FILED ACCEPTED
Susan Collier 03-14-00660-CV
4115888
C2014-0501C THIRD COURT OF APPEALS
2/10/2015 4:34:54 PM AUSTIN, TEXAS
2/11/2015 4:31:35 PM
Heather N. Kellar
JEFFREY D. KYLE
Comal County CLERK
District Clerk
RECEIVED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
2/11/2015 4:31:35 PM
February 10, 2015
JEFFREY D. KYLE
Clerk
via fax on 830-608-2006
Heather Kellar
Comal County District Clerk
150 N. Seguin, Suite 304
New Braunfels, Texas 78130
Re: Appeal No. 03-14-00660-CV, Comal County No. C2014-0501C, Zgabay v.
NBRC Property Owners Assoc.
Dear Ms. Kellar:
I believe that documents, being exhibits to the plaintiff's motion for summary
judgment, were inadvertently omitted from the Clerk's Record previously transmitted
to the Third Court of Appeals in this case. My records show that most of Exhibits C and
all of Exhibits D-F followed what is currently CR51. Portions of Exhibit C and D as
were returned to me following filing are attached hereto for your convenience. I hereby
request that the record on appeal be supplemented to include all omitted pages. Oral
argument is scheduled in the appeal for March 25, 2015.
Very truly yours,
J. Patrick Sutton
cc:
Jeffrey D. Kyle, Clerk
Third Court of Appeals
Wade Crosnoe
Attachments: exhibit pages
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7012 2210 0000 5169 7061
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.:--e. .. : Lot 303. Unu III in River Chase
Re: A.. A..'"D
. RULES \ ' IOLATION
_ OF FIXE FOR DECLARATION VIOLATION
Dec.r _1r. and Zagaby:
'"our property \vithin the RiYcr Chase Subdivision is subject to covenants, conditions an?
a..: :e: ionh in an instrument entitled Declaration of Covenants, Conditions and Restncttons Rtver
Cha:e nit III.
It as come to the attention of the Board of Directors and n1anagen1ent that your home is being used
a- a rental. '"e respectfully request that any and all activities related to the shorf term
rental of ..Your home cease immediately. "'
Failure to comply \Vith this request may result in a
temporary restraining order being placed on your property.
Spe iiically! you are in Yiolation of Article Ill, Section 3.01 of the Declaration, entitled "Single
Familv Residential Construction.", \Vhich provides, in relevant parts, as follows:
·Except as provided below, no building shall be erected, altered, placed or pennitted to
rent ain on any Tract other than one dwelling unit per each Tract to be used for single
fanzily residential purposes."
And of Article III. Section 3.14 of the Declaration, entitled Prohibition of Offensive Activities.,
;\hich provides= in rele\'ant parts, as follows:
u_ o activity, whether for profit or not, shall be conducted on any Tract which is not
related to single fa11zily residential pu1poses, unless said activity 111eets the following
(a) no additional sign of activity is present, (b) it is the type of action
that usually happens in a ho11ze, (c) no additional traffic, that ·would not be there
normally, is created, and (d) nothing dangerous is present that should not be there. This
restriction is waived in regard to the custo11zary sales activities required to sell ho11zes in
the Subdil'ision. The discharge or use of jirean11s is e.1:pressly prohibited. Hunting is
expressly prohibited. The Association shall have thes csole r . absolute discretion to
a n n eand
determine what constitutes a nuisance or annoyance." t o a
e in
y o u r phon
turn
e t oTexas
Pursuant to Section 209.006 p S
oft o rthe Property Code, you are hereby notified that you are in
i n t h e A p governing documents and/or its established rules, as described above,
\J iolation of the DAssociation's
F
To P
e r ayou
and
or C a m
that are entitled to a reasonable period to cure the above-referenced violation and avoid
f
Look of suspension of your right to use association common areas unless you have' been given
Zgabay Exhibit C1
nottce and a reasonable opportunity to cure similar violation within the preceding six months.
.L\1r. and i\1rs. Zagaby
i\1arch 2014
Page 2
Furthermore, pursuant to Section 209.007 of the Tc\.n · Property Code, you n1ay request a
before the Board of Directors or conunittec appointed for this purpose. Your request tnust be tn
writing and delivered to the Board of Directors. at the address sho\\·n below, within thirty (30) days
of your receipt of this notice. Should you request n hearing, you "ill be given at least ten ( 10) days
notice of this date, tin1c and place for the hearing. The Board or the O\vner n1ay request a
and, if requested, the postponement shall be granted for a period of not n1ore than. ten
(10) days. Such a hearing must be held within thirty (30) days after the date that the Board :ece1ves
your request. Should the hearing be conducted by the conm1ittee appointed by the Board of Ducctors,
you \v!ll have the right to appeal the con1n1ittee's decision to the Board by \Vritten notice of appeal to
the Board.
You may have special rights or relief related to cnforcen1ent action under federal law, including the
tnembers Civil Relief Act (50 U.S.C. app. Section 501 et seq.), if you are serving on active
duty). If that applies to you please let us know, and forward \Vritten proof that you are active
duty military. If you do not do we will assun1e that you have no such rights.
Please be certain to correct the above-described violations of the Restrictions itntnediately as your
faiiure to correct your violations will result in the Association taking further action to bring your
property into compliance with the Restrictions. You n1ust also remove all advertisement related
to the short term rental of your property. Should the violations continue to exist on March 28,
2014 the Association may take further actions and suspend your right to use any recreational
facilities within the Conunon Area of River Chase.
Furthermore if we deem it necessary to seek the help of the Association's Attorney, you, the
property owner ·will be charged the attorney's fees and any and all costs related to bringing
your property into compliance.
If you have any questions or if we tnay be of any assistance, please do not hesitate to contact
Association Management Services by calling 210.582.5989 or toll-free at 866.232 4386 extension
135.
Please be advised, the management office is not authorized to ·waive any fines, or violations,
therefore any disputes or request for revie'v by the Board must be submitted in writin2..
Morales, CMCA® AMS®, PCAM®
A sociation Manager
er .
t o a scann
e in
cc: River Chase Property Owners Association y o u r p h o nof Directors
Board
turn
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f or Cam
Look
Zgabay Exhibit C1
EXHIBIT D
ZGABAY EXHIBIT D
SHORT-TERM RENTAL CASES
Case Declaration Wording Standard for Interpretation Result
LAND USE. Lots shall be utilized solely for single
family residential use consisting of single residential
dwelling and such out-buildings (garage, patio
structure), as consistent with permanent or
recreational residence. All habitable structures must Short-term rentals are not a
Wilkinson v. Chiwawa be located not nearer than 20 feet to the front lot business use. "Had the drafters
Communities Ass'n, 86870-1, line. Structures shall be of new construction and wanted to prohibit rentals of a
2014 WL 1509945 (Wash. Apr. shall not be commenced until building permit of Intent of drafters, not strictly construed for free use particular duration, they would
17, 2014). appropriate public body is obtained.... of land in case of HOA's have done so."
First, if unclear or ambiguous, then the covenant will
be resolved in favor of the free enjoyment of the
property and against the restriction. Second,
restrictions on land use will not be read into
covenants by implication lest the free alienability of
property be frustrated. Third, restrictive covenants
Estates at Desert Ridge Trails must be considered reasonably, though strictly, so
Homeowners' Ass'n v. Vazquez, that illogical, unnatural or strained construction will
2013-NMCA-051, 300 P.3d not be effected. Fourth, words in a restrictive
736, 743 (N.M. App. Feb. 8, No Lot or any portion thereof shall be used except covenant must be given their ordinary and intended Short-term rentals are not a
2013) for single-family residential purposes. meaning. business use
covenants are not favored by the law, and they will
Russell v. Donaldson, 731 be strictly construed to the end that all ambiguities
S.E.2d 535 (N.C. Ct. App. Sept. All lots shall be used for one family residential will be resolved in favor of the unrestrained use of Short-term rentals are not a
4, 2012) purposes only land business use
All Lots and Units shall be used only for residential
use (whether transient or permanent) and incidental
activities and in compliance with the Resort Short-term rentals are not a
Roaring Lion, LLC v. v. Exclusive Declaration and applicable law (including zoning business use, but issue of fact
Resorts PBL 1, LLC, CAAP-11- ordinances and building codes). As provided in the exists whether lessor provided
0001072, 2013 WL 1759002 (Haw. Resort Declaration, no gainful occupation, profession various amenities and services in
Ct. App. Apr. 24, 2013) or trade shall be maintained Plain language. the manner of a hotel
Slaby v. Mtn. River Est. Resid'l Restrictive covenants are not favored and will be
Assoc., Inc., 2012 WL 1071634 The subject property is restricted to single family strictly construed. All doubts must be resolved
(Ala. Ct. Civ. App. March 30, residential purposes only. No commercial, against the restriction and in favor of free and Short-term rentals are not a
2012) agricultural or industrial use shall be permitted. unrestricted use of property. business use
Arkansas courts do not favor restrictions on the use
of land, and if there is a restriction on the land, it
must be clearly apparent. Restrictive covenants are
Dunn v. Aamodt, 2012 WL to be strictly construed against limitations on the
137463 (W.D. Ark. Jan. 18, free use of property, and all doubts are resolved in Short-term rentals are not a
2012) Sites must be used for residential purposes only. favor of the unfettered use of the land. business use
Deed restrictions are to be read reasonably but
said property and the improvements thereon shall strictly and, to the extent language is unclear or
be used for dwelling purposes only and that no part ambiguous, the issue of enforcement of a restriction
Mason Family Trust v. thereof shall at any time be used for business or will be resolved in favor of the free enjoyment of the Short-term rentals are not a
DeVaney, 146 N.M. 199 (2009) commercial purposes property and against limitations business use
restrictive covenants, being in derogation of the
common law right to use land for all lawful purposes,
Ross v. Bennett, 148 will not be extended to any use not clearly expressed,
Wash.App. 40 (Wash.Ct.App.- all parcels within said property shall be used for and doubts must be resolved in favor of the free use Short-term rentals are not a
Div. 1 2009) residence purposes only of land business use
ZGABAY EXHIBIT D
SHORT-TERM RENTAL CASES
restrictive covenants disfavored and justified only to
Applegate v. Colucci, 908 All parcels shall be used only for residential the extent they are unambiguous and enforcement is
N.E.2d 1214 (Ind. Ct. App. purposes. No commercial business shall be carried not adverse to public policy. Restrictive covenants
2009) on upon any parcel.... Nothing herein contained are strictly construed, and all doubts are resolved in
shall prevent the leasing or renting of property or favor of the free use of property and against Short-term rentals are not a
structures for residential use restrictions business use
restrictions are not favored, and the burden is on him
who would enforce such covenants to establish that
the activity objected to is within their terms. They
are to be construed most strictly against the grantor
and persons seeking to enforce them, and substantial
Scott v. Walker, 274 Va. 209 doubt or ambiguity is to be resolved in favor of the Short-term rentals are not a
(2007) No lot shall be used except for residential purposes. free use of property and against restrictions business use
Lowden v. Bosley, 395 Md. 58 All lots shall be used for single family residential Short-term rentals are not a
(2006) purposes only. Plain language. business use
[a]ll units and restricted common elements shall be
used, improved and devoted exclusively to
residential use by a single family.” Section 6.2 states
that “[n]o business, trade, occupation or profession
of any kind shall be conducted, maintained or Give effect to the intent of the parties as expressed in
Mullin v. Silvercreek Condo. permitted on any part of the property[.] ... Nothing the plain language of the covenant; but, when there
Owners Assoc., Inc., 195 in this [s]ection 6.2 is intended to restrict the right is any ambiguity or substantial doubt as to the
S.W.3d 484 (Missouri Ct. App. of any condominium unit owner to rent or lease his meaning, restrictive covenants will be read narrowly Short-term rentals are not a
2006) (their) condominium unit from time to time[.] in favor of the free use of property. business use
no commercial or industrial ventures or business of
any type may be maintained or constructed” upon
any residential lot. No more than one (1) single
family dwelling may be constructed upon any
residential lot. The Uniform Building Code shall be General rules of contract construction. However,
used to define any term not defined herein. if a term because restrictive covenants are in derogation of the
is used that is not defined in the Covenants or the common law right to use land for all lawful purposes,
Pinehaven Planning Bd. v. Uniform Building Code, Webster's Dictionary shall the Court will not extend by implication any Short-term rentals are not a
Brooks, 138 Idaho 826 (2003) be the source used for definition of terms. restriction not clearly expressed. business use
All lots within said tract shall be used exclusively restrictive covenants are to be construed most
for residential purposes and no commercial strictly against the covenant; and unless the use
Yogman v. Parrott, 325 Or. 358 enterprise shall be constructed or permitted on any complained of is plainly within the provisions of the Short-term rentals are not a
(1997) of said property. covenant it will not be restrained business use
Plaintiff's short-term rentals
waived Defendant's as to first part
of clause; since Defendant company
Shields Mtn. Prop. Owners No lot may be utilized for any commercial or restrictive covenants are to be strictly construed and ran 27 full-time rental properties
Assoc., Inc. v. Teffelter, 2006 industrial purpose or for any commercial husbandry will not be extended by implication and any and never used subject property for
WL 408050 (Tenn.Ct.App. or agricultural activity. All lots shall be used for ambiguity in the restriction will be resolved against personal purposes, its sole purpose
2006) residential purposes exclusively. the restriction was commercial
short-term rentals would be
permitted under traditional
principles of restrictive covenant
construction favoring free use of
land;
liberal construction under TEX. PROP.CODE ANN. §
202.003(a) (construed in a manner which may temporary, retreat purposes, or
occasionally run hard afoul of strict common law transient housing not permitted
Benard v. Humble, 990 S.W.2d requirements, i.e., strict construction favoring under "liberal" construction appied
929 (Tex.App.-Beaumont 1999) single-family residence purposes grantee, and strict construction against the drafter) in Beaumont
Craig Zgabay and Tammy Zgabay v. NBRC Property Owners Association
Combined Opinion