Are There Deed Restrictions in our Neighborhood?

The short answer is yes! Each subdivision and from time to time individual properties may have deed restrictions or restrictive covenants tied to them. Deed restrictions may vary somewhat from subdivision to subdivision as well.

Over the years, many neighbors have actively worked to maintain the scale and character of their neighborhoods by enforcing and defending their deed restrictions. Other parts of our neighborhood have been less attentive allowing violations to occur with often deleterious results. Many have successfully prevented developers from violating deed restrictions thus retaining neighbors’ ability to enjoy their properties, preserving the overall feel and character of their streets, and elevating their property values. Others have not been as successful.

If you have questions or concerns that a newly issued permit or the construction of a new structure may be violating deed restrictions, the City is not a good resource since they do not recognize nor enforce deed restrictions when issuing permits. Some deed research on the property in question may turn up some valuable information. It is most important, though, to consult a very good and experienced real estate attorney if you are concerned that a nearby landowner may be violating their deed restrictions and potentially hurting the value of your property or diminishing your ability to enjoy your home.

What Are Deed Restrictions?

Deed restrictions including conditions, covenants and restrictions are specific requirements listed most often in a real property deed or subdivision plat. When a new neighborhood is laid out, developers typically use deed restrictions to ensure properties within the subdivision adhere to specific building requirements such as how close a structure can be to the property lines (setbacks), height limits, overall structure size, as well as style and cosmetic requirements among other things. Such restrictions are enforceable by Texas courts but not by governing bodies like the City of Austin.

Who Might be Subject to Deed Restrictions?

Our core neighborhoods such as Tarrytown, Bryker Woods and Pemberton and other older neighborhoods typically have deed restrictions. Many newer neighborhoods developed in the last 30 years like Davenport or Circle C are in homeowner or property owner associations (HOA). For reference, HOA’s are legal entities established under the Texas Property Code Deed and are empowered to institute rules and restrictions, collect dues, levy fines for violations and pursue enforcement against a property owner on behalf of the association.

This should be differentiated from neighborhood associations like WANG that are voluntary associations and which lack similar controls. Instead, as developers like Niles Graham subdivided our neighborhoods over the past century, each incorporated deed restrictions to establish unique scales, architectural styles and character that would lure prospective homeowners. These deed restrictions were intended to enhance the value of the real estate in new subdivisions since it would give buyers some level of assurance of what they might expect of the neighborhood in the future just as HOA’s are today.

The Reality of Deed Restrictions?

In theory, deed restrictions should prevent someone from building a house 25 feet from the street while everyone else on a street is set back 75 feet, being able to build two stories when everyone else is only allowed one or having things like minimum lot sizes. Unfortunately, it does not always work this way in practice. While a deed restriction is a contractual obligation to which the landowner is obligated to abide, it is left to property owners within the same subdivision to spend the time and resources to defend deed restrictions should someone elect to violate them.

Because they typically have no legal standing in regard to deed restrictions, municipalities are usually not very helpful in this regard. Unfortunately, the City of Austin entirely ignores deed restrictions in the permitting process. This in turn places neighbors in the unfortunate position of having to defend their deed restrictions using various civil remedies. Their failure to do so might constitute waiver thus nullifying the very restrictions that provided the neighborhood with a measure of stability and constancy.

If neighbors care about keeping their street or area’s character as set out in deed restrictions, it is their responsibility to be vigilant and recognize when someone attempts to violate a deed restriction. It is the responsibility of the affected residents to notify the violating party that they are in violation, and to pursue remedies as soon as possible. Preferably this would take place before construction begins.

Is Court Action the Only Remedy Left?

Should the violating party not voluntarily cease and desist after notice has been provided by affected neighbors, the latter may have to file suit for enforcement. Taking a deed restriction violation to court does not ensure success. Deed restrictions that violate Federal or State Law, such as restrictions about race or family status are considered invalid and will not be upheld by a judge. Normally, courts do uphold deed restrictions as long as those deed restrictions have not been proven to be waived or abandoned. However, it is up to the judge to make a final ruling with all factors taken into account.

While the outcome may seem cut and dried, there are often issues that may cloud the case. A real estate attorney familiar with matters pertaining to deed restrictions should be consulted to determine the merits of any prospective litigation. This can be an expensive process since the party(s) forced to defend their deed restrictions may have to foot the bill for all legal and court costs.

Action Items!

• Know your subdivision’s deed restrictions (Do a little online research, check your title policy or contact your favorite title company).
  
• Once you understand your deed restrictions, be vigilant regarding planned construction (The City of Austin’s online permit searching tool is a great City of Austin Permit Search ).
  
• Act swiftly by notifying the violating party in writing.
  
• Contact other neighbors in your subdivision.
  
• Prepare to defend your deed restrictions if necessary
  

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FEBRUARY 2018 BOARD OF DIRECTORS

• These are the minutes of the meeting of the West Austin Neighborhood Group Board of Directors held Tuesday, February 6, 2018 at 6:30 p.m., at the Howson Public Library.

  I. Call to Order:

  The meeting was called to order at 6:40 PM by President Cathy Kyle. Board members in attendance included: Mary Arnold, Joyce Basciano, Joe Bennett, Mike Cannatti, August Harris, Haidar Khazen, Craig Lill, Holly Reed and Blake Tollett. Board members Elizabeth Adams, George Edwards and Gunnar Seaquist were not in attendance.

  II. Approval of Minutes:

  August Harris made a motion to approve the January 2, 2018 Meeting Minutes. The motion was seconded by Joyce Basciano, and approved unanimously.

  III. Neighbor Communications:

  IV. Land Matters:

  A. 2605 W 8th St.: On February 12 the Board of Adjustment will hear a variance request by Kristina and Evan Baehr to construct a 37 SF elevated walkway between the second floor of their home and a second floor studio over their detached garage. This walkway would allow them to use the studio as an additional bedroom for their growing family by connecting it to the house. The house is currently at 39.99% FAR. The 37 SF walkway would put the FAR just over 40%.

  The Baehrs presented the WANG Board with letters of support from their surrounding neighbors. Blake Tollett made a motion to not oppose the variance, conditioned upon the removal of the outside staircase up to the garage studio, and an agreement to not install an internal staircase from the garage into the studio. The space above the garage is currently habitable as a studio and would remain habitable now re-purposed as a nursery/bedroom space with bathroom.

  The motion was seconded by August Harris and approved unanimously.

  B. Blake Tollett informed the Board that the Contemporary Arts Museum was requesting a renewal of their outdoor music permit. He has not heard any complaints or opposition from neighbors.

  V. Transportation:

  Happy Harris reported that the sound walls were progressing along Mopac with a new completion date of June, 2018.

  President Kyle noted that she has heard renewed discussion of the Mopac South expansion over Lady Bird Lake.

  Mary Arnold informed the Board that plans to replace the Red Bud Trail Bridge are still in the works, estimating the total cost at $50 Million. Public Works has suggested seeking a CAMPO grant. The project has been in the design phase since the June 2016 community meeting. Although the engineering firm has been paid $512,712 as of June 2017 to study making the new bridge 25’ higher than the existing one, and cutting into the cliffs on the west side of the lake, NO reports have been made public as to analysis of environmental issues, Austin Water requirements, etc. Mary reminded the Board that these cliffs were protected in the Brackenridge Development Agreement.

  VI. Membership:
  

  Joe Bennett informed the Board that paid membership is slightly down. He has sent an email flyer reminder to 100 members currently needing to renew their 2017 membership. Joe has worked hard to successfully improve the online WANG E-Newsletter using the new program which is allowing us to inform the WANG Membership more expeditiously. He shared some of the analytics regarding members’ preference of online newsletter vs. mailed newsletter.

  VII. Newsletter:
  

  Haidar Khazen informed the Board that content is due by February 15th. Joe will drop content into the online newsletter. The Board discussed mailing out two hard copy newsletters to all residents in the WANG area this year due to these important upcoming dates:

  · Brackenridge Tract Lease to Lions Muny expiring in 2019

  · Austin State Supported Living Center possible relocation in 2019

  · CodeNEXT vote/ possible adoption Spring. 2018

  VIII. ANC Liason Report:

  Joyce Basciano reported that the Austin City Demographer will be attending the Austin Neighborhoods Council meeting on February 28th at 7PM at the Town Lake Center.

  CodeNEXT: Joyce reported that the CodeNEXT Petition Drive for an Austin Ordinance requiring both a waiting period and voter approval before CodeNEXT or comprehensive land development revisions become effective.

  · The deadline to submit petition signatures is MARCH 15th for a November vote.

  · Community Not Commodity needs volunteers to validate signatures, and collect signatures at the Town Lake Trail Mopac pedestrian bridge on Feb. 10th and 11th

  · Joe Bennett will send WANG members an online flyer with PDF of the CodeNext Petition

  · City Ordinance requires that only original hard copies of each name and signature of registered voters may be submitted for this petition.

  · Draft 3 of CodeNEXT will be released Monday, Feb. 12th

  IX. Treasurer’s Report:

  George Edwards email reported that WANG has $9,868.16 in the Business Account, $511.36 in the Tarrytown 4th of July Parade Account, and $1,206.74 in the Oak Wilt Account.

  X. Old Business:

  MLS Soccer Stadium on City Parkland: President Kyle made a motion to amend the letter from WANG to Mayor and Council Members to say that WANG is in support of a Council Resolution opposing the use of any City of Austin Parkland for the Precourt Sports Ventures MLS soccer stadium. The motion was seconded by Holly Reed and approved by the Board, with Craig Lill abstaining.

  XI. New Business:

  A. Mayfield Park Sponsorship: Blake Tollett informed the Board that Mayfield Park will host Trowl and Error, an annual gardening event, on April 7, 2018 from 9:30AM to 1:00PM.

  Blake asked for a 250.00 WANG sponsorship for Mayfield Park which the Board approved unanimously.

  B. Next Meeting: Tuesday, March 6th, 2018 at 6:30 PM. Craig Lill is working with Tarrytown Methodist for this meeting’s location, as Howson Library will be a voting site for the March election.

  XII. Adjourn: The meeting was adjourned by President Cathy Kyle at 8:04 PM.

In addition to Austin’s zoning protections, residents of West Austin can use deed restrictions to protect their neighborhood integrity and quality of life. The goal of this guide is to provide answers to common questions regarding enforcement and maintenance of deed restrictions.

This publication should prove useful for civic groups, community leaders and residents. However, for assistance with deed restriction creation, extension, renewal or amendment, it is recommended that groups or individuals interested in these tasks enlist the assistance of a private attorney, since working with deed restrictions can involve technical legal processes that require a certain degree of expertise. The information presented in this pamphlet is general in nature and does not constitute legal advice.

Q: What are deed restrictions?

A: Deed restrictions are written agreements that restrict or limit property use or activities in a subdivision. These restrictions appear in the deed records, and are private agreements or contracts between a property buyer and a property seller.

Q: Who must abide by deed restrictions?

A: In most cases, deed restrictions are binding upon every property owner in a defined neighborhood or subdivision, and all subsequent owners of property in a deed-restricted neighborhood or subdivision must abide by the restrictions.

Q: How are deed restrictions put in place?

A: Deed restrictions are usually created and imposed on lots in a subdivision by the initial developer. At that time, the restrictions are filed in the Deed Records of the County Clerk before the developer sells any lots in the subdivision. Deed restrictions may also be created by residents of a subdivision; more information on this is presented later in this booklet.

Q: Why are deed restrictions important to my subdivision or neighborhood?

A: One of the primary purposes of most deed restrictions is to preserve the residential character of a subdivision or neighborhood by preventing property use for commercial or industrial purposes. This makes deed-restricted neighborhoods desirable for people who wish to live in an area that is completely residential.

Deed restrictions can be used to preserve the existing “look and feel” of a neighborhood by defining a minimum set of restrictions, such as setback rules (that control the placement of structures in relation to other properties), subdivision prohibitions (which prevent a developer from dividing a property for purposes of building multiple separate homes).

Q: How can I find out whether my subdivision or neighborhood has deed restrictions in effect?

A: To find out whether your deed restrictions are in effect, you should obtain a copy of the restrictions. The Travis County Clerk’s Office is the official source for deed restrictions. Deed restrictions are on file with the Travis County Clerk’s Office and can be obtained from the County Clerk’s Recording Division at 5501 Airport Blvd, Austin, Texas 78751 (854-9188).

Q: What can I do to help maintain compliance with deed restrictions in my subdivision or neighborhood?

A: Individual homeowners can file lawsuits to stop construction or additions to property that are a violation of the deed restrictions. Texas law gives deed restrictions superior status over other City zoning ordinances or neighborhood planning. The burden is on the homeowner wanting to do something in violation of the deed restrictions to prove that the deed restrictions

should be voided.

Q: What should I or my association do about a deed restriction violation?

A: First, make sure that there is a violation. Review your deed restrictions carefully — again, you may wish to enlist the assistance of an attorney — to determine whether your subdivision’s restrictions are being violated. If you are uncertain, but believe a violation may be taking place, you may also file a complaint with the City’s Legal Department. They will advise you as to whether a violation appears to be present, and whether the City can participate in enforcement on your behalf.

If a violation does appear to be occurring, you might want to begin by simply talking with the owner of the property where the violation is located.

If talking to the property owner does not help matters and your civic group is convinced that a violation exists, contact the violator again through certified mail with a return receipt requested. Make it clear in your letter that a violation of the deed restrictions is occurring and that the group plans to take action if the violation is not corrected immediately.

Q: What if the violator refuses to comply with the deed restrictions?

A: If the violator ignores notification of a violation and refuses to correct the problem, legal action can be taken. The courts have held that deed restrictions are enforceable legal contracts that represent implied promises to restrict the use of land. Therefore, suit can be filed in state district court, or in some cases justice court, to force the violator to comply with the applicable deed restrictions. As discussed below, this legal action can be taken by the City, though it may also be taken by a private attorney.

Q: What arguments are usually made to defend deed restriction violations?

A: Traditionally, Texas has had a presumption in favor of the free use of property, meaning that the courts are likely to enforce deed restrictions only against obvious violators. However, recent legislation has encouraged courts to pursue more liberal readings of deed restrictions, often making them easier to enforce. Despite this, a violator can be successful by establishing a valid defense. Two of the more common defenses used are:

· Laches (pronounced latches) — this form of argument seeks to establish that the complaining parties allowed the violator to proceed to act at his expense and that the complainants failed to give notice of a violation within a reasonable length of time;

· Waiver — this tactic seeks to demonstrate that numerous similar violations have gone unchallenged in the same subdivision.

Because these defenses have been successful in the past, it is very important that you and your civic club or neighborhood association act quickly to correct violations, especially if something is going to be built or is being built. Letting deed restriction violations exist for a period of time can make them more difficult to stop.

Q: Is there anything else I or my neighborhood association can do to prevent deed restriction violations?

A: Yes. Many people do not like the idea of taking legal action against a neighbor; because of this, preventive action is almost always the best method of ensuring compliance with deed restrictions. Most of the time, legal action can be avoided if neighbors make sure that each of their fellow residents is aware of the existence of the deed restrictions. If possible, your neighborhood group might want to provide new residents with a copy of your subdivision’s deed restrictions so that they will know their obligations. Be friendly, but make it clear that corrective action will be taken against any violation.

Sign the Petition...

Require city wide voter approval of CodeNext

CodeNEXT Draft 3 released February 12th is inconsistent with Austin’s current comprehensive plan and our Central West Austin Neighborhood Plan, ignores the input that West Austin neighbors have tried to make and allows for even more density than Draft 2 on 7,000 sf lots, while cutting parking.

Don’t let our city council pass CodeNEXT on its own! Download, sign, and mail a copy of this legally binding petition to "Let Us Vote Austin" demanding that it first be approved by Austin voters. For more information on CodeNEXT’s implications for neighborhoods visit https://communitynotcommodity.com/resources .

Let Us Vote Austin SPAC, 3009 East 11th, Suite 2, Austin, TX 78701 8704 or leave at dropoff boxes at 613 Hearn St or 2410 Dormarion Lane.

Thursday, March 15th is the deadline to submit petitions....

The City needs 20,000 signatures and we are almost there but need more....

Click on the button below....

_________________________________________Get your neighbors to sign it with you !

Draft 3 of CodeNEXT, the staff recommendation, was released Monday, Feb. 12. To learn more about the new draft, visit AustinTexas.Gov/Codenext.

To view and comment on the code, visit codenext.civicomment.org.

To view and comment on the map, visit codenext.engagingplans.org.

Download the full copy of the code here.

Because this is the staff recommendation, all comments received on this draft will be compiled and provided to the Austin City Council, the Planning Commission, and the Zoning and Platting Commission for further deliberation.

_________________________________________________________________________________________

• 10 AM-Jay White, contributing editor for Texas Gardener, Masters in Horticulture, Propagating Like A Pro

• 11 AM-Daphne Richards, Texas A&M AgriLife Extension Horticulturist

• Down To Earth With Daphne: Your Top Questions From Travis County Extension

• 
  

• NOON-April Rose, Consulting Arborist, Rosewood Arboriculture, Environmental Health To Save Our Trees

BRING YOUR GARDENING QUESTIONS!!

What’s a garden event without a plant sale? Mayfield has the best deals in town for hard-to-find heirlooms and other perennials perfect for the April garden. A “garden goodie” raffle for the discerning gardener will round out the day.

As always, Trowel & Error benefits one of Austin’s favorite and enchanting parks, historic Mayfield. Guests tour the restored Mayfield-Gutsch home, surrounded by stone-walled gardens patterned in the 1920’s after the cottage gardens of England. Towering palms, flowering trees and perennials line meandering paths set among ponds filled with water lilies and fish. Gregarious peacocks supervise overflowing flowerbeds planted and maintained by community volunteers.

Sponsored by Friends of the Parks of Austin, a non-profit organization, TROWEL AND ERROR is the solitary fund-raiser for historic Mayfield Park. Although admission is free, a $5.00 donation is requested.

For more information: 512-453-7074, neenok@aol.com or mayfieldpark.org

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by Wizzie Brown, BCE

Pillbugs, or roly-polys, are crustaceans, more closely related to crayfish and shrimp than insects. Crustaceans usually live in aquatic environments, but pillbugs are terrestrial. Even though they live on land, they still require moist environments for survival. Pillbugs do not bite, sting, transmit diseases, or cause physical damage to the home or its contents. Pillbugs are ¼- ½” with dark grey coloring. Their oval bodies are convex above and either flat or concave underneath. Pillbugs have seven pairs of legs and two pairs of antennae and roll up into a ball when disturbed.

Pillbugs are scavengers, feeding mainly on decaying organic matter. They may occasionally feed on young, tender plants, but damage is typically not significant. They can be found under mulch, leaf litter, flower pots, compost, stones or other items resting on the ground. Pillbugs may invade crawl spaces and homes at ground level with common points of entry being door thresholds and expansion joints. When these pests are seen indoors, there is usually a large population breeding outside of the home near the foundation. Since pillbugs require moisture, they do not survive indoors for more than a few days unless there are very moist or damp conditions.

To manage infestations inside the home, rely on sanitation and exclusion techniques. Repair or replace door thresholds and seal expansion joints where pillbugs may be entering the structure. Pesticides are not usually needed indoors to manage these occasional invaders. They soon die on their own from lack of moisture and can be swept up using a broom and dustpan or a vacuum.

Outdoors, move any piles of debris away from the foundation of the home. If there are high numbers in and around landscape beds, turn the mulch to allow it dry out which makes the area uninhabitable. Any leaky faucets or irrigation lines as well as leaking air conditioning units should be repaired to eliminate moisture buildup. You may choose a pesticide to treat mulched areas or other areas that are harboring large pillbug populations. Look for products labeled for pillbugs, sowbugs, or isopods.

For more information or help with identification, contact Wizzie Brown, Texas AgriLife Extension Service Program Specialist at 512.854.9600. Check out my blog at www.urban-ipm.blogspot.com

The information given herein is for educational purposes only. Reference to commercial products or trade names is made with the understanding that no discrimination is intended and no endorsement by Texas A&M AgriLife Extension Service or the Texas A&M AgriLife Research is implied.

The Texas A&M AgriLife Extension Service provides equal access in its programs, activities, education and employment, without regard to race, color, sex, religion, national origin, disability, age, genetic information, veteran status, sexual orientation or gender identity.

Wizzie Brown, BCE

ebrown@ag.tamu.edu

512-854-9600

My Blogs: http://urban-ipm.blogspot.com/

https://agrilife.org/urban-ipm/

Facebook: https://www.facebook.com/UrbanIPM/

Instagram: urbanipm, Twitter: @UrbanIPM