## Facts

- By the Sea Condominiums was created under the Texas Condominium Act, Tex. Rev. Civ. Stat. art. 1301a, and governed by a recorded condominium declaration.
- Melvin Sondock and other unit owners (owners) purchased their units subject to the declaration’s terms, conditions, and restrictions, including rights in the common elements and certain assigned carports.
- Covered carports had been assigned to unit owners as part of the condominium’s common-element scheme (treated in the litigation as limited common elements or common elements allocated for particular owners’ use).
- The Board of Directors of the By the Sea Council of Co-owners, Inc. (Board) sought authority to remove the covered carports and obtained an amendment to the declaration purporting to permit removal.
- Under one declaration provision, the “nature and use” of common elements could be modified through an amendment approved in writing by owners holding more than 66⅔% of the common-element interests.
- Another declaration provision required unanimous consent for amendments that would change each owner’s percentage of undivided interest in the common elements.
- The owners sued to (1) permanently enjoin removal of the carports and (2) compel the Board to repair the carports as part of the Board’s maintenance responsibilities.
- The Board filed a plea in abatement contending the case had to be dismissed or paused because all unit owners were necessary parties, given that the suit affected interests in common elements.
- After a bench trial, the trial court declared the amendment ineffective (because removal would change owners’ undivided interests, triggering the unanimity requirement), permanently enjoined removal, ordered repairs paid from condominium funds, and ordered association records kept on the premises.
- The Board appealed, and the owners asserted cross-points challenging parts of the judgment, including attorney-fee and expense rulings.

## Issues

1. Whether the case had to be abated for failure to join all condominium unit owners as necessary parties.
2. Whether the declaration amendment authorizing removal of the covered carports was valid when it was approved by more than 66⅔% but not by unanimous consent.
3. Whether the trial court properly granted permanent injunctive relief prohibiting removal of the carports and requiring the Board to repair them using condominium funds.
4. Whether the trial court properly ordered the condominium’s business records to be kept on the condominium premises.
5. Whether the Board could use common association funds to pay its litigation expenses in this dispute, and whether the owners were entitled to attorney’s fees.

## Decision

- The court affirmed in part and reversed and rendered in part.
- The trial court did not err in denying the Board’s plea in abatement; under these facts, the owners could proceed against the Board without joining every unit owner.
- The court agreed that the amendment was ineffective to authorize removal of the carports because the declaration’s unanimity requirement applied to a change that would alter owners’ undivided interests in the common elements (even if the 66⅔% threshold was satisfied).
- The permanent injunction preventing removal of the covered carports and the order requiring the Board to repair the carports were largely affirmed.
- The court reversed portions of the judgment addressing ancillary relief, including limits on charging certain litigation costs to common funds, and modified/rendered aspects of the decree concerning records and fee-related matters.

## Legal Principles

- Condominium purchasers take title subject to the recorded declaration; the declaration operates as a binding allocation of rights and restrictions among unit owners and the association.
- Separate amendment provisions in a declaration must be read together: a general supermajority amendment clause does not authorize an amendment that conflicts with a specific clause requiring unanimous consent for changes affecting undivided interests in common elements.
- Limited common elements (or common elements assigned for particular owners’ use) may not be eliminated or materially altered through an amendment procedure that does not satisfy the declaration’s heightened consent requirements for reallocating common-element interests.
- In an action seeking to enforce the declaration against the condominium’s governing body, complete relief may be available against the board or association without mandatory joinder of every unit owner, depending on the nature of the relief and representation of affected interests.
- Courts may issue injunctive relief to stop a board from acting beyond its authority under the declaration and may order affirmative performance consistent with the board’s maintenance duties for common elements.
- When a board’s litigation position stems from an invalid or unauthorized attempt to change owners’ rights under the declaration, courts may restrict shifting the board’s litigation expenses to all owners through common funds, and may limit or deny attorney-fee recovery based on the governing law and requested relief.

## Conclusion

The court held that the Board could not rely on a more-than-66⅔% amendment process to remove covered carports where the declaration required unanimous consent for amendments that change owners’ undivided interests in the common elements; it therefore left in place the permanent injunction barring removal and the order requiring repairs, rejected the Board’s necessary-party challenge, and reversed or modified portions of the judgment concerning ancillary matters such as records and litigation-cost/fee treatment.


Board of Directors of By the Sea Council of Co-owners, Inc. v. Sondock, 644 S.W.2d 774 (1982)