By Anner
I write this as a word of caution, so that you may avoid the same mistake I made. I was born on farm land in west Texas, and raised properly with an abundance of opportunities to safely and productively shoot firearms. My family moved around the country to follow my father’s job, and we enjoyed firearms even in commie states such as Illinois (still have my FOID card as a reminder of our brethren fighting the good fight).
I’ve shot competitively in both military and civilian shooting events, as part of a team and as an individual. I have my CHL/LTC in three different states and carry whenever possible. I imagine my perspective on firearms mirrors that of many TTAG readers.
I moved to Taylor County, Texas a couple years back. I purchased a 15 acre lot about 20 miles southwest of Abilene. It’s way out in the country along a county road with cedar trees so thick you can’t see but one or two houses from the road.
At the time of sale, closing on the second mortgage of my life, I didn’t give a proper read through the title policy. It clearly references deed restrictions, though it doesn’t provide a full copy of the restrictions themselves. A visit to the Taylor County Clerk’s office shows that those restrictions include a clause . . .
5. Nuisances and Firearms: No noxious or offensive activity shall be carried on upon any of the property nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood. Use of firearms on any tract is strictly prohibited.
Oblivious to any applicable restrictions, and of the mindset that 15 acres in rural west Texas is plenty of room to safely enjoy some target practice, I shot as a matter of training, family entertainment, and sustenance (deer). I’ll save you the sob story of how my neighbor initiated a harassment campaign at my place of employment, but it wasn’t pretty.
Thankfully, my chain of command was understanding and almost all of them have had “that neighbor” next to them. I attempted to reach an agreement with my neighbor, offering multiple times to only shoot when he and his wife were out of town, or essentially ask their “permission” before I shot. They refused all of my offers, citing the deed restriction as justification to order me to completely stop shooting on my own property.
There are 30 properties out here in this neighborhood. All of the owners but my neighbor routinely shoot for target practice, pest control, or hunting. In late 2015, my neighbor filed suit against my wife and me for the use of firearms, to the dismay of the rest of the neighborhood.
The legal battle took seven months, included four pre-trial hearings, hundreds of hours of research and work by my wife and me, a trial by judge, and $15,000 in attorney fees. Most of the neighborhood testified that they’ve shot routinely for years, overwhelmingly abandoning the deed restriction.
Tracking everyone down to testify out in the country where gathering names and numbers for 30 families is a gigantic PITA. It took a lot of work. There are 18 total clauses in the deed restricition including prohibiting chickens, specifying the type of structures that can be built, etc. Literally all of the restriction clauses are violated in whole or in part by at least one neighbor in the area.
Every neighbor — including the plaintiff — is in violation of at least one clause.
Below are some lessons I’ve learned the hard way . . .
1. Before committing to a property purchase, take that address to the county clerk’s office and research any deed restrictions. Review them carefully and, if in doubt, take them to a title or civil litigation attorney for clarification.
2. The clerk’s office also has public records of all types including warranty deeds (showing who actually owns what lots), overview charts showing the layout of each neighborhood (plats), surveys showing the defined boundaries of each lot, etc. Viewing these documents is usually free. Printing them cost me $1 per page, or more if I wanted a large-print plat or a certified copy.
3. Once you narrow down the properties/houses you like, walk up to the neighbors’ houses that surround it. Talk to them and see how they interact. If I’d done that, I would have realized that 28 of the 30 owners out here are red-blooded Americans and enjoy the country. That 29th owner (I’m the 30th) is an insufferable dick and unfortunately…I moved in right next to him.
4. Document, document, document. My job has taught me to take notes as soon as an issue arises, because you’re likely to need it again. I started logging every round fired, every interaction with my neighbor, and other details as soon as he initiated his harassment campaign in 2014. Some of those notes, especially my shooting log, were helpful while on the witness stand. I could reference them to demonstrate how much of an effort I’ve made in mitigating noise, such as investing substantial resources into suppressors and selecting subsonic ammo whenever practical. I also had physical evidence of my attempt to reach an agreement with the neighbor, showing the judge that I had tried my best to resolve the matter outside of court.
5. Once you move in, get to know your neighbors. In rural areas, if an emergency arises (floods, tornado, wildfire, etc.), we don’t have a robust alert system. By knowing the neighbors and having their phone numbers ready, we can raise the alarm rather quickly. In situations such as this lawsuit, already knowing who to contact for a history of the neighborhood or to discuss the issues is essential.
6. If you need to lawyer up, then lawyer up like a boss. We initially hired someone we knew whose background is in criminal law. That cost us some opportunities such as filing paperwork that could have forced the plaintiff to pay our legal fees if we won. We eventually hired a civil litigation attorney that understood property law quite well. He kicked ass. If we’d gone big from the beginning, we could have walked away with $0 in legal fees.
The big picture may seem quite clear. A family sits on 15 rural acres, safely enjoys some target practice and deer hunting, and happens to live next to a neighbor who’s an asshole. But no matter how simple the basic situation is, resolving it isn’t easy. Civil litigation gets murky quickly.
During our trial, the judge challenged both attorneys on the issues of what constitutes abandonment, what constitutes the plaintiff’s waiver of his right to enforce the deed restriction, etc. I admit I was worried for a bit, thinking that the details of the case might actually go against us.
But we freaking won. The first round I fired after the judge’s decision was with my Ruger Scout Rifle (proudly unsuppressed for that occasion). I saved that .308 empty and mounted it in a frame in the garage. That round cost me $15,000 and I’m not gonna lose it.
I urge you to learn from my mistakes and avoid this kind of issue entirely. Do your homework on property deeds. County judges in west Texas may eventually side with you, but holy crap it’s a painful process.
Every neighbor — including the plaintiff — is in violation of at least one clause.
That’s when you countersue the plaintiff for violating the deed restrictions.
“That’s when you countersue the plaintiff for violating the deed restrictions.”
Exactly. You broke your back bending over backwards to accommodate that asshole, treat him EXACTLY the same way he treated you. Cost HIM many thousands in legal fees. Do ANYTHING and EVERYTHING in your power to make his life as miserable as he made yours.
(If it isn’t obvious, when it gets down to it, I’m not a very nice person if you piss me off, and I’m kinda proud of that. It sure has come in handy on occasion, helping friends out with their problems… 😉 )
Should have, yes. See “6”
How do these deed restrictions get put in place to begin with, and why can’t they be removed by subsequent owners?
By whoever developed the property in the first place. (Anner can clarify)
It can literally be an HOA hell… 🙁
Especially in areas where there is no zoning (e.g., non-municipal e areas, and some entire cities like Houston), deed restrictions and HOA’s serve a valuable economic purpose.
Do you want to live in a neighborhood where it is single family residences (built on grade) only? Deed restrictions (enforced by an HOA) make that possible where there’s no zoning.
Put differently, assume you have two developments where there is no zoning, each offering half acre lots. One has deed restrictions limiting development to single family residences of a certain minimum / maximum size. The other does not.
If you buy/build in development 1, you have some protection for your investment, as you know that what will be built nearby will be comparable SFRs. If you buy/build in development 2, your next door neighbor could later put in a trailer park, high rise, convenience store, etc.
Guess which development will be preferred (and thus command higher prices? That’s why developers use deed restrictions, and why many consumers prefer to buy property covered by DR’s.
Are there abuses of HOA’s? Of course, which is why you should always read the restrictions before buying — if you don’t like the rules, no one is forcing you to buy there. But the knee-jerk reaction that “all deed restrictions are evil” ignores the economic realities of why they are used in the first place.
(And yes, I have litigated deed restriction cases, have written deed restrictions, have had disputes with overbearing HOA’s, and have served as an officer in a HOA.)
I don’t have a problem with the general idea of an HOA, one asshole neighbor can destroy your property values real fast.
The problem I do have with them is when someone *weaponizes* the HOA by a power-tripping board member or members.
My first home had an HOA, but it was a very strange one. No board members, no dues, no nothing but a boilerplate list of minimal restrictions. No enforcement provisions, no nothing. The builder who developed it sold the units to investors that rented them out. As time went on, the investors sold them to people as primary residences. Which is how I bought mine, a duplex where I rented half of it out, paying the vast majority of the mortgage. Overall, a pretty sweet deal. Then life imploded… 🙁
Established by previous owners of the large ranch upon which this neighborhood was one section. They file DR with the county clerk before they sell. A good Title Insurance sweep (or whatever it’s called) will point out all applicable DR. Ours was listed, just in terms we didn’t understand. It only alluded to the title, not the actual text of the DR.
All moot, see below for changes in TX state law. 3+yrs too late to save us the pain and money, but a win’s a win.
Always buy properties according to your interest.
{Nightmare tale of deed restrictions exploited by asshole neighbor}
“But we freaking won. The first round I fired after the judge’s decision was with my Ruger Scout Rifle (proudly unsuppressed for that occasion).”
After all you went through, I’d be inclined to greet the day, *every* day, with a daybreak round of .50 BMG. Or a pound of 10 of Tannerite… 🙁
Ole purple texass letting them Kalifornia folks mess it all up. Unfortunately it’s happening everywhere that’s decent to live.
I have to laugh at HOAs and the like. Your paying someone else to tell you how to live. Then you’ll try and justify it as a good idea while simultaneously griping about too much government lol 😂
The problem with HOA’s are the developers. They form the HOA in order to control the look of the houses while the subdivision is still being built and sold. What should happen is for the HOA to end when the last new home is bought. Instead it is deeded to the home owners. The developers write the HOA in such a way where it almost impossible to make changes. Some require two thirds of all homeowners to approve a motion to even bring it up for a vote. Then two thirds have to vote for it at the next meeting. Hold the meetings during the day when most people work and nothing can change.
This instance wasn’t an HOA, unfortunately.
If it were, as you describe, a with a simple vote they could have amended the covenants.
But it does make me wonder if the majority of the residents could petition the court to nuke the entirety of it from all the deeds.
I’m no Texas (or any other state) real estate lawyer, so I’m likely wrong my assessment.
But the fact that things like like that bother so many people, if something legally can be done about it….
Many modern developments have open space/common areas that have to be maintained. That requires an HOA.
That’s exactly what deed restrictions are for and how they work — to create some certainty for purchasers (and lenders) as to what will be nearby in perpetuity.
If deed restrictions expired once the last house / lot by the developer was sold, then they are worthless. The whole point of DR is to say, “this is what will be in this development from now on, UNLESS all (or in some cases a supermajority of) property owners vote to change the rules.” (And, of course, if the HOA doesn’t enforce the DR’s then they can be found to have been waived / abandoned, which is why many HOA’s are seen as overbearing.)
When there’s a good reason, deed restrictions *can* be changed. E.g., in my small neighborhood (8 residential lots + 1 commercial lot0, the DR’s limit houses to roofs of concrete barrel / faux slate tile, clay barrel tile, slate tile, or standing seam metal. One owner wanted to build using a new product — metal roofs with a ceramic coating that looks like barrel tile (lighter weight and more energy efficient than concrete barrel tile). After we investigated it (and I got various architects I work with to weigh in on whether it was a good product), everyone voted to allow the change.
Again, if you don’t like DR’s for whatever reason, then don’t buy in a neighborhood that has them. But most purchasers will prefer the economic protection of knowing what can be built in the neighborhood.
I have done a good bit of property development and construction over the last couple of decades and, when I have put in deed restrictions or covenant clauses, I have made them minimal (things like specifying fence height and materials – i.e. No chain link) and then further added a clause that requires *unanimous* approval from the individual property owners for changes. As I was often one of those owners, I had a built in mechanism to ensure that no rules I disliked were added.
I’m a builder too, and lawyer. free advice: don’t ever buy in a HOA nor a historical district. Ever.
I’m very fortunate to live in an HOA-free oasis, surrounded by HOA communities.
Be *very* careful, Haz, I have heard of instances where someone who lives just outside of an HOA was ruled by a judge to comply with the HOA.
Dunno if it’s a California thing or not, but that’s basically how many small local airports get shut down… 🙁
a policy I adopted many decades ago as I wached my younger brother duke it out with the medd,esme HOA queens who demanded very tight restrictions for all DOGS but were fine with cats prowling about and keeping everyone else awake nights. And dictating which coours were “acceptable” tp paint your house, all the
legal
coours being in the inventory of one of two local paint stores, apparentlyowned by soe relative of some of the HOA board.
His respnse? Managed to schmoooze enough of the neighbours to get himself elected to the HOA board. When the Cat Lady proposed anoher ridiculous self-serving rule, he merely questioned her as to her motive and thinking at the meeting…. she withered like a month old dead rose. The proposed rule failed. SHE got madder’n a wet hen, but was powerless to DO anything. cooled her jets for a while. Then he got smart, found a better place not far away with no HOA and told them all to stuff it where tthe sun refused to shine. Ah yes, Marin County California.
I am always surprised when long lasting, durable chain link fencing is banned. The result is often poorly installed, cheap wood privacy fencing that begins to fall apart within five years. I live in central Texas and most fences that developers install use wooden posts rather than steel and only two runners rather than three. So the wood fences lean and warp and look like crap.
So idiots also require wood/cedar shake roof. Include in Commiefornia, Because some broad thinks look “rustic”/”cute”. No shortage of morons.
So you can violate a rule such as a deed restriction because the neighbors do.
Good to know.
No. If a *particular* deed restriction has gone unenforced for long enough for the court to find it has been abandoned / waived, then *that* deed restriction can be found to be unenforceable. But absent some unusual situation whereby ALL of the deed restrictions can be found to have been waived, that one deed restriction has been abandoned does not mean you’re free to violate the others.
I was playing off of the author’s assertion that “it’s okay to shoot on my land because most of the neighbors do”– without realizing that he had to go through a court process to establish that the restriction was void.
It seems that all of the restrictions are void, then: “Literally all of the restriction clauses are violated in whole or in part by at least one neighbor in the area.”
Correct, as our second attorney explained.
The old abandonment rule…In my state if you unintentionally build something, put up a fence off the property line after x number of years without a complaint you do not have to move it, etc…You’ll make out on the attorney fees because your property value increased $15,000 in the Freedom rural buyers expect…Let that nice .308 sing.
Once again, our own ‘Lil Debbie demonstrates she knows nothing about the law.
Abandonment / waiver of deed restrictions through nonenforcement (which apparently was the basis of the decision in the case described) is one thing, with specific elements and factors that must be proven.
Legal title by adverse possession (which is what ‘Lil Debbie is describing) is completely different and distinct body of law.
Aside from buyer beware.
The restriction could be due to simple ballistics. The average 15 acre block in a 1 to 3 ratio of frontage to depth is about 150 yards by 450 yards. 1:3 is standard for most subdivisions.
Considering most .308 can travel about 2 miles if you don’t hit something solid the neighbours might not like the extra holes in their house.
In a local case years back a lady was killed by SKS round that went through a over 100 yards of trees then hit her on the road. Looking at the site later I didn’t think it was possible for a projectile to get through the forest but it did.
Sorry Anner no sympathy. My best friend & wife moved to a townhouse development in nearby Indiana. They share a wall with the neighbor from he!! Yes they have rules & regulations they should have paid attention to but didn’t. We’re exploring Indiana but don’t want nosy or pita neighbor’s. It’s dizzying the information you need to be aware of!
No sympathy requested. It’s intended to help like-minded folks be aware of one of the potential issues when researching property purchases.
Pretty sure, “Know your target and what is beyond” is one of the basic safety rules.
Remt or borrow a dozer or excavator and kick up a berm high enough to capture any rounds sent downrange.
simple safety and courtesy move. So it cost you a few hun.. so what?
“Considering most .308 can travel about 2 miles if you don’t hit something solid the neighbours might not like the extra holes in their house.”
The county where I live in has recently ruled if your lot is 2 acres or larger, you need no permit or ‘permission’ of any kind to build a range at home…
I have a very thick backstop and clear lanes of fire. Nothing shy of a FA burst from a cannon is punching through to escape my property lines.
This is an example of why I did my diligence before I offered on my property. No local zoning out here and it is zoned agricultural or unzoned by the county and state. State has building codes for the region, but little else. County wants building permits, but are forgiving enough to let things slide until after a project is finished. Just go pay the permit fee sometime withing the 6 month permit length.
Shooting/hunting with heavy caliber/high powered firearms could be an issue in 1 direction here. The other 3 are wooded or open fields for several miles. About 3/4 mile to the nearest neighbor. Hunting the only question is what license is needed and how much it costs.
Next is gather all the info you can if you are seriously interested in a piece of property. Have a property attorney read and explain any and all rules/restrictions attached to the deed or property. Yes it will cost a bill or 2 but that is much cheaper than court costs and future fees if you have a problem like the jackhole neighbor in the article. Last is there is no way on Gods green Earth I will ever pay an HOA or other party, nor sign anything allowing anyone rights to interfer with or have any control over property I own outright. Bad enough I have to pay the government to retain my property rights. Yes, I get it. Property taxes help pay for schools etc. But, it doesn’t mean I have to like it.
Gavin Newsom voted a left wing extremism (and eventually violent) bill ( he prompted and wanted actually)..
https://www.youtube.com/watch?v=wtZ7OFvqlxo
NY left wing redefines human sex trafficking of illegal migrant children and adults as (some how legitimate) ‘adult work for survival’.
https://www.youtube.com/watch?v=G1DyKCOWbw4
Most people just flip through that huge stack of paperwork signing their name on everything. Just like with software EULA’s, people rarely every actually read any of it.
It’s difficult for many home owners to grasp the idea that the local utility companies (cable, telephone, electric, natural gas, etc.) legally have the right of way. If you have the cable companies pedestal in your back yard then they have every right to go into your yard to gain access. Same thing with poles. Many planned communities have lines run underground so even if you don’t have any pedestals at all, that might not mean they don’t need access. Part of the paperwork YOU SIGNED agrees to let them into your yard.
If you can’t (for any reason) abide by the harsh and often communistic rules of the HOA then that is your sign telling you that the neighborhood is not for you. You either submit or go elsewhere. If you feel that your finances can withstand the legal battle to change it then be my guest.
My sister-in-law is a professional real estate escrow officer. She has been telling stories for years about how many buyers come back months after purchase of their properties, complaining about things they never read in the escrow paperwork because they simply signed everything without reading first.
Caveat emptor, indeed. Do your homework, people.
I’m pretty good about reading everything before signing my name. Years ago I took out a line of credit against my house. After finishing, the banker handed me a credit card with a 10k limit. I told her I didn’t ask for that. She said I would have to cancel it later. I assume she snuck that in there to collect a bonus.
That sucks Anner, I grew up in Abilene and I’ve seen it get more and more progressive. I moved my family 20 minutes north and bought a 20 acre farm in Jones county, outside of Anson. It’s a rare day when there’s not someone close by shooting. It seems like Abilene and a good portion of Taylor county, yes even Buffalo Gap, has gotten a big city Karen vibe. Come on out towards Funston sometime, we can shoot all day. Off topic, but I trade on AAG also. It’s good to have you on both sites.
Hey neighbor!! This was a stupid lawsuit brought by one asshole in the neighborhood. I wrote this over 5yrs ago (TTAG is doing reruns I guess) and been shooting anytime I want ever since. We cleared it up and TX state state law changed for the better in 2019, laying the issue completely to rest.
98% of the neighborhood is like-minded and several folks and I invite eachother over to shoot.
Also beware when leasing.
The only restrictions on my property (a few acres) were no trailers or anything resembling a mobile home. There were no square footage restrictions. The seller asked me if I intended to build a nice home. I said I did. I didn’t say when. All I could afford to build at first was a garage apartment. The larger house would come years later.
The seller came by when the foundation was finished for the garage apartment and the framers were working. He was pissed. He said that was worse than a mobile home. The framers told him I was planning on building three more on the property and renting them out just to mess with him.
Safe to assume the author has a properly constructed backstop to keep his rounds ON his property? He does not mention such.
Anner:
IMO, this case should have been dismissed on a summary judgment motion. A motion for attorneys fees for filing a frivolous lawsuit under TxRCvPro. 13 would also have been appropriate.
Texas law was changed a few years ago to negate any deed restrictions or HOA rules that apply to the possession, storage, or lawful discharge of a firearm / ammo to prevent exactly this kind of situation.
From the Texas Property Code:
Sec. 202.021. REGULATION OF FIREARMS OR FIREARM AMMUNITION. A property owners’ association may not include or enforce a provision in a dedicatory instrument that prohibits, restricts, or has the effect of prohibiting or restricting any person who is otherwise authorized from lawfully possessing, transporting, or storing a firearm, any part of a firearm, or firearm ammunition, as well as the otherwise lawful discharge of a firearm.
Why wasn’t this clear preclusion law cited and argued? Sounds to me like somebody screwed up.
A few years back, one of my neighbors started making noise about my target practice with my precision airgun, and threatening to get the HOA to vote to impose a rule against it. (My lot is 2.7 acres, and my setup was in a 100% safe direction, into a pellet trap, with numerous additional redundant protections. Neighbor was simply being a Karen.)
My response was that if that passed, as we are outside the city limits and thus it’s legal to discharge firearms, I’d be switching to practice with my suppressed .22 precision rifle, which per the aforesaid Texas law the HOA is powerless to regulate. (I also alluded that I’d be well within my rights to practice with unsuppressed weapons. In reality, I’d not do so out of respect for my other non-Karen neighbors.)
She’s never brought it up again.
That’s correct, but the lawsuit was in 2016 (TTAG is running an older article) and that law passed in 2019. It would have saved me a ton of cash…shame!
I wrote this many years ago, but it’s still a valid warning. To answer a few questions:
1. Voting to amend the DR was an option, but gathering sufficient votes wasn’t guaranteed. Lots of owners live elsewhere and have no interest in freedom or firearms or politics.
2. We absolutely should have countersued, but that goes back to a big lesson: lawyer up big. Our first lawyer was hesitant to countersue, for fear of not winning. We later fired him and hired a new lawyer.
3. This is all old news because TX updated its laws in 2019. HOAs can’t restrict gunfire anymore:
Sec. 202.021. REGULATION OF FIREARMS OR FIREARM AMMUNITION. A property owners’ association may not include or enforce a provision in a dedicatory instrument that prohibits, restricts, or has the effect of prohibiting or restricting any person who is otherwise authorized from lawfully possessing, transporting, or storing a firearm, any part of a firearm, or firearm ammunition, as well as the otherwise lawful discharge of a firearm.
Added by Acts 2019, 86th Leg., R.S., Ch. 972 (S.B. 741), Sec. 1, eff. September 1, 2019.
Florida state statute says that anyone with 1.25 acres or more may shoot on their property as long as their neighbors also have a minimum of 1.25 acres of property bordering your property.
Florida state law also prohibits county and municipal governments from enacting gun restrictions that are more restrictive than those set by the state.
When we left the North East, we considered Texas, Tennessee and Florida. We chose Florida for the nice weather, low-taxes, and permissive gun laws.
Texans need to elect leaders that will protect their gun rights. Too many Texas leaders feel like squishy RINOs.
One of my customers made the mistake of buying a 5 acre parcel in a large wooded area in SE Ohio that was being developed. Advertising had blurbs about all the wildlife, and he thought it would be perfect for bowhunting deer and maybe calling in a turkey. Didn’t read the fine print and just presumed he could hunt, because of the way it was advertised. When he found out all the facts, he went to the neighbors, hoping that enough of them would be willing to gang up on the deed restrictions, and he found out all their names begin with K. Got a nice house and location, but can’t even shoot his bow on the property.
Sad thing is, he had owned half a mountain in WV that had been the family deer camp for a couple generations, with a nice cabin and some developed trails. He lived here in OH, so was there only a few times a year. The neighbors said they would watch it for him, but the place got broken into and trashed all the time. Went to the sheriff, found out one of the deputies lived nearby, and made a deal with the deputy to keep an eye on it. Same thing, so he set up some hidden trailcams, and got pics of the deputy and kin rummaging around. He was far enough removed from the family that they considered him to be an outsider. He decided not to try to fight city hall, which is what it would have become, and sold out. Also sold his place here, and used the money to buy the nightmare parcel. Prices have gone up since, so hopefully he was able to cash out and start over with a place that had no such fine print attached.
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