Eis Development II, LLC v. Buena Vista Area Association, Lance W. Hall and Heather R. Hall, Jason Paul Smithey, David W. Molengraaf and Kimberley K. Molengraaf, Alexander E.W.J. Schindler and Angela R. Schindler, as Individuals

Supreme Court of Texas
══════════
No. 23-0365
══════════

EIS Development II, LLC,
Petitioner,

v.

Buena Vista Area Association, Lance W. Hall and Heather R.
Hall, Jason Paul Smithey, David W. Molengraaf and Kimberley
K. Molengraaf, Alexander E.W.J Schindler and Angela R.
Schindler, as Individuals,
Respondents

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Eighth District of Texas
═══════════════════════════════════════

Argued October 2, 2024

JUSTICE BUSBY delivered the opinion of the Court, in which
Justice Boyd, Justice Devine, Justice Bland, and Justice Sullivan joined,
in which Chief Justice Blacklock joined as to Part I, and in which Justice
Lehrmann, Justice Huddle, and Justice Young joined as to Parts II, III,
and IV.

JUSTICE LEHRMANN filed an opinion dissenting in part, in which
Justice Huddle and Justice Young joined.
A landowner recorded a plat that legally divided its property into
seventy-three separate tracts, all but one of which are between one and
two acres in size. A restriction in recorded deeds of the property to
previous owners provides that “[n]o more than two residences may be
built on any five acre tract.” In this suit by neighbors to enforce the
restriction, we are asked to decide how many residences may be built on
these sub-five-acre tracts.
When essential principles of property law and textual
interpretation are applied, the answer is straightforward. Given the
critical role that notice plays in property law, we have held that
restrictive covenants like this one will bind subsequent purchasers only
if they use clear language to prohibit the specific land use being
challenged. And the omitted-case canon of interpretation prohibits
courts from adding to what the text states or reasonably implies in an
effort to fill a judicially perceived gap or fully address a problem in the
manner its drafters presumably would have wanted.
The language of this restriction limits density of residential
development, not tract size. It does not expressly address tracts of fewer
than five acres, and the only reasonable implication from its text is that
two residences (or more) may not be built on such tracts. Thus, under
our precedent, the restriction does not prevent the landowner from
building one residence on each tract as planned.
Our dissenting colleagues decline to focus on the specific
challenged use of the actual tracts; they harken back to earlier
ninety-acre and ten-acre tracts that were originally burdened by the
restriction and conclude as a matter of law that no more than forty

2
residences can be built in the entire area because it “can be divided” into
twenty “distinct, non-overlapping [five-acre] tracts.” Post at 7
(Lehrmann, J., dissenting).
But the drafters did not agree to a restriction on how the property
can be divided, and it is not our role to create one. We conclude that the
dissent’s conception of the “intent of the original parties” is not a
reasonable implication from the restriction’s text. Id. at 4. Accordingly,
we reverse the judgment awarding the neighbors declaratory and
injunctive relief to halt the landowner’s development. We also conclude
that the jury was improperly instructed on the landowner’s
changed-conditions counterclaim and remand for a new trial on that
claim.

BACKGROUND

Between 1988 and 1993, the State of Texas acquired over 10,000
tracts of land in Ellis County for construction of the Superconducting
Super Collider. After Congress defunded the project, the State tasked
the Texas General Land Office with selling the tracts. The Land Office
developed six “levels” of “covenants, conditions, and restrictions” (CCRs)
that it could attach to various deeds.
In 1988, the State sold adjoining parcels of ninety acres and
almost ten acres to David Lemon. The recorded deeds included a
document titled “Level 5 Restrictions,” which provides in relevant part:
This conveyance is . . . made and accepted subject to the
following CCR’s:
1. No residential dwelling shall contain less than 2,200
square feet of floor space . . . . The residence shall be . . .
used as a single family dwelling. No more than two

3
residences may be built on any five acre tract. A guest
house or servants’ quarters may be built behind a main
residence location, but must be less than 900 square feet
and of like construction as the main residence. Barns and
outbuildings shall not be used for residential purposes.
2. The property is designated as residential, and shall be
used for that purpose.
....
11. The term of these CCR’s are to run with the land and
shall be binding on all persons in title to the tract, in whole
or part for a period of twenty (20) years from the effective
date of this deed, after which time they shall be renewed
automatically for successive periods of ten years unless
changed by agreement of 80% of adjoining property owners.
The CCR’s set forth herein may be enforced by any
adjoining landowners by action in the appropriate Court of
Ellis County, but only after 30 days written notice of an
alleged violation of these CCR’s to the landowner.
In 2019, Lemon sold the parcels to Salvador Family Holdings
without referencing or including these deed restrictions. Salvador
Family Holdings later transferred the parcels to petitioner EIS
Development II, LLC.
EIS began planning a large-lot residential development of the
parcels called “Sunset Meadows,” proposing seventy-three single-family
residential lots—each lot over one acre, and all but one under two acres.
The project lies within the extraterritorial jurisdiction (ETJ) of
Waxahachie, Texas, less than a mile from the city limits.
George Salvador, EIS’s owner, testified that he was not aware of
the CCRs when he purchased the property and did not expect any such
restrictions to apply. He was simultaneously developing another

4
subdivision less than a mile away. That property, too, was subject to
the same CCRs and included smaller lots, but it had not been the subject
of any efforts to enforce the CCRs. In his experience, one-acre lots were
allowed under Waxahachie’s and Ellis County’s ETJ requirements.
In September 2020, the Planning & Zoning Commission of the
City of Waxahachie approved the final plat of Sunset Meadows, with its
seventy-three lots. Nearby landowners were notified about the
proceeding as required. None objected to or appealed the plat’s
approval.
In November 2020, EIS submitted the plat to the Ellis County
Commissioners’ Court for consideration and approval. The thirty-day
period for approval passed, 1 so the plat was approved by operation of
law and the Commissioners’ Court elected not to take any action.
During the Commissioners’ Court hearing, one adjoining landowner
raised concerns about drainage and engineering. A non-adjoining
landowner raised the CCRs as an obstacle to development, but no
adjoining landowner objected on that basis.
Following approval of the plat, EIS began grading and
excavating. As development proceeded, three adjoining landowners
sought counsel and formed respondent Buena Vista Area Association to
enforce the CCRs. Other adjoining landowners did not join the
Association.

1 See TEX. LOC. GOV’T CODE § 232.0025(d).

5
In December 2020, the Association sued EIS for declaratory and
injunctive relief. 2 It sought declarations including that
(1) “development of homes in the Platted Area in accordance with [EIS’s]
approved plat would violate the Deed Restrictions’ requirement that no
more than two residences . . . be built on a five acre tract” and (2) the
restrictions “limit development in the Platted Area” to no more than
forty residences, each two of which must be on a tract of at least five
acres. The Association also sought an injunction against development
in violation of the restrictions.
EIS responded with a plea in abatement, original answer,
counterclaims, and a third-party petition. It challenged the
Association’s standing, sought abatement for joinder of affected parties,
and raised defenses including waiver or abandonment, estoppel, and
changed conditions. EIS also counterclaimed for a declaratory judgment
that the deed restrictions are invalid and unenforceable due to waiver,
abandonment, or changed conditions.
The Association moved for partial summary judgment, arguing it
was entitled to a declaration that as a matter of law no more than forty
residences can be built on the 100 acres subject to the restriction—two
per five acres. It also sought summary judgment on EIS’s defenses and
counterclaims on both traditional and no-evidence grounds. The parties
entered into a joint stipulation of facts in connection with the motion.
EIS also responded with sworn affidavits, arguing that the evidence

2 The Association initially sued Salvador Family Holdings and Lillian

Custom Homes, LLC, but later amended its petition to substitute EIS as the
defendant.

6
showed the restrictions were ambiguous and that there were fact issues
on its defenses and counterclaims.
The trial court granted partial summary judgment for the
Association, holding the CCRs “unambiguously limit development on
the Property . . . to no more than two main residences per five-acre
tract” and dismissing EIS’s defenses and counterclaims except for
changed conditions. A temporary injunction followed, restricting EIS
from constructing more than forty main residences on the 100 acres with
no more than two per five-acre tract.
The parties went to trial on EIS’s changed-conditions defense and
counterclaim, and the charge instructed the jury not to consider changes
that occurred before Salvador Family Holdings acquired the parcels.
The jury failed to find changed conditions.
The trial court signed a final judgment granting the Association
declaratory and injunctive relief. The court declared that the deed
restrictions are valid and enforceable and limit development to no more
than two main residences and two guest houses per five-acre tract. It
also concluded that “EIS’s plan to develop 73 residential lots, each
containing one main residence, on the Property . . . violates the Deed
Restrictions applicable to the Property.” The court permanently
enjoined EIS from building more than two main residences and two
guest houses per five-acre tract. It also awarded costs and attorneys’
fees to the Association.
EIS appealed and the court of appeals affirmed. 690 S.W.3d 369,
379 (Tex. App.—El Paso 2023). The court held that abatement for
joinder of other adjoining landowners or the State was unnecessary, the

7
deed restrictions unambiguously establish a density limitation of two
main residences per five-acre tract, and EIS’s defense of waiver or
abandonment failed as a matter of law. Id. at 383, 387-88, 390, 394. As
to changed conditions, the court held that the jury was properly
instructed not to consider changes before Salvador Family Holdings
acquired the parcels and that legally and factually sufficient evidence
supported the jury’s answer. This petition followed.

ANALYSIS

EIS raises five issues in this Court: (1) whether nonparty
adjoining landowners and the State are necessary parties to the
Association’s claims; (2) whether the deed restriction’s meaning
supports the award of declaratory and injunctive relief; (3) whether the
Association waived or abandoned its right to enforce the restrictions;
(4) whether the trial court erred by limiting the changed-conditions
question to post-purchase changes; and (5) whether conditions have
changed such that the restrictions are no longer enforceable.
On the second issue, we conclude that the restriction “[n]o more
than two residences . . . on any five acre tract” does not prohibit EIS
from placing one residence on each platted lot of fewer than five acres.
The courts below therefore erred in awarding the Association
declaratory and injunctive relief halting EIS’s development, and we
reverse the judgment in the Association’s favor.
EIS’s last three issues relate not only to EIS’s defenses but also
to its counterclaims. Because those counterclaims could afford EIS
greater relief if successful, we also address EIS’s third, fourth, and fifth
issues, and we conclude that a new trial is required on the

8
changed-conditions counterclaim. Thus, EIS’s first issue regarding
joinder is likely to arise again, and we address that issue as well.

I. Claim for declaratory and injunctive relief: meaning of the
“no more than two residences” restriction

“[C]ovenants restricting the free use of property are not favored
. . . because the right of individuals to use their own property as they
wish remains one of the most fundamental rights that individual
property owners possess.” Tarr v. Timberwood Park Owners Ass’n, 556
S.W.3d 274, 280 (Tex. 2018) (cleaned up). When an owner parting with
property seeks to limit its future use by others, “the language employed
[must be] clear” and “furnish adequate notice . . . of the specific
restriction sought to be enforced”; otherwise, one “who purchases
[property] for value and without notice takes the land free from the
restriction.” Davis v. Huey, 620 S.W.2d 561, 565-66 (Tex. 1981)
(emphasis added). 3 If “the objective intent of the drafters of the
restrictive covenant as it is reflected in the language chosen”
“unambiguously fail[s] to address the property use complained of,”
courts will not bar that use. Tarr, 556 S.W.3d at 280, 285. 4

3 See also id. at 567 (“[I]t is essential that the party seeking to enforce

the restrictions on the use of land establish that the purchaser had notice of
the limitations on his title.”).
4 The Legislature’s direction to “construe[]” restrictions “liberally . . . to

give effect to [their] purposes and intent,” TEX. PROP. CODE § 202.003(a), is not
to the contrary. A writing is ambiguous if it “is subject to two or more
reasonable interpretations after applying the pertinent rules of construction.”
Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589
(Tex. 1996) (emphasis added). Thus, this statute is one rule of construction
that applies in deciding whether a restriction is ambiguous; it does not tell

9
Because deed restrictions are “subject to the general rules of
contract construction,” id. at 280, the omitted-case canon of textual
interpretation helps courts understand the scope of a restriction and
identify uses that fall outside that scope. The canon provides that
“[n]othing is to be added to what the text states or reasonably implies
. . . . That is, a matter not covered is to be treated as not covered.”
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 93 (2012). We presume the drafters
“chose the [text’s] language with care, purposefully choosing each word,
while purposefully omitting words not chosen.” In re CenterPoint
Energy Hous. Elec., LLC, 629 S.W.3d 149, 158–59 (Tex. 2021).
Judges “should not presume that every [text] answers every
question, the answers to be discovered through interpretation” or
“reconstruct[ion of] what [the drafters] would have wanted.” SCALIA &
GARNER, supra, at 93-94. Indeed, a perceived gap is simply “the space
between what the [text] provides and what the gap-finding judge thinks
it should have provided,” so filling it would “ultimately come[] down to
the assertion of an inherent judicial power to write the [text].” Id. at 95.
“The traditional view” is that judges have no such power: “[t]he absent
provision cannot be supplied by the courts.” Id. at 94. Instead, “when
[an author] prescribes in a fashion that courts regard as providing only
‘in part’ and not ‘in full,’ what remains is to be governed by preexisting
law.” Id. at 96. “[C]ourts will not rewrite [texts] to insert provisions
parties could have included or to imply restraints for which they have

courts what to do once they have concluded the restriction is—or is not—
ambiguous.

10
not bargained.” Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 646
(Tex. 1996).
Applying these principles, we must determine whether a deed
restriction providing that “[n]o more than two residences may be built
on any five acre tract” prevents the specific land use being challenged:
building one residence on one sub-five-acre tract. More specifically, the
Association’s petition asked the trial court to determine whether
“development of homes in the Platted Area in accordance with the
approved plat”—which shows one single-family residence on each of the
seventy-three sub-five-acre tracts—“would violate” the deed restriction
just quoted. 5 The answer is no.
The language of this restriction limits density of residential
development, not tract size. But it was drafted as an incomplete density
restriction: it does not expressly spell out the proper density for all sizes
of tracts. Thus, the question becomes whether there is a reasonable
implication from the text about how many residences an owner may
build on a tract of fewer than five acres.
The parties and the dissent advance various readings of the
restriction, but none are reasonable. For example, EIS is incorrect in
reading the restriction to apply only to tracts of precisely five acres. This
construction leaves no room for reasonable implications from the text,

5 We are at a loss to understand the dissent’s repeated accusation that

our opinion is somehow hiding the ball: “ignor[ing]” the issue that the dissent
contends has been the focus “throughout this litigation” in favor of an
“irrelevant” and even “irrational” inquiry that somehow “charts [a new] path.”
Post at 1-4. To the contrary, we are simply addressing the question asked by
the Association in its live pleading and answered by the trial court in its final
judgment, which we have quoted above.

11
including that tracts smaller than five acres may be limited to fewer
residences while tracts larger than five acres may have more. For the
same reason, EIS is incorrect to suggest that the restriction applies only
to tracts of five or more acres.
Similarly, the Association is incorrect in arguing that the
restriction sets a minimum usable tract size of five acres so that no
residential building can happen on any smaller tracts. Tract size and
density of development on a tract are two distinct variables that affect
land use, 6 and a restriction on one cannot necessarily be read as a
restriction on the other. Here, the parties to the deed containing the
density restriction did not bargain for or provide notice of a minimum-
tract-size restriction, and we are not free to insert one.
For their part, our dissenting colleagues read the restriction as
defining the number of residences that can be built “per five acres.” Post
at 6. The dissent shifts its focus from the challenged use of the actual
platted tracts to the earlier parcels purchased from the State totaling
100 acres, explaining that no more than forty residences can be built in
the entire area because it “can be divided” into twenty “distinct, non-
overlapping [five-acre] tracts.” Id. at 7. The dissent bases this
conclusion on what it believes was the “intent of the original parties”
who drafted the restriction, concluding any other interpretation would
“functionally nullify the restriction.” Id. at 4, 6.
This reading is unreasonable for several reasons. First, it
rewrites the restriction to provide for up to two residences “per five

6See TEX. LOC. GOV’T CODE § 211.003(a)(4)-(5); Powell v. City of
Houston, 628 S.W.3d 838, 850-51 (Tex. 2021).

12
acres” rather than “on any five acre tract.” The words “any” and “tract”
must be given meaning. The restrictions appear in the real property
records as part of deeds conveying actual tracts of land that will bind
record owners who are deeded those tracts in the future, so it is incorrect
to read the restriction (as the dissent does) to focus on “indefinite” areas
of “five non-overlapping acres” into which the original parcels “can be
divided.” Id. at 7. Instead, “tract” in the context of this particular
restriction, as we read it, means “[a] specified parcel of land,” 7 so the
recorded subdivision plat created seventy-three separate tracts. 8 The
word “any,” for its part, signals in this context that the tracts to which
the restriction applies can change over time. And our cases cited above
confirm that the recorded tracts of which the Association complains are
the focus of the analysis, which was not frozen in place based on the
sizes of earlier tracts. E.g., Tarr, 556 S.W.3d at 285 (considering
whether restrictive covenants “address the property use complained of”
(emphasis added)).
Second, nothing in the text of the restriction supports an
inference that the record owners of these separate sub-five-acre tracts
cannot build any residences at all. The dissent’s interpretation
improperly writes in a minimum-acreage requirement for any
residential use even though the parties did not bargain for one and the
deed does not provide fair notice of one.

7 Tract, BLACK’S LAW DICTIONARY (12th ed. 2024).

8 See TEX. LOC. GOV’T CODE § 232.001(a) (providing that a subdivision

plat “divides the tract into two or more parts”).

13
The dissent prefers to address how EIS should hypothetically
have platted the original parcels totaling 100 acres, and it characterizes
our opinion as pursuing an irrelevant inquiry divorced from how the
parties and lower courts handled this litigation. Post at 1-2. To the
contrary, the Association has never argued that EIS’s actual division of
the parcels into tracts smaller than five acres, by itself, violated the
restriction, nor could it. As discussed, the restriction’s text does not
prohibit subdivision and says nothing about minimum tract size.
Instead, the Association’s petition asked the trial court to decide
whether “development of homes in the Platted Area in accordance with
the approved plat” would violate the restriction (emphasis added). And
the trial court did so, declaring in its final judgment that “EIS’s plan to
develop 73 residential lots, each containing one main residence, on the
Property . . . violates the [restriction].” That is the issue before us. 9
Having concluded that these various constructions of the
restriction are not reasonable, we are left with the question whether the
restriction is susceptible to any reasonable construction. We conclude it
is. By providing for no more than two residences on any five-acre tract,
the restriction rests on the assumption that one residence may be built
on a five-acre tract. Because nothing suggests that the same assumption
does not apply to tracts of fewer than five acres, and because nothing in
the deed prohibits construction of one residence on any tract, the
restriction implies that one residence may be built on a tract of any size.

9 Whether the plat is subject to modification is irrelevant if development

in accordance with the plat does not violate the restriction. Thus, we find it
unnecessary to address the possible modification of the plat. Cf. post at 1-2, 4.

14
Neither the deed’s text nor background law applicable in this area limit
the number of residences on a tract. See TEX. LOC. GOV’T CODE
§ 212.003(a)(4).
We thus conclude it is reasonable to construe the restriction as
assuming that one residence may be built on any tract while both
permitting a second residence on a tract of at least five acres and
prohibiting a third residence on such a tract. Because restrictions must
be clear and implications must be reasonable, the restriction does not
prevent the owner of a sub-five-acre tract from building one residence as
allowed by law.
This reading eliminates the complexities that result from the
unreasonable constructions the parties and dissent propose. And it
avoids other anomalous results of the dissent’s interpretation, such as
forcing EIS to re-plat the property subject to language that is not present
in the restriction.
None of the arguments identified by the dissent shows that a one-
residence reading of this restriction is unreasonable. For example, the
dissent points out that some of the parties’ proposed readings would
“effectively do[] away with” or “functionally nullify” the restriction so
that it “serves no purpose at all.” Post at 8, 10. Not so the one-residence
reading. Without the restriction, a tract owner could build two or more
residences on a sub-five-acre tract. The one-residence reading gives
effect to the restriction’s reasonable implication by limiting such a tract
to a single residence.
The dissent also appears to have settled on an “intent of the
original parties” that “their neighborhood would not become jam-packed

15
with homes,” which it would employ to overcome the lack of any text
restricting minimum tract size. Id. at 4, 12. In particular, the dissent
labels “subdividing [the original parcels] into parcels of less than five
acres” as “avoid[ing] the restriction” even though the text does not
prohibit such subdivision. Id. at 10. But as the omitted-case canon
explains, it is not a judge’s role to enforce unstated intentions by filling
perceived gaps—especially in property law where clear notice is critical.
See U.S. Polyco, Inc. v. Tex. Cent. Bus. Lines Corp., 681 S.W.3d 383, 390
(Tex. 2023) (explaining that the interpretive task “does not authorize
courts to ensure that every provision comports with some grander theme
or purpose”); Cosgrove v. Cade, 468 S.W.3d 32, 40 (Tex. 2015) (“The
virtues of legal certainty and predictability are nowhere more vital than
in matters of property ownership, an area of law that requires bright
lines and sharp corners.”).
The parties to the original deed could easily have bargained for a
minimum-tract-size restriction if they wanted to avoid subdivision. But
they did not, and there is no textual basis for reading this incomplete
density restriction to contain a de facto minimum-tract-size restriction
that makes sub-five-acre tracts unusable by a single record owner.
Nor is there any reason to think we must depart from the text to
avoid “destabilizing countless restrictions” or inviting “those seeking to
build high-density subdivisions” to run roughshod over “the rural
lifestyle” buyers want. Post at 12, 13. The language of this particular
restriction is far from standard fare: the Land Office developed six levels
of bespoke restrictions for its sales of surplus Super Collider land, and
the Association does not point us to any authority indicating that the

16
Level 5 restrictions imposed here are in common use. Whether
differently worded restrictions might yield a different result is a
question we need not decide today.
It is also no answer to say we do not have to address “uncertain”
applications or how the restriction might apply in “certain factual
situation[s],” the “finer details” of which are simply “not before us.” Id.
at 6, 9. The parcels have been platted into sub-five-acre tracts, and the
trial court declared that putting one house on each tract would violate
the restriction. So the decision before us is whether there is zero, one,
or more than one reasonable interpretation of the restriction as it
applies to the current facts on the ground—that is, of how many
residences can be built on these platted tracts. See Tarr, 556 S.W.3d at
284; Davis, 620 S.W.2d at 565-66. As explained, the only reasonable
implication from the text of the restriction is that two houses cannot be
built on any sub-five-acre tract, but it does not prevent owners from
building one house there. We therefore hold that the court of appeals
erred in affirming the trial court’s contrary declarations and injunction.

II. Waiver or abandonment counterclaim

EIS next argues that regardless of whether its planned
development would violate this or other restrictions, the Association and
its members have waived or abandoned their right to enforce the Level 5
Restrictions in their entirety. Waiver is “an intentional relinquishment
of a known right or intentional conduct inconsistent with claiming that
right.” Teal Trading & Dev., LP v. Champee Springs Ranches Prop.
Owners Ass’n, 593 S.W.3d 324, 334 (Tex. 2020). It “is a question of
intent, examining whether a party’s conduct, in light of the surrounding

17
facts and circumstances, is unequivocally inconsistent with claiming” a
right. Id. at 334-35 (cleaned up). One can waive a right expressly or by
“silence or inaction.” Tenneco Inc., 925 S.W.2d at 643; see also Cowling
v. Colligan, 312 S.W.2d 943, 945 (Tex. 1958) (noting that courts may
“refuse to enforce [a restrictive covenant] because of the acquiescence of
the lot owners in such substantial violations within the restricted area
as to amount to an abandonment of the covenant or a waiver of the right
to enforce it”). 10
EIS identifies two bases for waiver, both of which fail. First, EIS
claims the adjoining landowners waived their right to enforce the
restriction by failing to object to the property being platted into
sub-five-acre lots. But objecting based on the restrictions would have
been futile because neither Ellis County nor the City of Waxahachie can
enforce deed restrictions in the plat-approval process. 11 And “once the

10 EIS argues that Cowling prescribed a distinct waiver doctrine in the

context of enforcing deed restrictions. We disagree. Waiver of a restrictive
covenant by acquiescence in its violation is consistent with general waiver
principles, which we and the courts of appeals, including in opinions cited by
EIS, continue to apply in cases involving enforcement of deed restrictions. See,
e.g., Tarr, 593 S.W.3d at 328, 334-35; see also Nolan v. Hunter, No. 04-13-
00072-CV, 2013 WL 5431050, at *7 (Tex. App.—San Antonio Sept. 25, 2013,
no pet.) (mem. op).
11 The Local Government code limits municipal enforcement of deed

restrictions to (a) certain municipalities with more than 1.5 million in
population and (b) municipalities without zoning ordinances. TEX. LOC. GOV’T
CODE §§ 212.151, 212.153. Waxahachie, which has a population of
approximately 35,000 and has zoning ordinances, thus lacks the ability to
enforce deed restrictions. Ellis County also lacks authority for the enforcement
of a developer’s deed restrictions, as such authority rests “solely with the
developer, property owner, purchaser, or landowner’s association.” ELLIS
CNTY. DEP’T OF DEV., COUNTY OF ELLIS RULES, REGULATIONS, AND
SPECIFICATIONS FOR SUBDIVISIONS AND MANUFACTURED HOMES, § 5-O.

18
relevant governmental unit determines that a plat conforms to
applicable regulations, it has a ministerial duty to approve that plat.”
Schroeder v. Escalera Ranch Owners’ Ass’n, Inc., 646 S.W.3d 329, 332
(Tex. 2022) (citing TEX. LOC. GOV’T CODE §§ 212.005, 212.010).
Failing to make a futile objection, standing alone, is not enough
to establish waiver. Waiver depends on whether the party’s conduct is
“unequivocally inconsistent with claiming” the right in question. Teal,
593 S.W.3d at 336. Not making a futile objection is not inconsistent with
claiming the underlying right at all, let alone “unequivocally” so. See
Underwood v. Webb, 544 S.W.2d 187, 190 (Tex. Civ. App.—Waco 1976,
writ ref’d n.r.e.) (explaining that a violation that “could not have been
prevented . . . cannot be relied on to support a waiver or abandonment”).
Second, EIS argues the Association and its members waived their
right to enforce the restrictions because there have been numerous
violations of deed restrictions within the Super Collider’s former area.
For example, EIS points out that adjoining landowners failed to
challenge the development of other nearby subdivisions that would have
violated the restrictions. But the parties have stipulated that none of
the properties comprising those subdivisions adjoin the land of any of
the parties to this suit. Thus, even assuming those properties were
subject to the same restrictions, the Association lacked standing to
enforce the deed restrictions on non-adjoining properties. Failing to
enforce a nonexistent right is in no way inconsistent with enforcing an
existent right. Therefore, neither the Association nor the
adjoining-landowner parties to this suit have waived or abandoned their
right to enforce the restrictions.

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III. Changed-conditions counterclaim

Next, we turn to EIS’s changed-conditions counterclaim. We hold
that the trial court erred by refusing to allow the jury to consider
changes that occurred after the restriction was created but before EIS
(or Salvador Family Holdings) purchased the parcels. Because the jury
was erroneously instructed to consider only evidence of post-purchase
changes in reaching its verdict, we conclude a new trial is required on
this counterclaim.
A court may refuse in equity to enforce a deed restriction when
“there has been such a change of conditions in the restricted area or
surrounding it that it is no longer possible to secure in a substantial
degree the benefits sought to be realized through the” restriction.
Cowling, 312 S.W.2d at 945. 12 Changes making the lot “unsuitable” for
the restriction are not enough. Courts must balance the harm to the
restricted owner against “the equities favoring the lot owners who,
having acquired their property on the strength of the restriction, wish
to preserve the . . . character of the area.” Id. at 946.
This Court has yet to decide whether changes occurring after the
restriction was created, but before the owner seeking to avoid the
restriction acquired the burdened property, are relevant to the
changed-conditions defense. Some courts of appeals have held they are

12 See also RESTATEMENT (THIRD) OF PROP. (SERVITUDES) § 7.10 (AM. L.

INST. 2000) (“When a change has taken place since the creation of a servitude
that makes it impossible as a practical matter to accomplish the purpose for
which the servitude was created, a court may modify the servitude to permit
the purpose to be accomplished. If modification is not practicable . . . a court
may terminate the servitude.”).

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not. See, e.g., Lebo v. Johnson, 349 S.W.2d 744, 752 (Tex. Civ. App.—
San Antonio 1961, writ ref’d n.r.e.) (“Appellees cannot claim as changed
conditions those that had already taken place at the time they
purchased their lots and received their deeds containing a reference to
the restriction of residential use only.”); Oldfield v. City of Houston, 15
S.W.3d 219, 228 (Tex. App.—Houston [14th Dist.] 2000, pet. denied)
(citing Lebo for the proposition that an owner relying on changed
conditions “may not complain of the changes which had already taken
place in the area when he acquired the property at issue”).
The Association contends this rule makes sense because someone
who purchases with notice of changed conditions does not experience the
same loss as an owner who faces unanticipated changes. It argues that
a purchaser who wants to buy free from a restriction should “seek to
have the restriction removed before purchasing the property.” Wood v.
Dozier, 464 So. 2d 1168, 1170 (Fla. 1985).
The problem with the post-purchase rule, though, is that the
changed-conditions doctrine is not about notice, nor about a distinction
of rights between a longtime owner and a recent purchaser. Equities,
including disproportion between harm and benefit, are certainly
relevant. See Cowling, 312 S.W.2d at 946. But as Cowling makes clear,
the core of the analysis is whether it remains “possible to secure in a
substantial degree the benefits sought to be realized through” the
restriction. Id. at 945. The doctrine is meant to prevent “obsolete
servitudes . . . interfer[ing] with desirable uses of land.” RESTATEMENT
(THIRD) OF PROP. (SERVITUDES) § 7.10 cmt. a (AM. L. INST. 2000). The
analysis therefore turns largely on considerations of a restriction’s

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obsolescence, purpose, and effect. A new owner has no effect on those
considerations. See id. cmt. c (“The test for finding changed
conditions . . . is often said to be whether there has been such a radical
change in conditions since creation of the servitudes that perpetuation
of the servitude would be of no substantial benefit.” (emphasis added)).
Further, when interpreting a deed restriction, we focus on “the
objective intent of the [restriction’s] drafters” as “reflected in the
language chosen.” Tarr, 556 S.W.3d at 280 (emphasis added). If that
intent can no longer be realized, it follows that the restriction can no
longer be enforced. Accordingly, we hold that a factfinder must consider
all changes since creation of a restriction to determine whether the
changed-conditions doctrine precludes enforcement of the restriction.
We disapprove those opinions holding otherwise.
The trial court erred in holding that only post-purchase changes
could be considered and in instructing the jury to that effect over EIS’s
objection. “When a trial court gives an erroneous charge that instructs
the jury on the incorrect law applicable in the case,” the appropriate
remedy is a new trial. Glenn v. Leal, 596 S.W.3d 769, 772 (Tex. 2020).

IV. Joinder

Finally, EIS argues the trial court erred in denying EIS’s plea in
abatement to join the State of Texas and nonparty adjoining landowners
as necessary parties. Because the issue is likely to arise on remand, we
address it here. See Masterson v. Diocese of Nw. Tex., 422 S.W.3d 594,
609 (Tex. 2013); MCI Sales & Serv. v. Hinton, 329 S.W.3d 475, 495 n.19
(Tex. 2010).

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“When a party seeks to compel joinder of persons as parties to a
proceeding, including a declaratory-judgment action, Texas Rule of Civil
Procedure 39 governs.” In re Kappmeyer, 668 S.W.3d 651, 655 (Tex.
2023). Rule 39(a)(2), on which EIS relies, requires joinder of persons
who, among other things, “claim[] an interest relating to the subject of
the action.” TEX. R. CIV. P. 39(a)(2).
We have held that to “claim” an interest is “to demand recognition
of (as a title, distinction, possession, or power) esp. as a right” or “to
assert or establish a right or privilege.” Kappmeyer, 668 S.W.3d at 656
(quoting Crawford v. XTO Energy, Inc., 509 S.W.3d 906, 912 (Tex.
2017)). But Rule 39 does not require joinder of a nonparty “who
potentially could claim an interest in the subject of the action; it requires
joinder, in certain circumstances, of persons who actually claim such an
interest.” Crawford, 509 S.W.3d at 914 (emphases added).
EIS asserts that the adjoining landowners have claims by virtue
of their deeds and the State has a statutory claim because it created the
restrictions. EIS emphasizes that these parties have a right to
participate in any determination of rights under the deed restrictions.
The Association, on the other hand, argues that the claims and
counterclaims do not implicate the rights of the State or other adjoining
property owners in a manner that requires their joinder.
We agree with the Association and conclude that the remaining
counterclaim does not require joinder. The record does not indicate that
either the nonparty adjoining landowners or the State have sued,
objected to the platting, or taken any other action demanding or
asserting their interest in the Properties’ deed restrictions.

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Citing Crawford, EIS argues that the landowners have “claimed
an interest in the subject of the litigation through their deeds” because
their right to enforce the restriction arises from those deeds. Id. at 913
(distinguishing prior cases requiring joinder of “absent parties [who]
expressly claimed an interest in the subject of the litigation through
their deeds and leases”). We rejected that argument in Kappmeyer. In
that case, property owners sued their homeowner’s association, seeking
a declaration that amendments to the subdivision’s restrictive
covenants were unenforceable. 668 S.W.3d at 654. We held that all
other property owners in the subdivision need not be joined; even though
they could be affected by the ultimate judgment in the suit, they had
taken no steps to “claim an interest.” Id. at 658. In so holding, we
explained that the deed-based cases we distinguished in Crawford
predated Rule 39 and applied a common-law rule that allowed joinder of
persons who “have or claim a direct interest.” Id. at 658 n.9. Because
Rule 39 specifically requires claiming an interest, those cases “are of
limited usefulness.” Id. Moreover, the interests considered in
Kappmeyer, like those here, arose from absent parties’ deeds. Id. at 657.
We nevertheless focused on the “difference between having an interest
and claiming one” and held that joinder was not required. Id. at 658.
Under Kappmeyer, the nonparty adjoining landowners are not necessary
parties.
EIS’s claim that the State is a necessary party fares no better.
EIS cites a statute authorizing the State to enforce a “restriction
expressed in a transfer document . . . conveying real property then
owned by the state.” TEX. NAT. RES. CODE § 31.068(a)(2). The statute

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confirms that, as with the absent parties in Crawford and Kappmeyer,
the State certainly “could claim an interest in the subject of the action.”
Kappmeyer, 668 S.W.3d at 657. But “having” an interest is not
“claiming” one. Id. And EIS offers no reason to treat the State any
differently for purposes of evaluating mandatory joinder under Rule 39.
Accordingly, the trial court correctly denied EIS’s plea in abatement.

CONCLUSION

Given our construction of the “no more than two residences” deed
restriction, we reverse the judgment awarding the Association
declaratory and injunctive relief to halt EIS’s development and render
judgment that the Association take nothing on its claims. In addition,
having concluded that the jury was improperly instructed on EIS’s
changed-conditions counterclaim, we reverse the judgment as to
changed conditions and remand for a new trial on that claim.

J. Brett Busby
Justice

OPINION DELIVERED: June 13, 2025

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