Does the 2021 enactment of Property Code section 202.023 preclude a property owners’ association from enforcing a restrictive covenant which prohibits the construction of fencing or other structures in a recreational easement that burdens a portion of each lot within the property owners’ association? Tex. Prop. Code Ann. § 202.023 (“Security Measures”). In a matter of first impression for this court, we conclude that although the reservation of the recreational easement remains valid, the property owners’ association is prohibited by statute from enforcing a restrictive covenant which prevents a property owner from building or installing security measures, such as a perimeter fence, in the recreational easement at issue. The trial court denied the application of appellants Benjamin J. Corbin and Cindy Nicole Kroth (the homeowners) for a writ of temporary injunction seeking to bar appellee The Commons of Lake Houston Property Owners Association, Inc. (the Association) from approving fencing requests that encroach on a recreational easement reserved by the Association on each tract of land within the Association. In this interlocutory appeal, the homeowners raise two issues arguing the trial court erred in (1) denying their application for temporary injunction and (2) interpreting and applying Property Code section 202.023. Tex. Prop. Code Ann. § 202.023. We affirm the trial court’s order. Background The homeowners own real property in Harris County, subject to a mandatory property owners’ association known as The Commons of Lake Houston, Inc.[1], [2]The Association is governed by a Declaration of Covenants, Conditions and Restrictions (the Declaration) that creates and reserves an easement “for any purposes of the association including, but not limited to, greenbelt, hiking, biking, horse trails, Common [Area]s, drainage and service of utilities.” Each lot or tract is burdened by this recreational easement on the back 20 feet of the lot. The Declaration also contains a provision that prohibits any “structure, planting, or other material” from being placed in the recreational easement or interfering with “passage along such common or private road Easements or which would interfere with maintenance thereof.” The Declaration further provides the Association is charged with maintaining the common-area easements including the recreational easement. Until 2021, the Association prohibited the construction of fencing or other improvements within the easement through its restrictive covenants. In 2021, the legislature enacted Property Code section 202.023 which states that “a property owners’ association may not adopt or enforce a restrictive covenant that prevents a property owner from building or installing security measures, including but not limited to a security camera, motion detector, or perimeter fence.” Tex. Prop. Code Ann. § 202.023(b). After section 202.023 went into effect, the Association began approving requests for perimeter fences that encroached on the easement. In 2022, the homeowners filed suit against the Association asserting breach of contract, breach of the declaration, promissory estoppel, negligence, and aiding and abetting. The homeowners also sought temporary and permanent injunctions directing the Association to deny all applications that encroach on the easement. In 2023, the trial court signed an order denying the homeowners’ application for a writ of temporary injunction. The trial court’s order stated: Tex. Prop. Code § 202.023, relating to security measures, prevents the Defendant from enforcing those provisions of the Amended, Restated and Consolidated Declaration of Covenants, Conditions and Restrictions for The Commons of Lake Houston Sections I, II, III, IV, V, VI, VII, VIII, X and XI recorded under Harris County Clerk’s File No. Y503501 (“the deed restrictions”) that would prevent the installation of perimeter fences within the common area easements, and therefore Plaintiffs’ Application for the above-referenced injunctive relief should be DENIED. The homeowners appeal from this order denying their application for writ of temporary injunction.[3] Analysis Standing Before addressing the merits of the case, we first consider the trial court’s jurisdiction, as well as our own.[4] “Subject matter jurisdiction is essential to the authority of a court to decide a case.” Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). “Because standing is required for subject-matter jurisdiction, it can be—and if in doubt, must be—raised by a court on its own at any time.” Finance Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 580 (Tex. 2013). We review a question of standing de novo. Texas Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004). The homeowners allege that the Declaration expressly authorized them to enforce the restrictive covenant creating an easement: Declarant, the Association, or any Owner will have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, and reservations now or hereafter imposed by the provisions of this Declaration, Declarant and the Association shall have the right to enforce, by proceeding at law or in equity all reservations, liens, assessments and charges imposed by the Declaration. Declaration, art. XI, section 1. The Declaration therefore gives the homeowners the legal authority to act. Although the recreational easement is reserved for “any purposes of the association,” the homeowners are members of the Association and the Declaration specifically provides that all the covenants, conditions, and easements created in the Declaration “shall inure to the benefit of each Owner thereof.” See Tex. Prop. Code Ann. § 204.004 (membership of association consists of owners of property within subdivision subject to property owners’ association); Houston Laureate Assocs., Ltd. v. Russell, 504 S.W.3d 550, 557 (Tex. App.— Houston [14th Dist.] 2016, no pet.) (property owners had standing to enforce easement because agreement creating easement specifically conveyed easement for benefit of residential property owners and their land). Therefore, we conclude that the homeowners have standing to bring the underlying lawsuit and this appeal. Temporary injunction The trial court’s order states the trial court denied the temporary-injunction application because the homeowners had not shown a probable right to the relief sought. The trial court analyzed the statute and determined that the relief sought by the homeowners was prohibited by law. Therefore, we consider issues one and two together because the trial court’s analysis of the statute determined its decision to deny the application for temporary injunction. Standard of review The purpose of a temporary injunction is to preserve the status quo of the litigation’s subject matter pending a trial on the merits. Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993). To obtain a temporary injunction, the applicant must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). An injury is irreparable if the injured party cannot be adequately zcompensated in damages or if the damages cannot be measured by any certain pecuniary standard. Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d 398, 401 (Tex. App.—Dallas 1989, no writ). Whether to grant or deny a temporary injunction is within the trial court’s sound discretion. Butnaru, 84 S.W.3d at 204. We review an order denying a temporary injunction for abuse of discretion. Id. Easement and restrictive covenant at issue The Declaration created both an easement and a restrictive covenant relating to fencing on the back of each lot in the property owner’s association. “Unlike a possessory interest in land, an easement is a nonpossessory interest that authorizes its holder to use the property for only particular purposes.” Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002) (citing Restatement (Third) of Prop.: Servitudes § 1.2(1) (Am. Law Inst. 2000)). An easement does not convey title to property. Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007). Here, the Declaration reserved an easement, a nonpossessory right to use, for all members of the Association on the back 20 feet of each lot for recreational purposes.
