Form 23-1

This form is provided as an example only. The attorney should tailor the provisions of the form to address the specific standards of the association.

Declaration of Restrictive Covenants of
the [name of subdivision] Subdivision

[With Property Owners’ Association]

Basic Information

Date:

Declarant:

Declarant’s Address:

Property Owners’ Association: [name], a Texas nonprofit [corporation/association]

Property Owners’ Association’s Address:

Property:

Definitions

“ACC” means the Architectural Control Committee established in this Declaration.

“Assessment” means any amount due to the Property Owners’ Association by an Owner or levied against an Owner by the Property Owners’ Association under this Declara­tion.

“Board” means the Board of Directors of the Property Owners’ Association.

“Bylaws” means the Bylaws of the Property Owners’ Association adopted by the Board.

“Common Area” means all property within the Subdivision not designated as a Lot on the Plat and that has not been accepted for maintenance by the applicable governmental body. Declarant will convey the Common Area to the Property Owners’ Association.

“Covenants” means the covenants, conditions, and restrictions contained in this Decla­ration.

“Declarant” means [name], [a/an] [individual/[Texas/[state of formation]] limited partnership/corporation/limited liability company] and any successor that acquires all unim­proved Lots owned by Declarant for the purpose of development and is named as successor in a recorded document.

“Dedicatory Instruments” means this Declaration and the [certificate of formation,] Bylaws, rules of the Property Owners’ Association, and standards of the ACC, as amended.

“Easements” means Easements within the Property for utilities, drainage, and other purposes as shown on the Plat or of record.

“Lot” means each tract of land designated as a lot on the Plat, excluding lots that are part of the Common Area.

“Member” means Owner.

“Owner” means every record Owner of a fee interest in a Lot.

“Plat” means the Plat of the Property recorded in [recording data] of the real property records of [county] County, Texas, and any replat of or amendment to the Plat made in accor­dance with this Declaration.

“Renting” means granting the right to occupy and use a Residence or Structure in exchange for consideration.

“Residence” means a detached building designed for and used as a dwelling by a Single Family and constructed on one or more Lots.

“Short Term Renting” means granting the right to occupy and use a Residence or Struc­ture in exchange for consideration for a period of time less than [number] days.

“Single Family” means a group of individuals related by blood, adoption, or marriage or a number of unrelated roommates not exceeding the number of bedrooms in a Residence.

“Structure” means any improvement on a Lot (other than a Residence), including a sidewalk, driveway, fence, wall, tennis court, swimming pool, outbuilding, or recreational equipment.

“Subdivision” means the Property covered by the Plat and any additional property made subject to this Declaration.

“Vehicle” means any automobile, truck, motorcycle, boat, trailer, or other wheeled con­veyance, whether self-propelled or towed.

Clauses and Covenants

A.Imposition of Covenants

1.Declarant imposes the Covenants on the Subdivision. All Owners and other occu­pants of the Lots by their acceptance of their deeds, leases, or occupancy of any Lot agree that the Subdivision is subject to the Covenants.

2.The Covenants are necessary and desirable to establish a uniform plan for the development and use of the Subdivision for the benefit of all Owners. The Covenants run with the land and bind all Owners, occupants, and any other person holding an interest in a Lot.

3.Each Owner and occupant of a Lot agrees to comply with the Dedicatory Instru­ments and agrees that failure to comply may subject him to a fine, an action for amounts due to the Property Owners’ Association, damages, or injunctive relief.

B.Plat and Easements

1.The Plat, Easements, and all matters shown of record affecting the Property are part of this Declaration and are incorporated by reference.

2.An Owner may use that portion of a Lot lying in an Easement for any purpose that does not interfere with the purpose of the Easement or damage any facilities. Owners do not own any utility facilities located in an Easement.

3.Neither Declarant nor any Easement holder is liable for damage to landscaping or a Structure in an Easement.

4.Declarant and each Easement holder may install, maintain, and connect facilities in the Easements.

C.Use and Activities

1.Permitted Use.      A Lot may be used only for an approved Residence and approved Structures for Single Family residential use [include to permit Short Term Renting: , including Short Term Renting in compliance with applicable law].

2.Prohibited Activities.      Prohibited activities are—

a.any activity that is otherwise prohibited by the Dedicatory Instruments;

b.any illegal activity;

c.any nuisance, noxious, or offensive activity;

d.any dumping of rubbish;

e.any storage of—

i.building materials except during the construction or renovation of a Res­idence or a Structure;

ii.vehicles, except vehicles in a garage or Structure or operable automo­biles on a driveway; or

iii.unsightly objects unless completely shielded by a Structure;

f.any exploration for or extraction of minerals;

g.any keeping or raising of animals, livestock, or poultry, except for common domesticated household pets, such as dogs and cats, not to exceed [number] confined to a fenced yard or within the Residence;

h.any commercial or professional activity except reasonable home office use;

i.the Renting of a portion of a Residence or Structure;

j.the drying of clothes in a manner that is visible from any street;

k.the display of any sign except—

i.one not more than five square feet, advertising the Lot for sale or rent or advertising a garage or yard sale; and

ii.political signage not prohibited by law or the Dedicatory Instruments;

l.installing a mobile home, manufactured home, manufactured housing, motor home, or house trailer on a Lot;

m.moving a previously constructed house onto a Lot;

n.interfering with a drainage pattern without ACC approval;

o.hunting and shooting;

p.occupying a Structure that does not comply with the construction standards of a Residence; and

q.[insert any additional restrictions, e.g., Short Term Renting; allowing a renter, guest, or other person who is a registered sex offender to reside at the Prop­erty; using the Property in a timeshare program; any income-producing activ­ity.]

D.Construction and Maintenance Standards

1.Lots

a.Consolidation of Lots.      An Owner of adjoining Lots, with ACC approval, may consolidate those Lots into one site for the construction of a Residence.

b.Subdivision Prohibited.      No Lot may be further subdivided.

c.Easements.      No easement in a Lot may be granted without ACC approval.

d.Maintenance.      Each Owner must keep the Lot, all landscaping, the Resi­dence, and all Structures in a neat, well-maintained, and attractive condition.

2.Residences and Structures

a.Aesthetic Compatibility.      All Residences and Structures must be aestheti­cally compatible with the Subdivision, as determined by the ACC.

b.Maximum Height.      The maximum height of a Residence is [number] [feet above grade/stories].

c.Required Area.      The total area of a Residence, exclusive of porches, garages, or carports, must be at least [number] square feet.

d.Location on Lot.      No Residence or Structure may be located in violation of the setback lines shown on the Plat. Each Residence must face the front Lot line. All Structures must be located behind the front wall of the Residence. All outbuildings, except garages, must not be visible from any street.

e.Garages.      Each Residence must have at least a two-car garage accessed by a driveway. The garage may be a separate structure.

f.Damaged or Destroyed Residences and Structures.      Any Residence or Structure that is damaged must be repaired within [number] days (or within a period approved by the ACC) and the Lot restored to a clean, orderly, and attractive condition. Any Residence or Structure that is damaged to the extent that repairs are not practicable must be demolished and removed within [number] days and the Lot restored to a clean and attractive condition.

g.Fences, Walls, and Hedges.      No fence, wall, or hedge may be located for­ward of the front wall line of the Residence, except for trellises and decora­tive fences that are approved by the ACC.

h.Traffic Sight Lines.      No landscaping that obstructs traffic sight lines may be placed on any Lot.

i.Sidewalks.      When the Residence is constructed, the Lot must be improved with sidewalks connecting with the sidewalks on adjacent Lots.

j.Landscaping.      Landscaping must be installed within [number] days after occupancy. The minimum landscaping is specified in the standards of the ACC.

3.Building Materials for Residences and Structures

a.Roofs.      Only [composition/tile/metal] roofs may be used on Residences and Structures, unless otherwise approved by the ACC. All roof stacks must be painted to match the roof color.

b.Air Conditioning.      Window- or wall-type air conditioners may not be used in a Residence.

c.Exterior Walls.      All Residences must have at least [percent] percent of their exterior walls, including exposed foundation, of stone or brick, minus win­dows and doors, unless otherwise approved by the ACC.

d.Color Changes.      No change to the color of the exterior walls, trim, or roof of a Residence will be permitted, unless otherwise approved by the ACC.

e.Driveways and Sidewalks.      All driveways and sidewalks must be surfaced with concrete, unless otherwise approved by the ACC. Driveways and side­walks may not be surfaced with dirt, gravel, shell, or crushed rock.

f.Lot Identification.      Lot address numbers and name identification must be aesthetically compatible with the Subdivision.

E.Property Owners’ Association

1.Establishment and Governance.      The Property Owners’ Association is estab­lished by filing its certificate of formation and is governed by the certificate, the Declaration, and the Bylaws. The Property Owners’ Association has the powers of a nonprofit corporation and a property owners’ association under the Texas Business Organizations Code, the Texas Property Code, and the Dedicatory Instruments.

1.Establishment and Governance.      The filing of this Declaration establishes the Property Owners’ Association as an unincorporated nonprofit association that is governed by this Declaration and the Bylaws. The Property Owners’ Association has the powers of an unincorporated nonprofit association and a property owners’ association for the Subdivision under the Texas Business Organizations Code, the Texas Property Code, and the Dedicatory Instruments.

2.Rules.      The Board may adopt rules that do not conflict with law or the other Ded­icatory Instruments. On request, Owners will be provided a copy of any rules.

3.Membership and Voting Rights.      Every Owner is a Member of the Property Own­ers’ Association. Membership is appurtenant to and may not be separated from ownership of a Lot. The Property Owners’ Association has two classes of voting Members:

a.Class A.      Class A Members are all Owners, other than Declarant. Class A Members have one vote per Lot. When more than one person is an Owner, each is a Class A Member, but only one vote may be cast for a Lot.

b.Class B.      The Class B Member is Declarant and has the number of votes for each Lot owned specified in the Bylaws. The Class B Membership ceases and converts to Class A Membership on the earlier of—

i.when the Class A Members’ votes exceed the total of Class B Member’s votes or

ii.[date].

F.ACC

1.Establishment

a.Purpose.      The ACC is established as a committee of the Property Owners’ Association to assist the Property Owners’ Association in ensuring that all Residences, Structures, and landscaping within the Subdivision are aestheti­cally compatible and conform to the Dedicatory Instruments.

b.Members.      The ACC consists of at least [number] persons appointed by the Board. The Board may remove or replace an ACC member at any time.

c.Term.      ACC members serve until replaced by the Board or they resign.

d.Standards.      Subject to Board approval, the ACC may adopt standards that do not conflict with the other Dedicatory Instruments to carry out its purpose. These standards are not effective unless recorded with the county clerk. On request, Owners will be provided a copy of any standards.

2.Plan Review

a.Required Review by ACC.      No Residence or Structure may be erected on any Lot, or the exterior altered, unless plans, specifications, and any other documents requested by the ACC have been submitted to and approved by the ACC. The plans and specifications must show exterior design, height, building materials, color scheme, location of the Residence and Structures depicted horizontally and vertically, and the general plan of landscaping, all in the form and detail the ACC may require.

b.Procedures

i.Complete Submission.      Within [number] days after the submission of plans and specifications by an Owner, the ACC must notify the submit­ting Owner of any other documents or information required by the ACC. In the absence of timely notice from the ACC requesting additional doc­uments or other information, the submission is deemed complete.

ii.Deemed Approval.      If the ACC fails to give notice of disapproval of the plans and specifications to the submitting Owner within [number] days after complete submission, the submitted plans and specifications are deemed approved.

c.Appeal.      An Owner may appeal any action of the ACC to the Board. The appealing Owner must give written notice of the appeal to the Board, and if the appeal is by an Owner who is not the submitting Owner, the appealing Owner must also give written notice to the submitting Owner within [num­ber] days after the ACC’s action. The Board shall determine the appeal within [number] days after timely notice of appeal is given. The determina­tion by the Board is final.

d.Records.      The ACC will maintain written records of all requests submitted to it and of all actions taken. The Board will maintain written records of all appeals of ACC actions and all determinations made. Any Owner may inspect the records of the ACC and Board, but no Owner may inspect or copy the interior floor plan or security system design of any other Owner.

e.No Liability.      The Property Owners’ Association, the Board, the ACC, and their members will not be liable to any person submitting requests for approval or to any Owner by reason of any action, failure to act, approval, disapproval, or failure to approve or disapprove any request.

G.Assessments

1.Authority.      The Property Owners’ Association may levy Assessments to promote the recreation, health, safety, and welfare of the residents in the Subdivision, to fund operating expenses of the Property Owners’ Association, and to improve and maintain the Common Areas.

2.Personal Obligation.      An Assessment is a personal obligation of each Owner when the Assessment accrues.

3.Creation of Lien.      Assessments are secured by a continuing vendor’s lien on each Lot, which lien is reserved by Declarant and hereby assigned to the Property Owners’ Associ­ation. By acceptance of a deed to a Lot, each Owner grants the lien, together with the power of sale, to the Property Owners’ Association to secure Assessments.

4.Commencement.      A Lot becomes subject to Assessments on conveyance of the Lot by Declarant.

5.Regular Assessments

a.Rate.      Regular Assessments are levied annually by the Board to fund the anticipated operating and maintenance expenses of the Property Owners’ Association. Until changed by the Board, the Regular Assessment is $[amount] per [Lot/acre].

b.Changes to Regular Assessments.      Regular Assessments may be changed annually by the Board. Written notice of the Regular Assessment will be sent to every Owner at least thirty days before its effective date.

c.Collections.      Regular Assessments will be collected [annually/
semiannually/monthly] in advance, payable on the [first/tenth/[other]] day of the [month/year] and on [the same day of each succeeding [month/year]/the [first/tenth/[other]] day of [month] of each year].

6.Special Assessments.      In addition to the Regular Assessments, the Board may levy Special Assessments for the purpose of funding the cost of any construction, reconstruc­tion, repair, or replacement of any capital improvement on the Common Area or for any other purpose benefiting the Subdivision but requiring funds exceeding those available from the Regular Assessments. Special Assessments must be approved by the Members. Written notice of the terms of the Special Assessment will be sent to every Owner.

7.Approval of Special Assessments.      Any Special Assessment must be approved by a [majority/two-thirds] vote at a meeting of the Members in accordance with the Bylaws.

8.Fines.      The Board may levy a fine against an Owner for a violation of the Dedi­catory Instruments as permitted by law.

9.Subordination of Lien to Mortgages.      The lien granted and reserved to the Prop­erty Owners’ Association is subordinate to any lien granted by an Owner against a Lot not prohibited by the Texas Constitution. The foreclosure of a superior lien extinguishes the Prop­erty Owners’ Association’s lien as to Assessments due before the foreclosure.

10.Delinquent Assessments.      Any Assessment not paid within [number] days after it is due is delinquent.

H.Remedial Rights

1.Late Charges and Interest.      A late charge of [$[amount]/[percent] percent of the delinquent amount] is assessed for delinquent payments. Delinquent Assessments accrue interest at the rate of [percent] percent per year. The Board may change the late charge and the interest rate.

2.Costs, Attorney’s Fees, and Expenses.      If the Property Owners’ Association com­plies with all applicable notice requirements, an Owner is liable to the Property Owners’ Association for all costs and reasonable attorney’s fees incurred by the Property Owners’ Association in collecting delinquent Assessments, foreclosing the Property Owners’ Associa­tion’s lien, and enforcing the Dedicatory Instruments.

3.Judicial Enforcement.      The Property Owners’ Association may bring an action against an Owner to collect delinquent Assessments, foreclose the Property Owners’ Associa­tion’s lien, or enforce or enjoin a violation of the Dedicatory Instruments. An Owner may bring an action against another Owner to enforce or enjoin a violation of the Dedicatory Instruments.

4.Remedy of Violations.      The Property Owners’ Association may levy a fine against an Owner for a violation of the Dedicatory Instruments.

5.Suspension of Rights.      If an Owner violates the Dedicatory Instruments, the Prop­erty Owners’ Association may suspend the Owner’s rights under the Dedicatory Instruments in accordance with law.

6.Damage to Property.      An Owner is liable to the Property Owners’ Association for damage to Common Areas caused by the Owner or the Owner’s family, guests, agents, independent contractors, and invitees in accordance with law.

I.Common Area

1.Common Area Easements.      Each Owner has an easement in and to the Common Area, subject to the right of the Property Owners’ Association to—

a.charge reasonable admission and other fees for the use of recreational facili­ties situated on the Common Area, and if an Owner does not pay these fees, the Owner may not use the recreational facilities;

b.suspend an Owner’s rights to use a Common Area under the Dedicatory Instruments;

c.grant an easement approved by the Board over the Common Area for utility, drainage, or other purposes; and

d.dedicate or convey any of the Common Area for public purposes, on approval by a vote of [a majority/two-thirds] of the Members at a meeting in accor­dance with the Bylaws.

2.Permitted Users.       An Owner’s right to use and enjoy the Common Area extends to the Owner’s family, guests, agents, and invitees, subject to the Dedicatory Instruments.

3.Unauthorized Improvements in Common Area.      An Owner may not erect or alter any Structure on, or clear, landscape, or disturb, any Common Area except as approved by the Board.

J.General Provisions

1.Term.      This Declaration runs with the land and is binding in perpetuity.

1.Term.      This Declaration runs with the land and is binding for a term of [number] years. The term may be extended for [successive terms of [number] years each by [percent] percent of the Members at a meeting in accordance with the Bylaws within [number] months before the end of a term/an initial term of [number] years]. [Include if applicable: Thereafter this Declaration automatically continues for successive terms of [number] years each, unless within [number] months before the end of a term [percent] percent of the Members at a meet­ing in accordance with the Bylaws elect not to extend the term.] An instrument reflecting the extension will be signed by the Property Owners’ Association and recorded.

2.No Waiver.      Failure by the Property Owners’ Association or an Owner to enforce the Dedicatory Instruments is not a waiver.

3.Corrections.      The Board may correct typographical or grammatical errors, ambi­guities, or inconsistencies contained in this Declaration, provided that any correction must not impair or affect a vested property right of any Owner.

4.Amendment.      This Declaration may be amended at any time by vote of [percent (cannot exceed sixty-seven)] percent of Owners entitled to vote on the amendment. An instru­ment containing the approved amendment will be signed by the Property Owners’ Association and recorded.

5.Conflict.      This Declaration controls over the other Dedicatory Instruments.

6.Severability.      If a provision of this Declaration is unenforceable for any reason, to the extent the unenforceability does not destroy the basis of the bargain among the parties, the unenforceability does not affect any other provision of this Declaration, and this Declaration is to be construed as if the unenforceable provision is not a part of the Declaration.

7.Notices.      All notices must be in writing and must be given as required or permit­ted by the Dedicatory Instruments or by law. Notice by mail is deemed delivered (whether actually received or not) when properly deposited with the United States Postal Service, addressed (a) to a Member, at the Member’s last known address according to the Property Owners’ Association’s records, and (b) to the Property Owners’ Association, the Board, the ACC, or a managing agent at the Property Owners’ Association’s principal office or another address designated in a notice to the Members. Unless otherwise required by law or the Dedi­catory Instruments, actual notice, however delivered, is sufficient.

8.Annexation of Additional Property.      On written approval of the Board and not less than [percent] percent of the Members at a meeting in accordance with the Bylaws, the owner of any property who desires to subject the property to this Declaration may record an annexation agreement that will impose this Declaration and the Covenants on that property.

   
[Name of declarant]

By       
        [Name and title]

After recording, please return to:

[name and address of declarant or attorney]