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Neighbors sued over restrictive covenant

Wednesday, June 1, 2016 by Jo Clifton

After threatening to sue a developer for violating a restrictive covenant, 21 members of the Crestview neighborhood were surprised when the developer turned the tables on them, filing suit to have the covenant declared void and seeking up to $100,000 in attorney’s fees from the very neighbors who were attempting to enforce the restrictive covenant.

Mark Dawson Homes Ltd. filed suit on April 14, according to court records. In that lawsuit, the developer claims that the restrictive covenant that the neighborhood members are depending on, which was established in 1946, expired in 1986. In addition, Mark Dawson claims that an attempt to enact new restrictions in 1954, which would have extended the time period of such restrictions, is invalid.

Dawson is asking a Travis County District Court to support him in these claims, and he wants the neighbors to pay up to $100,000 for the lawsuit.

Prior to filing suit, Dawson Homes contacted the neighbors who sent the letter and said that they could avoid being sued by withdrawing their names from the list of those objecting to the construction. So far, it appears that only one of those who objected has withdrawn her name.

Aaron Wallace, whose wife, Luz Suarez-Wallace, is among the defendants named in the lawsuit, explained the situation in an email to his neighbors on Saturday.

“Late last year, the house at 7801 Mullen Drive was sold to a developer. … As nearby homeowners, we were immediately concerned about how this property would be developed,” he said.

Wallace went on to explain that the lot was split and that the developer filed plans to build two separate homes, which is what caused the neighbors’ objections.

The city’s AMANDA public information system shows that the city approved construction of a new four-bedroom, three-bathroom, two-story single-family home and another two-story home — presumably an accessory dwelling unit — with three bedrooms and two bathrooms at 7801 Mullen Drive on Jan. 13.

Wallace said the neighborhood organized to tell the builder that he was violating the restrictive covenant and contacted him by phone, but never received a call back.

“This forced concerned homeowners into sending a demand letter to Dawson Homes, informing them that the planned development violated the restrictive covenants,” including a threat to sue, Wallace said. “This is literally the only avenue available to homeowners to enforce the covenants, as the city will not enforce them.”

The city has never enforced private restrictive covenants. Wallace told the Austin Monitor that neighbors have until Monday to file a response to the lawsuit. He said that they do not have a lot of money and had not hired an attorney as of Tuesday.

One person who signed the letter to Dawson Homes, Joylene Bohmfalk, has written another letter stating that she no longer objects to the construction of the two homes on the lots.

The attorneys for Dawson Homes are Alex Valdes and Scott Courtney of Winstead PC. Neither Dawson nor Valdes returned calls requesting comment.

Photo by Larry D. Moore, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=17316321

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