Texas Attorney Blog

One of the things I love about being a Texas real estate and development lawyer is that Texans are so open to innovative real estate developments. Practicing real estate and development law in Texas is great fun and very satisfying for this reason. A recent real estate development in Texas illustrates the point: co-housing, while not invented in Texas, has come to Texas. As a recent article by Bob Moos in the Dallas Morning News online entitled "Co-Housing Catching On in U.S." explains, the first elder co-housing development in Texas is being built in Duncanville, Texas, called Wildflower Village.

The members of the Village have been meeting together over the past two years to get to know one another, and to design their community. Some arguments have occurred, but they also meet socially to have fun as well. They like to arrive at decisions by consensus, rather than a "majority rules" vote. The development is limited to adults over 50 years of age. They plan to individually own their own single-story home. However, they will collectively own a common building that will have a gourmet kitchen, dining room, living area, home theater, craft room and two guest bedrooms.

This is an incredible concept and I wish them all the best of luck. They have gotten to know each other before they even hired a builder or an architect, and so have created a community for themselves, meaning "community" in the sense of a village with neighbors and friends, not just buildings. For more information, visit their website.

I have represented developers and investors in Texas real estate developments for over thirty years. I have been blessed with clients who are fabulous people to work with, and Texas development law is always challenging and interesting. There is one thing that is guaranteed to make both my clients and I tear our hair out however: arbitrary and capricious municipal governments and code enforcement personnel. They are not all that way, by any means: most Texas city government officials and personnel are highly professional. However, if you practice development law in Texas long enough, you will find that the few bad apples cause you more effort than all the others combined.

There is a game some municipal governments play called "Yes, that's what we promised then, but it's different now". The case of Continental Homes of Texas, L.P. v. City of San Antonio, decided recently by the Texas Fourth Court of Civil Appeals in San Antonio, illustrates what I mean. In 2002, the owners of a ranch, (located outside the San Antonio city limits but within its extra-territorial jurisdiction), received a "Vested Rights Permit" in return for giving the City a parcel of land for a gas metering station. The Permit had an effective date of 1991 and basically said that the ranch would be subject only to City ordinances and rules as of 1991, and not any passed thereafter. Importantly, the Permit had no expiration date.

In 2003, the City passed a Tree Preservation Ordinance, which required developers to, among other things, request a permit from the City Arborist before cutting trees, and to perform mitigation (i.e., plant new trees) if trees were going to be removed. In 2005, Continental bought part of the original ranch, and submitted a Master Development Plan to the City. The Plan was approved, but in a side letter, the City told Continental that Continental's Master Tree Stand Delineation was rejected, and further noted that the project will be subject to the City's Tree Preservation ordinance. In 2006, while Continental was clearing at the site, it was served with a temporary restraining order obtained by the City, stopping all work on the grounds that Continental was violating the Tree Preservation Ordinance.

The City argued that the Vested Rights Permit had become "dormant"! The trial court decided for the City. The Court of Appeals reversed the trial court decision, and quite rightly held that the Vested Rights Permit controlled, and since the City's tree ordinance was passed after the date of the Vested Rights Permit, the tree ordinance did not apply to this property. Appropriately, the City had to pay Continental's attorney's fees. If I were a San Antonio taxpayer, I would be furious that my tax dollars financed a suit like this!

As a Texas real estate lawyer representing developers, builders and investors in Texas, I have found that my clients benefit from the availability of "alternate dispute resolution" remedies in their contracts. These remedies, such as mediation and arbitration, can result in satisfactory outcomes to disputes, without the cost of extended litigation. A recent Texas Supreme Court case illustrates that the contract remedy of arbitration can be waived, however.

In the case of Perry Homes, Inc. v. Robert and Jane Cull, the Culls sued their homebuilder for structural and drainage defects in the home built by Perry Homes. Initially, Perry Homes requested that the dispute be submitted to arbitration, but the Culls resisted. A ruling was never obtained by either party from the trial court on whether the case must be submitted to arbitration. The Culls then engaged in a course of extended (and expensive) discovery for 14 months. Four days before trial, the Culls requested that arbitration be ordered. The trial court ordered arbitration, and the arbitration resulted in an $800,000.00 award to the Culls.

The Texas Supreme Court states that: "(the Culls) got extensive discovery under one set of rules and then sought to arbitrate the case under another. They delayed disposition by switching to arbitration when trial was imminent and arbitration was not. They got the court to order discovery for them and then limited their opponents’ rights to appellate review. Such manipulation of litigation for one party’s advantage and another’s detriment is precisely the kind of inherent unfairness that constitutes prejudice under federal and state law." As a result,the Texas Supreme Court set aside the award, and sent the case back to the trial court for a trial, on the grounds that the Culls had waived their right to arbitrate this dispute.

While arbitration is often less expensive than discovery and trial, it has some downside: discovery and the scope of appeal is substantially limited in an arbitration proceeding. That's why it is faster and costs less. The moral here for clients and lawyers: the case should be analyzed in the beginning, to determine whether trial or arbitration is the best remedy. Once you embark down the path of discovery and trial, the arbitration door is going to swing shut!

Texas attorneys representing developers, homeowners and contractors, and in fact any attorney who is drafting a contract for a client, should make note of a recent case by the 4th Court of Appeals in San Antonio, Texas.

In the recent case of San Antonio Properties L.P. v. PSRA Investments, Inc., the Seller of an apartment complex was held liable for fraud for its representations as to the financial condition of the apartments, even though the contract of sale contained language that the Buyer agreed to "...accept the Property in its current condition, as is, after having inspected the Property to Buyer's satisfaction." The evidence showed that the Seller had provided the apartments' operating statements to the Buyer, but had omitted from those financial documents the substantial amounts spent by the Seller in capital expenditures and repairs.

The resulting operating statement (minus the capital expenditures) showed that the apartments made money. When the capital expenditures were added back in, the apartments lost money. The Court held that the "as-is" clause in this contract did not prevent the Seller from being liable to the Buyer for fraud due to the intentionally inaccurate financial documents provided to the Buyer. The Court notes that "...even sophisticated buyers have the right to rely on the veracity of the financial information provided to them by the sellers."

I often see Texas real estate attorneys and their clients placing a great deal of reliance on the "as-is" clause in their contracts. This case suggests that this reliance may be misplaced, and will certainly not be a shield against actual deception.

I have served as an attorney representing both rural water companies and real estate developers in Texas for quite a few years. Very often, my representation involves negotiating "nonstandard service" contracts. These are contracts governing the conditions, terms and costs under which a rural water company will extend water service to a new development. At best, there is a bit of built-in tension between the two groups: real estate developers are appropriately mindful of their bottom line and want to minimize the costs and restrictions of obtaining water service, while rural water companies have legitimate concerns that their capital costs will be paid and that some amount of warranty service is covered. I emphasize to all my clients, whether they are real estate developers or rural water companies, that their agreements must be reduced to writing, to insure there is no misunderstanding in what can very often be a complex negotiation.

A recent case, BCY Water Supply Corp. v. Residential Investments, Inc., illustrates the pitfalls when one or the other of the parties involved takes action based on (often misunderstood) oral statements. This case, decided by the 12th Court of Appeals in Tyler, Texas, involved a small rural water company serving Anderson County, Texas. The Plaintiff was a real estate developer who was the considering the purchase of a small tract of land within the water company's service area. The developer came by the water company's office, and visited with the water company's bookkeeper and maintenance man. The developer questioned the maintenance man about the availability of water for the property the developer was thinking of buying. According to the developer, the maintenance man said that there would be "no problem" getting water service to the property. The maintenance man, on the other hand, testified that the developer requested a single meter at the property, and that he told the developer that, while he did not see a problem serving a single meter, all requests for service had to be directed to and approved by the board of directors and that the board might require capital improvements before service could be approved. The developer bought the property, and when he applied for service, the board of directors of the water company told him that he would have to install a new line prior to water service being supplied. The developer claimed that the representations by the maintenance man were negligent and sued the water company for denial of service.

The Court of Appeals held for the water company, ultimately. However, this litigation probably cost this small rural water company and its members dearly. The decision represents something I emphasize often to my rural water company clients: educate all your staff, whether office staff, maintenance people or operators, that whenever someone asks about the availability of water, always, and I mean always, tell them that they will have to talk to the manager of the company or the President of the board of directors. Do not guess, do not speculate and do not surmise. The maintenance man for this company was probably just trying to be helpful to this developer, and a lawsuit was the result.

As a real estate and development attorney in east Texas, I have represented Texas property or homeowners associations (HOAs) on quite a number of occasions. My legal services for my homeowner association clients have ranged from preparation of corporate documents and restrictive covenants, to mediating disputes, to overseeing annual meetings, to filing and collecting assessment liens, to litigation to enforce deed restrictions. As any lawyer who has represented HOAs knows, few things engender as much conflict and heated debate as interpretations of restrictive covenants among the members of the HOA. A recent case illustrates this situation.

In Jennings v. Bindseil, the Texas Court of Appeals in Austin considered just such a dispute. The neighborhood in question, in rural Comal County, Texas, had restrictive covenants in place. One of the restrictions prohibited mobile homes. The Defendant, Jennings, purchased a modular home, which was delivered in sections and assembled on Jennings property. The other members of the HOA cried foul, claiming that a modular home is the same thing as a mobile home, and sued Jennings for the removal of the structure.

The Court considers that modular and mobile housing (the term "mobile", as the Court notes, has been replaced by the term "manufactured" housing) are governed by different codes, differ as to their foundation requirements (modular houses must be placed on a permanent foundation) and in titles (titles are issued for mobile homes but not for modular housing). Because the case had been decided in the trial court on a motion for summary judgment (in other words, there had been no evidentiary hearing as to the details of the Defendant's house), the Court of Appeals reversed the summary judgment against the Defendant and sent the case back to the trial court for an evidentiary hearing.

This case illustrates what happens when older deed restrictions (drafted and filed before modular housing became widely available) come up against more recent technology. The truth is, mobile or manufactured housing is different from modular housing in many ways. However, while there is high end modular housing that is quite tasteful, some modular houses look not much nicer than manufactured or mobile homes, and are sometimes made of the cheapest of materials. If the other owners in this subdivision had spent substantial amounts of money on site-built homes, and the Defendant's home was of the cheap variety, it is understandable why they would be upset. The lesson for HOAs and their attorneys is clear: review your deed restrictions or restrictive covenants periodically, and update them to keep up with changing technologies.

Congress may soon get a chance to approve the creation of a new national park in the Waco, Texas, area. This development may prove a real boon to the local real estate market. A new park will generate the need for tourist related facilities, such as gas stations, motels and restaurants. Expect an increase in land prices in the area surrounding the proposed five acre national park. Local attorneys who practice real estate and construction law may find themselves in the midst of some interesting negotiations between the big city gas station and motel franchisors and the local landowners.

The possible new park centers on the discovery and excavation of the bones of 25 Columbian mammoths. The Columbian mammoth is a warm weather cousin to the woolly mammoth, with which some of us are more familiar.

Baylor University and the City of Waco are preparing to allow the public to have their first look at the "Waco Mammoth Site", after several decades of clandestine work uncovering the remains. The National Park Service has indicated that the site meets its criteria for a national park, although the final decision will be made by Congress, and funding for a park may be hard to find.

It is hard to overestimate the significance of this site. The Waco Mammoth Site, along the Bosque River, was first discovered in 1978, but has been kept quiet until now due to fears of theft or vandalism. The site is believed to be the largest known concentration of prehistoric mammoths perishing from a single event. It appears that the animals may have been caught in a flash flood and then a mudslide that killed them all at one time. The first fifteen mammoths uncovered were grouped in a circle, facing outward, protecting young mammoths in the center. Two adults were found with juvenile mammoths in their tusks, as if they were trying to raise the youngsters above the mud.

Baylor University, the City of Waco and the Waco Mammoth Site Foundation are working hard to raise the funds to build a visitor's center, roads, and a climate-controlled pavilion for display of the bones. As Jim Vaughn, the president of the Greater Waco Chamber of Commerce has pointed out, this will be a unique draw for the Waco area, and is likely to attract many visitors because it is so accessible. Ellie Caston, director of the Mayborn Museum in Waco, estimates that tourists to the site could number between 50,000 to 300,000 a year.