Legal Document: Twin Villas at Cinco Homeowners Association, Inc. VS. Shannon R. Conway

On May 06, 2021 a Plaintiff's Motion for Summary Judgment - Motion (No Fee) Index # 10 was filed involving a dispute between Twin Villas At Cinco Homeowners Association, Inc., and Conway, Shannon R., for Other Civil in the District Court of Fort Bend County.

Preview
Filed
11/9/2021 2:21 PM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Salena Jasso

CASE NO. 21-DCV-283197

TWIN VILLAS AT CINCO IN THE DISTRICT COURT
HOMEOWNERS ASSOCIATION,
INC.,
Plaintiff,
OF FORT BEND COUNTY, TEXAS
Vv.

SHANNON R. CONWAY,
Defendant. 458th JUDICIAL DISTRICT

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW the Plaintiff, Twin Villas at Cinco Homeowners Association, Inc., and files

this Motion for Summary Judgment against the Defendant, Shannon R. Conway, and in support

thereof would show unto this Court as follows:

I SUMMARY JUDGMENT EVIDENCE

1 Plaintiff relies on the following summary judgment evidence:

EXHIBIT ONE: Special Warranty Deed with Vendor’s Lien;

EXHIBIT TWO: Declaration of Covenants, Conditions and Restrictions;

EXHIBIT THREE Account History Report;

EXHIBIT FOUR: Affidavit of Katie Ivanics;

EXHIBIT FIVE: Certified Letter of May 29, 2013;

EXHIBIT SIX: Certified Demand of May 26, 2020;

EXHIBIT SEVEN Certified Demand of February 4, 2021;

EXHIBIT EIGHT: Affidavit on Attorneys’ Fees and Costs.

1 of 6 | Motion for Summary Judgment
IL. FACTS

2. Plaintiff Twin Villas at Cinco Homeowners Association, Inc., (hereinafter the “Plaintiff”

or the “Association”) is the Texas nonprofit corporation governing Cinco Ranch Cinco West

Section Twenty-Nine (29), a subdivision in Fort Bend County, Texas (hereinafter the

“Subdivision”).

3. Defendant Shannon R. Conway (hereinafter the “Defendant”) owns the property located

at es bereinafter the “Property”) and more particularly

known as:

Lot 01, Block 01, of Cinco Ranch, Cinco West, Section 29, a subdivision in Fort
Bend County, Texas, according to the map or plat thereof recorded in the Plat
Records of Fort Bend County, Texas, under Slide No. 20040223, as modified by
any supplements thereto or replats thereof.

EXHIBIT ONE: Special Warranty Deed with Vendor’s Lien.

4. The Property is within the Subdivision and is therefore subject to the Association’s

authority. Id. The Subdivision, and the Association, are governed by the Declaration of Covenants,

Conditions and Restrictions for Twin Villas at Cinco, filed for record in the Real Property Records

of Fort Bend County, Texas, under Instrument No. 2005076013 (hereinafter the “Declaration”).

EXHIBIT TWO: Declaration of Covenants, Conditions and Restrictions.

5. Article IV, Section 2 of the Declaration obligates Owners in the Subdivision to pay the

Association annual assessments, special assessments, and specific assessments. Id. at 8. That

Section further provides that “‘all such assessments, together with late charges, fines, interest, not

to exceed the maximum legal rate, costs and reasonable attorneys’ fees actually incurred, shall be

a charge on the land and shall be a continuing vendor’s lien upon the Unit against which each

assessment is made for the benefit of the Declarant and/or the Association” Id. at 8. Article IV,

Section 6 of the Declaration provides that delinquent assessments bear interest at a rate of eighteen

2 of 6 | Motion for Summary Judgment
percent (18%) per annum. 10. Article IV, Section 6 of the Declaration further empowers the

vent of nonpayment.

The Plaintiff sued the Defendant for breach of contract. Specifically, the Plaintiff alleges

the Defendant is delinquent in her assessments and in the resulting fees, charges, and costs. The

Because there are no genuine issues of material fact at issue in this lawsuit, this Court

should grant the Association summary judgment against the Defen

SUMMARY JUDGMENT STANDARD

In determining whether to grant summary judgment, “[t]he trial court’s duty is to determine

if there are any material fact issues to try.” Richardson v. Parker, 903 S.W.2d 801, 803 (Tex.

A plaintiff seeking summary judgment must show there are no genuine issues of material

fact in dispute and that judgment should be granted as a matter of law. KPMG Peat Marwick v.

., 988 S.W.2d 746, 748 (Texas 1999). To do this, a plaintiffmu

show it is entitled to prevail on the elements of its causes of action. See, e.g., Fry v. Comm'n for

Lawyer Discipline, 979 S.W.2d 331, 334 (Te h Dist.] 1998, pet
plaintiff meets its burden if it produces evidence that would be sufficient to support an instructed

verdict at trial. Braden v. New Ulm State Bank, 618 S.W.2d 780, 782 (Tex. Civ. App.—Houston

[Ist Dist.] 1981, writ ref’d n.r.e.).

ARGUMENTS AND AUTHORITIES

The Association is entitled to summary judgment because there are no genuine issues of

material fact or law in dispute in the instant case.

It is settled law in the State of Texas that homeowners are bound by the governing

3 of 6 | Motion for Summary Judgment
documents of their subdivisions, including the enforcement provisions therein, and that all

homeowners who purchase real property have constructive notice of those governing documents.

See, e.g., Inwood North Homeowners’ Association, Inc. v. Harris, 736 S.W.2d 632, 635-36

(Tex.1987); see also, e.g., Sloan v. Owners Ass'n of Westfield, Inc., 167 S.W.3d 401 (Tex.App.—

San Antonio 2005, no pet.). The Supreme Court has held that under the laws of the State of Texas,

trial courts are bound to enforce the agreements into which homeowners enter concerning

assessments. Inwood North at 637 (reaffirmed in Brooks v. Northglen Ass’n., 141 S.W.3d 158,

170 (Texas 2004). Section 202.004(a) of the Texas Property Code provides that a property owners’

association may exercise discretionary authority as to its restrictive covenants, and that such an

exercise is presumed reasonable.

12. In the instant case, there is no dispute as to whether the Defendant owns the Property, nor

is there any dispute as to the fact that the Property is subject to the Association’s governing

documents.

13. Additionally, there is no genuine issue of material fact in dispute as to the Defendant’s

delinquency. As of this date, the Defendant is delinquent in the amount of thirty-one thousand,

three hundred and eighty-nine dollars, and seventy-six cents ($31,389.76) (consisting of

$11,564.09 in delinquent assessments; $8,938.77 in collection fees; $6,287.50 in reasonable and

necessary attorneys’ fees; $1,801.13 in reasonable and necessary attorneys’ costs; $1,498.27 in

interest; and, $1,300.00 in late fees). EXHIBIT THREE: Account History Report; see also

EXHIBIT FOUR: Affidavit of Affidavit of Katie Ivanics. (This amount does not include any

fees and costs the Association incurs in litigating this Motion for Summary Judgment.)

14. As noted above, the Association maintains a secured lien against the Property in the full

amount of the Defendant’s delinquency, and is entitled to foreclose that lien. As further noted

4 of 6 | Motion for Summary Judgment
above, the Association’s lien against the Property secures any and all delinquent assessments,

interest on those delinquent assessments, costs of collection, and attorneys’ fees and costs, as

outlined in the Association’s restrictive covenants.

THE ASSOCIATION IS ENTITLED TO
ITS ATTORNEYS’ FEES & COSTS

The Plaintiff is entitled to its reasonable and necessary attorneys’ fees and costs pursuant

to the Declaration, the Texas Property Code, and the Texas Rule

As noted above, Article IV, Section 2 of the Declaration specifically provides the

The Association is also entitled to its reasonable attorneys’ fees and costs pursuant to

Section 38.001 of the Texas Civil Practice and Remedies Code.

Finally, the Association is entitled to its reasonable attorneys’ fees and costs under

All requisite notices and preconditions for the recovery of attorneys’ fees were satisfied.

See, e.g. EXHIBIT FIVE: Certified Letter of May 29, 2013; EXHIBIT SIX: Certified

Demand of May 26, 2020; see also EXHIBIT SEVEN: Certified Demand of February 4, 2021.

The Association is entitled to recover the full amount of its attorneys’ fees and costs, as

reflected herein. All the fees and costs the Association incurred in this matter were reasonable and

EXHIBIT EIGHT: Affidavit on Fees and Costs. Additionally, the Association is

entitled to recover the full amount of the attorneys’ fees and costs it incurs in litigation this Motion

for Summary Judgment.

CONCLUSION AND PRAYER

Because there are no genuine issues of material fact or law in dispute in this matter, the

d to summary judgment.

5 of 6 | Motion for Summary Judgment
22. Plaintiff Twin Villas at Cinco Homeowners Association, Inc., respectfully prays this Court

grant this Motion for Summary Judgment against the Defendant, Shannon R. Conway, for the

Association’s damages, for its costs of court, and attorneys’ fees, its expenses, for interest as

allowed by law, for the establishment and foreclosure of its lien against the subject Property as set

forth hereinabove, and for all such other and further relief, at law or in equity, to which it may

show itself entitled.

Respectfully submitted,

HOLT & YOUNG, P.C.

Cow.
J.C. Jamison
State Bar No. 24029632
9821 Katy Freeway, Suite 350
Houston, Texas 77024
Phone No. (713) 510-1000
Fax No. (713) 510-1001
Email: jjamison@holtyoung.com
ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was served on
Defendant by Reg./Cert. Mail, Return Receipt Requested, on this the 10" day of November, 2021.

lm.
J.C. Jamison

REG/CERT. MAIL, RRR

6 of 6 | Motion for Summary Judgment
2007043233 G+.DiannePine Pri
Wilson, Ph.D., County Clerk
Electronically Recorded

Official Public Records Fort Bend County Texas

2007 Apr 11 09:06 AM Pages: Fee: $ 17.00

>
NATGF#TX066251345

SPECIAL WARRANTY DEED WITH VENDOR'S LIEN
(Vendor's Lien Reserved and Assigned to Third Party Lender)

THE STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF FORT BEND §
TITAT THE UNDERSIGNED Lennar Homes of Texas, hereinafter referred to as
“Grantor,” whether one or more, for and in consideration of the sum of TEN DOLLARS
($10.00) and other valuable consideration to the undersigned in hand paid by the Grantee herein
named, the receipt of which is hereby acknowledged, and the further consideration of the
execution and delivery by the Grantee of that one certain promissory note of cven date herewith
in the principal sum of $124,584.00, payable to the order of Universal American Mortgage
Company, LLC, a Florida limited liability company ("Lender"), as therein specified, providing
for acceleration of maturity and for attorneys' fees, the payment of which note is secured by the
vendor's licn herein retained, and is additionally secured by a deed of trust of even date herewith
to Scott R. Valby, TRUSTEE, has GRANTED, SOLD AND CONVEYED, and by these presents
does GRANT, SELL AND CONVEY unto Shannon R. Conway, hereinafter referred to as the
"Grantee," whether one or more, having a mailing address of
HE thie veal property described as:
Lot 1, in Block 1, of Cinco Ranch West Sec. 29, a subdivision in Kort Bend
County according to the map or plat thereof recorded in Plat No. 20040223, of the
Plat Records of Fort Bend County, Texas.

This conveyance, however, is made and accepted subject to any and ajl restrictions,
encumbrances, easements, covenants, conditions, outstanding mineral interests held by third
parties, and reservations, if any, relating to the hereinabove described property as the same are
filed for record in the County Clerk's Office of Fort Bend County, Texas.

TO HAVE AND TO HOLD the above described premises, together with all and singular
the rights and appurtenances thereto in anywise belonging unto the said Grantcc, Grantee's heirs,
executors, administrators, successors and/or assigns forever; and Grantor does hereby bind
Grantor, Grantor's heirs, executors, administrators, successors and/or assigns to WARRANT
AND FOREVER DEFEND ali and singular the said premises unto the said Grantee, Grantee's
heirs, executors, administrators, succcssors and/or assigns, against every person whomsoever
claiming or to claim the same or any part thereof, by, through, or under Grantor, but not
otherwise.

But it is expressly agreed that the Vendor's Lien, as well as superior title in and to the
above described premises, is retained against the above described property, premiscs and
improvements until the above described note and all interest thereon are fully paid according to
the face, tenor, effect and reading thereof, when this Deed shall become absolute. J.ender at the
instance and request of the Grantee herein, having advanced and paid in cash to the Grantor

SPECIAL WARRANTY DEED WITH VENDOR'S LIEN — Page 1
EXHIBIT ONE
herein that portion of the purchase price of the herein described property as is evidenced by the
hereinabove described Note, the Vendor's Lien, together with the superior title to said property,
is retained herein for the benefit of said Lender and the same are hereby TRANSFERRED AND
ASSIGNED to said Lender, its successors and assigns.

Current ad valorem taxes on the property having been prorated, the payment thereof is
assumed by Grantee.

SPECIAL WARRANTY DEED WITH VENDOR'S LIEN ~ Page 2
EXECUTED this a” day of March , 2007.

Lennar Homes of Texas

By: faut
Tts: Authorized Agent

THE STATE OF TEXAS §
COUNTY oF _ Harr 15 ;
The foregoing instrument was acknowledged before me on this the A day of
LUC. , 2007, by Mean: in his/her capacity as
Authorlemel Amant of Lennar Homes of Tex:

NOTARY PUBLIC,G6YATE OF TEXAS

PR I N El D NAME, ARY,
MY COMMISSION EXPIRES:
Se et MELANIE,
AY COMMISSION EXPIRES
jovember38, 2007

:
Return To:
North American Title Company
230 Westway Place, Suite 114
Arlington, TX 76018

SPECIAL WARRANTY DEED WITH VENDOR'S Linn ~ Page 3
Dallas_1\4606833\1
27011-26 3/5/2007
TONNES, S=°2°" oberon
Vu
fr

DECLARATION OF

COVENANTS, CONDITIONS, AND RESTRICTIONS

FOR

TWIN VILLAS AT CINCO

EXHLBLI IWU
6

TABLE OF CONTENTS

ARTICLE I. Definitions

ARTICLE I. Property Subject to This Declaration...
Section 1, Property Hereby Subjected to This Declaration
Section 2. Prior Covenants..

ARTICLE III. Association Membership and Voting Rights
Section i Membership se peanasesneeyaeaneene
Section 2. Votins see.
Section 3 Management
Mana ent
Section 4. Duties and Powers of the Boar
Section 5 Litigatio,
Section 6 Oversi: tt Authorit of Master Association:

ARTICLE IV. Assessments
Section 1. Purpose of Assessments seererenenensenrsenny enaesscetenersenasees
Section 2, Creation of the Lien and Personal al Obligation
Obli for Assessments
Section 3. Computation seaessnenenancecneraeeaenene
Section 4A. Special Assessments. Capitalization Fei
Section 4B. Reimbursement Assessment: 10
Section 5, Lien for Assessments 10
Section 6. Effect of Nonpayment of Assessments: Remedies of the Associatioi 10
Section 7. Date of Commencement of Annual Assessments 12
Section 8 Assessments by Declarant
Section 9. Assessment Certificate and ‘Transfer Fe

ARTICLE V, Maintenance 13
Section 1, Association's Responsibility 13
Section 2, Owner's Responsibility 13
Section 3, Party Wal s cates saeaneeee 14

ARTICLE VI. Use Restrictions and Rules 15
Section | DD eecssecesesenne a9 15
Section 2 Occupants Bound 15
Section 3 Nuisance 15
Section 4. Business Use... 16
Section Architectural Review by. the. NCC or the Mi
5. 16
Section 6 Parking 17
Section 7, Signs. eee aeecneneeatanaeten tenants 18
Section 8. No Storage Buildings. 18
Section 9. Satellite Dishes. 18
Section 10. Occupancy. 19
Section 11. Leasing of Unit: 19
Section 12. Animals and Pets, 20

ARTICLE VIL. Insurance and Casualty Losses 20
Section 1. Insurance... 20
Section 2, Damage Destru ction 21

ARTICLE VEE. Condemnation... 22
Section 1. Common Property 22
Section2. Units wc

ARTICLE IX. Mortgagee Provisions 22
Section 1. Notices of Action 22
Section 2. Special Provisions 22
Section 3. No Priority 23
Section 4. Notice to Associatio 23

ARTICLE X, Easements.............. 23
Section 1, Easements for Encroachment and Overhang . 23
Section 2. Basements for Use and Enjoyment 23
Section 3. Easements for Utilitie 25
Section 4. Easement for Entry .... 25
Section 5 Construction of Common Property Improvement: 25
Section 6 Use 25
Section 7 Indemnification 26
Section 8Telecommunication Services 26
Section 9 Security and Other Services 27
Section 10, Easement Regarding Association Fences . 28

ARTICLE XI... Annexation of Additional Property. 28
Section 1. Annexation Without Approval of Membership 28
Section 2, Annexation with Approval of Membership 30

ARTICLE XII General Provisions... 30
Section 1, Enforcement 30
Section 2. Self-Help 31
Section 3. Term 31
ii
Section 4. Amendment. 31
Section 5. Partition... 32
Section 6. Gender and Grammar. 32
Section 7. Severability. + 32
Section 8. Captions 33
Section 9, Conveyance of Common Property, 33
Section 10. Indemnification... 33
Section 11. Construction and Sal 34
Section 12. Intentionally Deleted, 6 34
Section 13, Books and Record: 35
Section 14. Audit woe v0 35
Section 15. Notice of Sale or Lease 35
Section 16; NON-LIABILITY, 35
Section 17 Arbitration...... 36
Section 18. Attorneys! Fees. 37
Section 19. Waiver of Environment Conditions... 37

EXHIBIT "A" AQ

iit
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR
TWIN VILLAS AT CINCO

THIS DECLARATION is made on the date hereinafter set forth by LENNAR HOMES
OF TEXAS LAND AND CONSTRUCTION, LTD., a Texas limited partnership, (hereinafter
sometimes called “Declarant"):

WITNESSETH:

WHEREAS, Declarant is the owner of a portion of the real property described in Article
I, Section 1, of this Declaration; and

WHEREAS, NNP I - Cinco West, LP (NNP”), is the owner of the balance of the real
Property described in Article II, Section 1, of this Declaration; and

WHEREAS, the real property so described is also subject to: (i) The Declaration of
Protective Covenants for Cinco Residential Property recorded in the Official Public Records of
Real Property of Fort Bend County, Texas under Volume 2227, Page 118, and also under Harris
County Clerk's File No M762225, as amended (the "Master Associations CCR's"); which Master
Associations CCR’s also cover other real property in addition to the real property covered by this
Declaration, and (ii) The Cinco Landscape Reserves Declaration of Covenants, Conditions and
Restrictions for Cinco Ranch recorded in the Official Public Records of Real Property of Fort
Bend County, Texas under Volume 1575, Page 078, as amended; and

WHEREAS, in addition to the Master Associations CCR's, Declarant desires (and NNP
consents) to subject the real property described in Article II, Section 1, hereof to the provisions
of this Declaration to create a residential community of single-family attached housing; and

NOW, THEREFORE, Declarant hereby declares (and NNP joins in, not as Declarant
but to consent hereto) that the real property described in Article IZ, Section 1, of this Declaration,
including the improvements constructed or to be constructed thereon, and any other real property
annexed herein subsequent to the date hereof, is hereby subjected to the provisions of this
Declaration and shall be held, sold, transferred, conveyed, used, occupied, and mortgaged or
otherwise encumbered subject to the covenants, conditions, restrictions, easements, assessments,
and liens, hereinafter set forth, which are for the purpose of protecting the value and desirability
of, and which shall run with the title to, the real property hereby or hereafter made subject hereto,
and shall be binding on all persons having any right, title, or interest in all or any portion of the
real property now or hereafter made subject hereto, their respective heirs, legal representatives,
Successors, successors-in-title, and assigns and shall inure to the benefit of each and every owner
of all or any portion thereof.

ARTICLE I.
Definitions
Unless the context shall prohibit, certain words used in this Declaration shall have the
definitional meaning set forth below:
470300 (v1) w SAP 351001-170 1
1 Association
(a) " shall mean and refer to Twin Villas at Cinco Homeowners
Association, Inc., a nonprofit Texas corporation, its successors and assigns.

(b) “Architectural Review Committee” or “ARC” shall mean and refer to the
Architectural Review Committee of three (3) members appointed by the Board, which members
may. but do not have to be, members of the Association, Members of the ARC may be removed
at any time, and vacancies filled, by the Board, however as long as Declarant owns at least ont
1) Unit Gneluding Units by annexation), Declarant’s approval is needed to a int/remove
members of the ARC.

(0) “Board” or "Board of Directors" shall mean and refer to the Board of Directors of
the Association.
te By-Laws"
(¢) shall refer to the By-Laws of Twin Villas at Cinco Homeowners
Association, Inc.

() "Common Property" shall mean any and all veal and personal property and
easements and other interests therein, together with the facilities and improvements located
thereon, now or hereafter owned by the Association for the common use and enjoyment of the
Owners.

@ “Community” shall mean and refer to that certain real property and interests
therein described in Exhibit "A", attached hereto, and any and all real property and interests
therein added to the Community subsequent to the date hereof by annexation pursuant to Article
XI, hereof, commonly known as Twin Villas at Cinco.

@) "Community-Wide Standard" shall mean the standard of conduct, maintenance, or
other activity generally prevailing in the Community, Such standard may be more specifically
determined by the Board of Directors of the Association,

h) "Declarant" shall mean and refer to Lennar Homes of Texas Land and
Construction, Lid., a Texas limited partnership, and the successors-in-title and assigns of Lennar
Homes of Texas Land and Construction, Ltd,, provided any such successor-in-title or assign shail
acquire for the purpose of development or sale all or any portion of the remaining undeveloped
ot unsold portions of the real property described in Exhibit "A", attached hereto (or subsequently
annexed herein and made a part hereof), and provided further, in the instrument of conveyance to
any such successor-in-title or assign, such successor-in-title or assign is designated as the
"Declarant" hereunder by the grantor of such conveyance, which grantor shall be the "Declarant"
hereunder at the time of such conveyance; provided, further, upon such designation of such
successor Declarant, all rights of the former "Declarant" in and to such status as "Declarant"
hereunder shall cease, it being understood that as to all of the property described in Exhibit "A",
attached hereto, (and subsequently annexed hereto and made a part hereof) which is hereafter
subjected to this Declaration, there shall be cnly one person or legal entity entitled to exercise the
rights and powers of the "Declarant" hereunder at any one point in time.

470300 (vL) w SAP 351001-170 2
(i) "Majority" means those eligible votes, Owners, or other gtoup as the context may
indicate totaling more than fifty percent (50%) of the total eligible number.

G) "Master Associations CCR's" or "Master Associations Declarations" shal! meen
the Declaration of Protective Covenants for Cinco Residential Property and the Cinco Landscape
Reserves Declaration of Covenants, Conditions and Restrictions.

® "Master Associations” shall mean and refer to the Cinco Residential Property
Association, Inc. (the "Cinco Residential Master Association"), which is the governing entity
shown in the Declaration of Protective Covenants for Cinco Residential Property (the "Cinco
Declaration") and the Cinco Landscape Maintenance Association, Inc. which is the governing
entity shown in the Cinco Landscape Reserves Declaration of Covenants, Conditions and
Restrictions.

(ly "Modification Committee" or "MC" shall have the same meaning as set out in the
Cinco Declaration.
tw Mortgage"
(m) means any mortgage, deed to secure debt, and any and all other
similar instruments used for the purpose of conveying or encumbering teal property as security
for the payment or satisfaction of an obligation.

(n) "Mortgagee" shall mean the holder of a Mortgage.

(0) New Construction Committee" or "NCC" shall have the same meaning as set out
in the Cinco Declaration.

() “Owner" shall mean and refer to the record owner, whether one or more Persons,
of the fee simple title to any Unit located within the Community, excluding, however, any Person
holding such interest merely as security for the performance or satisfaction of any obligation,

@) "Person" means any natural person, as well as a corporation, joint venture,
partnership (general or limited), association, trust, or other legal entity.

© "Rules" means such rules and regulations, use restrictions and architectural
guidelines promulgated from time to time by the Declarant and/or the Board of Directors which
are applicable to the Units, the Common Property or the Community,

@) "Unit" shall mean a portion of the Community intended for ownership and use as
an individual single-family attached residence (both the real property and the improvements
located thereon) and as permitted in this Declaration and as shown on the plat, or amendments
thereto, recorded in the Official Public Records of Real Property of Fort Bend County, Texas, for
the real property described on Exhibit "A" attached hereto, and any such other portion of the
Community shown on any plat or plats recorded in the Official Public Records of Real Property
of Fort Bend County, Texas, when annexed into the Association and made subject to this
Declaration. The ownership of each Unit shall include, and there shall pass with each Unit as an
appurtenance thereto, whether or not separately described, all of the right, title, and interest of an
470300 (v1) w SAP 351001-170 3
Owner in the Common Property, which shall include, without limitation, membership in the
Association. Each Unit shall for all purposes constitute real property which may be owned in fee
simple and which may be conveyed, transferred, or encumbered in the same manner as any other
real property. Each Owner shall be entitled to the exclusive ownership and possession of his or
her Unit, subject to this Declaration. All air conditioning apparatus serving only one Unit shall
be a part of the Unit so served, Bach Owner shall have the right to lateral and subjacent support
for his or her Unit, and such right shall pass with the Unit.

ARTICLE I,
Property Subject to This Declaration

Section 1. Property Hereby Subjected to This Declaration, The real property which is,
by the recording of this Declaration, subject to the covenants and restrictions hereafter set forth
and which, by virtue of the recording of this Declaration, shall be held, transferred, sold,
conveyed, used, occupied, and mortgaged or otherwise encumbered subject to this Declaration is
the real properly described in Exhibit "A", attached hereto and by reference made a part hereof,
and any additional real property annexed into the Association and made subject to the terms of
this Declaration as well as to the Master Associations Declarations and a member in and subject
to assessment by the Association and the Master Associations,

Section 2. Prior Covenants . This Declaration is expressly made subject to the Master
Associations CCR's and shall be a declaration of a homeowners association, as referred to
therein, In the event of any conflict between the provisions hereof and the Master Associations
CCR's, the Master Associations CCR's shall control, Specifically, but not by way of limitation,
the rights herein established, imposed and created shall in all respects be inferior and subordinate
to the easements and rights-of-way granted and/or reserved to the Master Associations, their
designees, successors and assigns, under and by virtue of the Master Associations CCR's, and no
use or operation shall be conducted within the Community that would in any manner interfere
with, obstruct, alter, affect or diminish the rights of the Master Associations, their designees,
successors and assigns, pursuant to the Master Associations CCR's.

ARTICLE II.
Association Membership and Voting Rights

Section 1. Membership. The Declarant and every person who is the record owner of a
fee or undivided fee imterest in my Unit that is subject to this Declaration shall be deemed to
have a membership in the Association. The foregoing is not intended to include Persons who
hold an interest merely as security for the performance of an obligation, and the giving of a
security interest shall not terminate the Owner's membership. No Owner, whether one or more
Persons, shall have more than one (1) membership per Unit. In the event of multiple Owners of
a Unit, votes and rights of use and enjoyment shall be as provided in this Declaration and in the
By-Laws. Membership shall be appurtenant to and may not be separated from ownership of any
Unit. The rights and privileges of membership, including the right to vote and to hold office,
may be exercised by a member or the member's spouse, but in no event shall more than one (1)
vote be cast nor office held for each Unit owned, No member or spouse of any member shall be

470300 (v1) w SAP 351001-170 4
entitled to vote or exercise any other right or privilege of membership if such member is
delinquent with respect to any assessments due hereunder.

Section 2. Voting. The Association shall have two (2) classes of membership, Class "A"
and Class "B", as follows:

(@) Class "A". Class "A" members shall be all Qwners, with the exception of
the Declarant. Class "A" members shall be entitled to one (1) vote for each Unit owned,
regardless of where such Unit is located. When more than one Person holds an ownership
interest in any Unit, the vote for such Unit shall be exercised as those Owners themselves
determine and advise the Secretary prior to any meeting. In the absence of such advice, the
Unit's vote shall be suspended in the event more than one Person seeks to exercise it,

(b) Class "B", The Class "B" member shall be the Declarant. The Class "B"
member shall be entitled to three (3) votes for each Unit owned. The Class "B" membership
shall terminate and become converted to Class °A" membership upon the happening of the
earlier of the following:

@ when 75% of the Units have been sold to and occupied by Class "A"
members;

Gi) October 1, 2030; or

(ii) when, in its discretion, the Declarant so determines,

From and after the happening of these events, whichever occurs earlier, the Class "B"
member shall be deemed to be a Class "A" member entitled to one (1) vote for each Unit it owns.

() At such time that additional property is annexed into the Association, the
Class B Membership of the Declarant, shall, if it had previously ceased due to one of the
conditions listed above in (i), (ii) or (iii) be reinstated and shall apply to all Units owned by
Declarant in the newly annexed portion of the Community, as well as to all Units owned by
Declarant in all other areas of the Community. Such reinstatement is subject to further cessation
in accordance with the limitation set forth in the preceding paragraphs (i), (ii) and (iii) of this
Article, whichever occurs first. However, upon reinstatement due to annexation of additional
property into the Community, the period of time set forth in the preceding paragraph (ii) of this
Article shall be extended to the extent necessary such that in all circumstances it extends for a
period no skorter than ten (10) years from the date of cach such recorded annexation (ie.
Supplemental Declaration).

Section 3. Management, The Association shall be incorporated as a nonprofit
corporation, The Association shall be managed by the Board of Directors pursuant to the
procedures set forth in the Articles of Incorporation and Bylaws of the Association, subject to
this Declaration.

470300 (v1) w SAP 351001-170
Section 4. Duties and Powers of the Board, Through the Board, the Association shall
have the following powers and duties:

(@) To adopt Rules and other regulations to implement this Declaration and the
Master Associations CCR's and the By-Laws,

(b) To enforce this Declaration, the By-Laws, its Rules and other regulations.

(©) Declare the office of a member of the Board of Directors to be vacant in
the event such member shall be absent fiom three (3) consecutive regular meetings of the Board
of Directors or such member is delinquent in the payment of an assessment for more than twenty
(20) days, as set forth in the By-Laws.

@ Employ a manager, an independent contractor, or such other employees ag
they deem necessary, and to prescribe their duties.

() Delegate responsibility to, end contract with, a management company, for
collection of the assessments and enforcement of this Declaration, the Bylaws and the rules and
tegulations of the Association.

) Delegate responsibility to, and contract with, a management company for
the operation, management and maintenance of the Common Property and the Association from
time to time, if the Board so elects.

{g) Delegate responsibility to, and contract with, a management company for
whateyer maintenance and other obligations, if any, that the Association from time to time
undertakes,

(h) To enter into such contracts and agreements concering the Property as
the Board deems reasonably necessary or appropriate to maintain and operate the Property in
accordance with the Declaration, and to assume any contracts and agreements concerning the
Property entered into by the Declarant, including without limitation, the right to enter into
agreemenis with adjoining or nearby landowners or governmental entities on matters of
maintenance, trash pick-up, repair, administration, security, traffic, streets or other matters of
mutual interest.

@ To take any and all actions, and to cause to be taken any and all actions
which aze the responsibility of the Association and the Board pursuant to this Declaration and the
By-Laws, including but not limited to duties relating to electing Directors, creating budgets,
delegating power, establishing and collecting assessments, the enforcement of all of the
obligations of the Owners, to receive complaints and make determinations about violations of
this Declaration, the By-Laws, the Rules and regulations, the holding of annual and special
meetings, the management and maintenance of Common Property, the performance of all
maintenance obligations of the Association hereunder and the payment of all costs and expenses
to be paid by the Association hereunder.

470300 (v1) w SAP 351001-170
@ To take any and all actions, and to canse any and all actions to be taken,
which are the responsibility of the Association, as a homeowners association under the Master
Associations' CCR's, including but not limited to, billing and collecting the Master Associations’
assessments and paying such assessments to the Master Associations.

&) In addition, the Board shall cooperate with the Master Associations and
their board of directors in performing any obligations of the Association or permitting the Master
Association to exercise its rights under the Master Associations CCR's.

a To suspend the vote or the exercise of any other right or privilege of
membership if the Owner is delinquent in the payment of any assessment or in violation of any
provision of the Declaration.

Section 5, Litigation. Except as provided below, the Association shall not commence
any judicial or administrative proceeding without, the approval of 67% of the total eligible
Association vote. This Section shall not apply, however, to (a) actions brought by the
Association to enforce the provisions of this Declaration and/or the Rules (including, without
limitation, the foreclosure of liens); (b} the imposition and collection of assessments ay provided
in Article TV; (c) proceedings involving challenges io ad valorem taxation; or (d) counterclaims
brought by the Association in proveedings instituted against it, This Section shall not be
amended unless such amendment is approved by the percentage of votes, and pursuant to the
same procedures, necessary to institute proceedings as provided above. This Section shall apply
in addition to the provisions of Article XII, Section 17, if applicable.

Section 6, Oversight Authority of Master Associations.

@ Either of the Master Associations shall have the power to veto any action
taken or contemplated to be taken by the Association which either of the Master Associations’
Board of Directors reasonably determines to be adverse to, inconsistent with, or in violation of
this Declaration, the Master Associations CCR's and other documents governing the Cinco
Residential Comnyunity. Either of the Master Associations shall also have the power to require
specific action to be taken by the Association in connection with its obligations and
responsibilities as aforesaid. Without limiting the generality of the foregoing, either Master
Association may require specific maintenance or repairs or aesthetic changes to be effectuated by
the Association, may require that a proposed budget include certain items and that expenditures
be made therefor, may require the Association to enforce this Declaration and other governing
documents for the Community. Further, either of the Master Associations may require the
Declarant and/or the Board of Directors to adopt Rules for the Community that are the same or
similar to the terms and provisions set forth in the Master Associations CCR's or other
documents governing the Cineo Residential Community.

(b) Any action required by the Master Associations in a written notice pursuant
to the foregoing subsection to be taken by the Association shall be taken within the time frame
set by the Master Associations in such written notice, which time frame shall be reasonable. If
the Association fails to comply with the requirements set forth in such written notice, either of
ithe Master Associations may, in its sole discretion and without any obligation to do so, effect
470300 (v1) w SAP 351001-170 7
such action of the Association and otherwise proceed as provided in Article XII of this
Declaration.

ARTICLE IV.
Assessments

Section 1. Purpose of Assessments, The assessments provided for herein shall be used
for the general purpose of promoting the recreation, common benefit, and enjoyment of all of the
Owners and occupants of Units, inclnding but not limited to the maintenance of real and personal
property, such as the Common Property, all as may be more specifically authorized from time to
time by the Board of Directors, The judgment of the Board of Directors as to expenditures of
assessments shall be final and conclusive so long as its judgment is exercised in good faith,
Pursuant to the Master Associations CCR's, assessments may also include amounts to be paid to
the Master Associations.

Section 2. Creation of the Lien and Personal Obligation for Assessments, Each Owner
of any Unit, by acceptance of a deed therefore, whether or not it shall be so expressed in such
deed, covenants and agrees to pay to the Association; (a) annual assessments or charges assessed
against said Unit; (b) special assessments, such assessments to be established and collected as
hereinafter provided; and (c) specific assessments against any particular Unit which are
established pursuant to the terms of this Declaration, including, but not limited to, reimbursement
assessments and reasonable fines as may be imposed in accordance with the terms of this
Declaration. All such assessments, together with late charges, fines, interest

Case Info

Judge

Brame, Argie Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

November 09, 2021

Case Filing Date

May 06, 2021

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.

Document for Twin Villas at Cinco Homeowners Association, Inc. VS. Shannon R. Conway

Preview

Related Topics

Case Info

Parties