Property Restrictions in Texas: Spell It Out!
In Texas, it’s a fact of life that owners can do what they want with their land. In fact, in Tarr v. Timberwood Park Owners Ass’n, it’s “one of the most fundamental rights that individual property owners possess.” Even when owners want to sell their land, they can limit how the new owner uses it if those limits, called restrictive covenants, are clearly written. Courts generally consider these covenants to be binding, especially when they’re publicly recorded, to notify a reasonably diligent potential buyer. However, what happens when covenants aren’t so clear? The Texas Supreme Court recently explored this in EIS Dev. II, LLC. v. Buena Vista Area Ass’n, 68 Tex. Sup. J. 1163 (Tex. 2025).
What happened in EIS v. Buena Vista?
EIS purchased 100 acres of land with the hope of constructing 73 single family lots. However, their deed held a simple restrictive covenant: “no more than two residences could be built on any five-acre tract.” Nearby landowners sprung up in an uproar and claimed that EIS’s plan would violate the covenant. The Buena Vista Area Association argued that the covenant allowed for 40 residences to exist on the 100-acre tract, at most. EIS rebutted that the restriction only applied on tracts that were five acres in size, so the restriction didn’t apply to their two-acre or smaller tracts. The trial court and court of appeals sided with Buena Vista. Thus, a question was left on the Supreme Court’s doorstep: how many residences could an owner build on a tract of less than 5 acres?
Against the weight of the prior opinions, the Court found that the restriction attempted to target residential density but was incomplete. The restriction was oddly specific in limiting “any five-acre tract” to two residences without regard for all tract sizes that could be possible on the property. After negating the numerous interpretations of both parties and the dissenters, the majority concluded that one residence could be built on a lot of any size, giving way for EIS to continue their development.
The dissenters didn’t agree arguing that if a tract could be split evenly into five-acre lots, the number of residences should follow that division. They also referred to the intent of the original parties and acknowledged their desire to avoid housing density ushering urbanization to their area. However, the majority pointed out that this intent could not be implied from the text, and that the language also did not directly order the property to split into five-acres lots.
Therefore, EIS was free to continue their construction plans without the burden of the covenant weighing on their shoulders.
How does this affect Texas landowners?
Owning land can come with challenges, but if there is something to learn from EIS v. Buena Vista: spell out everything you don’t want on your land very, very clearly! Consider every possible way that someone can interpret your restriction over time and state your opinion on it including why you want to restrict the land in the first place. Being thorough will make it easier for others who own your land to discern exactly what they can or can’t do.
On the flip side, if you are a potential land buyer, make sure to thoroughly examine a deed’s property records to ensure that there are no unwelcome surprises that will follow your property. You can find these documents for free in your county’s property records (and if you live in Harris County, the Harris County Appraisal District is a great place to start).
As always, as diligent as you may be, it’s best to engage a real estate legal professional whether buying or selling, to ensure that your future wishes regarding your land are protected. Cassie McGarvey (cmcgarvey@mcgarveypllc.com), licensed in both commercial and residential real estate law, can assist you in navigating this often complex world.
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