                                                                       FILED                       ACCEPTED
                                                                         Susan Collier       03-14-00660-CV
                                                                                                     4115888
                                                                    C2014-0501C THIRD COURT OF APPEALS
                                                                    2/10/2015 4:34:54 PM      AUSTIN, TEXAS
                                                                                         2/11/2015 4:31:35 PM
                                                                    Heather N. Kellar
                                                                                            JEFFREY D. KYLE
                                                                    Comal County                       CLERK
                                                                    District Clerk



                                                                       RECEIVED IN
                                                                  3rd COURT OF APPEALS
                                                                      AUSTIN, TEXAS
                                                                  2/11/2015 4:31:35 PM
                                  February 10, 2015
                                                                    JEFFREY D. KYLE
                                                                          Clerk
via fax on 830-608-2006
Heather Kellar
Comal County District Clerk
150 N. Seguin, Suite 304
New Braunfels, Texas 78130

      Re:    Appeal No. 03-14-00660-CV, Comal County No. C2014-0501C, Zgabay v.
             NBRC Property Owners Assoc.

Dear Ms. Kellar:
       I believe that documents, being exhibits to the plaintiff's motion for summary
judgment, were inadvertently omitted from the Clerk's Record previously transmitted
to the Third Court of Appeals in this case. My records show that most of Exhibits C and
all of Exhibits D-F followed what is currently CR51. Portions of Exhibit C and D as
were returned to me following filing are attached hereto for your convenience. I hereby
request that the record on appeal be supplemented to include all omitted pages. Oral
argument is scheduled in the appeal for March 25, 2015.
                                        Very truly yours,




                                        J. Patrick Sutton

cc:

Jeffrey D. Kyle, Clerk
Third Court of Appeals

Wade Crosnoe

Attachments: exhibit pages
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               ar-b 3. 201-

                                                                        First Class       Ct\rtiticd RRR
                                                                             7012 2210 0000 5169 7061
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                  .:--e. .. : Lot 303. Unu III in River Chase

            Re:                             A..  A..'"D
                                                     . RULES \ ' IOLATION
                         _                   OF FIXE FOR DECLARATION VIOLATION


            Dec.r _1r. and                        Zagaby:

              '"our property \vithin the RiYcr Chase Subdivision is subject to covenants, conditions an?
            a..: :e: ionh in an instrument entitled Declaration of Covenants, Conditions and Restncttons Rtver
            Cha:e nit III.

            It as come to the attention of the Board of Directors and n1anagen1ent that your home is being used
            a- a          rental. '"e respectfully request that any and all activities related to the shorf term
            rental of ..Your home cease immediately. "'
                                                        Failure to comply \Vith this request may result in a
            temporary restraining order being placed on your property.

            Spe iiically! you are in Yiolation of Article Ill, Section 3.01 of the Declaration, entitled "Single
            Familv Residential Construction.", \Vhich provides, in relevant parts, as follows:

                   ·Except as provided below, no building shall be erected, altered, placed or pennitted to
                   rent ain on any Tract other than one dwelling unit per each Tract to be used for single
                  fanzily residential purposes."

           And of Article III. Section 3.14 of the Declaration, entitled Prohibition of Offensive Activities.,
           ;\hich provides= in rele\'ant parts, as follows:

                    u_ o activity, whether for profit or not, shall be conducted on any Tract which is not
                   related to single fa11zily residential pu1poses, unless said activity 111eets the following
                               (a) no additional                    sign of activity is present, (b) it is the type of action
                   that usually happens in a ho11ze, (c) no additional traffic, that ·would not be there
                   normally, is created, and (d) nothing dangerous is present that should not be there. This
                  restriction is waived in regard to the custo11zary sales activities required to sell ho11zes in
                  the Subdil'ision. The discharge or use of jirean11s is e.1:pressly prohibited. Hunting is
                  expressly prohibited. The Association shall have thes csole                        r . absolute discretion to
                                                                                              a n n eand
                  determine what constitutes a nuisance or annoyance."                  t o a
                                                                                   e in
                                                                      y o u r phon
                                                                 turn
                                                           e t oTexas
           Pursuant to Section 209.006           p S
                                                   oft o rthe          Property Code, you are hereby notified that you are in
                                    i n t h e A p governing documents and/or its established rules, as described above,
           \J iolation of the DAssociation's
                                  F
                            To P
                      e r ayou
           and
           or   C a m
                  that         are entitled to a reasonable period to cure the above-referenced violation and avoid
       f
Look                  of suspension of your right to use association common areas unless you have' been given
                                                                                                   Zgabay Exhibit C1
           nottce and a reasonable opportunity to cure similar violation within the preceding six months.
              .L\1r. and i\1rs. Zagaby
              i\1arch       2014
              Page 2


              Furthermore, pursuant to Section 209.007 of the Tc\.n · Property Code, you n1ay request a
              before the Board of Directors or conunittec appointed for this purpose. Your request tnust be tn
              writing and delivered to the Board of Directors. at the address sho\\·n below, within thirty (30) days
              of your receipt of this notice. Should you request n hearing, you "ill be given at least ten ( 10) days
              notice of this date, tin1c and place for the hearing. The Board or the O\vner n1ay request a
                              and, if requested, the postponement shall be granted for a period of not n1ore than. ten
              (10) days. Such a hearing must be held within thirty (30) days after the date that the Board :ece1ves
              your request. Should the hearing be conducted by the conm1ittee appointed by the Board of Ducctors,
              you \v!ll have the right to appeal the con1n1ittee's decision to the Board by \Vritten notice of appeal to
              the Board.

              You may have special rights or relief related to cnforcen1ent action under federal law, including the
                      tnembers Civil Relief Act (50 U.S.C. app. Section 501 et seq.), if you are serving on active
                      duty). If that applies to you please let us know, and forward \Vritten proof that you are active
              duty military. If you do not do we will assun1e that you have no such rights.

              Please be certain to correct the above-described violations of the Restrictions itntnediately as your
              faiiure to correct your violations will result in the Association taking further action to bring your
              property into compliance with the Restrictions. You n1ust also remove all advertisement related
              to the short term rental of your property. Should the violations continue to exist on March 28,
              2014 the Association may take further actions and suspend your right to use any recreational
              facilities within the Conunon Area of River Chase.

              Furthermore if we deem it necessary to seek the help of the Association's Attorney, you, the
              property owner ·will be charged the attorney's fees and any and all costs related to bringing
              your property into compliance.

              If you have any questions or if we tnay be of any assistance, please do not hesitate to contact
              Association Management Services by calling 210.582.5989 or toll-free at 866.232 4386 extension
              135.

              Please be advised, the management office is not authorized to ·waive any fines, or violations,
              therefore any disputes or request for revie'v by the Board must be submitted in writin2..




                 Morales, CMCA® AMS®, PCAM®
             A sociation Manager
                                                                                            er   .
                                                                                t o a scann
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             cc: River Chase Property Owners Association    y o u r p h o nof Directors
                                                                  Board
                                                       turn
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                                                                                                           Zgabay Exhibit C1
EXHIBIT D
                                                                              ZGABAY EXHIBIT D
                                                                           SHORT-TERM RENTAL CASES




Case                                Declaration Wording                                    Standard for Interpretation                                Result

                                    LAND USE. Lots shall be utilized solely for single
                                    family residential use consisting of single residential
                                    dwelling and such out-buildings (garage, patio
                                    structure), as consistent with permanent or
                                    recreational residence. All habitable structures must                                                             Short-term rentals are not a
Wilkinson v. Chiwawa                be located not nearer than 20 feet to the front lot                                                               business use. "Had the drafters
Communities Ass'n, 86870-1,         line. Structures shall be of new construction and                                                                 wanted to prohibit rentals of a
2014 WL 1509945 (Wash. Apr.         shall not be commenced until building permit of         Intent of drafters, not strictly construed for free use   particular duration, they would
17, 2014).                          appropriate public body is obtained....                 of land in case of HOA's                                  have done so."
                                                                                            First, if unclear or ambiguous, then the covenant will
                                                                                            be resolved in favor of the free enjoyment of the
                                                                                            property and against the restriction. Second,
                                                                                            restrictions on land use will not be read into
                                                                                            covenants by implication lest the free alienability of
                                                                                            property be frustrated. Third, restrictive covenants
Estates at Desert Ridge Trails                                                              must be considered reasonably, though strictly, so
Homeowners' Ass'n v. Vazquez,                                                               that illogical, unnatural or strained construction will
2013-NMCA-051, 300 P.3d                                                                     not be effected. Fourth, words in a restrictive
736, 743 (N.M. App. Feb. 8,         No Lot or any portion thereof shall be used except      covenant must be given their ordinary and intended        Short-term rentals are not a
2013)                               for single-family residential purposes.                 meaning.                                                  business use
                                                                                            covenants are not favored by the law, and they will
Russell v. Donaldson, 731                                                                   be strictly construed to the end that all ambiguities
S.E.2d 535 (N.C. Ct. App. Sept.     All lots shall be used for one family residential       will be resolved in favor of the unrestrained use of      Short-term rentals are not a
4, 2012)                            purposes only                                           land                                                      business use
                                    All Lots and Units shall be used only for residential
                                    use (whether transient or permanent) and incidental
                                    activities and in compliance with the Resort                                                                      Short-term rentals are not a
Roaring Lion, LLC v. v. Exclusive   Declaration and applicable law (including zoning                                                                  business use, but issue of fact
Resorts PBL 1, LLC, CAAP-11-        ordinances and building codes). As provided in the                                                                exists whether lessor provided
0001072, 2013 WL 1759002 (Haw.      Resort Declaration, no gainful occupation, profession                                                             various amenities and services in
Ct. App. Apr. 24, 2013)             or trade shall be maintained                            Plain language.                                           the manner of a hotel
Slaby v. Mtn. River Est. Resid'l                                                            Restrictive covenants are not favored and will be
Assoc., Inc., 2012 WL 1071634       The subject property is restricted to single family     strictly construed. All doubts must be resolved
(Ala. Ct. Civ. App. March 30,       residential purposes only. No commercial,               against the restriction and in favor of free and          Short-term rentals are not a
2012)                               agricultural or industrial use shall be permitted.      unrestricted use of property.                             business use
                                                                                            Arkansas courts do not favor restrictions on the use
                                                                                            of land, and if there is a restriction on the land, it
                                                                                            must be clearly apparent. Restrictive covenants are
Dunn v. Aamodt, 2012 WL                                                                     to be strictly construed against limitations on the
137463 (W.D. Ark. Jan. 18,                                                                  free use of property, and all doubts are resolved in      Short-term rentals are not a
2012)                               Sites must be used for residential purposes only.       favor of the unfettered use of the land.                  business use
                                                                                            Deed restrictions are to be read reasonably but
                                    said property and the improvements thereon shall        strictly and, to the extent language is unclear or
                                    be used for dwelling purposes only and that no part ambiguous, the issue of enforcement of a restriction
Mason Family Trust v.               thereof shall at any time be used for business or       will be resolved in favor of the free enjoyment of the    Short-term rentals are not a
DeVaney, 146 N.M. 199 (2009)        commercial purposes                                     property and against limitations                          business use
                                                                                            restrictive covenants, being in derogation of the
                                                                                            common law right to use land for all lawful purposes,
Ross v. Bennett, 148                                                                        will not be extended to any use not clearly expressed,
Wash.App. 40 (Wash.Ct.App.-         all parcels within said property shall be used for      and doubts must be resolved in favor of the free use      Short-term rentals are not a
Div. 1 2009)                        residence purposes only                                 of land                                                   business use
                                                                           ZGABAY EXHIBIT D
                                                                        SHORT-TERM RENTAL CASES


                                                                                         restrictive covenants disfavored and justified only to
Applegate v. Colucci, 908         All parcels shall be used only for residential         the extent they are unambiguous and enforcement is
N.E.2d 1214 (Ind. Ct. App.        purposes. No commercial business shall be carried      not adverse to public policy. Restrictive covenants
2009)                             on upon any parcel.... Nothing herein contained        are strictly construed, and all doubts are resolved in
                                  shall prevent the leasing or renting of property or    favor of the free use of property and against          Short-term rentals are not a
                                  structures for residential use                         restrictions                                           business use

                                                                                        restrictions are not favored, and the burden is on him
                                                                                        who would enforce such covenants to establish that
                                                                                        the activity objected to is within their terms. They
                                                                                        are to be construed most strictly against the grantor
                                                                                        and persons seeking to enforce them, and substantial
Scott v. Walker, 274 Va. 209                                                            doubt or ambiguity is to be resolved in favor of the   Short-term rentals are not a
(2007)                            No lot shall be used except for residential purposes. free use of property and against restrictions          business use
Lowden v. Bosley, 395 Md. 58      All lots shall be used for single family residential                                                         Short-term rentals are not a
(2006)                            purposes only.                                        Plain language.                                        business use

                               [a]ll units and restricted common elements shall be
                               used, improved and devoted exclusively to
                               residential use by a single family.” Section 6.2 states
                               that “[n]o business, trade, occupation or profession
                               of any kind shall be conducted, maintained or             Give effect to the intent of the parties as expressed in
Mullin v. Silvercreek Condo.   permitted on any part of the property[.] ... Nothing      the plain language of the covenant; but, when there
Owners Assoc., Inc., 195       in this [s]ection 6.2 is intended to restrict the right   is any ambiguity or substantial doubt as to the
S.W.3d 484 (Missouri Ct. App. of any condominium unit owner to rent or lease his         meaning, restrictive covenants will be read narrowly Short-term rentals are not a
2006)                          (their) condominium unit from time to time[.]             in favor of the free use of property.                    business use
                               no commercial or industrial ventures or business of
                               any type may be maintained or constructed” upon
                               any residential lot. No more than one (1) single
                               family dwelling may be constructed upon any
                               residential lot. The Uniform Building Code shall be       General rules of contract construction. However,
                               used to define any term not defined herein. if a term     because restrictive covenants are in derogation of the
                               is used that is not defined in the Covenants or the       common law right to use land for all lawful purposes,
Pinehaven Planning Bd. v.      Uniform Building Code, Webster's Dictionary shall         the Court will not extend by implication any             Short-term rentals are not a
Brooks, 138 Idaho 826 (2003) be the source used for definition of terms.                 restriction not clearly expressed.                       business use
                               All lots within said tract shall be used exclusively      restrictive covenants are to be construed most
                               for residential purposes and no commercial                strictly against the covenant; and unless the use
Yogman v. Parrott, 325 Or. 358 enterprise shall be constructed or permitted on any       complained of is plainly within the provisions of the    Short-term rentals are not a
(1997)                         of said property.                                         covenant it will not be restrained                       business use
                                                                                                                                                  Plaintiff's short-term rentals
                                                                                                                                                  waived Defendant's as to first part
                                                                                                                                                  of clause; since Defendant company
Shields Mtn. Prop. Owners         No lot may be utilized for any commercial or           restrictive covenants are to be strictly construed and   ran 27 full-time rental properties
Assoc., Inc. v. Teffelter, 2006   industrial purpose or for any commercial husbandry     will not be extended by implication and any              and never used subject property for
WL 408050 (Tenn.Ct.App.           or agricultural activity. All lots shall be used for   ambiguity in the restriction will be resolved against    personal purposes, its sole purpose
2006)                             residential purposes exclusively.                      the restriction                                          was commercial
                                                                                                                                                  short-term rentals would be
                                                                                                                                                  permitted under traditional
                                                                                                                                                  principles of restrictive covenant
                                                                                                                                                  construction favoring free use of
                                                                                                                                                  land;
                                                                                         liberal construction under TEX. PROP.CODE ANN. §
                                                                                         202.003(a) (construed in a manner which may              temporary, retreat purposes, or
                                                                                         occasionally run hard afoul of strict common law         transient housing not permitted
Benard v. Humble, 990 S.W.2d                                                             requirements, i.e., strict construction favoring         under "liberal" construction appied
929 (Tex.App.-Beaumont 1999) single-family residence purposes                            grantee, and strict construction against the drafter)    in Beaumont
