TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00555-CV
Cliffhanger Developments, LLC, Appellant
v.
Michael Lubitz; Tomas Fernandez; and Sarah Moore Lord and Joseph Christopher Lord,
as Trustees of The Lord Living Trust, Appellees
FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-23-002215, THE HONORABLE MADELEINE CONNOR, JUDGE PRESIDING
MEMORANDUM OPINION
This is an appeal from a summary judgment construing the restrictive covenant of
a subdivision as prohibiting the construction of more than two houses on any lot as originally
platted and permanently enjoining the appellant-developer, Cliffhanger Developments, LLC,
from building more than two houses on a lot it owns in the subdivision. On appeal, Cliffhanger
argues that the district court erred in rendering summary judgment because (1) the restrictive
covenant refers not to the original plat but to the plat as it may be amended over time and, as a
result, Cliffhanger may subdivide its lot and build two houses on each resubdivided and replatted
lot and (2) Cliffhanger produced summary-judgment evidence raising a genuine issue of material
fact as to whether the appellee-homeowners waived enforcement of the restrictive covenant.
Because the restrictive covenant expressly refers to and incorporates the original plat, and the
original plat expressly refers to the restrictive covenant, we hold that the restrictive covenant unambiguously applies to lots as originally platted, not to lots as they may be replatted over time
and that, as a result, Cliffhanger cannot resubdivide and replat its lot in order to circumvent the
covenant and build more houses than permitted. We further hold that Cliffhanger’s evidence of a
few violations over the past 70-some-odd years is insufficient to raise a genuine issue of material
fact as to waiver. Therefore, we affirm.
BACKGROUND
The Deed Restriction
The subdivision at the center of this dispute is Elm Wood Estates, located in
Travis County, Texas. The original plat for Elm Wood Estates was recorded in 1953 in Book 6,
Page 140 of the Travis County Plat Records. It includes a handwritten note from the County
Clerk referencing certain “Restrictions” that can be found at Volume 1536, Page 207 of the
Travis County Deed Records. The Travis County Deed Records, in turn, include a Deed
Restriction for Elm Wood Estates. The Deed Restriction was recorded in 1953 in Volume 1536,
Page 207, as referenced in the original plat.
The Deed Restriction begins with a preamble, which references the plat just
discussed. It provides: “That I, J.A. Shelby, owner of Elm Wood Estates, as shown on plat
thereof recorded in Book 6, Page 140, of the Travis County Plat Records, do hereby impress all
of the property included in Elm Wood Estates, with the following restrictions and covenants.”
The Deed Restriction then sets out seven paragraphs of restrictive covenants and
related provisions. Two are relevant to this dispute. The first is Paragraph 1, which contains
restrictions on the size, placement, type, and number of structures allowed on a tract (the
Structural Restrictions):
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No building shall be constructed, placed or permitted to remain upon any
tract nearer than 75 feet to the street on which the tract faces, nor shall any
dwelling house be constructed nearer than 8 feet to the side property lines.
No dwelling house costing less than $6,500 or containing less than 900
square feet of ground floor area exclusive of attached garages, breezeways
and porches shall be constructed, placed or permitted to remain on any
tract. Said house shall be of frame or better construction. Not more than
two dwelling houses with the necessary out houses and servants’ quarters
shall be erected on any one tract as shown on the plat for this subdivision.
No garage or garage apartment or other facilities shall be used for
residence purposes until the principal dwelling house is erected.
No sod, earth, sand, gravel, stone or trees shall be removed from said tract
to be sold or to the injury of the value or appearance of the property for
residential use.
The principal restriction at issue in this dispute is the fourth provision of the
Structural Restrictions (the 2-Dwelling Restriction): “Not more than two dwelling houses . . .
shall be erected on any one tract as shown on the plat for this subdivision.” The parties disagree
over what the restriction means when it refers to “the plat for the subdivision.” The
appellee-homeowners contend that it means the original plat, while Cliffhanger contends that it
means the plat as amended over time.
The second paragraph relevant to this dispute is Paragraph 7, which includes the
following provision: “Invalidation of any one or any part of these restrictions by judgment or
court order shall in no wise [sic] affect any of the other provisions or part of provisions which
shall remain in full force and effect.” The parties disagree over the proper characterization of
this provision. The homeowners contend that it is a nonwaiver provision, while Cliffhanger
contends that it is a severability provision.
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Cliffhanger’s application to resubdivide its lot
In 2022, Cliffhanger purchased a lot in Elm Wood Estates. The deed to the lot
stated that Cliffhanger took title subject to various “prescriptive rights, whether of record or not”
as well as “all presently recorded and validly existing restrictions.” Following its purchase,
Cliffhanger applied to resubdivide the lot into four smaller lots so it could build a total of eight
new houses—two on each proposed new lot. Several homeowners—Michael Lubitz,
Tomas Fernandez, and Sarah Moore Lord and Joseph Christopher Lord, as Trustees of the Lord
Living Trust (the Homeowners)—sent Cliffhanger a cease-and-desist letter, demanding that
Cliffhanger withdraw its application because Cliffhanger’s proposed construction would violate
the 2-Dwelling Restriction’s limit on the number of homes per lot.
The lawsuit
Cliffhanger filed a declaratory judgment action, seeking a declaration that the
Deed Restriction permits resubdivision and that Cliffhanger’s proposed resubdivision does not
violate the 2-Dwelling Restriction or any other restrictive covenant in the Deed Restriction. The
Homeowners answered and counterclaimed for a permanent injunction to enjoin Cliffhanger
from violating the Deed Restriction by building more than two houses on its lot as originally
platted. Cliffhanger answered and asserted the affirmative defense of waiver.
Both sides moved for summary judgment on the proper construction of the Deed
Restriction. Cliffhanger argued that the 2-Dwelling Restriction unambiguously applies to lots as
resubdivided and replatted over time and therefore permits Cliffhanger to resubdivide its lot and
build two houses on each resubdivided and replatted lot. The Homeowners argued that the
2-Dwelling Restriction unambiguously applies to lots as originally platted and therefore prohibits
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Cliffhanger from resubdividing its lot in order to build more than two houses on the property
encompassing the original lot.
Both sides also moved for summary judgment on Cliffhanger’s affirmative
defense of waiver. Cliffhanger produced evidence of violations of the 2-Dwelling Restriction as
well as evidence of violations of various other restrictive covenants. Cliffhanger argued that this
evidence proved as a matter of law that the Homeowners waived enforcement of the 2-Dwelling
Restriction or, at the very least, raised a genuine issue of material fact on the issue of waiver.
The Homeowners argued that because of Paragraph 7’s nonwaiver provision,
evidence of violations of other Structural Restrictions was irrelevant to whether they waived
enforcement of the 2-Dwelling Restriction. The Homeowners further argued that Cliffhanger’s
evidence showed a minimal number of violations of the 2-Dwelling Restriction, occurring in
disparate parts of the subdivision, over a 71-year period and that this evidence—considered
together with the Homeowners’ prior acts of enforcement and the continued realization of the
intended benefits of the 2-Dwelling Restriction—failed to raise a genuine issue of material fact
as to whether the Homeowners had waived enforcement of the restriction.
Following a hearing and post-submission briefing, the district court granted the
Homeowners’ motion for summary judgment. In its final summary judgment, the district court
found and held that:
• the 2-Dwelling Restriction’s reference “‘the plat for this subdivision’ is in
reference to the Plat of Elm Wood Estates as recorded on September 8, 1953 in
Volume 6, Page 140 of the Travis County Plat Records” (i.e., the original plat);
• Covenant 7 contains a nonwaiver provision;
• only evidence of waiver of the 2-Dwelling Restriction is relevant to whether that
particular restriction has been waived;
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• motor homes stored on lots and not used as residences are not “dwelling houses”
for purposes of the 2-Dwelling Restriction; and
• Cliffhanger failed to raise a fact issue as to whether the Homeowners waived
enforcement of the 2-Dwelling Restriction.
The district court permanently enjoined Cliffhanger from building more than two houses on its
lot as originally platted. Cliffhanger now appeals.
SUMMARY JUDGMENT
On appeal, Cliffhanger contends that the district court erred in rendering final
summary judgment for the Homeowners for two reasons. First, Cliffhanger contends that the
district court erroneously construed the 2-Dwelling Restriction as applying to lots as originally
platted rather than to lots as resubdivided and replatted over time. Second, Cliffhanger contends
that even if the district court properly construed the 2-Dwelling Restriction, Cliffhanger
produced evidence raising a genuine issue of material fact as to whether the Homeowners waived
enforcement of the restriction.
I. Standard of Review
We review the district court’s final summary judgment de novo. Tarr v.
Timberwood Park Owners Ass’n, 556 S.W.3d 274, 278 (Tex. 2018). When, as here, the parties
file cross-motions for summary judgment, and the trial court grants one motion and denies the
other, we review the summary-judgment evidence supporting both motions, determine all issues
presented, and render the judgment the trial court should have rendered. See id.
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II. Construction of 2-Dwelling Restriction
We begin by determining whether the district court erred in construing the
2-Dwelling Restriction as applying to lots as originally platted rather than to lots as subdivided
and replatted over time. Like other questions of law, we review the district court’s construction
of the 2-Dwelling Restriction de novo. Id. at 279; Owens v. Ousey, 241 S.W.3d 124, 129 (Tex.
App.—Austin 2007, pet. denied).
A. Applicable law
When construing restrictive covenants, we apply general rules of contract
construction. Tarr, 556 S.W.3d at 280; Owens, 241 S.W.3d at 129. Our primary objective is to
ascertain and give effect to the true intent of the parties as expressed in the instrument itself. Id.
Accordingly, we examine the covenants as a whole in light of the circumstances at the time they
were made, giving the words used in the covenants the meaning that they commonly held as of
the date they were written and not as of some subsequent date. Id. We must not enlarge, extend,
stretch, or change the text by construction, and we must avoid any construction that would render
parts superfluous or inoperative. Id.
If a restrictive covenant has a definite or certain meaning, it is unambiguous as a
matter of law and should be construed liberally to effectuate the parties’ intent. Tex. Prop. Code
§ 202.003(a); Tarr, 556 S.W.3d at 280. If, however, the covenant is subject to more than one
reasonable interpretation, doubts should be resolved in favor of the free and unrestricted use of
the premises, and any ambiguity must be strictly construed against the party seeking to enforce
the restrictive covenant. Wilmoth v. Wilcox, 734 S.W.2d 656, 657 (Tex. 1987); Sharp
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v. deVarga, No. 03-05-00550-CV, 2010 WL 45871, at *3 (Tex. App.—Austin Jan. 8, 2010, pet.
denied) (mem. op.).
B. Analysis
Applying these principles here, we begin our de novo review of the district court’s
construction of the 2-Dwelling Restriction with the text of the restriction itself. The 2-Dwelling
Restriction provides: “Not more than two dwelling houses . . . shall be erected on any one tract
as shown on the plat for this subdivision.” Thus, the 2-Dwelling Restriction limits the number of
houses that may be built on “any one tract as shown on the plat for this subdivision.”
“The plat for this subdivision” refers to a particular plat. This is made clear when
the 2-Dwelling Restriction is read together with the preamble to the Deed Restriction. The
preamble states that the restrictive covenants are “impress[ed]” upon the subdivision of Elm
Wood Estates “as shown on” the “plat thereof recorded in Book 6, Page 140 of the Travis
County Plat Records.” Therefore, reading the Deed Restriction as a whole, the 2-Dwelling’s
reference to “the plat for this subdivision” means the plat of Elm Wood Estates “recorded in
Book 6, Page 140 of the Travis County Plat Records.”
The plat “recorded in Book 6, Page 140 of the Travis County Plat Records” is the
original plat. It includes a handwritten note from the County Clerk stating that “[r]estrictions” on
the use of the land (i.e., restrictive covenants) may be found at Volume 1536, Page 207 of the
Travis County Deed Records, which is a reference to the Deed Restriction. Thus, the original
plat references the Deed Restriction, and the Deed Restriction references the original plat. This
mutual cross-reference is further contextual evidence that the 2-Dwelling Restriction is based on
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a particular plat—i.e., the original plat recorded in Book 6, Page 140 of the Travis County
Plat Records.
Cliffhanger ignores these key contextual considerations. Instead, it argues that
the 2-Dwelling Restriction’s reference to “the plat for this subdivision” must refer to “the plat as
it may be amended and supplemented over time” because the phrase must be construed
consistent with an owner’s right to resubdivide and replat its lot. We disagree.
It is true that Texas law disfavors limitations on an owner’s right to resubdivide
and replat. EIS Dev. II, LLC v. Buena Vista Area Ass’n, 715 S.W.3d 689, 695 (Tex. 2025)
(“Covenants restricting the free use of property are not favored because the right of individuals
to use their own property as they wish remains one of the most fundamental rights that individual
property owners possess.” (quoting Tarr, 556 S.W.3d at 280 (citation modified))). But it
nevertheless permits such limitations so long as the restrictive covenant doing so is “clear” and
provides “adequate notice” of the “specific restriction sought to be enforced.” Id. (quoting Davis
v. Huey, 620 S.W.2d 561, 565–66 (Tex. 1981)). And we have recognized that a restrictive
covenant meets this standard when it “expressly references a particular one-residence-per-lot
map” or otherwise includes language “tying the restriction to a specific plat scheme.” Sharp,
2010 WL 45871, at *5; see also Farmer v. Thompson, 289 S.W.2d 351, 353–55 (Tex. App.—
Fort Worth 1956, writ ref’d n.r.e.) (owners could not resubdivide and replat lot when restrictive
covenant provided “[t]hat only one residence shall be constructed on one lot as per revised plat
of said [subdivision]” (emphasis added)). That is what the 2-Dwelling Restriction does here.
Read together with the preamble, the 2-Dwelling Restriction ties the limit on the number of
houses to a specific plat scheme—i.e., the original plat recorded in Book 6, Page 140 of the
Travis County Plat Records.
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Despite our recognition in Sharp that a restrictive covenant may prohibit
resubdivision and replatting if it is tied to a specific plat scheme, Cliffhanger insists the opinion
actually supports its position because it held that a restriction limiting the number of houses per
lot but not expressly prohibiting replatting did not prevent an owner from replatting its lot in
order to build the maximum number of houses on each new lot. Sharp, 2010 WL 45871, at *6.
Like the restriction in Sharp, the 2-Dwelling Restriction limits the number of houses per lot but
does not expressly prohibit replatting. Because of this similarity, Cliffhanger contends that
Sharp supports reading the 2-Dwelling Restriction as permitting resubdivision and replatting.
We disagree.
Unlike the 2-Dwelling Restriction, the restrictive covenant in Sharp—“only one
residence shall be erected upon each lot hereby conveyed”—did not tie the housing limit to a
particular plat. Id. at *5 (noting language of restriction did “not expressly incorporate a specific
platting or plat map.”). It was on this very basis that we distinguished the restrictive covenant in
Sharp from another, similarly worded restrictive covenant held to prohibit resubdivision and
replatting. Id. (discussing Farmer, 289 S.W.2d at 353). We explained that the Farmer
restrictive covenant was “distinguishable based on the express wording of the restriction tying
the restriction to a specific plat scheme.” Id. Because the 2-Dwelling Restriction here ties the
housing limit to a particular plat, it is distinguishable from the restriction in Sharp and more
analogous to the restriction in Farmer. Thus, the reasoning in Sharp actually supports the
Homeowners’ position, not Cliffhanger’s.
Moreover, Cliffhanger’s complaint about the right to resubdivide and replat is
overstated. Under the Homeowners’ construction of the 2-Dwelling Restriction, an owner’s right
to subdivide and replat is not wholly abrogated. If an owner wants to build two houses on its lot,
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the owner may subdivide and replat the lot into two lots to accommodate separate ownership of
the two houses that have been built on the original lot. The record shows that this is what
happened in 1968, when certain owners divided five lots into ten lots, and in 1970, when another
owner divided one lot into two lots. Thus, under the Homeowners’ construction, the 2-Dwelling
Restriction partially preserves—and is therefore consistent with—an owner’s right to subdivide
and replat.
Furthermore, while the Homeowners’ construction gives meaning to every word
of the text, Cliffhanger’s does not. For this reason, Cliffhanger’s construction violates basic
rules of construction. Either it requires that the text be rewritten to say something else, such as:
“Not more than two dwelling houses with the necessary out houses and servants’ quarters shall
be erected on any one tract as may be resubdivided in the future.” Or it requires that part of the
text simply be removed so that it reads: “Not more than two dwelling houses with the necessary
out houses and servants’ quarters shall be erected on any one tract as shown on the plat for
this subdivision.”
In sum, the Deed Restriction’s text, structure, and context indicate that the
2-Dwelling Restriction is based on the original plat. Because the 2-Dwelling Restriction is based
on the original plat, it permissibly limits Cliffhanger’s right to resubdivide and replat its lots.
Cliffhanger’s proposed contrary construction violates basic canons of contract construction. For
these reasons, we hold that the district court did not err in holding that the 2-Dwelling
Restriction’s “reference to ‘the plat for this subdivision’ is in reference to the Plat of Elm Wood
Estates as recorded on September 8, 1953 in Volume 6, Page 140 of the Travis County Plat
Records.” Accordingly, we overrule this part of Cliffhanger’s issue.
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III. Evidence of Waiver of 2-Dwelling Restriction
We now consider whether Cliffhanger produced summary-judgment evidence
raising a genuine issue of material fact as to whether the Homeowners waived enforcement of
the 2-Dwelling Restriction. Cliffhanger contends that the district court erroneously held that it
failed to raise a fact issue for two reasons. First, Cliffhanger contends that the district court
erroneously held that Paragraph 7 of the Deed Restriction contains a nonwaiver provision and, as
a result, erroneously disregarded evidence of violations of other Structural Restrictions when it
determined whether Cliffhanger’s summary-judgment evidence raised a fact issue on the
Homeowners’ alleged waiver of the 2-Dwelling Restriction. Second, Cliffhanger contends that
even if the district court properly construed Paragraph 7 and considered only evidence of
violations of the 2-Dwelling Restriction, the evidence Cliffhanger produced raised a genuine
issue of material fact.
A. Applicable law
Under Texas law, waiver is the intentional relinquishment of a known right or
intentional conduct inconsistent with claiming that right. Tenneco Inc. v. Enterprise Prods. Co.,
925 S.W.2d 640, 643 (Tex. 1996). Like most rights, the right to enforce a restrictive covenant is
a right that may be waived. Thus, in an action to enforce a restrictive covenant, the
nonconforming property owner may assert waiver of the restriction as an affirmative defense.
See Sharpstown Civic Ass’n v. Pickett, 679 S.W.2d 956, 958 (Tex. 1984).
To establish waiver of a restrictive covenant, the nonconforming owner must
prove that the then-existing violations of the restriction are so extensive and material as to lead
an average person to reasonably conclude that the restriction has been abandoned and its
enforcement waived. See Cox v. Melson-Fulsom, 956 S.W.2d 791, 794 (Tex. App.—Austin
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1997, no pet.). In making this determination, three principal factors are considered: (1) the
number, nature, and severity of the then-existing violations; (2) any prior acts of enforcement;
and (3) whether it is still possible to realize to a substantial degree the benefits sought to be
obtained through the restriction. Id. Consideration of these factors is necessarily fact-intensive,
so a determination of waiver is ordinarily a question of fact. Tenneco, 925 S.W.2d at 643. But
when the facts and circumstances are admitted or clearly established, the question becomes one
of law. Id.
B. Analysis
We begin by considering Cliffhanger’s contention that the district court erred in
holding that Paragraph 7 contains a nonwaiver provision. Cliffhanger contends that the
provision in Paragraph 7 is actually a severability provision. Cliffhanger argues that this
distinction matters because the type of evidence Cliffhanger may produce in support of its waiver
defense depends on whether the provision is a severability provision or a nonwaiver provision.
According to Cliffhanger, if the provision is a severability provision, then Cliffhanger may
produce, and the district court must consider, evidence of all Structural Restriction violations, not
just evidence of violations of the 2-Dwelling Restriction. But if the provision is a nonwaiver
provision, then Cliffhanger is limited to producing evidence of violations of the 2-Dwelling
Restriction alone.
Assuming without deciding that Paragraph 7 contains a severability provision,
Cliffhanger still could not support its waiver defense with evidence of violations of the other
Structural Restrictions. In determining whether enforcement of a specific deed restriction has
been waived, evidence of violations of a different restriction is irrelevant unless both restrictions
serve the same purpose. See Tanglewood Homes Ass’n v. Henke, 728 S.W.2d 39, 42 (Tex.
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App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.) (when “two restrictions serve entirely different
purposes . . . a waiver of one restriction does not constitute a waiver of the other”); see also
BCH Dev., LLC v. Lakeview Heights Addition Prop. Owners’ Ass’n, No. 05-17-01096-CV,
2019 WL 2211479, at *8 (Tex. App.—Dallas May 21, 2019, pet. denied) (mem. op.) (“In
determining whether deed restrictions have been waived, we look at each covenant separately.”).
Cliffhanger contends that the Structural Restrictions all serve the same purpose of
achieving “uniformity” of the buildings they encumber. But as Cliffhanger itself recognizes,
each Structural Restriction aims at achieving uniformity of a different aspect of the subdivision,
such as uniformity in the buildings’ placement, size, and type. See Tanglewood Homes Ass’n,
728 S.W.2d at 42 (setback line restriction for connected garage and setback line restriction for
main residence “serve[d] entirely different purposes”). And the 2-Dwelling Restriction’s limit
on the number of buildings per lot is further distinguishable from the other Structural
Restrictions in that it does not aim at achieving uniformity of the buildings at all but rather
uniformity of the lots, i.e., a uniform level of density. Because the 2-Dwelling Restriction serves
a different purpose than the other Structural Restrictions, evidence of violations of the latter do
not establish waiver of the former.
Therefore, in determining whether Cliffhanger produced summary-judgment
evidence raising a genuine issue of material fact as to whether the Homeowners waived
enforcement of the 2-Dwelling Restriction, we consider only evidence of violations of the
2-Dwelling Restriction itself. That evidence primarily consists of a stipulation of fact filed by
the parties. In their stipulation, the parties agreed that two or more dwelling houses are located
on the following lots:
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1. original lot 16, which is located on block F, has been resubdivided into current
lots 2 and 3, and currently has four dwelling houses;
2. original lot 18, which is located on block C, has been resubdivided into current
lots 18A and 18B, and currently has three dwelling houses;
3. original lot 12, which is located on block E, has been resubdivided into current
lots 12A, 12B, 12C, 12D, and 12E, and currently has four dwelling houses; and
4. original lot 14, which is located on block E, has never been resubdivided, and
currently has three dwelling houses.
The parties further agreed that on original lot 13, there are two fixed homes and three
motor homes (RVs) and that if the RVs are not considered, there are only two dwelling houses
on the lot. We agree with the district court that the RVs on original lot 13—vacant,
winterized, and stored on the lot for future use—do not count as “dwellings” for purposes of the
2-Dwelling Restriction.
Therefore, the number, nature, and severity of existing violations of the
2-Dwelling Restriction are undisputed: 4 of the original 110 lots have more than 2 houses on
them, resulting in a violation rate of 3.6%; there are 14 houses on the 4 non-conforming lots,
resulting in 6 extra houses, or 2.7% of the total allowable houses (220), having been built
since the Deed Restriction was recorded over 70 years ago; and the nonconforming houses are
spread out in three different blocks. See Yacoub v. City of Houston, No. 06-21-00092-CV,
2022 WL 2162942, at *7 (Tex. App.—Texarkana June 16, 2022, no pet.) (mem. op.) (holding
evidence of three violations of height restriction insufficient to raise fact issue on waiver and
commenting that “Texas courts have found that violation rates ranging from 1.9% to 8.9% were
not sufficient to support waiver and abandonment”).
In addition to the stipulation, the record contains evidence that the Homeowners
and other residents of Elm Wood Estates have enforced the 2-Dwelling Restriction on numerous
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prior occasions, including by filing a prior lawsuit against Cliffhanger and another developer,
Big Paws Construction, which resulted in Cliffhanger and Big Paws withdrawing their
resubdivision application and submitting a different application that conformed to the
2-Dwelling Restriction. The evidence further shows that the Homeowners and other residents
enforced the restriction by contacting realtors marketing lots to make sure they were aware of the
restriction, directly contacting new tract owners, and monitoring resubdivision applications at the
City of Austin and then contacting the applicants.
Finally, Cliffhanger has failed to produce evidence showing that it is no longer
possible to realize, to a substantial degree, the benefits intended by the 2-Dwelling Restriction.
We hold that the undisputed evidence and stipulated facts do not create a genuine
issue of material fact as to whether the Homeowners waived their right to enforce the 2-Dwelling
Restriction. That is, the undisputed evidence and stipulated facts do not raise a fact issue as to
whether existing violations of the 2-Dwelling Restriction are so extensive and material that an
average person would reasonably conclude that the restriction has been abandoned and its
enforcement waived. Accordingly, we overrule this part of Cliffhanger’s issue.
CONCLUSION
We affirm the district court’s final summary judgment.
Maggie Ellis, Justice
Before Chief Justice Byrne, Justices Kelly and Ellis
Affirmed
Filed: August 14, 2026
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