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.