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BRIAR GROVE HOMEOWNERS IN THE DISTRICT COURT OF
ASSOCIATION, INC.
Plaintiff,
MONTGOMERY COUNTY
ROBERT HENRY NOFCHISSEY & JUDICIAL DISTRICT
AMANDA GAIL EMBRY
Defendant.
PLAINTIFF'S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMESNOW BriarGrove Homeowners Association, Inc. hereinafter called “Plaintiff,”
complaining of and about Robert Henry Nofchissey & Amanda Gail Embry, hereinafter called
“Defendant,” and for such cause of action shows unto the Court the following:
DISCOVERY CONTROL PLAN LEVEL
The Plaintiff pleads that discovery should be conducted in accordance with the discovery
control plan under TRCP Rule 190.3, Level 2.
PARTIES AND SERVICE
Plaintiff is anon profit corporation duly incorporated
under the laws of the State of Texas,
having its principal office and place of business in Montgomery County, Texas.
Defendant, Robert Henry Nofchissey & Amanda Gail Embry — an individual
who is a
resident of the State of Texas, may be served with process at the following address: 1075 Shadow
Glenn Drive, Conroe , 77301 or any other address at which the Defendant may be found.
Service of said Defendant can be affected by private process server or other qualified individual
including the Constable or Sheriff.
JURISDICTION AND VENUE
The subject matter in controversy is within the jurisdictional limits of this Court. This
Court has personal jurisdiction herein because Defendant is a Texas Resident or has had the
minimum contacts neededto satisfy the constitutional requirements
‘Venue in the county where suit was filed is proper because this county is: (a) where the
real property in controversy is located; and/or (b) where all or a substantial part of the events or
omissions giving rise to this lawsuit occurred; and/or (c) the county of Defendant s residence.
RELIEF SOUGHT
As per Tex. R. Civ. P. Rule 47, the damages sought are within the jurisdictional limits of
the Court. Plaintiff
seeks monetary relief of $ or less and non monetary relief.
FACTS AND CAUSES OF ACTION
Breach of C ontract Collection of Delinquent Assessments
CONTRACT
Prior to the sale and purchase of Defendant’s property, the original developers of the
subdivision recorded in the County Real Property Records a declaration of restrictive covenants,
conditions and restrictions (hereinafter the “Restrictions” Reference
is hereby made to said.
Restrictions and they are attached and incorporated herein as Exhibit “ Said Restrictions serve
as the operative contract between Plaintiff and Defendant
DEFENDANT’ S BREACH OF CONTRACT
A copy of the Deed evidencing Defendant’s ownership of property is attached and.
incorporated herein as Exhibit “B” (hereinafter the “Deed As Owner of property within
Plaintiff’ s community, Defendant is a Memberof Plaintiff’ s property owner’ s association.
According to such Deed, Defendant owns the following real property and improvements
which is subjectto the Restrictions, legally described
Lot 14, in Block 1 of the Final Plat of Briar Grove, Section One
(1), a subdivision in Montgomery C ounty, Texas according to the
map or plat thereof recorded in Cabinet Z, Sheet 103 of the map
records of Montgomery County, Texas.
As a result of Defendant's failure to abide by the provisions of Plaintiff’s Restrictions,
his action is brought by Plaintiff against Defendant for Breach of Contract resulting from their
failure to pay the maintenance fee and/or special assessments Defendant's obligation to pay the
amounts sought by Plaintiff are secured by a vendor's lien to which Plaintiff also seeks the
establishment and foreclosure of said lien.
Defendant, as the owner
of a is deemed to covenant and agree to pay said annual and
special assessments charged byPlaintiffThe Defendant is obligated to pay Plaintiff the amounts
owed, however, Defendant has failed to do so, requiring Plaintiff to initiate this lawsuit to collect
the past due amounts as evidenced in the attached Exhibit “C .” The Restrictions
retain a vendor's
lien to secure the payment of the maintenance fees and special assessments. Said Restrictions
grant the Plaintiff the right to foreclose the lien against the Property for past due amounts as
described in the Restrictions for which Plaintiff seeks an order for foreclosure.
DAMAGES
Plaintiff seeks ajudgment for this entire amount, plus therecover of related costs, interest,
and attomey fees, and further seeks foreclosure of the vendor's lien for the amounts
to which the
lien applies.
Plaintiff further alleges that before a judgment may be rendered, other maintenance
fees
on and against the property described herein may become due and payable, for which Plaintiff
seeks a judgment and foreclosure, if applicable, as outlined above.
ATTORNEYS’ FEES
Plaintiff is also entitled to the recovery attomeys’ fees pursuant to Section 38.001,
Texas Civil Practice
and Remedies Code, and Section 5.006 of the Texas Property Code Lastly, the
Restrictions itself may contain language which allows for the recovery of its attomeys’ fees.
As aresult of Defendant’ s failure to pay the amounts sought by Plaintiff, it was necessary
for
Plaintiff to retain Plaintiff’ s legal counsel to initiate collections and ultimately file this causeof action.
Plaintiff has agreed to pay said attomey areasonable
fee for attomey services _herefore, Plaintiff
seeks
the recovery of attomey ’ fees and expenses in an amount consistent that was paid by Plaintiff.
VII.
CONDITIONS PRECEDENT
Plaintiff avers that all conditions precedent has occured for recovery and that all
necessary notice requirements imposed by Chapter 209 of the Texas Property Code have been
satisfied.
Vill.
REQUIREDDISCLOSURES
Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendant is required to
disclose, within thirty 0) days of filing an Answer to this suit, the information or material
described
in Rule 194.2 A courtesy copy of those disclosures
are attached hereto and incorporated
Exhibit “D”.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that the
Defendant be cited to appear and answer herein, and that upon a final hearing
of the cause,
judgment be entered for the Plaintiff against Defendant for:
Damages as detailed above which are within the jurisdictional limits of the Court
as detailed in Exhibit “
Pre judgment interest;
Reasonahle attomeys’ fees and expenses for pre trial, trial, post judgment actions,
foreclosure and appeal;
Post judgment interest;
Court costs;
Foreclosure of the vendor’ s lien securing Defendant s obligations;
Order
of sale, and the proceeds of the sale to be applied in payment of the amount
due Plaintiff;
Execution against Defendant for any deficiency which may remain after applying
all proceeds
of the sale of the subject property applicable
to the satisfaction of
judgment;
Order that Plaintiff may become the purchaser at said sale;
Order that the person(s) designated
by the Court to conduct
a sale, execute deed or
deed(s)
to the purchaser(s) according
to the law, and that the purchaseror
purchasers be let into possession of the subject premises on production of a deed
executed therefore, and that a writ(s) offpossession
be issued as necessary; and
Such other and further relief to which Plaintiff may be justly entitled.
RESPECTFULLY SUBMITTED BY
PORTER LAW FIRM
Jee
Chris Archambault
SBN: 24082634.
2221 S. Voss Road,
Houston, Texas 77057
0700(phone)
0709(fax)
Filing@porterfirm.com
ATTORNEYS FOR PLAINTIFF
EXHIBIT
RESTRICTIONS
oe ae a oe
2005-125173
953-10-1064 £
DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS
FOR
BRIAR GROVE, SECTION ONE
A SUBDIVISION IN MONTGOMERY COUNTY, TEXAS
THE STATE OF TEXAS X
COUNTY OF MONTGOMERY x
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (this
“Declaration”) is made on the date hereinafter set forth by GREENTREE-MONTGOMERY
PROPERTIES, LTD., a Texas Limited Partnership called “Declarant”, said Limited Partnership having its
ipal offices
in Dallas, Dallas County, Texas.
WHEREAS, Declarant is the owner of the following described land and premises in Montgomery
County, Texas, to-wit:
All that certain tact or parcel of land known as BRIAR GROVE, SECTION ONE, a subdivisionof
46.013 acres of land in the W. S. Allen Survey, Abstract A-2, Montgomery County, Texas (the
“Subdivision”), the Subdivision being comprised of 118 Lots in 7 Blocks and 3 Restricted
Reserves; a map or plat of the Subdivision being recorded in Cabinet “Z”, Sheets 103 — 106, File
#2005123165, of the Map Records of Montgomery County, Texas, reference to which is hereby
made for all purposes and a copy of which is attached hereto as Exhibit “A” and
WHEREAS, it is the desire of Declarant to provide for the preservation of the values and
amenities in the Subdivision and, to this end, to subject the Subdivision to the covenants,
easements, charges and liens hereinafter set forth, each and all of which are for the benefit of the BRIAR.
GROVE, SECTION ONE and such other properties as have heretofore or may hereafter be brought within
the general scheme of development of BRIAR GROVE and the owners thereof;
NOW THEREFORE, Declarant hereby declares that the land shown to be subdivided, according
to the hereinabove mentioned plat and any additions thereto, is held, and shall hereafter be conveyed,
subject to the covenants, reservations,
conditions, stipulations, easements and restrictions as hereinafter set
forth.
ARTICLE I
DEFINITIONS
The following words, when used in this Declaration, shall have the following meanings (unless the
context clearly indicates otherwise):
A. “Declarant” shall mean and refer to GREENTREE-MONTGOMERY PROPERTIES,
LTD., and its successors and assigns. No person or entity purchasing one or more lots in the ordinary
course of business shall be considered as “Declarant”.
B. ‘Properties” shall mean and refer to BRIAR GROVE, SECTION ONE, subject to the
reservations and exceptions set forth herein and/or in the Subdivision Plat for BRIAR GROVE, SECTION
DECLARATION OF |COVENANTS, CONDITIONS AND RESTRICTIONS
BRIAR GROVE, SECTION ONE
953-10-1065
ONE, and any additional properties made subject to the terms hereof pursuant to the provisions set forth
herein or in a separate document.
Cc. “Street” shall mean and include any street, drive, boulevard, road, alley, lane, avenue, or
any place shown on the Subdivision Plat as a thoroughfare.
D. “Lot” and/or “Lots” shall mean and refer to any of the numbered lots shown upon the
Subdivision Plat of BRIAR GROVE, SECTION ONE, all of which are restricted hereby to use for
residential purposes, but shall not include any Reserves designated or depicted on the Subdivision Plat.
E. “Owner” shall mean and refer to the owner(s), whether one or more persons or entities,
of the fee simple title to any lot which is part of the Properties. In the case of an executory contract of sale
or contract for deed covering any lot, the “Owner” shall be the purchaser named in the contract. “Owner”
shall not mean or refer to any person or entity holding only a lien, easement, mineral interest or royalty
interestin a Lot.
F. “Subdivision Ptat” shall mean and refer to the map or plat of BRIAR GROVE,
SECTION ONE, recorded in Cabinet “Z”, Sheets 103 — 106, File #2005123165 , of the Map Records of
Montgomery County, Texas.
G. “Association” shall mean and refer to the BRIAR GROVE PROPERTY OWNERS
ASSOCIATION, INC., a Texas non-profit corporation, and to any non-profit corporation which succeeds
to all or substantially ail of its assets by any merger, consolidation, or conveyance of assets, as provided for
in ARTICLE
XI hereof. After its formation, but subject to the provisions of this Declaration, shall have
the power, duty and responsibility of maintaining and administering the Common Properties, and collecting
the assessments and charges hereinafter prescribed, and have the right of administering and enforcing these
Covenants
and Restrictions.
H. “ Architectural Control Committee” (the “Committee”) shall mean and refer to the
Briar Grove Architectural Control Committee, as provided for in ARTICLE VI hereof.
I “Member” shall mean and refer to each owner of a Lot. “Member” shall also include
the owner of any portion of the Properties if such owner is expressly declared to be a member of the
Association by the provisions of this Declaration or by a separate document.
J “Community Properties” shall mean and refer to any properties, real or personal
hereafter conveyed to or otherwise acquired by the Association. References hereinafter made to
“Community Properties” shall mean such properties whenever acquired by the Association, including, but
not limited to, fencing, irrigation, subdivision signage and landscaping. Declarant reserves the right to
effect redesigns or reconfigurations of the Community Properties.
K. “FHA” shall mean and refer to the Federal Housing Administration.
L “VA” shall mean and refer to the Veterans Administration.
M. “Corner Lot” shall mean and refer to a Lot which abuts on more than one Street. Any
Lot, except a “Comer
Lot", is deemed to front the Street upon which it abuts. A “Corner
Lot” shall be
deemed to front on the side of the Lot having the deepest building setback line, as depicted on the
Subdivision Plat.
“Reserve”or “Reserves” shall mean and refer to the area or areas designated on the
Subvdvisina Plt os cosrves for procabelt park and detention, Declarant shall deed the reserve areas to the
Association as Community Properties at such time as Declarant deems appropriate.
0. “Builder” shall mean and refer to the Owner of a Lot who owns the Lot for the sole
purpose of building a residence for sale to third parties and is designated in writing as a Builder by
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS:
BRIAR GROVE, SECTION ONE
953-10-1066
Declarant. If a Builder rents or leases a Lot to a third party, he shall cease to occupy the status of a Builder
with respect to such Lot.
ARTICLE 0
RESTRICTIONS
Declarant declares, covenants and agrees that, for the purpose of creating and carrying out a
uniform plan for development, improvement and sale of property in BRIAR GROVE, SECTION ONE, asa
restricted subdivision, and for the purpose of preserving the value, amenities, desirability
and attractiveness
of the Subdivision, the Lots are held and shall be hereafter conveyed subject to the covenants, conditions,
stipulations, easements and restrictions herein set forth; and same shall be considered a part of each
contract, deed or conveyance affecting said Lots, or any portion of same, as though fully incorporated
therein; and same shall constitute covenants with the land , and shall be binding upon and shall
inure to the benefit of Declarant and its successors and assigns and all subsequent purchasers of said Lots
or any portion of same.
ARTICLE
RESERVATIONS,
EXCEPTIONS AND DEDICATIONS
A. The Subdivision Plat dedicates for use as such, subject to the limitations set forth therein,
the streets and easements shown thereon, and such Subdivision Plat further establishes certain restrictions
applicable to the Subdivision, including, without limitation, certain minimum setback lines. All
limitations, restrictions and reservations shown on the Subdivision Plat are incorporated
herein, and shall be construed as being adopted in each and every contract, deed or conveyance executed or
to be executed by or on behalf of Declarant, conveying said property depicted thereon or any part thereof,
whether specifically
referred to therein or not.
B. All sales and conveyances of Lots by contract, deed or other conveyance shall be subject
to the dedications made on the Subdivision Plat, including, but not limited to dedication of streets,
easements and rights-of-way and to any easements over, under, along or across portions of each Lot. Said
dedications are for the purpose of installing, using, repairing and maintaining public utilities, water &
sewer lines, electric lighting and telephone lines, pipe lines, drainage ditches or structures, such work to be
performed by any public or quasi-public utility service. Said service providers are hereby granted the right
of access over and across each Lot to perform repairs and maintenance. Such easements are for the general
benefit of the Subdivision and the owners of the Lots.
C. Declarant reserves the right to make changes in and additions to the above easements for
the purpose of most efficiently and economically installing the improvements, but such changes and
additions must be for the general benefit of the Properties and the property owners thereof and must be
reserved and created in favor of any and all utility companies into and upon said Lots for the purposes
hereinabove
set forth.
D. Neither Declarant nor any utility company using the easements referred to herein shall be
liable for any damages done by them, or their assigns, agents, employees or servants to fences, shrubbery,
trees, flowers, structures or buildings or other property situated on the land covered by such easements as a
result of construction, maintenance or repair work conducted by Declarant, the utility company or their
assigns, agents, employees or servants.
E. It is expressly agreed and understood that the title conveyed by Declarant to any Lot or
other parcel of land within the Properties by contract, deed or other conveyance shall convey no interest in
any pipes, lines, poles or conduits, or in any utility facility or appurtenances thereto constructed by or under
Declarant, any utility company or any easement owner, or their agents, through, along or upon the premises
affected thereby, or any part thereof, to serve said land or other portion of the Properties, or the rightto
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
BRIAR GROVE, SECTION ONE
_ a
953-10-1067
maintain, repair, sell or lease such appurtenances to any municipality or other governmental agency or to
any public service corporation or to any other party, and such right is hereby expressly reserved.
F. Declarant shall have the right (but shall never be obligated) to subdivide or re-subdivide
into Lots, by recorded plat or in any other lawful manner, all or any part of the property in BRIAR
GROVE, SECTION ONE.
G. BRIAR GROVE, SECTION ONE is part of a larger tract or block of land owned by
Declarant. While Declarant may subdivide other portions of its property, or may subject the same to a
declaration, Declarant shall have no obligation to do so, and if Declarant elects to do so, any subdivision
plat or declaration executed by Declarant with respect to any of its property may be the same or similar or
dissimilar to the Subdivision Plat covering BRIAR GROVE, SECTION ONE, or any part thereof or to this
Declaration.
ARTICLE IV
USE
OF LAND
All Lots shall be used for single family residential purposes only
(hesciontier ounce Adie ts “Rosidontal Lets") an co teciaene sxobesional, Coremerial ey
manufacturing use shall be made of any of said Lots, even though such business, professional, commercial
or manufacturing use be subordinate to use of the premises as a residence. No structure other than one
single family residence and its outbuildings shall be constructed, placed on, or permitted to remain on any
Lot in the Subdivision. As used herein, the term “residential purposes” shall be construed to prohibit the
use of said Lots for duplex houses, garage apartments for rental purposes or apartment houses.
B. Signs. No signs, billboards, posters or advertising devices of any kind shall be erected,
permitted or maintained on any Lot or other tract within the Subdivision without the express prior written
consent of the Architectural Control] Committee except (a) one sign of not more than five (5) square feet
advertising the particular Lot or tract on which the sign is situated for sale or rent, and (b) one sign of not
more than five (5) square feet to identify the particular Lot or tract as may be required by FHA or VA
the period of actual construction of a single family residential structure thereon. The right is
reserved by Declarant to construct and maintain or to allow Builders within the Subdivision to construct
and maintain, or to assign such rights to such entities and successors or assigns of such entities as it deems
fit to construct and maintain such signs, billboards and advertising devices as is customary in connection
with the general sale of property in the Subdivision.
c. No animals, livestock or poultry of any kind shall be raised, bred or
kept on any Lot except that dogs, cats or other household pets may be kept, provided that they are kept in
an enclosed area, and not kept, bred or maintained for commercial purposes.
D. No noxious or offensive trade or activity shall be carried on
upon any Lot or other tract within the Subdivision nor shall anything be done thereon which may be or
become an annoyance or nuisance to the neighborhood.
E. No spirituous, vinous, malt or medicated bitters
capable of producing intoxication shall ever be sold or offered for sale on any Lot or any part thereof, nor
shall said premises or any part thereof be used for illegal or immoral purposes.
F. No Owner of any Lot in BRIAR GROVE, SECTION ONE,
nor any visitor or guest of any Owner shall be permitted to perform work on automobiles or other vehicles
in driveways or streets abutting such Lots other than work of a temporary nature on the Owner's, visitor’s
or guest’s vehicle.
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
BRIAR GROVE, SECTIONONE
953-10-1068
G. Except in an emergency or when other unusual
circumstances exist, as determined by the Board of Directors of the Association, outside construction work
or noisy interior construction work shall be permitted only after 7:00 A.M. and before 9:00 P.M.
H. Mailboxes, house numbers and similar matter used in BRIAR
GROVE, SECTION ONE, must be harmonious with the overall character and aesthetics of the community
and the decision of the Architectural Control Committee that any such matter is not so harmonious is final.
1 ‘Waste. No trash, rubbish, garbage, manure, debris, or offensive material of any kind
shall be kept or allowed to remain on any Lot, nor shall any Lot be used or maintained as a dumping
ground
for such materials. In a manner consistent with good housekeeping, the Owner of each Lot shall
remove such prohibited matter from his Lot at regular intervals at his expense; and prior to such removal,
all such prohibited matter shall be placed in sanitary refuse containers constructed of metal, plasticor
masonry materials with tight-fitting sanitary covers or lids and placed in an area adequately screened by
planting or fencing so as not to be seen from neighboring Lots or the Street. Equipment used for the
temporary storage and/or disposal of such material prior to removal shall be kept in a clean and sanitary
condition and shall comply with all current laws and regulations and those which may be promulgated in
the future by any federal, state, county, municipal or other governmental body with regard to environmental
qualityand waste disposal.
No Lot shall be used for the open storage of any materials whatsoever
which storage is Satie he Streeh, cxsopt dat new building mangerals used in the construction of
improvements erected upon any Lot may be placed upon such Lot at the time construction is commenced,
and then such materials shall be placed within the property lines of the Lot or parcel of land upon which the
improvements are to be erected with the exception that during construction of the original improvements
some building materials may be placed or stored between the pavement and the property line. Such
materials may be maintained thereon for a reasonable time, so Jong as the construction progresses without
undue delay, after which time these materials shall either be removed from the Lot or stored in a suitable
enclosure
on the Lot. Under no circumstances shall building materials be placed or stored on the street
paving.
K. Unless otherwise approved in writing by and in the sole and
absolute discretion of the Architectural Control Committee, a Lot which fronts upon a Collector Street shall
have direct driveway access from such Collector Street. As used herein, the term “Collector Street” shall
mean and refer to any street which is not a Cul-de-sac. Unless otherwise approved in writing by and in the
sole and absolute discretion of the Architectural Control Committee, a garage on a Lot which fronts on a
Cul-de-sac shall have direct driveway access only from the abutting Cul-de-sac Street. The Owner of each
Lot shall construct and maintain at his expense the driveway from his garage to the abutting Cul-de-sac or
Collector Street, whichever is permitted, including the portion in the street easement, and he shall repair at
his expense any damage to the street occasioned by connecting his driveway thereto. No Owner of a Lot
shall have the right, by virtue of such ownership, to make any improvement to any Street.
L Landscaping. The Owner of each Lot upon which is located a residence, as a
minimum, shall spot sod or sprig with grass the area between the front of his residence and the curb line of
the abutting Street.
ARTICLE V
ARCHITECTURAL RESTRICTIONS
A. Only one single family residence, which shall be a dwelling of
one story, one and one-half story, or two story construction, shall be built or permitted on each Lot. All
Lots shall have an enclosed garage, either attached or detached, for not less than one car nor more than
three cars. Carportson Lots are prohibited.
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
BRIAR GROVE, SECTION ONE
953-10-1069
\
B. Te No mobile homes, manufactured homes or prefabricated
homes built off the premises shall be permitted on any Lot. No structu
of a temporary
renature, whether
trailer, basement, tent,, shack, garage, barn, or any other accessory structure or outbuilding erected in the
Subdivision shall at any time be used as a residence, temporarily or permanently, nor shall any residence or
other building of any kind or character be moved onto any Lot, it being the intention that only new
construction be placed and erected thereon.
Cc. Prohibited Items. No water well, septic tank, disposal plant, outside toilet or
cesspool shall be built on any Lot or maintained thereon. Provided, however, that Declarant, its successors
and assigns, reserves the exclusive right to erect, place and maintain such facilities upon any portions of the
Subdivision, or to grant Builders the right of erection, placement and maintenance of such facilities upon
Portion of the Subdivision as Declarant, its successors and assigns, in its sole discretion, may deem
necessary or convenient while selling Lots, selling or constructing residences and/or constructing other
improvements in the Subdivision. Such facilities may include, but shall not necessarily be limited to, sales
and construction offices, storage areas, model units and portable toilet facilities.
D. Unless otherwise approved in writing by the
Architectural Control Committee or unless otherwise stipulated herein, all improvements shall be
constructed on the Lot so as to face the Street upon which such Lot fronts.
E. 1 Dwellings on Corner Lots shall have a
presentable frontage on all Streets on which that particular Corner Lot fronts.
F. Dwelling Size, The ground floor area of any one-story, single family dwelling,
exclusive of open porches and garages, shall contain not less than 958 square feet. The ground floor area of
any one and one-half story or two story, single family dwelling, exclusive of open porches and garages,
shall contain not less than 500 square feet, and the total living area of any one and one-half or two story,
single family dwelling, exclusive of porches and garages, shall contain not less than 1100 square feet.
G. The building lines of any residence to be erected in BRIAR GROVE,
SECTION ONE are as follows, provided that, for the purposes of these Restrictions, the front of each Lot
shall coincide with and be the property line having the smallest or shortest dimension abutting a Street.
Unless otherwise approved by the Architectural Control Committee, each main residence building will face
the front of the Lot, and each attached or detached garage will either face upon the front lot line or face
upon a line drawn perpendicular to the front lot line, and shall not be located nearer to the front lot line than
the minimum building setback lines shown on the Subdivision Plat or provided for herein. Driveway
access will be provided from the front lot line only, except that said access may be provided to Corner Lots
from a side street. No building shall be located on any Lot nearer to the front lot line or nearer to the side
street line than the minimum setback lines shown on the Subdivision Plat. No building shall be located on
any Lot nearer minimum setback lines or easement on any lot line. No building shall be located nearer than
five (5) feet to an interior lot line. No accessory building shall be erected on any Lot nearer than any
applicable building setback line or easement on any property line of said Lot.
No fence,wall, structure, hedge, or shrub planting which
ohetrace sight lie Mat te eet canted in romuin’on say Cecner tet thie the wenger wen
formed by the street property lines and a line connecting them at points twenty-five feet from the
intersectionof the street property
lines extended.
No radio or television wires or antennae shall be maintained
on any portion of ure tae Tern seret adjoining some and the font of the house steatod on such
Lot; nor shall any antennae of any style, including free-standing antennae, be permitted which extend more
than fifteen (15) feet above the height of the roof of the residence
on said Lot.
Unless otherwise approved by the Architectural Control
Commi, sta en bead of all cagle Sealy dwcliage balk ix BRIAR GROVE,
SECTION ONE, excluding gables, windows and door openings, must be of masonry or brick veneer. No
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
BRIAR GROVE, SECTION ONE 6.
g53-10-1070
garage or permitted accessory building shall exceed in height the dwelling to which they are appurtenant
without the written consent of the Architectural Control Committee. Every garage and permitted accessory
building, except a greenhouse, shall correspond in style and architecture to the dwelling to which it is
appurtenant.
K. No building of any kind or character which incorporates frame
construction on the exterior shall be erected on any Lot unless the exterior consists of Hardiplank or an
equivalent product or unless approved in writing by the Architectural Control Board.
L. Grass and weeds shall be kept mowed to prevent unsightly
appearance. Dead or damaged trees, which might create a hazard to property or persons on any Lot or
adjacent Lot shall be promptly removed or repaired and if not removed by Owner upon request, the
Declarant or Association may remove or cause to be removed such trees at the Owner’s expense and shall
not be liable for damage done in such removal.
M. No Lot or other tract shal] be used as dumping grounds for
rubbish, trash, rubble or extra soil, except that Declarant may designate fill areas into which materials
specified by Declarant may be placed.
The Association may but is not obligated to cause to
be planted or installed, and thereafter maintained, or other screening devices around boxes,
transformers and other above-ground utility equipment which, in the discretion of the Board of Directors of
the Association, shall be screened from view to preserve the beauty of the Subdivision. There is hereby
reserved in favor of the Association the right to enter upon the Lots to plant, install, maintain and replace
such shrubbery or other screening devises. Provided further, if a Lot is visible to full public view the
Owner shall construct and maintain a fenced area or other suitable enclosure to screen from public view the
drying of clothes, yard equipment and wood piles or storage piles which are incident to the normal
residential requirements of a typical family.
O. Street Lights. Declarant has arranged for an electric utility company (the ae
Company”) to install street lighting in the Subdivision and an electric or other utility
proving resent svc in he Subvien sd or ach pss eg he UY Compay
certain easements in the Subdivision, and may from time to time grant additional easements over those
portions of the Subdivision it then owns. All facilities installed by the Utility Company shall in all events
remain the sole property of the Utility Company. In connection with such utility services, the following
restrictions and covenants are imposed and shall be binding and enforceable as to each and all Lots in the
Subdivision as required by the Utility Company.
1 The Utility Company shall have an easement along, over and across each Lot for the
purpose of installing, constructing, maintaining, repairing, inspecting, replacing, removing
and operating its electric service facilities for residential service to such Lot, the location
of which shall be where such facilities are originally placed by the Utility Company in its
discretion.
The Utility Company shall be granted reasonable access for the purpose of enjoying such
easements rights, and all facilities installed by the Utility Company shall remain its sole
property. The Utility Company shall have the right, but no obligation to keep such
easements clear of trees, bush and other growths, or any hazards to its facilities, including
the right to trim, cut or remove same without liability therefore.
The facilities of the Utility Company shall not be disturbed or damaged and the area over
or under the Utility Company’s facilities shall be kept free of excavations, structures, trees
and other obstructions.
DECLARATION
OF COVENANTS, CONDITIONS AND RESTRICTIONS
BRIAR GROVE, SECTION ONE
- --
953-10-1071
P. Easements for the electrical service or other utilities
may be crossed by driveways and walkways provided that the Builder or Owner makes prior arrangements
with the utility company furnishing electric or other utility service and complies with such conditions and
requirements as may be imposed by the utility companies. Such easements for utility services shall be kept
clear of all other improvements, including buildings, patio or other pavings, and neither Builder nor any
utility company using the easements shall be liable for any damage done by either of them or their assigns,
their agents, employees, or servants, to shrubbery, trees, flowers, or other improvements of the Owner and
located on the land covered by said easements.
Q No oil drilling, oil development operations, oil refining, quarrying, or
mining operations of any kind shall be permitted upon or in any Lot or other tract within the Subdivision,
or DAI od wel, Mae, tte sacral enmevathons or hae Le peed nas ay Lea emt
such tract. No derrick or other structure designed for use in boring for oil or natural gas shall be erected,
maintained or permitted upon any Lot or other tract in the Subdivision.
R Pursuant to applicable Federal Law, curbs with accompanying
sidewalks shall have curb ramps (depressions in the sidewalk and curb) at all crosswalks to provide safe
and convenient movement of physically handicapped persons confined to wheelchairs. Such curb ramps
will be provided by Builder at the time of construction of all sidewalks. Curb ramps at crosswalks shall not
be required for curbs without an accompanying sidewalk; however, the subsequent addition of a sidewalk
will require the addition of the curb ramps as well. All curb ramps shall be constructed in accordance with
specifications provided by the Engineering Departments of Montgomery County, Texas and/or the City of
Conroe, as applicable.
Ss. Default in Observing Requirements. In the event of default on the part of the
Owner or occupant of any Lot in observing the requirements herein set forth, or any of them, and the
continuance of such default after ten (10) days written notice thereof, Declarant or its assigns or the
Association shall, without liability to the Owner or occupant in trespass, or otherwise, have the right to
enter upon said Lot or cause to be cut such weeds and grass and remove or cause to be removed such
garbage, trash and rubbish or do any other thing necessary to secure compliance with these restrictions so
as to place said Lot in a neat, attractive, healthful and sanitary condition and may render a statement of
charge to the Owner or occupant of such Lot for the cost of such work. The Owner or occupant, as the case
may be, agrees by the purchase or occupation of the property to pay such statement immediately upon
receipt thereof.
T. The roof on each dwelling, garage and other permitted
buildings on any Lot shall be either () composition type shingles of such color and weight per square as
shall be approved by the Architectural Control Committee, or (ii) metal roofing of such type and color as
approved by the Architectural Control Committee. Wood shingles shall not be permitted.
U. Fence Location. No fence or wall shall be erected, placed or altered on any Lot nearer to
the street than the minimum building setback lines as shown on the Subdivision Plat. The erection of chain
link fences facing upon a Street on any Lot is expressly prohibited.
ARTICLE VI
ARCHITECTURAL
CONTROL COMMITTEE
A. The Declarant or the Declarant’s designate(s) shall serve as the initial Architectural
Control Committee for BRIAR GROVE, SECTION ONE. The initial member(s) of the Architectural
Control Committee need not be Owners of Lots or Members of the Association. The initial Architectural
Contro! Committee shall serve for a period of ten (10) years from the date of this Declaration or for such
shorter period as the Declarant shall determine. The initial Architectural Control Committee shall act
independently
of the Association. During the initial ten (10) year term, Declarant may add, remove and/or
replace Committee members in Declarant’s discretion. At the end of the such ten (10) year period or any
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
BRIAR GROVE, SECTION ONE
ee
953-10-1072
sooner time if Declarant so chooses, architectural control for BRIAR GROVE, SECTION ONE shall
become vested in the Association and the members of the Architectural Control Committee shall be elected
or appointed by the Association in accordance with its Bylaws. From and after such time the Committee
shall consist of three (3) members.
No person serving on the Committee shall be entitled to compensation for services
performed. However, the Committee may employ one or more architects, engineers, attorneys or other
consultants to assist the Committee in carrying out its duties hereunder; and the Association shall pay such
consultants for such services as they render to the Committee.
The Committee shall not be liable for damages to anyone submitting plans to it for
approval or to any Owner or occupant of the Property by reason of error or mistake in judgment,
negligence, or non-feasance arising out of or in connection with the approval or disapproval or failure to
approve any such plans. No approval by the Committee shall constitute or be deemed to constitute any
representation or warranty of the adequacy or fitness of any improvements approved by the Committee nor
shall the Committee have any liability regarding such adequacy or fitness.
B. No building or other improvements, including streets, driveways, sidewalks, drainage
facilities, landscaping, fences, walks, fountains, statuary, outdoor or signs shall be commenced,
constructed, erected, placed or maintained in BRIAR GROVE, SECTION ONE, nor shall any exterior
addition or alteration therein be made, unless and until (1) a preliminary site plan showing all uses and
dimensions, the location of buildings, entries, streets, driveways, parking areas, pedestrian ways and
storage areas, and a schematic plan for the landscaping and lighting of the property, have been submittedto
and approved in writing by the Architectural Control Committee, and thereafter (2) the final working plans
and specifications for the work shown on the preliminary site plan and schematic plan have been submitted
to and approved in writing by the Architectural Control Committee as to compliance with this Declaration
and as to harmony of extemal design and location in relation to property lines, building lines, easements,
grades and finished ground elevation, surrounding structures, walks, paths and topography. The final
working plans and specifications shall not be commenced until the preliminary site plan and schematic plan
have been so approved. The final working plans and specifications shall specify, in such form as the
Architectural Control Committee may reasonably require, structural, mechanical, electrical and plumbing
details and the nature, kind, shape, height, exterior color scheme, materials and location of the proposed
improvements or alterations thereto. The Architectural Control Committee may require the submission of
such plans, specifications and plot plans, together with such other documents as it deems appropriate, in
such form and detail as it may elect in its discretion. In the event the Architectural Control Committee fails
to approve or disapprove the preliminary site plan and schematic plan within thirty (30) days after they
have been submitted to it, approval thereof will not be required and the provisions of this Paragraph “B”
will be deemed to have been fully complies with. Without limitation of the powers herein granted, the
Architectural Control Committee shall have the right to specify an outline of minimum acceptable
construction standards, including but not limited to acceptable exterior materials and/or finishes which may
be used in the construction, alteration or repair of any improvement; provided however, that such outline
will serve as a minimum guideline and such Architectural Control Committee shall not be bound thereby.
Where not otherwise specified herein, the Architectural Control Committee also shall
have the right to specify requirements for each building site as follows: minimum setbacks; the location,
height and extent of fences, walls or other screening devises; and the orientation of structures with respect
to streets, walks, paths and structures on adjacent property. The Architectural Control] Committee shall
have full power and authority to reject any plans and specifications that do not comply with the restrictions
herein imposed or meet its minimum construction or architectural design requi
Preview
CAUSE NO wane ------ +--+ BRIAR GROVE HOMEOWNERS IN THE DISTRICT COURT OF ASSOCIATION, INC. Plaintiff, MONTGOMERY COUNTY ROBERT HENRY NOFCHISSEY & JUDICIAL DISTRICT AMANDA GAIL EMBRY Defendant. PLAINTIFF'S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: COMESNOW BriarGrove Homeowners Association, Inc. hereinafter called “Plaintiff,” complaining of and about Robert Henry Nofchissey & Amanda Gail Embry, hereinafter called “Defendant,” and for such cause of action shows unto the Court the following: DISCOVERY CONTROL PLAN LEVEL The Plaintiff pleads that discovery should be conducted in accordance with the discovery control plan under TRCP Rule 190.3, Level 2. PARTIES AND SERVICE Plaintiff is anon profit corporation duly incorporated under the laws of the State of Texas, having its principal office and place of business in Montgomery County, Texas. Defendant, Robert Henry Nofchissey & Amanda Gail Embry — an individual who is a resident of the State of Texas, may be served with process at the following address: 1075 Shadow Glenn Drive, Conroe , 77301 or any other address at which the Defendant may be found. Service of said Defendant can be affected by private process server or other qualified individual including the Constable or Sheriff. JURISDICTION AND VENUE The subject matter in controversy is within the jurisdictional limits of this Court. This Court has personal jurisdiction herein because Defendant is a Texas Resident or has had the minimum contacts neededto satisfy the constitutional requirements ‘Venue in the county where suit was filed is proper because this county is: (a) where the real property in controversy is located; and/or (b) where all or a substantial part of the events or omissions giving rise to this lawsuit occurred; and/or (c) the county of Defendant s residence. RELIEF SOUGHT As per Tex. R. Civ. P. Rule 47, the damages sought are within the jurisdictional limits of the Court. Plaintiff seeks monetary relief of $ or less and non monetary relief. FACTS AND CAUSES OF ACTION Breach of C ontract Collection of Delinquent Assessments CONTRACT Prior to the sale and purchase of Defendant’s property, the original developers of the subdivision recorded in the County Real Property Records a declaration of restrictive covenants, conditions and restrictions (hereinafter the “Restrictions” Reference is hereby made to said. Restrictions and they are attached and incorporated herein as Exhibit “ Said Restrictions serve as the operative contract between Plaintiff and Defendant DEFENDANT’ S BREACH OF CONTRACT A copy of the Deed evidencing Defendant’s ownership of property is attached and. incorporated herein as Exhibit “B” (hereinafter the “Deed As Owner of property within Plaintiff’ s community, Defendant is a Memberof Plaintiff’ s property owner’ s association. According to such Deed, Defendant owns the following real property and improvements which is subjectto the Restrictions, legally described Lot 14, in Block 1 of the Final Plat of Briar Grove, Section One (1), a subdivision in Montgomery C ounty, Texas according to the map or plat thereof recorded in Cabinet Z, Sheet 103 of the map records of Montgomery County, Texas. As a result of Defendant's failure to abide by the provisions of Plaintiff’s Restrictions, his action is brought by Plaintiff against Defendant for Breach of Contract resulting from their failure to pay the maintenance fee and/or special assessments Defendant's obligation to pay the amounts sought by Plaintiff are secured by a vendor's lien to which Plaintiff also seeks the establishment and foreclosure of said lien. Defendant, as the owner of a is deemed to covenant and agree to pay said annual and special assessments charged byPlaintiffThe Defendant is obligated to pay Plaintiff the amounts owed, however, Defendant has failed to do so, requiring Plaintiff to initiate this lawsuit to collect the past due amounts as evidenced in the attached Exhibit “C .” The Restrictions retain a vendor's lien to secure the payment of the maintenance fees and special assessments. Said Restrictions grant the Plaintiff the right to foreclose the lien against the Property for past due amounts as described in the Restrictions for which Plaintiff seeks an order for foreclosure. DAMAGES Plaintiff seeks ajudgment for this entire amount, plus therecover of related costs, interest, and attomey fees, and further seeks foreclosure of the vendor's lien for the amounts to which the lien applies. Plaintiff further alleges that before a judgment may be rendered, other maintenance fees on and against the property described herein may become due and payable, for which Plaintiff seeks a judgment and foreclosure, if applicable, as outlined above. ATTORNEYS’ FEES Plaintiff is also entitled to the recovery attomeys’ fees pursuant to Section 38.001, Texas Civil Practice and Remedies Code, and Section 5.006 of the Texas Property Code Lastly, the Restrictions itself may contain language which allows for the recovery of its attomeys’ fees. As aresult of Defendant’ s failure to pay the amounts sought by Plaintiff, it was necessary for Plaintiff to retain Plaintiff’ s legal counsel to initiate collections and ultimately file this causeof action. Plaintiff has agreed to pay said attomey areasonable fee for attomey services _herefore, Plaintiff seeks the recovery of attomey ’ fees and expenses in an amount consistent that was paid by Plaintiff. VII. CONDITIONS PRECEDENT Plaintiff avers that all conditions precedent has occured for recovery and that all necessary notice requirements imposed by Chapter 209 of the Texas Property Code have been satisfied. Vill. REQUIREDDISCLOSURES Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendant is required to disclose, within thirty 0) days of filing an Answer to this suit, the information or material described in Rule 194.2 A courtesy copy of those disclosures are attached hereto and incorporated Exhibit “D”. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that the Defendant be cited to appear and answer herein, and that upon a final hearing of the cause, judgment be entered for the Plaintiff against Defendant for: Damages as detailed above which are within the jurisdictional limits of the Court as detailed in Exhibit “ Pre judgment interest; Reasonahle attomeys’ fees and expenses for pre trial, trial, post judgment actions, foreclosure and appeal; Post judgment interest; Court costs; Foreclosure of the vendor’ s lien securing Defendant s obligations; Order of sale, and the proceeds of the sale to be applied in payment of the amount due Plaintiff; Execution against Defendant for any deficiency which may remain after applying all proceeds of the sale of the subject property applicable to the satisfaction of judgment; Order that Plaintiff may become the purchaser at said sale; Order that the person(s) designated by the Court to conduct a sale, execute deed or deed(s) to the purchaser(s) according to the law, and that the purchaseror purchasers be let into possession of the subject premises on production of a deed executed therefore, and that a writ(s) offpossession be issued as necessary; and Such other and further relief to which Plaintiff may be justly entitled. RESPECTFULLY SUBMITTED BY PORTER LAW FIRM Jee Chris Archambault SBN: 24082634. 2221 S. Voss Road, Houston, Texas 77057 0700(phone) 0709(fax) Filing@porterfirm.com ATTORNEYS FOR PLAINTIFF EXHIBIT RESTRICTIONS oe ae a oe 2005-125173 953-10-1064 £ DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR BRIAR GROVE, SECTION ONE A SUBDIVISION IN MONTGOMERY COUNTY, TEXAS THE STATE OF TEXAS X COUNTY OF MONTGOMERY x THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (this “Declaration”) is made on the date hereinafter set forth by GREENTREE-MONTGOMERY PROPERTIES, LTD., a Texas Limited Partnership called “Declarant”, said Limited Partnership having its ipal offices in Dallas, Dallas County, Texas. WHEREAS, Declarant is the owner of the following described land and premises in Montgomery County, Texas, to-wit: All that certain tact or parcel of land known as BRIAR GROVE, SECTION ONE, a subdivisionof 46.013 acres of land in the W. S. Allen Survey, Abstract A-2, Montgomery County, Texas (the “Subdivision”), the Subdivision being comprised of 118 Lots in 7 Blocks and 3 Restricted Reserves; a map or plat of the Subdivision being recorded in Cabinet “Z”, Sheets 103 — 106, File #2005123165, of the Map Records of Montgomery County, Texas, reference to which is hereby made for all purposes and a copy of which is attached hereto as Exhibit “A” and WHEREAS, it is the desire of Declarant to provide for the preservation of the values and amenities in the Subdivision and, to this end, to subject the Subdivision to the covenants, easements, charges and liens hereinafter set forth, each and all of which are for the benefit of the BRIAR. GROVE, SECTION ONE and such other properties as have heretofore or may hereafter be brought within the general scheme of development of BRIAR GROVE and the owners thereof; NOW THEREFORE, Declarant hereby declares that the land shown to be subdivided, according to the hereinabove mentioned plat and any additions thereto, is held, and shall hereafter be conveyed, subject to the covenants, reservations, conditions, stipulations, easements and restrictions as hereinafter set forth. ARTICLE I DEFINITIONS The following words, when used in this Declaration, shall have the following meanings (unless the context clearly indicates otherwise): A. “Declarant” shall mean and refer to GREENTREE-MONTGOMERY PROPERTIES, LTD., and its successors and assigns. No person or entity purchasing one or more lots in the ordinary course of business shall be considered as “Declarant”. B. ‘Properties” shall mean and refer to BRIAR GROVE, SECTION ONE, subject to the reservations and exceptions set forth herein and/or in the Subdivision Plat for BRIAR GROVE, SECTION DECLARATION OF |COVENANTS, CONDITIONS AND RESTRICTIONS BRIAR GROVE, SECTION ONE 953-10-1065 ONE, and any additional properties made subject to the terms hereof pursuant to the provisions set forth herein or in a separate document. Cc. “Street” shall mean and include any street, drive, boulevard, road, alley, lane, avenue, or any place shown on the Subdivision Plat as a thoroughfare. D. “Lot” and/or “Lots” shall mean and refer to any of the numbered lots shown upon the Subdivision Plat of BRIAR GROVE, SECTION ONE, all of which are restricted hereby to use for residential purposes, but shall not include any Reserves designated or depicted on the Subdivision Plat. E. “Owner” shall mean and refer to the owner(s), whether one or more persons or entities, of the fee simple title to any lot which is part of the Properties. In the case of an executory contract of sale or contract for deed covering any lot, the “Owner” shall be the purchaser named in the contract. “Owner” shall not mean or refer to any person or entity holding only a lien, easement, mineral interest or royalty interestin a Lot. F. “Subdivision Ptat” shall mean and refer to the map or plat of BRIAR GROVE, SECTION ONE, recorded in Cabinet “Z”, Sheets 103 — 106, File #2005123165 , of the Map Records of Montgomery County, Texas. G. “Association” shall mean and refer to the BRIAR GROVE PROPERTY OWNERS ASSOCIATION, INC., a Texas non-profit corporation, and to any non-profit corporation which succeeds to all or substantially ail of its assets by any merger, consolidation, or conveyance of assets, as provided for in ARTICLE XI hereof. After its formation, but subject to the provisions of this Declaration, shall have the power, duty and responsibility of maintaining and administering the Common Properties, and collecting the assessments and charges hereinafter prescribed, and have the right of administering and enforcing these Covenants and Restrictions. H. “ Architectural Control Committee” (the “Committee”) shall mean and refer to the Briar Grove Architectural Control Committee, as provided for in ARTICLE VI hereof. I “Member” shall mean and refer to each owner of a Lot. “Member” shall also include the owner of any portion of the Properties if such owner is expressly declared to be a member of the Association by the provisions of this Declaration or by a separate document. J “Community Properties” shall mean and refer to any properties, real or personal hereafter conveyed to or otherwise acquired by the Association. References hereinafter made to “Community Properties” shall mean such properties whenever acquired by the Association, including, but not limited to, fencing, irrigation, subdivision signage and landscaping. Declarant reserves the right to effect redesigns or reconfigurations of the Community Properties. K. “FHA” shall mean and refer to the Federal Housing Administration. L “VA” shall mean and refer to the Veterans Administration. M. “Corner Lot” shall mean and refer to a Lot which abuts on more than one Street. Any Lot, except a “Comer Lot", is deemed to front the Street upon which it abuts. A “Corner Lot” shall be deemed to front on the side of the Lot having the deepest building setback line, as depicted on the Subdivision Plat. “Reserve”or “Reserves” shall mean and refer to the area or areas designated on the Subvdvisina Plt os cosrves for procabelt park and detention, Declarant shall deed the reserve areas to the Association as Community Properties at such time as Declarant deems appropriate. 0. “Builder” shall mean and refer to the Owner of a Lot who owns the Lot for the sole purpose of building a residence for sale to third parties and is designated in writing as a Builder by DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS: BRIAR GROVE, SECTION ONE 953-10-1066 Declarant. If a Builder rents or leases a Lot to a third party, he shall cease to occupy the status of a Builder with respect to such Lot. ARTICLE 0 RESTRICTIONS Declarant declares, covenants and agrees that, for the purpose of creating and carrying out a uniform plan for development, improvement and sale of property in BRIAR GROVE, SECTION ONE, asa restricted subdivision, and for the purpose of preserving the value, amenities, desirability and attractiveness of the Subdivision, the Lots are held and shall be hereafter conveyed subject to the covenants, conditions, stipulations, easements and restrictions herein set forth; and same shall be considered a part of each contract, deed or conveyance affecting said Lots, or any portion of same, as though fully incorporated therein; and same shall constitute covenants with the land , and shall be binding upon and shall inure to the benefit of Declarant and its successors and assigns and all subsequent purchasers of said Lots or any portion of same. ARTICLE RESERVATIONS, EXCEPTIONS AND DEDICATIONS A. The Subdivision Plat dedicates for use as such, subject to the limitations set forth therein, the streets and easements shown thereon, and such Subdivision Plat further establishes certain restrictions applicable to the Subdivision, including, without limitation, certain minimum setback lines. All limitations, restrictions and reservations shown on the Subdivision Plat are incorporated herein, and shall be construed as being adopted in each and every contract, deed or conveyance executed or to be executed by or on behalf of Declarant, conveying said property depicted thereon or any part thereof, whether specifically referred to therein or not. B. All sales and conveyances of Lots by contract, deed or other conveyance shall be subject to the dedications made on the Subdivision Plat, including, but not limited to dedication of streets, easements and rights-of-way and to any easements over, under, along or across portions of each Lot. Said dedications are for the purpose of installing, using, repairing and maintaining public utilities, water & sewer lines, electric lighting and telephone lines, pipe lines, drainage ditches or structures, such work to be performed by any public or quasi-public utility service. Said service providers are hereby granted the right of access over and across each Lot to perform repairs and maintenance. Such easements are for the general benefit of the Subdivision and the owners of the Lots. C. Declarant reserves the right to make changes in and additions to the above easements for the purpose of most efficiently and economically installing the improvements, but such changes and additions must be for the general benefit of the Properties and the property owners thereof and must be reserved and created in favor of any and all utility companies into and upon said Lots for the purposes hereinabove set forth. D. Neither Declarant nor any utility company using the easements referred to herein shall be liable for any damages done by them, or their assigns, agents, employees or servants to fences, shrubbery, trees, flowers, structures or buildings or other property situated on the land covered by such easements as a result of construction, maintenance or repair work conducted by Declarant, the utility company or their assigns, agents, employees or servants. E. It is expressly agreed and understood that the title conveyed by Declarant to any Lot or other parcel of land within the Properties by contract, deed or other conveyance shall convey no interest in any pipes, lines, poles or conduits, or in any utility facility or appurtenances thereto constructed by or under Declarant, any utility company or any easement owner, or their agents, through, along or upon the premises affected thereby, or any part thereof, to serve said land or other portion of the Properties, or the rightto DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS BRIAR GROVE, SECTION ONE _ a 953-10-1067 maintain, repair, sell or lease such appurtenances to any municipality or other governmental agency or to any public service corporation or to any other party, and such right is hereby expressly reserved. F. Declarant shall have the right (but shall never be obligated) to subdivide or re-subdivide into Lots, by recorded plat or in any other lawful manner, all or any part of the property in BRIAR GROVE, SECTION ONE. G. BRIAR GROVE, SECTION ONE is part of a larger tract or block of land owned by Declarant. While Declarant may subdivide other portions of its property, or may subject the same to a declaration, Declarant shall have no obligation to do so, and if Declarant elects to do so, any subdivision plat or declaration executed by Declarant with respect to any of its property may be the same or similar or dissimilar to the Subdivision Plat covering BRIAR GROVE, SECTION ONE, or any part thereof or to this Declaration. ARTICLE IV USE OF LAND All Lots shall be used for single family residential purposes only (hesciontier ounce Adie ts “Rosidontal Lets") an co teciaene sxobesional, Coremerial ey manufacturing use shall be made of any of said Lots, even though such business, professional, commercial or manufacturing use be subordinate to use of the premises as a residence. No structure other than one single family residence and its outbuildings shall be constructed, placed on, or permitted to remain on any Lot in the Subdivision. As used herein, the term “residential purposes” shall be construed to prohibit the use of said Lots for duplex houses, garage apartments for rental purposes or apartment houses. B. Signs. No signs, billboards, posters or advertising devices of any kind shall be erected, permitted or maintained on any Lot or other tract within the Subdivision without the express prior written consent of the Architectural Control] Committee except (a) one sign of not more than five (5) square feet advertising the particular Lot or tract on which the sign is situated for sale or rent, and (b) one sign of not more than five (5) square feet to identify the particular Lot or tract as may be required by FHA or VA the period of actual construction of a single family residential structure thereon. The right is reserved by Declarant to construct and maintain or to allow Builders within the Subdivision to construct and maintain, or to assign such rights to such entities and successors or assigns of such entities as it deems fit to construct and maintain such signs, billboards and advertising devices as is customary in connection with the general sale of property in the Subdivision. c. No animals, livestock or poultry of any kind shall be raised, bred or kept on any Lot except that dogs, cats or other household pets may be kept, provided that they are kept in an enclosed area, and not kept, bred or maintained for commercial purposes. D. No noxious or offensive trade or activity shall be carried on upon any Lot or other tract within the Subdivision nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood. E. No spirituous, vinous, malt or medicated bitters capable of producing intoxication shall ever be sold or offered for sale on any Lot or any part thereof, nor shall said premises or any part thereof be used for illegal or immoral purposes. F. No Owner of any Lot in BRIAR GROVE, SECTION ONE, nor any visitor or guest of any Owner shall be permitted to perform work on automobiles or other vehicles in driveways or streets abutting such Lots other than work of a temporary nature on the Owner's, visitor’s or guest’s vehicle. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS BRIAR GROVE, SECTIONONE 953-10-1068 G. Except in an emergency or when other unusual circumstances exist, as determined by the Board of Directors of the Association, outside construction work or noisy interior construction work shall be permitted only after 7:00 A.M. and before 9:00 P.M. H. Mailboxes, house numbers and similar matter used in BRIAR GROVE, SECTION ONE, must be harmonious with the overall character and aesthetics of the community and the decision of the Architectural Control Committee that any such matter is not so harmonious is final. 1 ‘Waste. No trash, rubbish, garbage, manure, debris, or offensive material of any kind shall be kept or allowed to remain on any Lot, nor shall any Lot be used or maintained as a dumping ground for such materials. In a manner consistent with good housekeeping, the Owner of each Lot shall remove such prohibited matter from his Lot at regular intervals at his expense; and prior to such removal, all such prohibited matter shall be placed in sanitary refuse containers constructed of metal, plasticor masonry materials with tight-fitting sanitary covers or lids and placed in an area adequately screened by planting or fencing so as not to be seen from neighboring Lots or the Street. Equipment used for the temporary storage and/or disposal of such material prior to removal shall be kept in a clean and sanitary condition and shall comply with all current laws and regulations and those which may be promulgated in the future by any federal, state, county, municipal or other governmental body with regard to environmental qualityand waste disposal. No Lot shall be used for the open storage of any materials whatsoever which storage is Satie he Streeh, cxsopt dat new building mangerals used in the construction of improvements erected upon any Lot may be placed upon such Lot at the time construction is commenced, and then such materials shall be placed within the property lines of the Lot or parcel of land upon which the improvements are to be erected with the exception that during construction of the original improvements some building materials may be placed or stored between the pavement and the property line. Such materials may be maintained thereon for a reasonable time, so Jong as the construction progresses without undue delay, after which time these materials shall either be removed from the Lot or stored in a suitable enclosure on the Lot. Under no circumstances shall building materials be placed or stored on the street paving. K. Unless otherwise approved in writing by and in the sole and absolute discretion of the Architectural Control Committee, a Lot which fronts upon a Collector Street shall have direct driveway access from such Collector Street. As used herein, the term “Collector Street” shall mean and refer to any street which is not a Cul-de-sac. Unless otherwise approved in writing by and in the sole and absolute discretion of the Architectural Control Committee, a garage on a Lot which fronts on a Cul-de-sac shall have direct driveway access only from the abutting Cul-de-sac Street. The Owner of each Lot shall construct and maintain at his expense the driveway from his garage to the abutting Cul-de-sac or Collector Street, whichever is permitted, including the portion in the street easement, and he shall repair at his expense any damage to the street occasioned by connecting his driveway thereto. No Owner of a Lot shall have the right, by virtue of such ownership, to make any improvement to any Street. L Landscaping. The Owner of each Lot upon which is located a residence, as a minimum, shall spot sod or sprig with grass the area between the front of his residence and the curb line of the abutting Street. ARTICLE V ARCHITECTURAL RESTRICTIONS A. Only one single family residence, which shall be a dwelling of one story, one and one-half story, or two story construction, shall be built or permitted on each Lot. All Lots shall have an enclosed garage, either attached or detached, for not less than one car nor more than three cars. Carportson Lots are prohibited. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS BRIAR GROVE, SECTION ONE 953-10-1069 \ B. Te No mobile homes, manufactured homes or prefabricated homes built off the premises shall be permitted on any Lot. No structu of a temporary renature, whether trailer, basement, tent,, shack, garage, barn, or any other accessory structure or outbuilding erected in the Subdivision shall at any time be used as a residence, temporarily or permanently, nor shall any residence or other building of any kind or character be moved onto any Lot, it being the intention that only new construction be placed and erected thereon. Cc. Prohibited Items. No water well, septic tank, disposal plant, outside toilet or cesspool shall be built on any Lot or maintained thereon. Provided, however, that Declarant, its successors and assigns, reserves the exclusive right to erect, place and maintain such facilities upon any portions of the Subdivision, or to grant Builders the right of erection, placement and maintenance of such facilities upon Portion of the Subdivision as Declarant, its successors and assigns, in its sole discretion, may deem necessary or convenient while selling Lots, selling or constructing residences and/or constructing other improvements in the Subdivision. Such facilities may include, but shall not necessarily be limited to, sales and construction offices, storage areas, model units and portable toilet facilities. D. Unless otherwise approved in writing by the Architectural Control Committee or unless otherwise stipulated herein, all improvements shall be constructed on the Lot so as to face the Street upon which such Lot fronts. E. 1 Dwellings on Corner Lots shall have a presentable frontage on all Streets on which that particular Corner Lot fronts. F. Dwelling Size, The ground floor area of any one-story, single family dwelling, exclusive of open porches and garages, shall contain not less than 958 square feet. The ground floor area of any one and one-half story or two story, single family dwelling, exclusive of open porches and garages, shall contain not less than 500 square feet, and the total living area of any one and one-half or two story, single family dwelling, exclusive of porches and garages, shall contain not less than 1100 square feet. G. The building lines of any residence to be erected in BRIAR GROVE, SECTION ONE are as follows, provided that, for the purposes of these Restrictions, the front of each Lot shall coincide with and be the property line having the smallest or shortest dimension abutting a Street. Unless otherwise approved by the Architectural Control Committee, each main residence building will face the front of the Lot, and each attached or detached garage will either face upon the front lot line or face upon a line drawn perpendicular to the front lot line, and shall not be located nearer to the front lot line than the minimum building setback lines shown on the Subdivision Plat or provided for herein. Driveway access will be provided from the front lot line only, except that said access may be provided to Corner Lots from a side street. No building shall be located on any Lot nearer to the front lot line or nearer to the side street line than the minimum setback lines shown on the Subdivision Plat. No building shall be located on any Lot nearer minimum setback lines or easement on any lot line. No building shall be located nearer than five (5) feet to an interior lot line. No accessory building shall be erected on any Lot nearer than any applicable building setback line or easement on any property line of said Lot. No fence,wall, structure, hedge, or shrub planting which ohetrace sight lie Mat te eet canted in romuin’on say Cecner tet thie the wenger wen formed by the street property lines and a line connecting them at points twenty-five feet from the intersectionof the street property lines extended. No radio or television wires or antennae shall be maintained on any portion of ure tae Tern seret adjoining some and the font of the house steatod on such Lot; nor shall any antennae of any style, including free-standing antennae, be permitted which extend more than fifteen (15) feet above the height of the roof of the residence on said Lot. Unless otherwise approved by the Architectural Control Commi, sta en bead of all cagle Sealy dwcliage balk ix BRIAR GROVE, SECTION ONE, excluding gables, windows and door openings, must be of masonry or brick veneer. No DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS BRIAR GROVE, SECTION ONE 6. g53-10-1070 garage or permitted accessory building shall exceed in height the dwelling to which they are appurtenant without the written consent of the Architectural Control Committee. Every garage and permitted accessory building, except a greenhouse, shall correspond in style and architecture to the dwelling to which it is appurtenant. K. No building of any kind or character which incorporates frame construction on the exterior shall be erected on any Lot unless the exterior consists of Hardiplank or an equivalent product or unless approved in writing by the Architectural Control Board. L. Grass and weeds shall be kept mowed to prevent unsightly appearance. Dead or damaged trees, which might create a hazard to property or persons on any Lot or adjacent Lot shall be promptly removed or repaired and if not removed by Owner upon request, the Declarant or Association may remove or cause to be removed such trees at the Owner’s expense and shall not be liable for damage done in such removal. M. No Lot or other tract shal] be used as dumping grounds for rubbish, trash, rubble or extra soil, except that Declarant may designate fill areas into which materials specified by Declarant may be placed. The Association may but is not obligated to cause to be planted or installed, and thereafter maintained, or other screening devices around boxes, transformers and other above-ground utility equipment which, in the discretion of the Board of Directors of the Association, shall be screened from view to preserve the beauty of the Subdivision. There is hereby reserved in favor of the Association the right to enter upon the Lots to plant, install, maintain and replace such shrubbery or other screening devises. Provided further, if a Lot is visible to full public view the Owner shall construct and maintain a fenced area or other suitable enclosure to screen from public view the drying of clothes, yard equipment and wood piles or storage piles which are incident to the normal residential requirements of a typical family. O. Street Lights. Declarant has arranged for an electric utility company (the ae Company”) to install street lighting in the Subdivision and an electric or other utility proving resent svc in he Subvien sd or ach pss eg he UY Compay certain easements in the Subdivision, and may from time to time grant additional easements over those portions of the Subdivision it then owns. All facilities installed by the Utility Company shall in all events remain the sole property of the Utility Company. In connection with such utility services, the following restrictions and covenants are imposed and shall be binding and enforceable as to each and all Lots in the Subdivision as required by the Utility Company. 1 The Utility Company shall have an easement along, over and across each Lot for the purpose of installing, constructing, maintaining, repairing, inspecting, replacing, removing and operating its electric service facilities for residential service to such Lot, the location of which shall be where such facilities are originally placed by the Utility Company in its discretion. The Utility Company shall be granted reasonable access for the purpose of enjoying such easements rights, and all facilities installed by the Utility Company shall remain its sole property. The Utility Company shall have the right, but no obligation to keep such easements clear of trees, bush and other growths, or any hazards to its facilities, including the right to trim, cut or remove same without liability therefore. The facilities of the Utility Company shall not be disturbed or damaged and the area over or under the Utility Company’s facilities shall be kept free of excavations, structures, trees and other obstructions. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS BRIAR GROVE, SECTION ONE - -- 953-10-1071 P. Easements for the electrical service or other utilities may be crossed by driveways and walkways provided that the Builder or Owner makes prior arrangements with the utility company furnishing electric or other utility service and complies with such conditions and requirements as may be imposed by the utility companies. Such easements for utility services shall be kept clear of all other improvements, including buildings, patio or other pavings, and neither Builder nor any utility company using the easements shall be liable for any damage done by either of them or their assigns, their agents, employees, or servants, to shrubbery, trees, flowers, or other improvements of the Owner and located on the land covered by said easements. Q No oil drilling, oil development operations, oil refining, quarrying, or mining operations of any kind shall be permitted upon or in any Lot or other tract within the Subdivision, or DAI od wel, Mae, tte sacral enmevathons or hae Le peed nas ay Lea emt such tract. No derrick or other structure designed for use in boring for oil or natural gas shall be erected, maintained or permitted upon any Lot or other tract in the Subdivision. R Pursuant to applicable Federal Law, curbs with accompanying sidewalks shall have curb ramps (depressions in the sidewalk and curb) at all crosswalks to provide safe and convenient movement of physically handicapped persons confined to wheelchairs. Such curb ramps will be provided by Builder at the time of construction of all sidewalks. Curb ramps at crosswalks shall not be required for curbs without an accompanying sidewalk; however, the subsequent addition of a sidewalk will require the addition of the curb ramps as well. All curb ramps shall be constructed in accordance with specifications provided by the Engineering Departments of Montgomery County, Texas and/or the City of Conroe, as applicable. Ss. Default in Observing Requirements. In the event of default on the part of the Owner or occupant of any Lot in observing the requirements herein set forth, or any of them, and the continuance of such default after ten (10) days written notice thereof, Declarant or its assigns or the Association shall, without liability to the Owner or occupant in trespass, or otherwise, have the right to enter upon said Lot or cause to be cut such weeds and grass and remove or cause to be removed such garbage, trash and rubbish or do any other thing necessary to secure compliance with these restrictions so as to place said Lot in a neat, attractive, healthful and sanitary condition and may render a statement of charge to the Owner or occupant of such Lot for the cost of such work. The Owner or occupant, as the case may be, agrees by the purchase or occupation of the property to pay such statement immediately upon receipt thereof. T. The roof on each dwelling, garage and other permitted buildings on any Lot shall be either () composition type shingles of such color and weight per square as shall be approved by the Architectural Control Committee, or (ii) metal roofing of such type and color as approved by the Architectural Control Committee. Wood shingles shall not be permitted. U. Fence Location. No fence or wall shall be erected, placed or altered on any Lot nearer to the street than the minimum building setback lines as shown on the Subdivision Plat. The erection of chain link fences facing upon a Street on any Lot is expressly prohibited. ARTICLE VI ARCHITECTURAL CONTROL COMMITTEE A. The Declarant or the Declarant’s designate(s) shall serve as the initial Architectural Control Committee for BRIAR GROVE, SECTION ONE. The initial member(s) of the Architectural Control Committee need not be Owners of Lots or Members of the Association. The initial Architectural Contro! Committee shall serve for a period of ten (10) years from the date of this Declaration or for such shorter period as the Declarant shall determine. The initial Architectural Control Committee shall act independently of the Association. During the initial ten (10) year term, Declarant may add, remove and/or replace Committee members in Declarant’s discretion. At the end of the such ten (10) year period or any DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS BRIAR GROVE, SECTION ONE ee 953-10-1072 sooner time if Declarant so chooses, architectural control for BRIAR GROVE, SECTION ONE shall become vested in the Association and the members of the Architectural Control Committee shall be elected or appointed by the Association in accordance with its Bylaws. From and after such time the Committee shall consist of three (3) members. No person serving on the Committee shall be entitled to compensation for services performed. However, the Committee may employ one or more architects, engineers, attorneys or other consultants to assist the Committee in carrying out its duties hereunder; and the Association shall pay such consultants for such services as they render to the Committee. The Committee shall not be liable for damages to anyone submitting plans to it for approval or to any Owner or occupant of the Property by reason of error or mistake in judgment, negligence, or non-feasance arising out of or in connection with the approval or disapproval or failure to approve any such plans. No approval by the Committee shall constitute or be deemed to constitute any representation or warranty of the adequacy or fitness of any improvements approved by the Committee nor shall the Committee have any liability regarding such adequacy or fitness. B. No building or other improvements, including streets, driveways, sidewalks, drainage facilities, landscaping, fences, walks, fountains, statuary, outdoor or signs shall be commenced, constructed, erected, placed or maintained in BRIAR GROVE, SECTION ONE, nor shall any exterior addition or alteration therein be made, unless and until (1) a preliminary site plan showing all uses and dimensions, the location of buildings, entries, streets, driveways, parking areas, pedestrian ways and storage areas, and a schematic plan for the landscaping and lighting of the property, have been submittedto and approved in writing by the Architectural Control Committee, and thereafter (2) the final working plans and specifications for the work shown on the preliminary site plan and schematic plan have been submitted to and approved in writing by the Architectural Control Committee as to compliance with this Declaration and as to harmony of extemal design and location in relation to property lines, building lines, easements, grades and finished ground elevation, surrounding structures, walks, paths and topography. The final working plans and specifications shall not be commenced until the preliminary site plan and schematic plan have been so approved. The final working plans and specifications shall specify, in such form as the Architectural Control Committee may reasonably require, structural, mechanical, electrical and plumbing details and the nature, kind, shape, height, exterior color scheme, materials and location of the proposed improvements or alterations thereto. The Architectural Control Committee may require the submission of such plans, specifications and plot plans, together with such other documents as it deems appropriate, in such form and detail as it may elect in its discretion. In the event the Architectural Control Committee fails to approve or disapprove the preliminary site plan and schematic plan within thirty (30) days after they have been submitted to it, approval thereof will not be required and the provisions of this Paragraph “B” will be deemed to have been fully complies with. Without limitation of the powers herein granted, the Architectural Control Committee shall have the right to specify an outline of minimum acceptable construction standards, including but not limited to acceptable exterior materials and/or finishes which may be used in the construction, alteration or repair of any improvement; provided however, that such outline will serve as a minimum guideline and such Architectural Control Committee shall not be bound thereby. Where not otherwise specified herein, the Architectural Control Committee also shall have the right to specify requirements for each building site as follows: minimum setbacks; the location, height and extent of fences, walls or other screening devises; and the orientation of structures with respect to streets, walks, paths and structures on adjacent property. The Architectural Control] Committee shall have full power and authority to reject any plans and specifications that do not comply with the restrictions herein imposed or meet its minimum construction or architectural design requi