Restrictive Covenant In a Deed In Texas Case Law
When interpreting a restrictive covenant in a deed, our primary goal is to determine the grantor's intent. See Wilmoth v. Wilcox, 734 S.W.2d 656, 658 (Tex. 1987).
We apply the general rules of contract interpretation, see Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998), and we give liberal construction to ensure the grantor's intentions are enforced. See TEX. PROP. CODE ANN. 202.003(a) (Vernon 1995).
Words and phrases must be given their commonly accepted meaning, all doubts must be resolved in favor of free and unrestricted use, and the covenant must be construed strictly against the party seeking to enforce it. See Wilmoth, 734 S.W.2d at 656-57.
Whether a covenant is ambiguous is a question of law that must be decided by reviewing the covenant as a whole in light of the circumstances present when the covenant was entered. See Pilarcik, 966 S.W.2d at 478. If the covenant can be given a definite legal meaning, it is unambiguous and the grantor's intent is determined as a matter of law. See id.
However, if a covenant is subject to more than one reasonable interpretation, it is ambiguous. See id.
The grantor's intent is, then, a question of fact. See Criswell v. European Crossroads Shopping Ctr., Ltd., 792 S.W.2d 945, 950 (Tex. 1990).
The Texas Supreme Court has stated the following test for determining whether a residential restrictive covenant has been waived.
In order to support a waiver of residential restrictions the proposed use must not be substantially different in its effect on the neighborhood from any prior violation.
To put it another way, the prior violation which has been carried on without objection, if insignificant or insubstantial when compared to the proposed or new use, will not support a waiver of the new and greater violation. Sharpstown Civic Ass'n v. Pickett, 679 S.W.2d 956, 958 (Tex. 1984).