I brief and argue civil appeals in the Texas Supreme Court, Texas intermediate appellate courts, the 5th Circuit U.S. Court of Appeals, and the U.S. Supreme Court. I write friend-of-the-court (“amicus”) briefs for interested persons, organizations, and entities.
My real estate trial work includes HOA law, fraud, construction disputes, and mortgage/foreclosure disputes. I never represent HOA's or banks, and I don't sue consumers.
My trial and appellate work has included numerous class actions and statewide multi-district litigation (MDL) proceedings against major banks and corporations.
TRENDING: SHORT-TERM RENTALS
TEXAS SUPREME COURT SETS BRIEFING SCHEDULE FOR SAN ANTONIO COURT OF APPEALS CASE BARRING SHORT-TERM RENTALS AS NOT A "RESIDENTIAL USE"
Mr. Tarr, who lives in Houston, owns a second home in San Antonio. He rents it out for short terms. In a case I argued for Mr. Tarr, the San Antonio Court of Appeals, in a decision on November 16, 2016, held that the term "residential purposes only" requires an occupant to "qualify" for residency status by living in the home permanently, or with an intent to remain. Thus, "temporary" occupancy, such as short-term rentals, are barred. Presumably, Mr. Tarr cannot use his own second home as his vacation home if he does not intend to remain in it permanently.
"Residential use only" is the commonest deed restriction and zoning ordinance and goes back over 100 years. For many people in Texas, short-term rentals are now either barred (San Antonio area) or threatened, since the San Antonio case directly conflicts with the Zgabay case in the Austin Court of Appeals in which my client prevailed in 2015. For all owners outside of San Antonio and Austin, the law is unclear whether "residential use only" bars short-term rentals, and owners engaging in such rentals are subject to being sued by neighbors and HOA for doing so. In fact, even having the Zgabay decision on the side of Austin-area homeowners has done little good, as homeowners and HOA's are just ignoring it and suing to stop STR's anyway, and trial judges are giving the HOA's homeowners the win, requiring still further appeals.
On December 29, 2016, Tarr filed a petition asking the Texas Supreme Court to step in and resolve the conflict among the courts of appeals. The Texas Supreme Court has now set a Summer briefing schedule, and Tarr filed his opening brief. Briefing is complete in August.
FORT WORTH COURT OF APPEALS AGREES WITH AUSTIN COURT OF APPEALS THAT "RESIDENTIAL PURPOSES" DOES NOT BAR SHORT-TERM RENTALS
On June 8, 2017, in an important new decision, Garrett v. Sympson, 02-16-00437-CV, 2017 WL 2471098, at *1 (Tex. App.—Fort Worth June 8, 2017, no pet. h.), the Fort Worth Court of Appeals agreed strongly with the Austin Court of Appeals Zgabay case, directly contrary to the Tarr case above, which now seems likely to be taken up by the Texas Supreme Court given the clear split of authority on this important issue.
One STR issue that is heating up is whether city ordinances that ban short-term rentals are vulnerable to legal challenge. I believe they are, and on several constitutional grounds. A Texas appeals court in Houston recently allowed such a challenge to proceed based on the theory that imposing such an ordinance on a homeowner who purchased based on STR rights had it taken away — an unfair “taking” of property. See Village of Tiki Island v. Ronquille, 463 S.W.3d 562, 565 (Tex. App. - Houston [1st Dist.] 2015).
The City of Austin may or may not have a rational basis for banning STR’s, but it hasn’t done that. Instead, it has picked out one, vague, arbitrary, insupportable category of lessors — “non-owner-occupants” — and banned only that one category from engaging in STR’s. I doubt there’s any rational basis for the City of Austin’s actions; I doubt that “owner-occupied” has any clear meaning, or if it does, that the classification form a legitimate basis for denying equal protection to those who do not, at a particular moment in time, live in the properties they own. No property owner or property lessor lives in a property when it’s being rented out; every lessee or sub-lessee is a “non-owner-occupant.”
Austin’s STR ordinance also bans owners from advertising their property anywhere in the world if they don’t have an Austin STR license, which seems to me an unconstitutionally broad gag on free speech.