Summary of Proposed Changes to the DRs

    Updating the Restrictions Focused on the Existing Restrictions and Not on Adding

    Changes sought to make the DRs more enforceable and understandable while preserving and enhancing owner rights.

  • Remove unenforceable restrictions that are not needed or are not wanted.
  • Repair unenforceable restrictions that are still needed by using modern language, definitions of key words and inclusion of a statement of intent.
  • Reconcile differences between sections where it could be done without significantly increasing restrictions on a Section or Sections.
  • Restore selected responsibilities of the Garden Oaks Co. and Board Trustees that were not given to GOMO, in an effort to give the new constituted HOA enough flexibility to allow variances to Restriction requirements that would be essentially unnoticeable. Such waivers would avoid friction over matters which should be minor or immaterial to the community at large.
  • Respond to Texas statutory changes and to the stated strong preferences of the Bankruptcy Judge.

REMOVEREPAIRRECONCILERESTOREABIDE

Remove unenforceable restrictions that are not needed or are not wanted.
Racial Language
Amending and most importantly, restating the Deed Restrictions must be done to remove this language.

Pleasing Exterior Colors and Building Materials
The old restriction is unenforceable due to vagueness. After decades of no “style policing” by GOMO and the Board of Trustees it would be all but impossible to write restrictions that would create an acceptable Garden Oaks “look”.

Restriction on numbers of Garages
Sections 1 & 2 never had this restriction.  Section 3 lost most of this restriction in litigation.  Removing this restriction from Sections 3 and 5 makes all the sections the same.

Swine and Outdoor Toilets
Annexation by City of Houston make these restrictions no longer needed.

Powers of the Enforcement Body
Garden Oaks Corporation and the Garden Oaks Board of Trustees were granted over a dozen powers which they exercised for over 60 years.  Some of these are no longer relevant or were rarely used.

     The powers not being assigned to the HOA are:

  • Management of Easements – this now belongs to City of Houston
  • Waiver of height and story restrictions on outbuildings – this ability is one which there is no memory of ever being used.
  • Waiver of front building line setbacks – this ability has been replaced by a provision which permits waivers for pie shaped or short lots.
  • Approval of Style Elements in Building Plans
  • Designation of Commercial Lots – no longer needed
  • Mineral Rights Reservations – no longer needed



Repair unenforceable restrictions that are still needed.

Repair - Unenforceable

Subdivision of Lots
Garden Oaks lots have been protected by this language:

No residence shall be erected on a lot or homesite of less frontage than (75 or 60 depending on which section) feet.

A Section 1 lot was subdivided in 2006 when an owner died and left the property to two heirs. GOMO filed suit to “rejoin” the lot and pursued the case through two changes of ownership; finally winning the case.  On appeal, the lower court ruling was overturned and the property remains “subdivided” as a result.  However, the  Appeals Court did affirm that erection of a residence on either half lot would create a violation. New language clarifies that lots may not be subdivided in such a way as to make them “unbuildable”.


Residential Use Meets Short Term Rentals
The original language:

no lots shall be used for anything other than residential purposes

and

No residence shall be constructed to accommodate more than two families. (Sections 1 & 2)

…no structure shall be erected on any residential building plot other than one detached single-family dwelling… (Sections 3 & 5)

was found by the TX Supreme Court to be of no use in prohibiting the use of properties for income producing, short term rentals such as airBnB.


Two Stories in Height
Texas Courts have found the language in our DRs:

…not to exceed two stories in height…

to be unenforceable because it lacks a “measurement certain” for height.  The new language sets heights and the number of stories to two plus attic for Sections 3 & 5.  Sections 1 & 2 do not have a height limitation.

Repair - Clarify

Restriction against working at home and other undetectable commercial activities.
The new restrictions clearly state that owners may use their homes for commercial activity which is not apparent by sight, sound or smell from outside the building.

Grandfather Provision
The original restrictions provided protection to a new owner from enforcement actions created by the prior owner(s).  This language is expanded to extend this protection to all conditions existing at the date these restrictions are adopted.

Powers of the Enforcement Body
Termination of the Deed Restrictions with respect to individual lots or the Subdivision in its Entirety has been changed to:
Raise the hurdle for abolishing the DRs from 50% plus one to 80%.
The hurdle for opting out individual lots remains 50% plus one and is provided for in the new Amendment language.

Repair - Simplify

Setbacks
Side setback language has been simplified to allow both the residence and outbuildings to honor the closer side setback on the rear part of lots (100′ back from the front property line).  Our existing DRs cannot stop detached garages from being inches away or even touching the residences. The outcome of this is a separation of outbuildings from residence which cannot be seen, causes maintenance issues and causes extra building expense.  There is no benefit but there are real costs.


Reconcile differences between sections where it could be done without significantly increasing restrictions on a Section or Sections.

Height and Style of Outbuildings
All sections now require that outbuildings be no taller that the residence and that they do not exceed the number of stories of the residence.

Porch Steps
Each section had slightly different language which dealt with whether porch steps were permissible in setbacks.  The change to the restrictions now makes clear that porch steps are permissible in setbacks in all four sections.

Storage of refuse and building waste
Sections 3 & 5 contain language which prohibits the storage of refuse and building waste on adjoining lots.  Identical language has been added to Sections 1 & 2.

Garage Apartment Rentals
Only Sections 3 & 5 prohibited garage apartment rentals. This is a particularly difficult restriction to enforce and it was decided to make all of the sections the same by removing it.


Restore selected responsibilities of the Garden Oaks Co. and Board Trustees that were not given to GOMO.

Restore Powers of the Enforcement Body

Garden Oaks Corporation and the Garden Oaks Board of Trustees were granted over a dozen powers which they exercised for over 60 years. With the formation of GOMO all of these powers save the ability to collect the Transfer Fee were lost.  The reasons for this were partly limits of the then governing laws and partly a concern for the HOA having too much power.

    Consequences of the loss of these powers:

  • Three costly and divisive lawsuits (front setback, signs and garages).
  • Unfortunate and unnecessary application of the Restrictions to situations where for over 60 years waivers were granted.
  • It was unclear that GOMO had the authority to advance amendments to the DRs.
  • GOMO became out of step with Best Practices in community management.
    The normal responsibilities and powers of an HOA which were granted the Garden Oaks Corporation and intended for its successors that have been restored to the HOA are:

  • Approval of Building Plans

  • Approval of Facing Direction for Residences

  • Waiver of Setbacks* (see waiver limits on setbacks below)
  • Approval of Signage

  • Responsibility for shepherding the Amendment process for the DRs

* The waiver provisions in the Proposed DRs are significantly more restrictive than the powers granted to the GO Corp.

    Waiver of setbacks is limited to:

  • pie shaped lots
  • short lots
  • unusual sized lots
    The waiver process requires:

  • Notification of adjoining property owners
  • Involvement of adjoining property owners
  • Recording of the variance granted



Respond to Texas statutory changes and to the stated strong preferences of the Bankruptcy Judge.

Transfer Fee
GOMO has received very clear direction from the Bankruptcy Court regarding transfer fees as a funding mechanism.
We have been strongly encouraged to replace the Transfer Fee with an Annual Maintenance Fee.  The fee has been set at $80/year and provides for a limited exemption for owners over 65.

Amendment of the DRs
Only Sections 1 & 2 provided for amendment of restrictions (75% affirmative vote).  Texas Property code has subsequently set the hurtle to 67% affirmative vote.  The proposed language sets out the same process and hurdle level for all four sections.

Voting Rules
Texas law has laid out requirements for voting in HOAs.  These requirements have been repeated in the new DRs so that they are readily available to Owners.  No one needs to go study Texas Property Code to understand the voting rules.

Questions about the Proposed DRs may be directed to: drs@gardenoaks.org

The original Garden Oaks Deed Restrictions vary from section to section for a few of the restrictions. This high level of overlap has simplified the job of redrafting. Additionally, the redrafting has attempted to take the best where they differ and apply it to all sections. For reference a table which compares the Original Architectural and Use provisions is provided:
Compare Original DRs by Section

Why new Amendments Now?

During the October 25 GOMO bankruptcy court hearing (audio and a summary of the hearing are posted at gardenoaks.org), GOMO was ordered to submit its bankruptcy plan to the court by December 14 to allow Judge Jones and the Creditor Committee time to review prior to the subsequent hearing on December 20. A bankruptcy plan is a document that serves as the roadmap for the conclusion of the bankruptcy. Upon approval by the court, the plan will be sent to Garden Oaks homeowners for a vote.

The Court has expressed the desire to resolve all relevant issues within the bankruptcy so the HOA exits bankruptcy with all formation defects, fee collection structure, and deed restriction (DR) issues resolved to allow the neighborhood to move forward. While the formation issue is almost purely legal and will be resolved by the Court, the deed restriction issues (the fee collection structure is a part of the DRs) are governed by the wishes of the homeowners in the various Sections of Garden Oaks.

The bankruptcy plan has always included updating and modernizing the DRs, but we thought this would be a lengthy process taking place after emerging from bankruptcy, requiring many months of work and communication with the neighborhood. Now, due to the court’s mandate, there is limited time to assess what changes the neighborhood would like to address. Fortunately, there have been discussions over the past few years among GOMO Directors, within GO Re-Form, and with many neighbors about which changes would be most beneficial. There is an informative website, go-amend.org, created by Pam Parks (manager, GOMO), which lists many DR issues that currently impact our neighborhood.

Pursuant to the Oct 25 bankruptcy hearing, a subcommittee of GOMO Directors as well as other neighbors have met and discussed changes that would benefit all sections’ DR documents. While a small group is not representative of the neighborhood as a whole, individuals who expressed interest in the DRs, Civic Club officers as well as the Creditor Committee, were invited to participate in these meetings. Under advice of counsel, the Creditor Committee did not participate. The goal of this DR review is to present the neighborhood with a set of meaningful, substantive changes to the DRs that reflect the modern world. Please note the subcommittee may suggest changes, but cannot make changes to the DRs. Only a vote of the neighborhood will do that.

Sipra Boyd, an experienced HOA attorney, has been retained to assist with modifying and modernizing Garden Oaks deed restrictions and to answer any legal questions that arise. As a past President of the Greater Houston Chapter of the Community Associations Institute, she is at the forefront of educating and fostering responsible and successful community associations. Sipra previously assisted the Maplewood South/North HOA, located southwest of Bellaire outside Loop 610 and a residential community similar in size to Garden Oaks, successfully revise its DR documents. She is confident she can provide the same service for Garden Oaks within our stated timeline.

While the DRs will be voted on and must be approved by the neighborhood prior to acceptance, neighborhood feedback is desired before submission to the bankruptcy court. To this end, we have scheduled two town hall meetings on the evenings of December 3rd and 5th at 7PM at the Garden Oaks Montessori Magnet School. The DRs are still being drafted, but it is our intention to release them in advance of the town hall meetings to promote informed discussion. We hope to see you there, and thank you for your patience, feedback, and support.