In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00061-CV
___________________________
LOUIS SCOMA, JR. AND SUE SCOMA, Appellants
V.
COLLEYVILLE SPRING GARDEN TOWNHOMES RESIDENTIAL
ASSOCIATION, INC., Appellee
On Appeal from County Court at Law No. 2
Tarrant County, Texas
Trial Court No. 2016-001611-2
Before Sudderth, CJ.; Kerr and Pittman, JJ.
Memorandum Opinion by Justice Pittman
MEMORANDUM OPINION
Appellants Louis Scoma, Jr. and Sue Scoma sued after their townhome
community’s HOA constructed a building in the pool area, which obstructed their
view of the pool. They contended that the HOA put the building on land on which
only a residence could be constructed and that the building was an impermissible
outbuilding. The HOA countered that the building was on common property and
was permissible. The trial court granted summary judgment for the HOA, and the
Scomas now appeal.
BACKGROUND
The Scomas own a townhome in the Colleyville Spring Garden Townhomes
Development in Colleyville, Texas. At the time the Scomas purchased their
townhouse, there was no building or other improvement between their townhome
and the community’s pool area.
In 2015, the HOA decided to build a small building by the pool (the Pool
Building) to relocate the pool’s pumps, filter, and heater, as well as to provide extra
storage to residents. The HOA opted to put the building in the location where the
pool equipment was already located, which would put the building between the pool
and the Scomas’ townhome. The Scomas objected that constructing the building in
that location would obstruct their view of the pool and diminish their access to
natural light on that side of their home. They offered to pay the difference in cost to
have the Pool Building constructed in a different location. The HOA board put the
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issue to a vote among the HOA membership, and the membership voted to approve
the construction in the objected-to location.
After the HOA began construction on the Pool Building, the Scomas sued.
They sought a declaratory judgment1 and a temporary restraining order and temporary
injunction. They contended that the construction violated the community’s governing
documents, specifically: (1) the 2008 “First Amended Declaration of Covenants,
Conditions, and Restrictions for Spring Garden Townhomes” (Declaration) and
(2) the 2008 “First Amended Colleyville Spring Garden Town Homes Residential
Association, Inc. Architectural Control Guidelines” (Guidelines).
No restraining order or injunction was issued, and the HOA completed the
Pool Building’s construction while the suit was ongoing. By amended petition, the
Scomas sued for breach of contract (i.e., the Declaration) and for a declaratory
judgment that the construction did not comply with the Declaration. They also
sought a permanent injunction requiring the HOA to demolish the Pool Building.
The parties tried to the bench the question of whether the Pool Building had
been constructed on a “lot,” as the Scomas argued, or on “common property,” as the
HOA contended. The designation of the land mattered because the Declaration
provides that a lot, as defined therein (Lot), may be used and occupied only “for
single family residential purposes.” The Scomas argued that when the community was
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The Scomas initially also sued the members of the HOA board of directors for
breach of fiduciary duty. They later nonsuited their claim against the board members.
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originally platted, it described the land on which the pool and Pool Building now sit as
“Block D, Lots 4 and 5” and that the Tarrant County Appraisal District designates the
property as being “vacant land, residential,” with a legal description of “Block D, Lot
A.” They further contended that the land “can’t be common property, because it’s
owned in fee by the HOA.”
The HOA asserted that the Pool Building had not been built on a Lot because
the land is not land “which is or will be improved with a residential dwelling” and that
the land was therefore not regulated as a Lot under the Declaration. It contended
instead that the Pool Building had been built on “common property” as defined in the
Declaration (Common Property) and that the community’s plat had been amended in
1999 to designate the area as a common area on which the pool was then constructed.
It pointed out that the Appraisal District’s legal description now “specifically says,
‘Spring Garden Addition, Block D, Lot A, Common Area,’” and it argued that under
the Declaration, the land was Common Property.
The Declaration provides that Common Properties “may not be owned by the
[HOA] in fee,” but in some instances, could be held as an easement or leased, or “be
areas of land that are . . . maintained by the [HOA] for the use and benefit of the
Owners and the Properties.” At trial, the parties agreed that the HOA owned the
land on which the Pool Building had been built in fee and had done so for some time.
The HOA contended, and the Scomas did not disagree, that it had owned the land
since 1999, when it constructed the pool.
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The trial court rendered a final judgment declaring that the Pool Building had
been constructed on Common Property as defined in the Declaration, and, as such,
the HOA had not violated the Declaration with its construction. It ordered that the
Scomas take nothing on their claims, and the Scomas now appeal.
STANDARD OF REVIEW
We review de novo a trial court’s construction of a community’s dedicatory
instruments, such as restrictive covenants. Garrett v. Sympson, 523 S.W.3d 862,
866 (Tex. App.—Fort Worth 2017, pet. denied); see Tex. Prop. Code Ann.
§ 202.001 (defining “dedicatory instrument” to mean “each document governing the
establishment, maintenance, or operation of a . . . townhouse regime” and “includes a
declaration or similar instrument subjecting real property to restrictive covenants” as
well as “properly adopted rules and regulations of the property owners’ association”).
We apply general rules of contract construction when interpreting restrictive
covenants. Garrett, 523 S.W.3d at 866; Ostrowski v. Ivanhoe Prop. Owners Improvement
Ass’n, Inc., 38 S.W.3d 248, 252 (Tex. App.—Texarkana 2001, pet. denied) (noting that
restrictions in dedicatory instruments are treated as contracts between the parties and
are therefore subject to the general rules of contract construction). Our primary task
is to determine the drafter’s intent from the instrument’s language. Garrett,
523 S.W.3d at 866. We must liberally construe restrictive covenants to give effect to
their purposes and intent. Vill. of Pheasant Run Homeowners Ass’n, Inc. v. Kastor,
47 S.W.3d 747, 751 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (citing Tex.
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Prop. Code Ann. § 202.003). However, we must give the words and phrases used in a
restrictive covenant their commonly accepted meaning and may not enlarge, extend,
stretch, or change them by construction. Garrett, 523 S.W.3d at 866; see also Severs v.
Mira Vista Homeowners Ass’n, Inc., 559 S.W.3d 684, 697 (Tex. App.—Fort Worth 2018,
pet. filed).
DISCUSSION
In their sole issue on appeal, the Scomas ask whether the trial court erred in
concluding that the HOA constructed the Pool Building on Common Property as
defined in the Declaration. Based on the plain language of the Declaration, we hold
that it did not.
I. The Declaration Does Not Prohibit the Pool Building’s Construction.
The Declaration prohibits the use or occupancy of a Lot “for any purpose
other than as a private single family detached residence.” The Declaration further
provides that no “structure or building, other than the residence to be built thereon,
shall be placed on any Lot.” The Scomas point out that when the community was
originally platted, the land on which the Pool Building was later constructed was
platted as “Block D, Lots 4 and 5” and that the Pool Building is not a single family
detached residence. Based on these assertions, they argue that the construction
violated the Declaration. To counter the Scomas’ argument, the HOA pointed out
that the Tarrant County Appraisal District now lists a legal description for the land as
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“Block D, Lot A, Common Area.” 2 The HOA asserted that it acquired the land in
1999, replatted Lots 4 and 5 as a common area, and constructed the pool across it. It
produced the original plat and the replat as evidence.
However, regardless of how the land is now platted, the Declaration uses a
specific definition of the term “Lot”: a plot or tract of land that (1) is designated as a
lot on a recorded subdivision map or community plat and (2) “is or will be improved
with a residential dwelling.” The Pool Building’s land therefore could not be a Lot for
purposes of the Declaration’s restrictions if it was not land that “is or will be
improved with a residential dwelling.”
It was undisputed that the land in question, at the time of the Pool Building’s
construction, was not improved with a residential dwelling. Nor was there any
evidence that it ever would be. The part of what is now platted as common area,
where the Pool Building was constructed, was also where part of the pool and the
pool’s spa are located, and the evidence and arguments at the hearing further showed
that the Pool Building was constructed essentially on top of the area on which the
pool’s pumps, filter, and heater were already located. On this set of facts, the trial
court correctly concluded that the Pool Building’s land was not a Lot for purposes of
the Declaration. See Hicks v. Falcon Wood Prop. Owners Ass’n, No. 03-09-00238-CV,
2010 WL 3271723, at *6 (Tex. App.—Austin Aug. 19, 2010, no pet.) (mem. op.)
2
The Scomas do not address this newer legal description in their brief.
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(stating that determination of whether a particular set of facts constitute a violation of
restrictive covenants is a question of law). Thus, the trial court correctly concluded
that, even construing the Declaration liberally, under its plain language, the
restrictions on Lots did not prohibit the HOA from constructing the Pool Building.
See Garrett, 523 S.W.3d at 866 (stating that we must give words in restrictive covenants
their common meaning); see also Severs, 559 S.W.3d at 697 (same). We overrule this
part of the Scomas’ issue.
II. The HOA’s Ownership of the Land Did Not Make It a “Lot.”
The Scomas next argue that the Pool Building’s land could not be Common
Property because the HOA owns it in fee, and the Declaration prohibits the HOA
from owning Common Property in fee. We disagree that the HOA’s ownership
prevents the land from being Common Property.
The Declaration defines “Common Properties” to mean both (i) an easement
for ingress and egress over property described on an exhibit attached to the
Declaration and (ii) “any areas of land . . . known, described[,] or designated or which
shall subsequently become known, described[,] or designated as Common Properties
intended for or devoted to the common use and enjoyment of the Owners.” The
Scomas are correct that the Declaration states that “[t]he Common Properties may
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not be owned by the [HOA] in fee.”3 However, the no-ownership provision does not
alter the Declaration’s definition of Common Properties. The Scomas do not explain
how the HOA’s possible breach of the Declaration works to prevent the Pool
Building’s land from meeting the Declaration’s definition of Common Properties. See
Garrett, 523 S.W.3d at 866. And regardless of whether the Pool Building’s land was
Common Property, the land is not a Lot, and the Declaration therefore did not
restrict its use to a single-family residence. We overrule this part of the Scomas’ issue.
III. The Guidelines Do Not Prohibit the Pool Building’s Construction.
Finally, the Scomas contend that the Pool Building is an “outbuilding” under
the Guidelines and its construction was therefore prohibited. This contention is
erroneous because it interprets the Guidelines out of context with the Declaration.
See El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 805 (Tex. 2012)
(“[W]e must examine and consider the entire writing in an effort to harmonize and
give effect to all the provisions of the contract so that none will be rendered
meaningless.” (citations and internal quotation marks omitted)).
Although the Scomas are correct that the Guidelines regulate “outbuildings”
and mandate that “[n]o outbuildings shall be constructed on the Properties,” the
Scomas are incorrect that the Pool Building is an “outbuilding” in violation of the
On the other hand, the Declaration also provides for the HOA’s board of
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directors to have the right to contract for goods and services “from and after the date
on which title to the Common Properties has been conveyed to” the HOA.
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Guidelines. Indeed, in making such an argument, the Scomas are ignoring the specific
purposes of the Guidelines themselves. Most importantly, the Guidelines are subject
to the restrictions and terms of the Declaration. The Guidelines expressly provide
that “in the event of a conflict between these Guidelines and the Declaration, the
Declaration shall control.” The Declaration gives the HOA the right and option to
alter, improve, landscape, or utilize construction measures and activities of any kind or
nature on or within the common areas. Certainly, this right includes the ability to
construct the Pool Building to protect and maintain the community pool and its
equipment and to make the community pool area more enjoyable, quieter, and visually
attractive for all residents. Simply put, to the extent the Guidelines conflict with a
grant of authority or provision in the Declaration to the HOA, the Guidelines must
necessarily yield to the Declaration. See Sanders v. Future Com, Ltd., No. 02-15-00077-
CV, 2017 WL 2180706, at *5 (Tex. App.—Fort Worth May 18, 2017, no pet.) (“[W]e
must review all the documents together to ascertain the parties’ agreement rather than
voiding essential parts of the [c]ontract whole cloth.”). Otherwise, the HOA could
arguably never make improvements to the commonly shared property of the
residents.
We overrule the remainder of the Scomas’ issue.
CONCLUSION
Having overruled the Scomas’ issue, we affirm the trial court’s final judgment.
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/s/ Mark T. Pittman
Mark T. Pittman
Justice
Delivered: January 31, 2019
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