Frey v. DeCordova Bend Estates Owners Ass'n, 18650

• Decision Date: 22 April 1982
• Docket Number: No. 18650,18650
• Citation: 632 S.W.2d 877
• Parties: Eugene C. FREY, Appellant, v. DeCORDOVA BEND ESTATES OWNERS ASSOCIATION, Appellee.
• Court: Texas Court of Appeals

Page 877

632 S.W.2d 877

Eugene C. FREY, Appellant, v. DeCORDOVA BEND ESTATES OWNERS ASSOCIATION, Appellee.

No. 18650.

Court of Appeals of Texas, Fort Worth.

April 22, 1982.

Rehearing Denied May 27, 1982.

Bailey F. Rankin, Granbury, for appellants.

Ralph H. Walton, Jr., Granbury, for appellees.

Before MASSEY, C. J., and SPURLOCK and JORDAN, JJ.

OPINION

SPURLOCK, Justice.

Defendant, DeCordova Bend Estates Owners Association (hereinafter Association) is a non-profit Texas corporation whose members are owners of property in DeCordova Bend Estates, a private residential subdivision located in Hood County, Texas. Plaintiff, Eugene C. Frey is a member of the Association. The purpose of the Association is to provide private recreational facilities for the common benefit of its members, including purchasers of lots from the Dedicator, its successors and assigns.

Frey brought an action for injunction against the Association, seeking to permanently enjoin it from assessing and collecting any fees and charges for the use of facilities and services owned and provided by it other than a monthly membership assessment. Such assessment is payable by all members of the Association, and of this there is no complaint.

Frey also sought to enjoin the Association from assessing any special charges against any lessee of real property located in DeCordova Bend Estates for the use of facilities owned by the Association and to enjoin the Association from spending funds collected for golf cart trail fees for any purpose other than for special projects designed to improve and beautify the golf course owned by the Association.

Both parties filed motions for summary judgment. The trial court granted the Association's motion and Frey appealed.

We affirm.

The purpose of the summary judgment rule is to provide a means of summarily terminating a case when only a question of law is involved and no genuine issue of fact exists. Straughan v. Houston Citizens Bank & Trust Co., 580 S.W.2d 29 (Tex.Civ.App.-Houston (1st Dist.) 1979, no writ). The granting of a summary judgment should be affirmed only if the record establishes a right thereto as a matter of law. Bergman v. Oshman's Sporting Goods, Inc., 594 S.W.2d 814 (Tex.Civ.App.-Tyler 1980, no writ). This court must view the evidence in the light most favorable to the party opposing the motion for summary judgment. Pack v. City of Fort Worth, 552 S.W.2d 895 (Tex.Civ.App.-Fort Worth 1977, writ ref'd n. r. e.).

Plaintiff asserts two points of error: that the trial court erred in granting defendant's motion for summary judgment, and by denying plaintiff's motion for summary judgment. He argues that the Board of Directors does not have the authority to propose and assess fees and charges it finds to be necessary in addition to the regular membership assessment.

Paragraph 15 of the Restrictions and Covenants governing the DeCordova Bend Estates subdivision (filed of record in Hood County and in plaintiff's chain of title) contains the following provision:

membership shall be conditioned upon observance of the rules and regulations established by The Association for the benefit and general welfare of its members and for the official operation thereof. Said membership shall also be conditioned upon payment, when due, of such dues, fees, and charges as The Association shall find necessary for the maintenance of the club facilities and services.

Frey argues that in order for a covenant to be binding on a subsequent purchaser the covenant must run with the land, and there must be privity of estate between the parties. He cites as authority for this proposition a case in which the court held that to run with the land to individual successors in title, such covenant must be made between parties who are in privity of estate and must be contained in a grant of land. Clear Lake Apts. v. Clear Lake Utilities, 537 S.W.2d 48 (Tex.Civ.App.-Houston (14th Dist.) 1976, no writ).

Clear Lake dealt with a contract between a landowner and a water supplier which could only be construed and enforced as a purely personal covenant. There it was held that it must be the intention of the original covenanting parties that the covenant run with the land, as ascertained from the words, reading and attending circumstances as the parties are presumed to have considered when they executed the instrument. 16 TEX.JUR.3d 516, Covenants, Sec. 10 "Intention of Parties" (1981). A covenant, personal in form, may be real if in fact it is for the benefit of the grantor's land. By case law a person is bound by restrictive covenants attaching to property of which he has actual notice or constructive notice and is chargeable with notices of all conditions, restrictions, exceptions, or reservations appearing in a chain of title concerning which he is put on notice. Bein v. McPhaul, 357 S.W.2d 420 (Tex.Civ.App.-Amarillo 1962, no writ).

Equity recognizes the kind of covenant which does not strictly run with the land, but is nevertheless binding upon subsequent owners who acquire the same with notice. The key to enforceability of such equitable covenants against subsequent owners is the fact that they took with notice of the covenant or servitude. Collum v. Neuhoff, 507 S.W.2d 920 (Tex.Civ.App.-Dallas 1974, no writ). The grantor's intent is a controlling factor in determining whether restrictions in a conveyance were intended to benefit other than an immediate party to the conveyance. 16 Tex.Jur.3d 522, Covenants, Sec. 15 "Restrictive Covenants" (1981).

Restrictions and Covenants governing DeCordova Bend Estates were filed in the Deed Records prior to the offering for sale of lots in the subdivision, putting each purchaser on notice of the covenants and indicating that the grantor intended that these covenants apply not only to the original grantee, but also to subsequent purchasers. Plaintiff was charged with notice of this.

Plaintiff argues that upon purchase of property in the development, the owner becomes a beneficial owner of the recreational facilities in accordance with an agreement set out in the covenants. He cites as...