## Facts

- Tom H. Davis and Hattie Davis owned a lot in Northwest Hills Section 7, a subdivision subject to recorded restrictive covenants filed by the developer, Austin Corporation.
- The covenants included (1) fixed numerical setback requirements and (2) a clause requiring the developer’s prior written approval of building plans and the building’s location, with discretion to refuse approval for “aesthetic or other reasons” in its “sole opinion.”
- The Davises’ proposed residence satisfied the recorded numerical setbacks, but the developer refused to approve the plans based on the house’s rearward placement as allegedly inconsistent with surrounding homes’ placement.
- Negotiations failed, and the Davises built without obtaining the required written approval.
- Neighboring owners, including Robert M. and Mary Paige Huey, sued to enforce the covenants, alleging the rear placement harmed views and property values and violated a subdivision-wide scheme.
- After a trial on the merits, the district court issued a mandatory permanent injunction requiring removal of part of the residence for violating the approval covenant.
- The court of civil appeals affirmed; the Davises sought review.

## Issues

1. Whether a restrictive covenant requiring prior submission and approval of building plans and locations, including broad aesthetic discretion, is enforceable under Texas law.
2. Whether neighboring owners can enforce the approval covenant to prohibit a house location that complies with recorded setbacks when the asserted siting standard rests on an alleged general plan not clearly established by the record.
3. Whether a mandatory injunction compelling partial removal of a residence is proper absent proof of a clear, enforceable restriction and adequate notice to the owner.

## Decision

- The Texas Supreme Court reversed the court of civil appeals and rendered judgment that the plaintiffs take nothing.
- The Court held that plan-approval covenants are not invalid per se, but are enforceable only to the extent they provide adequate notice of the standards governing approval.
- On this record, the plaintiffs failed to prove the Davises had actual or constructive notice of an additional enforceable restriction requiring placement nearer the street beyond the recorded setbacks.
- Because the Davises’ construction complied with the express recorded setbacks and no sufficiently uniform, ascertainable general scheme was shown, the mandatory injunction could not stand.

## Legal Principles

- Restrictive covenants limiting free use of land are disfavored and are enforced only when their lawful limits are stated with clear language.
- A purchaser is bound only by restrictive covenants of which the purchaser has actual or constructive notice; a purchaser for value without notice takes free of the restriction.
- Covenants requiring submission of plans and prior consent are valid only insofar as they furnish adequate notice of the standards by which plans will be judged and are applied non-arbitrarily.
- An alleged “general plan” cannot readily impose unrecorded or indeterminate limitations that contradict or effectively override clear recorded restrictions relied on by a purchaser.
- Mandatory injunctions requiring destruction or removal of substantial improvements are extraordinary and require proof of a clearly enforceable restriction and adequate notice.

## Conclusion

The court set aside a mandatory injunction ordering partial removal of a home built within recorded setback lines because the neighbors did not establish that the owner had notice of any additional, enforceable siting standard derived from the developer’s discretionary approval power or a consistently applied subdivision scheme.


Davis v. Huey, 620 S.W.2d 561 (Tex. 1981)