Resolution on Section 5 Deed Restriction Controversy
by William Morfey, President, TMCC Board At the March 10, 2015 TMCC general meeting, the attending civic club members reviewed the status of a new home being constructed on Abington Way in Section 5. The review focused on aspects of the home that neighbors believed were in violation of Section 5 Deed Restrictions.
One area of specific concern was that the appearance of the home was not in harmony and conformity with the neighborhood. Another area of specific concern was that the home appeared to have three stories, whereas the Section 5 DR’s specify that a home can have no more than two stories. Historically, the home had originally been permitted by the City of Houston as a three story structure with no attic. After being reported to the City as a DR violation, the project was “red-tagged,” causing the owners to revise the building plans by re-designing the third story as an attic/mechanical room. Significantly, the new design did not eliminate the exterior windows that gave the structure a three-story appearance.
In prior discussions leading up to the general meeting, the homeowners, through their attorney, had asserted alternatively that the home did not violate any deed restrictions, or that the relevant DR provisions had been waived. The homeowners also expressed intent to litigate the matter if a mutually agreeable resolution could not be reached.
The attending membership voted to authorize legal action against the construction project if no acceptable resolution could be reached within 45 days. The attending membership also instructed the TMCC Board of Directors to handle the negotiations with the homeowners to see if the matter could be resolved within the allotted timeframe.
After continued discussions and negotiations, the Board was able to reach agreement with the homeowners concerning acceptable modifications and limitations to the structure. In significant part, the homeowners agreed that the windows would be eliminated on the attic/mechanical room area, and that the space would remain a non-conditioned/non-habitable area. Additionally, the homeowners agreed that exterior concrete masonry units would be colored and textured to resemble stone, and that a portion of the roof would be pitched instead of flat, so as to more readily match existing Section 5 aesthetics. In exchange, the Board agreed that TMCC would stand down on its objections to the structure.
All things considered, the Board believes that the agreement reached is in the best interest of the neighborhood. The agreement means that the potential DR violations were mitigated without the need to expend significant civic club funds in a legal action.