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Cowling v. Colligan

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Cowling v. Colligan, 312 S.W.2d 943 (Tex. 1958), was a real property case involving the enforceability of restrictive covenants when there has been a change in land use.

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Summary of Case Facts

This was a class action suit by a large number of lot owners in a residential neighborhood who sought to enjoin one lot owner (Colligan) from using the property for commercial purposes. Colligan’s lot, purchased with a previously recorded restrictive covenant, did not permit any use other than residential. Colligan’s lot was on the border of the residential neighborhood, and it sat alongside a road. Colligan’s argument was that when the restrictions were recorded, the road alongside the neighborhood was a quiet, country road, but growth had occurred and the road was now a major thoroughfare, and as the use and character of the surrounding area had changed the restrictions should no longer be enforceable. Colligan’s property would be worth three to four times more than it was currently worth if the property was unrestricted.


Has there been a change in the conditions and use of the land in the area to make the restriction unjust and unenforceable?

Holding and Law

No. The court stated that while restrictions requiring residential use can be removed by a court, they can only do so when there has been such a substantial change in conditions in the surrounding area that it would be impossible to secure the benefits the restriction sought to preserve. The court also stated that a court may refuse enforcement of a restrictive covenant when a substantial number of other lot owners have tolerated substantial violations of the restrictions, thus amounting to waiver or abandonment of those restrictions. In this case, the court determined that neighboring lot owners had not waived or abandoned the restriction allowing only residential use, and that any change in use in the surrounding area was insignificant, as it addressed only the desires of the one lot owner, and did not consider the harm that might occur to the neighboring residential lot owners.

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