Lead Opinion
OPINION
This is an accelerated appeal of an order granting a temporary injunction. Appellants own one lot in the Chisum’s Subdivision located in Uvalde, Texas. The remaining lots are owned by appellees. Since the fall of 1995, appellants have rented the house located on their lot to third parties through “Rio Frio Bed n Breakfast and Lodging,” a professional rental agent. The third parties are generally vacationers who use the property for short periods of time, generally two to five days.
Paragraph six of the Reservations, Restrictions and Covenants Pertaining to Chi-sum’s Subdivision restricts the use of the lots as follows:
All tracts within the Chisum’s subdivision shall be used solely for residential, cаmping or picnieing purposes and shall never be used for business purposes. Motel, tourist courts, and trailer parks shall be deemed to be a business use.
Appellees filed suit seeking a temporary and permanent injunction to prohibit appellants from renting their house in violation of the foregoing restriction.
The trial court granted аppellees a temporary injunction enjoining appellants from “renting and/or leasing said property to the public for lodging, vacation and recreation purposes.” Appellants now appeal the trial court’s order, contending the trial court abused its discretion in granting the temporary injunction because aрpellees failed to establish a probable right of recovery or the possibility of irreparable injury in the absence of temporary relief. Appellants also contend the temporary injunction imposes an unlawful restraint on the alienation of the appellants’property.
STANDARD OF REVIEW
At a temporary injunction hearing, the оnly issue before the trial court is whether the status quo should be preserved pending trial on the merits. Camp v. Shannon,
PROOF OF IRREPARABLE INJURY
Generally, a movant qualifies for temporary injunctive relief by showing: (1) a probable right of recovery; (2) imminent, irreparable harm will occur in the interim if the request is denied; and (3) no adequate remedy at law exists. Id. Despite this general rule, however, a movant seeking a temporary injunction to enforce a restrictive covenant is not required to show proof of irreparable injury. Guajardo v. Neece,
Appellants contend the trial court abused its discretion in granting the temporary injunction because the evidence fails to estab
VIOLATION OF RESTRICTIVE COVENANT
Appellants also contend that appellees failed to establish a probable right of recovery because there was no showing that the action undertaken by appellants violated the restrictive covenant. Appellants then cite various cases to support the proposition that the rental of property used for living purposes does not violate a residential use restriction. Appellees counter with cases that suggest that the rental of property may violate a residential use restriction under certain circumstances.
In construing a restrictive covеnant, a court’s primary task is to determine the intent of the framers of the restrictive covenant. Wilmoth v. Wilcox,
Neither party to this appeal asserts that the restrictive covenant at issue is ambiguous. Therеfore, our goal is to determine whether the trial court was correct in finding that the objective intent of the covenant, or the intent expressed in the writing, was probably violated by the appellants’ actions. Silver Spur Addition Homeowners,
A residential use restriction generally does not prohibit the use of property for duplexes, apartments or condominiums. See MacDonald v. Painter,
Although the term “residence” is given a variety of meanings, residence generally requires both physical presence and an intention to remain. See Smith v. Board of Regents of the University of Houston System,
The Texas Property Code draws a distinction between a permanent residence and transient housing, which includes rooms at hotels, motels, inns and the like. See Warehouse Partners v. Gardner,
Just as the foregoing cases and statutory provisions draw distinctions between temporary or transient housing and a residence, we believe the framers of the restrictive covenаnt intended to draw a similar distinction between residential and business use by adding the third sentence to paragraph six of the Reservations, Restrictions and Covenants. At least two of the activities listed as business uses in this sentence are directed at transient-type housing, and in order to give effect to this sentence, we believe the covenant must bе read to prohibit the use of the restricted property for this type of housing. We further believe that the nature of the rental activity in which appellants have been engaged results in the property being used for the type of transient housing that the third sentence of paragraph six intended to designate as a business use. For this reason, wе agree with the trial court that the appellees have established a probable violation of the restrictive covenant.
Despite our agreement with the trial court that a probable violation of the restrictive covenant has been demonstrated, we believe that the scope of the temporary injunction is overbroad. See Keystone Life Ins. Co. v. Marketing Management, Inc.,
In their аmended brief, appellants assert that the trial court abused its discretion in crafting its temporary injunction order as a restraint upon alienation of appellants’ property. When restrictions are confined, however, to a lawful purpose and are reasonable, such covenants will be enforced. Wilmoth,
CONCLUSION
Appellees have established a probable Adoption of the restrictive covenant at issue by appellants; therefore, they are entitled to a temporary injunction. Nevertheless, the temporary injunction ordered by the trial court is overly broad because it enjoins appellants from activities the restrictive covenant was not intended to prohibit. Therefore, the temporary injunction is modified to enjoin appellants from “renting and/or leasing said рroperty to the public for temporary
Dissenting Opinion
dissenting.
I respectfully dissent. In my view, the restrictive covenant at issue does not unambiguously prohibit renting single-family homes on a tract within the Chisum Subdivision for living purposes, whether temporary or permanent. At the very least, I would hold the covenant ambiguous and therefore resolve “[a]ll doubts ... in favor of the free and unrestricted use of the premises,” as mandated by the Supreme Court of Texas in Wilmoth v. Wilcox,
STANDARD OF REVIEW
As the majority notes, the sole issue to be determined at a temporary injunction hearing is whether the status quo should be preserved pending a trial on the merits. To make this determination, the trial court is required to determine “the last peaceable status quo,” that is “the status which existed at the time of the filing of the ... suit.” City of Lubbock v. Stubbs,
In this case, the status quo at the time suit was filed was that the appedants were renting the house to third parties. As a preliminary matter, I fail to see how a temporary injunction precluding the use existing at the time suit was filed preserves the status quo.
Restrictive Covenant
The rules for construing restrictive covenants were set forth by the Supreme Court of Texas a decade ago. Our essential “task is to determine the intent of the framers of the restrictive covenants.” Wilmoth,
As noted by the majority, the covenant at issue states that “[a]ll tracts within the Chi-sum’s subdivision shad be used solely for residential, camping or picnicing [sic] purposes. Motel[sJ, tourist courts, and trailer parks shall be deemed to be a business use.” The use sought to be enjoined is renting a residence to third parties. Our task, therefore, is two-fold. First, we must determine whether restricting the use of a tract to “residential purposes” precludes renting a single-family residence. Second, we must determine whether renting a single-famdy residence is to be deemed a “business purpose,” along with “motel[s], tourist courts, and trader parks.”
Residential Purposes
As the majority impdcitly recognizes, “[t]he terms ‘residence purposes,’ and ‘residences’ require the use of property for dving
From these cases, it is apparent that restricting the use of tracts in the Chisum Subdivision to “residential purposes” precludes using a tract for business or commercial purposes, such as a maсhine shop, commercial child care facility, florist shop, beauty shop, or an animal clinic;
Motels, Tourist Courts, Trailer Parks
The majority holds, however, that the second sentence in the covenant precludes renting one’s home to third parties, because the framers intended this sentence to preclude “transient-type housing.” As even the majority recognizes, however, this label at mоst applies to motels and tourist courts, not trader parks — which are generally used as permanent, rather than transient, multi-family housing. It is thus not only patently illogical, but contrary to the rule of strict construction, to construe the second sentence as precluding “transient-type housing.”
What then is the reach of the second sentence? Plainly, the second sentence of the covenant does not preclude using a tract for financial gain; if that were the framers’ intent, they surely would have said so or at least included apartment houses, duplexes, and the incidental renting of a room as prohibited uses. In my view, therefore, the second sentence appears to have been intended to reach the use that has historically been permitted by a “residential purposes” covenant — multi-family use, whether permanent or temporary. Construing the second sentence of the covenant in this fashion is both logical and consistent with the rule of strict construction. Under this construction, the covenant would nоt preclude renting a residence to a third party for living purposes. At the very least, however, the covenant is ambiguous, and we must construe it in favor of the freer and less restrictive use of the land and against the party seeking enforcement. In either event, renting one’s home to a third party for living purposes, whether temporarily or рermanently, would not be precluded by the covenant.
Conclusion
The restrictive covenant at issue nowhere speaks to renting a residence to a third party. To the contrary, “residential purposes” is plainly defined by Texas case law to require that land be used for living purposes, whether single or multi-family, temporary or permanent, and tо preclude business uses. And the tie binding “motel[s], tourist courts, and trailer parks” is not transient housing, but multi-family housing, both temporary and permanent. I would therefore hold that the restrictive covenant at issue does not preclude renting a single-family residence to a third party for living purposes, regardless of whether that use is temporary or permanеnt. Accordingly, I respectfully dissent.
Notes
. Although the Texas Legislature has mandated that “[a] restrictive covenant shall be liberally construed to give effect to its purposes and intents,” Tex. Prop.Code Ann. § 202.003(a) (Vernon 1995), this mandate does not conflict with the common law rule that covenants are to be construed "either to favor the free and unrestricted use of land or to strictly construe it against the party seeking to enforce it.” Crispin v. Paragon Homes, Inc.,
. Hicks v. Loveless,