Responsibilities and Property of CCoBNA

June 27, 2004

The following are questions and answers pertaining to the rights, privileges and property of Cherry Creek on Brodie Neighborhood Association.

Introduction


What is the official status of CCoBNA as an organization?

We are the neighborhood association created by property owners in 1995 before our subdivision was even built out. Milburn Homes (now known as D.R. Horton Homes), which built Cherry Creek on Brodie, has acknowledged that we are its official association in several ways, the most important of which are: 1) Milburn assigned its declarant rights, or legal control, over all CCoB deed restrictions to the association in 1997 and 2) Milburn granted us (along with the former Southland Oaks Municipal Utility District) a landscape easement on land fronting our entrance in 1999. We are not just an ad-hoc group of concerned neighbors who got together long after their neighborhood had fallen into decline, as many associations are, especially in older neighborhoods. We are a non-profit organization under the laws of the State of Texas, and our mission is to prevent the decline of our homes, entrance, parks and property values.

What about by-laws?

We operate under a set of by-laws written by our founding property owners and subsequently approved by Milburn Homes, and we are in the process of getting those online.

Responsibilities


My deed restrictions don't mention CCoBNA at all. Do you have any authority pertaining to the DRs?

Yes. On Sept. 26, 1997, Milburn Investments Inc. signed over its declarant rights over the deed restrictions to the Association. This assignment is recorded in Volume 13031, Pages 196-197, of the Travis County Real Property Records.

The assignment of declarant rights covers all four sections under which CCoB was built (10-A, 11, 12, and 13). Here are excerpts of this assignment:

"Whereas Cherry Creek on Brodie Neighborhood Association ... desires to assume the rights and obligations of Declarant under the Declarations ... so that the Assignee may, among other things, enforce the covenants, conditions and restrictions contained in the Declarations ... Declarant hereby assigns, sets over and transfers unto Assignee all of its obligations, rights, titles and interests which Declarant has or may hereafter have under the Declarations."

So what does that all mean?

Well, while the deed restrictions give any property owner the right to take legal action against violators of the DRs in court, the DRs give specific additional rights to the declarant -- in other words, the Association. The Association, for example, in the role of Architectural Control Committee, has the sole and final right to review and then approve or reject all property improvements. Owners, under the DRs, must submit all plans to the ACC for approval. This can be done by contacting the board by mail. The ACC also has the right, at the owner's expense, to enforce exterior maintenance where the owner fails to do so -- for example, to fix a publicly visible privacy fence that is in very poor condition and that the owner has steadfastly refused to repair.

Let's be clear: The Association has seldom resorted to this level of enforcement, because almost all of our homeowners do the right thing. But as our neighborhood ages, the potential for the need for Association action could grow to the point where the Association, acting on behalf of all property owners, will need to take formal action to maintain our community standards. For now, we trust that writing letters to owners when severe violations come to our attention is sufficient.

The Assocation, as declarant, also can take action to make minor corrections to the DRs. We also want to move toward a unified set of DRs as opposed to the four separate and not-quite-identical sets we have now. The sets do not differ in any important ways, but having one set would make managing the Association a lot easier.

I am not a member of the Association. Do these rules apply to me?

Yes. Your deed restrictions are legally binding upon you as a property owner regardless of whether you are a member of the Association, and the Association can exercise its rights under the DRs regardless of the membership status of the owner. If you are a renter, you should follow the DRs as well, because your landlord is legally obligated to do so.

Where are my DRs?

You should have received them at closing. If not, you can get them in the Real Property Records office of Travis County. Or contact your title company. They are binding on owners whether or not the owners received them or read them at closing.

Why are we not a mandatory homeowners association?

Because our founding property owners created us as a voluntary neighborhood association, albeit with the goal of converting to HOA status as quickly as possible. We were one of the last Milburn projects not to have a mandatory HOA, which has become the norm. There have been several abortive efforts for us to convert to mandatory status over the years, even with the support of Milburn Homes. We may try again if we have neighborhood support. The main benefit would be a predictable revenue stream for maintaining our entrance and dealing with developers. As declarant over the DRs, the Association can take the lead on educating our owners on these matters and moving toward the required owner votes to make the change. The Association cannot just amend the DRs to create a mandatory HOA.

Property


What bank accounts, mail boxes and so forth does the Association maintain?

The Association depends upon voluntary dues of $25 per lot for its annual revenue. We have an account at University Federal Credit Union in Shady Hollow Shopping Center on Brodie Lane where we deposit all Association funds. We also rent a safe deposit box there for official Association documents. In addition, we rent a mailbox at PostNet on Brodie Lane in SHSC.

What property does the Association own?

The 8.44 acres at the end of Kangaroo Lane

The Association has entered into an agreement with Endeavor Group to receive title to a parcel of land known informally as "the 8.44 acres" at the end of Kangaroo Lane. This parcel of about 35 single-family lots was part of the tract Endeavor developed as Shady Hollow Shopping Center (Randall's). In exchange for the Association's support for certain zoning changes Endeavor wanted along Brodie, Endeavor agreed to deed over the 8.44 acres to the Association and work to vacate the Kangaroo Lane extension right of way through the property. We plan to dedicate the property as permanent undisturbed buffer or, potentially, develop it for neighborhood recreational use. Although the Association will be liable for property taxes on the parcel, the taxes will be at a nominal rate. Although Endeavor has just recently received the zoning changes it wanted and is ready to sign over the lot, we are going to make sure we can afford the taxes before taking title.  

Entrance landscaping easements

The Association also owns landscape easement rights along both sides of Silk Oak Drive entering the subdivision, and a short portion of the east side of Brodie Lane just north and south of the entrance. We consider these easements to be one of our key assets because they give us control over curb cuts, driveways and landscaping along Silk Oak and Brodie to protect the beauty and safety of our only subdivision entrance.

The easements extend into the property for five feet from the inside edge of the sidewalk on Silk Oak, beginning at the rear property lines of lots on Silk Oak Cove (north side) and Tea Rose Trail (south side). The depth of the easement widens out at an angle to encompass the Cherry Creek monument signs, lighting, trees and landscaping on the corners, to a depth of about 27.5 feet measuring from the inside edge of the Brodie sidewalks on the north and south. The easements along Brodie extend at this depth parallel to the street for about 130 feet on the south side (Stepping Stone School) and about 140 feet on the north lot.

Continental Homes (formerly Milburn Homes, now DR Horton Homes) granted these easements jointly to the Southland Oaks MUD and CCoBNA on Sept. 26, 1997. When the city of Austin annexed us and the MUD went away, the city inherited the MUD's share of the easement, but seems to care little for it -- indeed, the city seems rather confused as to what to do with an easement granted originally for the benefit of our neighborhood. The Association likely will approach the city about abandoning its share so we have sole rights to the easements.

The easements are "for the installation, maintenance, replacement, upgrade and repair of landscape improvements in, upon and across" the land as described in Volume 13031, Pages 198-208 of the Travis County Real Property Records.

The Association (and, for now, the city) jointly have "the privilege at any and all times to enter and have access to the Property, or any part thereof, for the purpose of installing, maintaining, replacing, upgrading and repairing said landscape improvements." The city has never showed any interest in doing any of these things.

The Association began contesting Stepping Stone School's actual and proposed violation of our easement in 2003 during the school's construction when some of our grass was torn up, and continuing into 2004 as the school planned to cut a driveway through part of the easement and opening onto Silk Oak Drive just east of the narrow median. The school had clearly understood we had the easement prior to construction and had assured us they wanted to be good neighbors and would not seek a driveway cut onto Silk Oak, although they originally had planned to and, in fact, the original address of the school was on Silk Oak.

The Association and many neighbors vigorously opposed this plan and fought the school's efforts to obtain a permit. The city's position was that the easement was a private matter that did not affect the technical requirements for whether a permit should be granted. As of this writing, however, the school, thanks to the efforts of the Association, does not have its permit. We have also reopened dialog with the school after severely strained relations to try to work with the city and other business developers along Brodie to find a better solution. We believe, for example, that once the Brodie 31 development goes in directly across Brodie from Silk Oak, that intersection improvements will mitigate the school's parking problems. We believe the school knew about the potential parking problems from the beginning, the city allowed the school to be built with inadequate parking, and that the parking situation on Silk Oak is as bad as it is simply because the school's clients choose to park in dangerous places and conduct dangerous maneuvers to get in and out of the school by using Silk Oak Drive as a turnaround.

Landscape improvements

The Association owns the Cherry Creek monuments and landscaping within our easements as discussed above, along with the lights and irrigation systems there. Stepping Stone School, without the Association's permission, capped off our irrigation systems during construction; however, we benefit from their excellent maintenance of the landscaping and grass they installed. We also own the light green sign welcoming visitors to CCoBNA, and the entrance marquee on which we post official notices.

Restrictive covenants

We have entered into restrictive covenants with various adjacent developers to protect our neighborhood now and in the future. These include a permanent green buffer between us and Harmon Ranch to the south, and restrictions on the operation of the Goodwill Store on Brodie Lane. We are discussing more RCs with developers of Brodie 31 and Harris Ranch.

Who mows the grass, and pays for the water and lights at the entrance?

The city parks department pays those bills as part of its obligations upon inheriting the Southland Oaks MUD, which created our landscaping, signs and parks. However, given the city's perpetual budget "crises," we foresee the day when we will have to take on more and more of the maintenance and possibly the utilities at the entrance. Doing so may be in our long-term best interests because we want our entrance to be beautifully maintained.

Who owns the parks?

We have two parks: Cherry Creek Park near the entrance and Silk Oak Park between us and Tanglewood Oaks. We refer to these sometimes as the "west park" and "east park." They are public parks maintained by the city, although Cherry Creek Park is on land owned by DR Horton.

Who owns the north entrance lot?

DR Horton owns it. It's an odd lot that will be difficult to develop because it falls under the SOS Ordinance, it has pipelines running through it, and, even though it is zoned Light Office, its deed restrictions are the same as those on our residential lots. We are hopeful that DR Horton will either deed this lot over to us as permanent green space, or restrict it as such through an RC. Stay tuned.