I have gone through the original Deed Restrictions and other governing documents recorded at the Polk County Clerk and found three statements within them for making legal and valid modifications to the Deed Restrictions. For the purpose of emphasis, I am going to underline the important portions of each, although these were NOT underlined in the original document. The first would make annual dues/fee modifications possible:
1. “Such annual charge may be adjusted from year to year by said Committee as the needs of the property may, in its judgment, require, but in no event shall such charge be raised, unless raised by a majority vote of the lot owners.”
The second would have the effect of changing them or revoking all deed restrictions entirely:
2. ““BE IT KNOWN THAT: These covenants are to run with the land, and shall be binding on all parties and all persons claiming under them for a period of twenty (20) years from the date these covenants are recorded with the County Clerk of Polk County, Texas, after which time said covenants shall be extended automatically for successive periods of ten (10) years, unless an Instrument signed by the majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part, or to revoke them.”
The third would be brought about by a judicial decision and/or Local, State or Federal law changes:
2. “”If any one or more of the foregoing restrictions or provisions shall become or be held to be invalid, by reason of waiver, judicial decision or otherwise, the other restrictions and provisions set forth above shall not be affected thereby but shall remain in full force and effect.”
NOTE: Remember that when a Developer is still in the ‘build out’ stage of a new subdivision, they will most likely have the majority of lot votes. This was true when HLECC was in it’s development period. State law has changed, since then, so that developers have a time limit to use their majority vote.
And, the 4th would be a Texas state law that was changed in 2015 effecting the way that deed restriction can be changed. The complete wording of that law can be found –> Here. The effect of the limitations set forth in 211.002, allows the Board to use Texas 211 statute voting rules to modify our deed restrictions using the dictates stated within 211.004. Please read this law thoroughly to understand it.
So, if you review the statements above, other than law changes or waivers, the ONLY way to change the Deed Restrictions is through a majority vote of lot owners. I have a spreadsheet of lot owners in HLE that may actually not count everyone. Although there are well over 900 lots in the subdivision, I have a total of 745 total lot owners in the spreadsheet 30 of whom are in Sections 6 and 41 in Section 7 . Many people own multiple lots and some people have waived their right to vote some or all of their lots. Remember, majority vote means over 50% of total lot owners. If a vote where taken today, you would need 373 lot owners voting for the change. Based on the election numbers I have over the last 7 years, I would say that installing a legally valid Deed Restriction change would be pretty near impossible.
On August 9, 1963, A vote was taken at an open meeting to change some of the original Deed Restrictions. Document volume #200, page #066 was recorded at the County Clerk’s office for those changes – usage of a park area; limit to 3HP on Holiday Lake and Devil Lake & not putting a limit on the HP for Gerlach Lake; and setting the yearly dues to $14 per lot. I wholeheartedly believe that since this was in the early stages of lot sales, most likely the majority voted needed was valid, although I have found not count of votes, so I have included this amendment in the Deed Restrictions I have on this website.
The amendments that created additional deed restrictions for Section 6 and 7 would be valid because these were brand new Sections that were under total Developer control. That means that volume #269 page #817 and volume #406 page #604 can be declared valid.
It is everything after these that gets very murky. In 1982 volume #433 Page #502 was a meeting vote taken to limit the HP on Gerlach Lake to 85 HP and on Londa Lynn to 5HP. Back then, our Deed Restrictions, and state law, said that only a MAJORITY vote of lot owners could make amendments to our Deed Restrictions. When votes were counted, the most votes cast in total were 153 for either issue. So, the question would be were there more than 153 lot owners in 1982. From the records at Polk County, there were a lot more than that. Remember, to change the restrictions it required a majority of ALL lot owners, not a majority of those lot owners who voted.
In 1985, volume #523 page #636 noted a meeting vote to change annual fee per lot, instead of per lot owner. This one really baffled me since amendment volume #200 page #066 already amended the dues to a per lot charge.
The last one I will bring up is an amendment, volume #1260 page #046, that was supposed to change deed restriction title, corporation name, and annual assessment voting dictates. The good news on this one is that shortly after it was made, it was rescinded by volume #1264 page #623.
If anyone disagrees with anything I state here, please contact me. If you believe that the amendments that I did not consider valid, were valid, I will be happy to give you a copy of them and have you find out how many lot owners existed at the time of the votes and/or acquire legal counsel to do that. I went to Polk County Title in mid October and asked them to give me a copy of what they would be giving a new property owner if they were closing on a property in HLE on that day. They gave me exactly the same Polk County recorded documents that I have mentioned as being valid here. They have attorneys to check these things out, so I am feeling pretty confident in my opinion here and in the Deed Preamble –> Click Here.