Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:April Sound Management Corp. appeals from a judgment rendered on a traditional motion for summary judgment declaring that Concerned Property Owners for April Sound Inc. (CPO Inc.), as developer, may, pursuant to the deed restrictions applicable to the April Sound Subdivision at any time and from time to time, adjust, alter, waive, discontinue or abandon all or any part of the maintenance charge, including without limitation, the recreational charge and the possible “additional” charge as set forth in the deed restrictions applicable to the various sections within the April Sound Subdivision. The judgment further declares that should CPO Inc., as developer, discontinue or abandon the recreational charge, then there can be no basis for any “additional” charges to be added to the recreational charge. HOLDING:Reversed and rendered in part, remanded in part. Abatement of an action is proper where it is apparent that all parties whose interest would be affected by the action have not been made parties. Here, without joining the owners of the lots in the subdivision, CPO Inc., sought and obtained an order declaring that pursuant to the deed restrictions it could, at any time and from time to time, adjust, alter, waive, discontinue, or abandon all or any part of the maintenance charge and recreational charge. The general rule that some of the owners of property in a subdivision may not release or modify applicable restrictions without the concurrence of others who own property in the subdivision is grounded upon the vesting of rights and privileges in lots in common with other lot owners in the subdivision. In Letsos v. Katz, 489 S.W.2d 317 (Tex.Civ.App. � Houston [1st Dist.] 1972, no writ), suit was brought against the subdivision committee but the court held that the individual lot owners had a joint interest with the committee and were indispensable parties to the action. This action for declaratory judgment is not a suit against a lot owner to enforce compliance with one or more lot restrictions which would not implicate rights of other lot owners. Instead, it is an action for a declaration that the developer has the power to adjust, alter, waive, discontinue or abandon all or any part of the recreational charge notwithstanding the provision in �6.08(a) of the deed restrictions that the recreational charge is to be determined by the Board of Trustees of April Sound Country Club (Recreational Corp.). Moreover, the payment of the charges, including the recreational charge, is secured by a lien on the property. The declaratory relief sought by CPO Inc. implicates significant incidental rights of the owners of lots in the subdivision, and in that context, presents a situation similar to the issues presented in Simpson v. Afton Oaks Civic Club Inc., 117 S.W.3d 480 (Tex. App. � Texarkana 2003, pet. filed Nov. 6, 2003). Simpson sought a declaratory judgment to nullify the mandatory property owners’ association. Concluding the declaratory relief that Simpson sought would, in effect, change the rights and interests of each property owner in the association, the court held that all property owners were necessary parties to the suit and their absence divested the trial court of subject matter jurisdiction which could be raised for the first time on appeal. Moreover, the underlying case may present one of those rare situations which requires the presence of indispensable parties to the controversy whose absence deprives the court of jurisdiction. Considering that property rights are fundamental and the benefits that would be achieved by stabilizing uncertainty regarding deed restrictions, and because the interests of non-party lot owners would be affected by the declaration, the court holds that the trial court erred in not granting Management Corp.’s plea in abatement as required by Texas Civil Practice and Remedies Code �37.006(a). OPINION:Reavis, J.; Johnson, C.J., Reavis and Campbell, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.