creating the restrictions. A subdivision is excluded under this
subsection regardless of whether a provision in the restrictions
requires the consent of the developer of the subdivision or an
architectural control committee for an addition to or
modification of the restrictions.
(d) A residential real estate subdivision that is or was subject
to this chapter at any time remains subject to this chapter
regardless of a change in circumstances that removes the
subdivision from the applicability requirements of Subsection
(a).
Added by Acts 1985, 69th Leg., ch. 309, Sec. 1, eff. Sept. 1,
1985. Amended by Acts 1987, 70th Leg., ch. 712, Sec. 2, eff. June
18, 1987; Acts 1989, 71st Leg., ch. 556, Sec. 1, eff. June 14,
1989; Acts 1991, 72nd Leg., ch. 821, Sec. 1, eff. Sept. 1, 1991;
Acts 1997, 75th Leg., ch. 451, Sec. 1, eff. Sept. 1, 1997; Acts
1997, 75th Leg., ch. 451, Sec. 2, eff. Sept. 1, 1997; Acts 1999,
76th Leg., ch. 1127, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch.
1004, Sec. 1, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1367, Sec. 3, eff. September 1, 2007.
Sec. 201.002. FINDINGS AND PURPOSE. (a) The legislature finds
that:
(1) the pending expiration of property restrictions applicable
to real estate subdivisions in municipalities and in the
extraterritorial jurisdiction area of municipalities where there
is no zoning creates uncertainty in living conditions and
discourages investments in affected subdivisions;
(2) owners of land in affected subdivisions are reluctant or
unable to provide proper maintenance, upkeep, and repairs of
structures because of the pending expiration of the restrictions;
(3) financial institutions cannot or will not lend money for
investments, maintenance, upkeep, or repairs in affected
subdivisions;
(4) these conditions cause dilapidation of housing and other
structures and cause unhealthful and unsanitary conditions in
affected subdivisions, contrary to the health, safety, and
welfare of the citizens; and
(5) the existence of racial covenants in subdivisions,
regardless of their unenforceability, is offensive, repugnant,
and harmful to members of racial or ethnic minority groups, and
public policy requires that these covenants be deleted.
(b) The purpose of this chapter is to provide a procedure for
extending the term of, creation of, additions to, or modification
of restrictions and to provide for the removal of any restriction
or other provision relating to race, religion, or national origin
that is void and unenforceable under either the United States
Constitution or Section 5.026.
Added by Acts 1985, 69th Leg., ch. 309, Sec. 1, eff. Sept. 1,
1985.
Sec. 201.003. DEFINITIONS. In this chapter:
(1) "Restrictions" means one or more restrictive covenants
contained or incorporated by reference in a properly recorded
map, plat, replat, declaration, or other instrument filed in the
county real property records, map records, or deed records.
(2) "Residential real estate subdivision" or "subdivision"
means:
(A) all land encompassed within one or more maps or plats of
land that is divided into two or more parts if the maps or plats
cover land within a city, town, or village, or within the
extraterritorial jurisdiction of a city, town, or village and are
recorded in the deed, map, or real property records of a county,
and the land encompassed within the maps or plats is or was
burdened by restrictions limiting all or at least a majority of
the land area covered by the map or plat, excluding streets and
public areas, to residential use only; or
(B) all land located within a city, town, or village, or within
the extraterritorial jurisdiction of a city, town, or village
that has been divided into two or more parts and that is or was
burdened by restrictions limiting at least a majority of the land
area burdened by restrictions, excluding streets and public
areas, to residential use only, if the instrument or instruments
creating the restrictions are recorded in the deed or real
property records of a county.
(3) "Owner" means an individual, fiduciary, partnership, joint
venture, corporation, association, or other entity that owns
record title to real property in a subdivision, or the personal
representative of an individual who owns record title to
subdivision property.
(4) "Petition" means one or more instruments, however designated
or entitled, by which one or more of the purposes authorized by
this chapter are sought to be accomplished.
(5) "Real property records" means the applicable records of a
county clerk in which conveyances of real property are recorded.
(6) "Lienholder" means an individual, corporation, financial
institution, or other entity that holds a vendor's or deed of
trust lien secured by land within the subdivision.
(7) "Petition committee" or "committee" means a group of three
or more owners who file with the county clerk a notice as
required by Section 201.005(a) and who prepare and circulate a
petition as allowed under this chapter.
Added by Acts 1985, 69th Leg., ch. 309, Sec. 1, eff. Sept. 1,
1985. Amended by Acts 1991, 72nd Leg., ch. 822, Sec. 2, eff.
Sept. 1, 1991.
Sec. 201.004. EXTENSION, RENEWAL, CREATION, MODIFICATION OF, OR
ADDITION TO, RESTRICTIONS. (a) A petition may be filed under
this chapter to:
(1) extend or renew an unexpired restriction;
(2) create a restriction;
(3) add to or modify an existing restriction; or
(4) modify an existing provision in an instrument creating a
restriction that provides for extension of those restrictions.
(b) A petition is not effective to extend, renew, create, add
to, or modify a restriction unless the petition is filed with the
county clerk's office in the county where the subdivision is
located before the second anniversary of the date the committee
files with the county clerk the notice required by Section
201.005(a).
(c) If a petition meeting the requirements of this chapter is
filed with the county clerk within the required period, the
provisions of the petition extending, renewing, creating, adding
to, or modifying a restriction apply to and burden all of the
property in the subdivision except property excluded under
Section 201.009. If a petition contains provisions extending or
renewing the term of a restriction, the petition may provide for
an initial extension or renewal period of not more than 10 years
and additional automatic extensions of the term for not more than
10 years each. The extension, renewal, creation, or modification
of, or addition to, a restriction takes effect on the later of
the dates the petition is filed with the county clerk or a date
specified in the petition.
(d) If existing originally applicable restrictions provide a
procedure for extension, that procedure may be used for
successive extensions of the originally applicable restrictions
unless the original restriction instrument expressly prohibits
the procedure from being used for successive extensions.
Added by Acts 1985, 69th Leg., ch. 309, Sec. 1, eff. Sept. 1,
1985. Amended by Acts 1991, 72nd Leg., ch. 822, Sec. 3, eff.
Sept. 1, 1991.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1367, Sec. 4, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch.
821, Sec. 1, eff. June 19, 2009.
Sec. 201.005. PETITION COMMITTEE. (a) At least three owners
may form a petition committee. The committee shall file written
notice of its formation with the county clerk of each county in
which the subdivision is located.
(b) A notice filed under this chapter must contain:
(1) a statement that a petition committee has been formed for
the extension of the term of, creation of, addition to, or
modification of one or more restrictions;
(2) the name and residential address of each member of the
committee;
(3) the name of the subdivision to which the restrictions apply
and a reference to the real property records or map or plat
records where the instrument or instruments that contain the
restrictions sought to be extended, added to, or modified are
recorded or, if the creation of a restriction is proposed, a
reference to the place where the map or other document, if any,
is recorded;
(4) a general statement of the matters to be included in the
petition;
(5) if the creation of a restriction for a subdivision is
proposed, a copy of the proposed petition creating the
restriction; and
(6) if the amendment or modification of a restriction is
proposed, a copy of the proposed instrument creating the
amendment or modification, containing the original restriction
that is affected and indicating by appropriate deletion and
insertion the change to the restriction that is proposed to be
amended or modified.
(c) Each member of the committee must sign and acknowledge the
notice before a notary or other official authorized to take
acknowledgments.
(d) The county clerk shall enter on the notice the date it is
filed and record it in the real property records of the county.
(e) An individual's membership on the committee terminates if
the individual ceases to own land in the subdivision. If a
vacancy on the committee occurs, either because a member ceases
to own land in the subdivision or because a member resigns or
dies, a majority of the remaining members may appoint as a
successor an individual who owns land in the subdivision and who
consents to serve as a committee member. If one or more successor
committee members are appointed, the surviving committee members
shall file written notice of the name and address of each
successor committee member with the county clerk not later than
the 10th day after the date of the appointment.
(f) After August 31, 1989, only one committee in a subdivision
may file to operate under this chapter at one time. Before
September 1, 1989, there is no limit on the number of committees
in a subdivision with power to act under this chapter at one
time. If more than one committee in a subdivision files a notice
after August 31, 1989, the committee that files its notice first
is the committee with the power to act. A committee that does not
effect a successful petition within the time provided by this
chapter is dissolved by operation of law. Except as provided by
Section 201.006(c), a new committee for that subdivision may not
be validly created under this chapter before the fifth
anniversary of the date of dissolution of the previous committee.
A petition circulated by a dissolved committee is ineffective for
any of the purposes of this chapter.
Added by Acts 1985, 69th Leg., ch. 309, Sec. 1, eff. Sept. 1,
1985. Amended by Acts 1987, 70th Leg., ch. 712, Sec. 3, eff. June
18, 1987.
Sec. 201.0051. SPECIAL PETITION APPROVAL REQUIRED FOR CERTAIN
RESTRICTIONS. A right created or an obligation imposed by an
existing restriction that relates to the developer of the
subdivision or an architectural control committee established by
the instrument creating the restriction cannot be altered unless
the person who has the right or obligation signs and acknowledges
the petition.
Added by Acts 1997, 75th Leg., ch. 451, Sec. 3, eff. Sept. 1,
1997.
Sec. 201.006. PETITION PROCEDURE. (a) A petition may be
circulated, signed, acknowledged, and filed by or on behalf of
owners at any time during the circulating committee's existence.
The petition must conform to the requirements of Section 201.007.
(b) The petition may be filed not later than one year after the
date on which the notice required by Section 201.005(a) is filed.
The petition must be signed and acknowledged by owners who own,
in the aggregate:
(1) a majority of the total number of lots in the subdivision,
in order to extend, renew, or create restrictions;
(2) a majority of the total number of separately owned parcels,
tracts, or building sites in the subdivision, whether or not the
parcels, tracts, or building sites contain part or all of one or
more platted lots or combinations of lots, in order to extend,
renew, or create restrictions;
(3) a majority of the square footage within all of the lots in
the subdivision, excluding any area dedicated or used exclusively
for roadways or public purposes or by utilities, in order to
extend, renew, or create restrictions;
(4) at least 75 percent of the total number of lots in the
subdivision, in order to modify or add to existing restrictions;
(5) at least 75 percent of the total number of separately owned
parcels, tracts, or building sites in the subdivision, whether or
not the parcels, tracts, or building sites contain part or all of
one or more platted lots or combination of lots, in order to
modify or add to existing restrictions; or
(6) at least 75 percent of the square footage within all of the
lots in the subdivision, excluding any area dedicated or used
exclusively for roadways or public purposes or by utilities, in
order to modify or add to existing restrictions.
(c) If, after August 31, 1988, a court of competent jurisdiction
holds any provision of a restrictive covenant affecting a
subdivision to which this chapter applies invalid, a petition
committee authorized by this chapter may file a petition not
later than one year after the date on which the judgment is
rendered. For this purpose, the five-year limitation period in
Section 201.005(f) does not apply.
(d) The petition is effective if signed and acknowledged by the
required number of owners of any one of the classifications of
property specified in Subsection (b) and is filed as provided by
Subsection (f).
(e) After an owner signs a petition, the fact that the owner
subsequently conveys the land in the subdivision does not affect
the previous signing of the petition.
(f) The petition must be filed with the county clerk of each
county in which the subdivision is located.
Added by Acts 1985, 69th Leg., ch. 309, Sec. 1, eff. Sept. 1,
1985. Amended by Acts 1987, 70th Leg., ch. 712, Sec. 4, eff. June
18, 1987; Acts 1991, 72nd Leg., ch. 822, Sec. 4, eff. Sept. 1,
1991.
Sec. 201.007. CONTENTS OF PETITION. (a) A petition filed under
this chapter must contain or be supplemented by one or more
instruments containing:
(1) the name of the subdivision;
(2) a reference to the real property records or map or plat
records where the instrument or instruments that contain any
restriction sought to be extended, added to, or modified are
recorded or, in the case of the creation of a restriction, a
reference to the place where the map or other document
identifying the subdivision is recorded;
(3) a verbatim statement of any provisions for extension of the
term of, or addition to, the restriction;
(4) if a restriction is being amended or modified, the text of
the proposed instrument creating the amendment or modification,
together with a comparison of the original restriction that is
affected indicating by appropriate deletion and insertion the
change to the restriction that is proposed to be amended or
modified;
(5) if a restriction is being created, the text of the proposed
instrument creating the restriction;
(6) original acknowledged signatures of the required number of
owners as provided by Section 201.006;
(7) alternate boxes, clearly identified in a conspicuous manner
next to the place for signing the petition, that enable each
record owner to mark the appropriate box to show the exercise of
the owner's option of either including or excluding the owner's
property from being burdened by the restrictions being extended,
created, added to, or modified;
(8) a statement that owners who do not sign the petition must
file suit under Section 201.010 before the 181st day after the
date on which the certificate called for by Section 201.008(e) is
filed in order to challenge the procedures followed in extending,
creating, adding to, or modifying a restriction; and
(9) a statement that owners who do not sign the petition may
delete their property from the operation of the extended,
created, added to, or modified restriction by filing a statement
described in the fourth listed category in Section 201.009(b)
before one year after the date on which the owner receives actual
notice of the filing of the petition authorized by this chapter.
(b) If a restriction being added to, modified, or extended
contains any provision relating to race, religion, or national
origin that is void and unenforceable under either the United
States Constitution or Section 5.026, the void and unenforceable
restriction shall, by the provisions of the petition, be declared
to be deleted from the restriction as if the provision had never
been contained in the restriction.
(c) Each petition filed under this chapter must contain an
assertion from the signing owners that they own record title to
property within the subdivision, and the legal description and
street address of the property of each signing owner must be
shown beside or above the signature. If there is more than one
record owner of a tract, each record owner must sign the petition
before the property can be counted as a part of the number
required by Section 201.006.
Added by Acts 1985, 69th Leg., ch. 309, Sec. 1, eff. Sept. 1,
1985.
Sec. 201.008. NOTICE AND CERTIFICATE OF COMPLIANCE. (a) Not
later than the 60th day after the date on which a petition that
meets the requirements of this chapter is filed, the committee
shall give notice directed to all persons who then are record
owners of property in the subdivision. The notice must contain:
(1) the name of the subdivision covered by the petition;
(2) a copy of the petition;
(3) a statement that the proper number of property owners in the
subdivision have signed and acknowledged the petition; and
(4) the date the petition was filed with the county clerk.
(b) Except as provided by Subsection (d), the notice required by
Subsection (a) must be:
(1) published once a week for two consecutive weeks in a
newspaper of general circulation in the county or counties where
the subdivision is located; and
(2) sent by certified mail, return receipt requested, to each
person who owned land in the subdivision as of the date the
notice is given, excluding the owners of land dedicated for
public use or for use by utilities.
(c) If the committee acts in good faith in determining ownership
and giving notice as required by this section, the failure to
give personal notice to an owner does not affect the application
of an extension, modification, or creation of, or addition to, a
restriction under this chapter to the property of a person who
signed the petition.
(d) Instead of the information required by Subsection (a)(2), a
notice published as required by Subsection (b)(1) may contain a
general description of the purpose and effect of the petition.
(e) On compliance with the notice requirements of this section,
a majority of the members of the committee shall execute a
certificate of compliance and file the certificate with the
county clerk of each county where the subdivision is located.
(f) The county clerk of each county shall record the certificate
in the real property records of the county.
Added by Acts 1985, 69th Leg., ch. 309, Sec. 1, eff. Sept. 1,
1985.
Sec. 201.009. PROPERTY WITHIN SUBDIVISION NOT AFFECTED BY
PETITION. (a) The procedures called for under this chapter are
considered complete and regular in all respects unless challenged
by a declaratory judgment suit under Section 201.010.
(b) A restriction added, modified, created, or extended under
this chapter does not affect or encumber property within the
subdivision that is included within one of the following
categories:
(1) property exclusively dedicated for use by the public or for
use by utilities;
(2) property of an owner who elected in the petition to exclude
the property from the restriction;
(3) property of an owner who did not sign the petition and has
not received actual notice of the filing of the petition;
(4) property of an owner who did not sign the petition and who
files, before one year after the date on which the owner received
actual notice of the filing of the petition, an acknowledged
statement describing the owner's property by reference to the
recorded map or plat of the subdivision and stating that the
owner elects to have the property deleted and excluded from the
operation of the extended, modified, changed, or created
restriction; and
(5) property owned by a minor or a person judicially declared to
be incompetent at the time the certificate is filed, unless:
(A) actual notice of the filing of the petition is given to a
guardian of the minor or incompetent person, and the guardian has
not filed the statement described in the fourth listed category
in this subsection;
(B) a predecessor in title to the minor or incompetent person
signed a petition that was filed while the property was owned by
the predecessor; or
(C) the incompetent person signed a petition that was filed
before the judicial declaration of the person's incompetency.
(c) The county clerk shall file a statement described in the
fourth listed category in Subsection (b) in the same manner as
the petition and certificate. Substantial compliance by an owner
with the requirements for the statement prevents the owner's
property from being burdened by an extended, created, added to,
or modified restriction if the statement is filed within the time
required.
(d) A lienholder whose lien was established before the effective
date of a petition is not bound by the petition unless the
lienholder signs it and it is later filed. If such a lienholder
who does not sign the filed petition later acquires title to the
property in the subdivision through foreclosure, the acquisition
is free of the restrictions added, modified, created, or extended
by the petition. However, if any other person acquires the title
to the property at a foreclosure sale, that person takes the
property subject to the restriction added, modified, created, or
extended by the petition, if any prior owner of the foreclosed
property signed and acknowledged the petition.
(e) Notwithstanding any other provision of this chapter,
property that is excluded in any manner from the operation of
restrictions that are modified, added to, or created by a
petition under this chapter is, unless the petition expressly
provides otherwise, subject to those restrictions, if any,
affecting the excluded property as the restrictions existed
immediately before the effective date of the petition, and those
restrictions are continued in effect to the extent originally
applicable to the excluded property. After the filing of such a
petition, those restrictions may be added to, modified, or
extended by a specified percentage of the owners of real property
interests in accordance with this chapter or the instruments
evidencing the restrictions as they existed immediately before
the effective date of the petition, if otherwise still
applicable. Any petition filed under this chapter that creates,
adds to, or modifies restrictions may provide for the subsequent
addition to or extension, creation, or modification of, the
resulting restrictions by a specified percentage of the owners of
real property interests in the subdivision as set forth in the
instruments evidencing the continued restrictions. This
subsection does not abrogate, alter, affect, or impair the rights
of a lienholder under Subsection (d) to not be bound by a
petition adopted under this chapter when the lienholder
subsequently acquires title to the excluded property through
foreclosure.
Added by Acts 1985, 69th Leg., ch. 309, Sec. 1, eff. Sept. 1,
1985. Amended by Acts 1987, 70th Leg., ch. 712, Sec. 5, eff. June
18, 1987.
Sec. 201.010. ACTION AND LIMITATIONS OF REMEDIES. (a) If an
owner and the owner's predecessors in interest neither signed the
petition nor filed the statement described in the fourth listed
category in Section 201.009(b), the owner may file a suit for
declaratory judgment in a court of competent jurisdiction:
(1) to challenge the completeness or regularity of the
procedures leading to the recordation of a certificate, if the
suit is filed before the 181st day after the date on which the
certificate is filed with the county clerk; or
(2) to exclude the owner's property from the operation of the
extended, modified, added to, or created restriction.
(b) A suit for a declaratory judgment must name as defendants
the final members of the petition committee who are owners of
property in the subdivision at the time of the filing of the
suit. In addition, a suit for a declaratory judgment must name
all other owners of property in the subdivision as defendants,
either as individuals or as members of a class.
(c) An owner who files a suit for the second listed purpose in
Subsection (a) is entitled to relief only if the owner pleads and
establishes that the conditions of land use within the
subdivision at the time the certificate was filed were
incompatible with the restriction. As an alternative to excluding
a specific parcel of land from the operation of the restriction,
a court may alter the restriction as it applies to the parcel to
better conform to the incompatible conditions.
(d) The remedies in this section are exclusive of all others in
actions brought to challenge a restriction extended, modified,
added to, or created under this chapter. The filing of an action
for the first listed purpose in Subsection (a) does not prevent
the restriction from taking effect in accordance with its terms
pending a final judgment.
Added by Acts 1985, 69th Leg., ch. 309, Sec. 1, eff. Sept. 1,
1985.
Sec. 201.011. PROHIBITION OF CLAIM OF LACK OF MUTUALITY. If a
petition procedure is completed under this chapter, the owners of
property within the subdivision whose property is covered by the
petition may not raise in any judicial proceeding the issue that
the restrictions added, modified, created, or extended under this
chapter are not enforceable on the grounds that the restrictions
are not applicable to all of the property in the subdivision.
Added by Acts 1985, 69th Leg., ch. 309, Sec. 1, eff. Sept. 1,
1985.
Sec. 201.012. MULTIPLE FILING; COMPUTATION OF FILING DATE. For
purposes of this chapter, an instrument required to be filed with
the clerk of more than one county is considered filed on the date
on which the last required filing is made.
Added by Acts 1985, 69th Leg., ch. 309, Sec. 1, eff. Sept. 1,
1985.
Sec. 201.013. CUMULATIVE EFFECT. The procedure prescribed by
this chapter for adding to, modifying, creating, or extending the
term of a restriction is cumulative and not in lieu of other
methods of adding to, modifying, creating, or extending a
restriction.
Added by Acts 1985, 69th Leg., ch. 309, Sec. 1, eff. Sept. 1,
1985.