This case involved a dispute between a property owners association (Association) and a property owner (Owner) over Owners right to retain a mobile home on his property. At issue was the application of a deed restriction that said, Only a residence, garage, or tool house may be built on residential lots and, No trailer houses, mobile homes, or kindred structures will be permitted.

After Owner refused to remove the mobile home from his property at the request of Association, Association filed suit seeking an order from the court compelling Owner to remove the mobile home from his property and a permanent injunction prohibiting Owner from moving a trailer house, mobile home, or kindred structure on his property. Owner refused to remove the mobile home from his property because he contended that there were other mobile homes in the same subdivision that Association did not seek the removal of. Based on those facts, Owner raised the affirmative defenses of waiver and estoppel and argued that Associations efforts to enforce the deed restriction against Owner were arbitrary, capricious, and discriminatory.

The trial court rendered judgment in favor of Association and ordered Owner to remove the mobile home from his property. After his motion for a new trial was denied by the court, Owner filed an appeal of the trial courts judgment. In the appeal, Owner contended that Association frequently declined to enforce the deed restriction and had knowingly permitted other mobile homes in the same area, thereby waiving the right to enforce the deed restriction against Owner. Owner further contended that Association could not enforce the deed restriction against him based on the principles of estoppel because Association had originally allowed him to put the mobile home on his property until he could install a permanent structure. Thus, Owner contended that Association was estopped from taking a contrary position and enforcing the deed restriction.

In considering Owners waiver and estoppel defenses to Associations enforcement of the deed restriction, the appellate court stated that to defeat the enforcement of the restrictive covenant, Owner had to prove that the existing other violations were such that they would lead the mind of the average person to reasonably conclude that the restriction had been abandoned and its enforcement waived. To make such a determination, the court considered such factors as: (i) the number, nature, and severity of the existing violations; (ii) any prior enforcement’s of the restriction; and (iii) whether it was still possible to realize to a substantial degree the benefits of the restriction despite the violations.

With regard to Owners waiver defense, the appellate court concluded that the trial court could reasonably have found that the other violations of the deed restrictions were different in nature and not so prevalent that the average person would not reasonably conclude that Association had waived enforcement of the restriction. Accordingly, the appellate court upheld the trial courts ruling on the waiver issue.

As to Owners estoppel defense, the appellate court noted that the elements that are required to establish an estoppel were: (i) a false representation or concealment of material facts; (ii) made with either actual or constructive knowledge of those facts; (iii) with the intention that it should be acted on; (iv) to a party without knowledge or means of obtaining knowledge of the facts; (v) who detrimentally relies on the representations. In considering the facts of the case, the appellate court found that the trial court did not abuse its discretion in concluding that Owner had not met his burden of producing sufficient evidence to establish all of the elements that were necessary to prove Association was estopped from enforcing the deed restriction in question. Accordingly, the trial courts judgment was affirmed by the appellate court.

Texas Appellate Court decision (January 9, 2020).

See case decision: Murray_v._C.I.A._Hidden_Forest_Inc.