Background
Cliffhanger Developments bought a lot in the Elm Wood Estates subdivision and sought to divide it into four smaller lots, with plans to build two houses on each new lot. Homeowners objected that a deed restriction recorded in 1953 allowed no more than two dwelling houses on any tract shown on the subdivision plat.
Cliffhanger sued for a declaration that the restriction applied to lots as replatted over time and therefore permitted eight houses on its property. The homeowners counterclaimed for an injunction. The district court granted summary judgment to the homeowners and permanently enjoined Cliffhanger from building more than two houses on its lot as originally platted. Cliffhanger appealed, also arguing that prior violations had waived enforcement of the restriction.
The Court’s Holding
The Third Court of Appeals affirmed. Reading the deed restriction as a whole, the court held that its reference to “the plat for this subdivision” unambiguously meant the original 1953 plat identified in the restriction’s preamble. Because the original plat and deed restriction expressly cross-referenced each other, the covenant tied the two-house limit to a specific plat scheme. Cliffhanger therefore could not evade the restriction by resubdividing and replatting its property.
The court also held that Cliffhanger failed to raise a genuine fact issue on waiver. Only four of the original 110 lots had more than two houses, amounting to a 3.6% violation rate over more than 70 years, and the record showed repeated enforcement efforts by subdivision residents. Violations of other structural restrictions were irrelevant because those covenants governed different matters, while the two-dwelling restriction served the distinct purpose of maintaining uniform residential density.
Key Takeaways
- A housing-density covenant tied expressly to a specific recorded plat applies to the lots as depicted on that plat, even if an owner later resubdivides them.
- A small number of dispersed violations over many decades did not raise a fact issue that enforcement of the two-dwelling restriction had been waived.
- Violations of other covenants concerning building placement, size, or type did not establish waiver of a separate covenant limiting the number of homes per lot.
Why It Matters
The decision illustrates how Texas courts distinguish enforceable plat-based density limits from restrictions that merely cap construction on a “lot” without incorporating a specific plat. Developers cannot necessarily increase permissible density through replatting when the governing covenant clearly anchors its limit to the original subdivision map.
It also confirms that waiver analysis is covenant-specific and considers the extent of violations, prior enforcement, and whether the restriction’s intended benefits remain achievable. Sporadic violations alone may be insufficient to defeat enforcement at summary judgment.