Civil suit calls Lake Buchanan POA invalid

The property owners’ association for Donall Estates on Burnet County Road 104 on Lake Buchanan is fighting for its right to have and enforce deed restrictions based on a 2005 codified Texas law. The POA is being sued by Todd Heath, who owns a piece of waterfront property in Donall Estates and claims the association is invalid. 

Attorneys in the case, Todd Heath v. Donall Estates Property Owners’ Association, made their arguments before 33rd Judicial District Judge Evan Stubbs and a packed courtroom in Burnet on Aug. 19. 

At the end of the hearing for summary judgment, Stubbs asked the plaintiff’s attorney for an informal, written statement explaining why Chapter 211 of the Texas Property Code did not invalidate the case. The statement is due by no later than Friday, Aug. 25. If the defendants want to respond, they can do so by Sept. 1, the judge said. 

The Texas Legislature enacted Chapter 211 in 2005 to allow POAs in small population centers such as Burnet County to reinstate their covenants, or deed restrictions, after they expired. Deed restrictions are set by law to expire in 20 years and can be extended for another 10 years. 

The covenants for Donall Estates expired in 1999. They were reinstated in 2006, six months after Chapter 211 went into effect. 

Heath filed suit against the Lake Buchanan-based POA in March 2020, seeking declaratory relief and claiming the deed restrictions were invalid. He is asking to be awarded subdivision property, including some parkland, and total recovery of his attorney’s fees. The civil suit was filed after his request to build a cabin on a half-lot on the waterfront, which is against the POA’s covenants, was denied. 

His attorney, Matthew Kuker of Burnet, denied the lawsuit was filed in revenge.

“In doing our research, we discovered a legal fact,” Kuker said. “This is not something anyone took on as a vendetta.”

The fact that Kuker said he and Heath discovered is that the covenants for Donell Estates expired in 1999. However, no one, not even POA members, disputes that. The disagreement is whether those covenants were ever reinstated or reinstated legally. 

According to the defendant’s attorney, Peter L. Kilpatrick of San Antonio, the POA reinstated its covenants in 2006, six months after it became legal to do so. To prove that point, the POA presented Judge Stubbs with affidavits from the two state legislators responsible for the law. 

Former state Reps. Harvey Hildebran and Paul Colbert each outlined their roles in co-authoring and introducing House Bill 1631, which was codified into law as Section 211 of the Texas Property Code. The bill was designed to apply the same rules as Chapter 201, which allows large population areas to reinstate expired covenants, to smaller counties like Burnet. 

“… This bill was designed to help a subdivision whose restrictions had expired,” Hildebran wrote in his affidavit. “Section 211 was thus intended for subdivisions with existing deed covenants, and for subdivisions with expired covenants, allowing them the privilege to renew or resurrect their covenants if an extra-majority of the property owners affected voted in favor of same.” 

Before the law, an agreement was required from 100 percent of the property owners. 

At a hearing three months ago, Judge Stubbs said: “Expired is expired is expired,” dashing some POA members’ hopes. 

But during the Aug. 18 hearing, Stubbs said he was swayed by the additional evidence provided by the two affidavits from the legislators. 

“Property code 211 changes everything,” he said, addressing Kuker, the plaintiff’s attorney, in court. “It looks to me like the POA went to great lengths to reinstate its covenants, and since your client bought his property after they were revitalized, if done right, they are valid.” 

That was not an official ruling, however, and led to an argument from Kuker about the process used to reinstate the covenants. He contended that process required two votes at two different times by POA members. The first vote would be to approve the process; the second vote to reinstate the covenants. 

Donall Estates POA sent one ballot with both questions, not two separate ballots, which it deemed to have been appropriate. Ninety percent of the property owners voted in favor of both questions. 

POA attorney Kilpatrick countered that the issue of how the covenants were reinstated was not part of the summary judgment on Aug. 19. 

Judge Stubbs agreed. He also questioned the plaintiff’s argument that Chapter 211 did not apply to the Donall Estates POA because, as Kuker said, “you can’t reinstate what’s not there.” 

The judge didn’t buy that. 

“So you are saying that Chapter 211 would only apply to deed restrictions that never lapsed?” he asked Kuker, adding that the logic didn’t hold up because it would make 211 ineffective and unnecessary as law. 

Donall Estates POA members left the hearing with hope, some disappointment that they remain in limbo, but also with a sense of pride. 

“Regardless of what happens, I’m proud of our subdivision,” resident Joy Brooks said. “We have mobile homes here, condos, waterfront property. We have something for everyone, and we’re all real close. This means a lot to us.” 

POA President William Witt was just as adamant about his hope for an ultimate favorable decision, despite Kuker’s remark during proceedings that this would have to be settled in a jury trial.

“In December, we were down to $1,300,” said Witt, emotion cracking his voice. “I said, ‘We need $100,000,’ and we raised it. We have the money to fight, and we will not back down. We will never back down. We will appeal if we lose.” 

He pointed to the two former state legislators who swore under oath as to the intent of the law they wrote and passed into being. 

“Two state legislators have said what we have done is legal,” he said. “That’s why they passed the legislation. The legislators gave us the right and freedom to build a community and manage with limited covenants that protect our property values.”

A summary judgment requested by the POA in a second suit that Heath filed against it is set for Sept. 20, also before Judge Stubbs. A third suit filed by Heath was dismissed earlier this year. 

suzanne@thepicayune.com