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Roberts & Roberts, LLP - Killeen, TX Attorneys - Legal News

04/08/2015 Specific Property Description Controls Over General
McGregor v. Millican DPC Partners, LP. Neighboring landowners got into a dispute about ownership of a particular 34 acre tract, with Millican claiming record title even though the tract lies on McGregors' side of the fence. Millican's deed describes the land two ways: by a general reference to an earlier deed that included the 34 acre tract, and also by field notes that did not. On appeal the Supreme Court holds that, unless the grantor's intention clearly appears otherwise, the metes-and-bounds description is more specific than the general reference to the prior deed, and in case of a conflict the more specific provisions will control over general expressions applicable to the same land.

04/06/2015 Mechanic's Liens Against New Subdivisions Should Be Prorated
Moore v. Brenham Ready Mix, Inc. A supplier filed a materialman's lien against a 25-acre tract to secure payment of invoices for concrete and fill dirt used in the development of a new subdivision. The supplier then sued two individual lot owners to foreclose its lien for the full amount owed, rather than their pro rata share. The court holds that generally a materialman's lien attaches to the entire contiguous property on which the owner contracted to have the materials used. However, when the whole tract is then subdivided the claimant may not enforce the full value of its lien against any individually-owned lot, but may instead only enforce its lien to the proportion the individual improved lot bears to the entire tract.

03/31/2015 Understanding the Role of the Title Company and Escrow Agent
IQ Holdings, Inc. v. Stewart Title Company. After becoming involved in litigation with the condo association, a condo buyer sued the title company for breach of fiduciary duty and negligence. The court finds no liability. In the first place, a title insurance policy is an indemnity contract; the only duty it imposes is the duty to indemnify the insured against losses caused by defects in title which are not excepted by the policy. Although the insurer must examine the title (or have someone do so in its behalf), this investigation is done for the insurer's own information in order to determine whether or not it will commit itself to issue a policy. The investigation is not done for the benefit of the buyer. A title insurance company is not a title abstractor and owes no duty to examine a title or point out any outstanding encumbrances. Accordingly, the title company did not assume an obligation beyond its contractual duty as indemnitor, and in this case the policy expressly excepted coverage for the matters of which the buyer now complains. Second, although a title insurance company assumes a fiduciary duty to both parties when it acts as an escrow agent, that duty is limited to properly handling the funds and closing of the transaction; it does not extend to an investigation of title. Finally, the title company cannot be held liable for negligence because it had no legal duty to provide title coverage beyond the scope of the written policy, or to disclose risks that the policy did not cover.

03/27/2015 Improper Property Description Invalidates Mechanic's Liens
Denco CS Corporation v. Body Bar, LLC. Body Bar rented space in a building and hired Denco to perform the finish-out. A dispute arose over Denco's invoices and Denco asserted statutory and constitutional mechanic's liens to obtain payment. On review the court finds that Denco's lien purported to cover the entire lot owned by the landlord. The court holds that where the contract for labor, materials or construction is not made with the owner or his duly-authorized agent, a lien may not be fixed on his property. Rather, if a lessee contracts for construction, the mechanic's lien attaches only to the leasehold interest, not to the fee interest of the lessor. Because Denco did not properly perfect its liens they are invalid.

03/26/2015 Implied Easements Clarified
Hamrick v. Ward. The Texas Supreme Court recognizes two types of implied easements: necessity easements and prior use easements. Necessity easements may be implied in cases involving roadway access to previously unified, landlocked parcels. Because roadways are often substantial encumbrances on property, the Court requires "strict, continuing necessity" to maintain necessity easements. By contrast, some prior use easements may be proved by mere "reasonable necessity" because the improvements at issue (such as utility lines) generally impose a lesser encumbrance on the adjoining tract. Although both doctrines have been applied to roadways in the past, from now on one claiming an implied easement for roadway access to a landlocked, previously unified parcel must pursue a necessity easement rather than a prior use easement.

03/25/2015 Contracts for Deed Remain More Trouble Than They're Worth
Smith v. Davis. Smith sold Davis a lot using a contract for deed, under the terms of which the seller retains title until the buyer has paid the full purchase price. Smith missed many of the technical traps applicable to this sort of transaction, including a requirement to provide an annual accounting to the buyer of the payments, taxes and insurance. The buyers sued for rescission of the contract, liquidated damages and attorney's fees. On appeal, the court holds that the buyers failed to prove any actual damages resulting from the seller's violations, so the buyers are not entitled to liquidated damages or attorney's fees. However, they are entitled to cancel the contract and receive a full refund.

03/24/2015 No Attorney's Fees In General Warranty Deed Claim
Stumhoffer v. Perales. Perales purchased land from Stumhoffer and received a general warranty deed. Perales was then sued by a neighbor who claimed ownership of a seven-foot strip of land by adverse possession. Perales won that suit, and then sued Stumhoffer to recover nearly $70,000 in attorney's fees spent defending against the neighbor's suit. The court holds that a general warranty deed creates no duty to reimburse attorney's fees incurred by the buyer in defending a third party's unsuccessful adverse possession claim. The purpose of a general warranty clause is to indemnify the purchaser against a loss or injury he may sustain by a defect in the seller's title, and where title has not failed the purchaser is not entitled to indemnity.

03/24/2015 80% Cap for Home Equity Loan Calculated After Payment of Debt
The Bank of New York Mellon v. Daryapayma. Homeowners owed $735,000 on a home appraised for $1.5 million. They then took out a $937,500 home equity loan to pay off the existing mortgage. When they later defaulted, the homeowners claimed that the bank violated the 80% cap by loaning more than $465,000 ($1.5M x .8 - $735,000). The court disagrees. Because the parties agreed the home equity loan was made to pay off the existing mortgages, the loan documents reflect this agreement, and the existing mortgages were paid off, the balances of those existing mortgages should not be included when determining whether the amount of the home equity loan exceeds eighty percent of the fair market value of the homestead.

03/24/2015 Words Rule; Numbers Drool. Read Your Documents Carefully.
Charles R. Tips Family Trust et al v. PB Commercial, LLC. The bank made a loan to the trust, and all the loan documents described the debt both in numerals ($1,700,000.00) and words (one million seven thousand dollars). The Court holds that if an instrument contains contradictory terms, typewritten terms prevail over printed terms, handwritten terms prevail over both, and words prevail over numbers. Since the bank did not request equitable reformation it does not matter that the borrower actually received $1,700,000; the note only obligated repayment of $1,007,000.

10/16/2014 4-Year Statute of Limitations Bars Challenge to Home Equity Loan
Wood v. HSBC Bank. The Wood family obtained a home equity loan in 2004. In 2012 they wrote to their lender claiming that their loan fees illegally exceeded three percent of the loan amount. A few months later they filed suit for forfeiture of the loan. The Court finds that if the borrower was overcharged the error made the loan voidable rather than void, and that this suit is barred by a four-year statute of limitations that began to run at closing.

09/16/2014 Act Promptly If You're Going to Rely on a Technicality
Winston Acquisition Corp. v. Blue Valley Apartments, Inc. Winston entered into a contract to buy an apartment complex from Blue Valley. Shortly before closing Winston requested an extension of the closing date, which Blue Valley denied. Winston then sent a notice terminating the contract, claiming that Blue Valley had not provided the EPA Lead Paint Pamphlet. Blue Valley sued to recover the earnest money and attorney's fees. On appeal, the court observes that Winston had a fixed due diligence period during which it was required to notify the seller of its disapproval of any matters, or inability to satisfy certain conditions set forth in the contract. Winston did not object to the missing pamphlet until 10 days after that due diligence period expired. Because Winston's notice was not timely under the plain language of the contract Winston had no right to terminate and breached by refusing to close. Consequently the seller was entitled to recover the earnest money and attorney's fees.

08/19/2014 20 Year Delay Prevents Probate of Will
Orr v. Walker. In 2012 Orr attempted to probate the will of her grandmother, who had died in 1992. Walker challenged the application on the basis that normally a will must be probated within four years after the date of death. Orr claimed that she was not aware of the will until she found it among her mother's belongings after her mother died in 2006. At that time another person was named as executor so she sent the will to him. Orr claimed that the four-year deadline did not start until after the death of that executor in 2009. The court assumes without deciding that Orr's mother was not already in default for failing to probate the will during her lifetime. Regardless, under the Estates Code any interested person may apply for probate, so Orr did not use reasonable diligence in filing her application.

01/31/2014 Lender Loans Too Much; Loses It All
Wells Fargo Bank, N.A. v. Leath. Borrower took out a $340,000 home equity loan in part to pay off a prior lien on the home. When Lender later initiated foreclosure proceedings Borrower notified Lender that the amount of the loan exceeded 80% of the value of the homestead at the time the loan was made. Lender did not take corrective action and the case went to a jury, which determined that the home was only worth $421,400 at the time of the loan. The trial court accordingly voided the deed of trust lien, ordered forfeiture of the principal and interest on the loan, and granted Borrower judgment for attorney's fees. The appellate court finds no error, and holds that Lender failed to timely raise a claim for equitable subrogation as to the prior lien, so the judgment stands.

11/21/2013 Deed Challenge Fails
Kellner v. Kellner. Mother placed her property in a living trust and named her sons, Oscar and Lloyd, as co-trustees. The trust provided that it would terminate upon her death and any assets would be distributed to her estate to be disposed of in accordance with her Last Will and Testament. After her death the mother's Will was admitted to probate as a Muniment of Title, and Oscar signed deeds conveying land from the trust to her estate. Oscar then died. Years later Lloyd sued Oscars wife and children to set aside the deeds in the hopes the land would pass to him under the laws of intestate succession. The court holds it does not matter whether Oscar's deeds were valid or not because in either event: (1) the trust beneficiary (i.e.: the mother's estate) was automatically vested with the land upon termination of the trust; and (2) when a person dies with a valid Will, all of his or her estate devised or bequeathed by such Will automatically in the devisees or legatees of the estate. Accordingly even if the deeds were invalid the land passed according to the Will rather than the laws of descent and distribution.

10/31/2013 Buyer Default Leaves Seller Holding the Bag
Goldman v. Olmstead. When Buyer was unable to obtain financing Buyer backed out of a contract to purchase Seller's home. Seller sued. By trial Seller had dropped its claim for specific performance and sought recovery of over $56,000 in additional mortgage interest, utilities, property taxes, insurance, and yard maintenance expenses incurred pending the eventual sale of the home to a third party. On appeal the Court holds that when a real estate contract is breached by the purchaser, the measure of damages is the difference between the price the seller was to receive and the market value of the property at the date of the breach. In this case the Seller admitted that the market value of the house on the date of breach was equal to the contract sales price, so they are not entitled to any recovery.

10/24/2013 Shareholders Don't Necessarily Need Stock Certificates
Bakke v. Harvison. Defendant challenged plaintiff’s right to bring suit because plaintiff could not produce original stock certificates previously issued by the corporation. The Court holds that in order to create a stockholder relationship, a party must show an agreement giving the shareholder the ability to exercise a shareholder's rights. Courts often imply such agreements or contracts from the parties' acts and the surrounding circumstances. While a stock certificate is some evidence of ownership in a Texas corporation, the absence of a stock certificate does not necessarily invalidate a party's stock ownership. This is because a certificate of stock is not the stock in a corporation itself, but rather a muniment of title which is evidence of the ownership of the stock. Accordingly, it is possible under some circumstances for one to own stock in a corporation though no certificate has been issued to him or endorsed or delivered to him, and likewise it is possible under some circumstances for title to the stock to pass without delivery of the certificate of stock or without written assignment of it.

09/23/2013 Non-Existent LLC Provides No Liability Protection
Curtis v. AGF Spring Creek/Coit II, Ltd. Curtis entered into a commercial lease and three modifications as President or CEO of Atrium Executive Business Centers Richardson, LLC, a limited liability company. However, that entity was never formed. Rather, Curtis formed a corporation named AEBC-Richardson, Inc. and operated the business through that corporation. After a default, the landlord sued Curtis individually. Curtis claims that since reimbursement of the tenant's move-in expenses, as well as the tenant's rent payments, fax transmissions, insurance policy, sales and use tax permit, and service agreements were all made in the name of AEBC rather than Atrium, a lease by conduct was established between the landlord and AEBC. The Court disagrees, saying that: (1) the lease identifies Atrium as the tenant; (2) the lease cannot be modified except in writing; and (3) "when a promoter signs a contract on behalf of an unformed entity, he is personally liable on the contract unless there is an agreement with the contracting party that the promoter is not liable." In addition, if landlord had tried to sue AEBC, AEBC could have defended on the ground that it had not signed the lease. However, the case is remanded for further proceedings on the proper measure of damages.

08/15/2013 A Few Violations Do Not a Waiver Make
Moran v. Memorial Point Property Owners Association, Inc. Property owners association sued homeowner to enforce a subdivision restriction prohibiting fences within a 25-foot setback. The Court holds that the restriction will not be enforced if the homeowner can prove that violations are so great as to lead the mind of the average man to reasonably conclude that the restriction in question has been abandoned and its enforcement waived. The Court will consider the number, nature, and severity of the existing violations, any prior enforcements of the restriction, and whether it is still possible to realize to a substantial degree of the benefits of the restriction despite the violations. In this case the homeowner presented evidence of violations on 2.78% to 4.55% of the remaining properties, depending on how the lots are counted. The Court holds that such a rate does not prove abandonment or waiver, so the homeowner must comply with the restriction. 

07/22/2013 Neighbors Had No Standing to Enforce Restrictive Covenants
Wasson Interests, Ltd. v. Adams. In 1962, the City leased property to Canino for 99 years. Adams eventually became an assignee of that lease. In 1983, the City sold a tract across the street from the Adams lot and included a provision in the deed restricting the property to "residential development only." Wasson eventually purchased that tract. Wasson began putting hogs, goats, livestock, and old vehicles on his land. The result was, in the Court's words, "not only unsightly but evil smelling." Adams sued to enforce the residential restriction. However, the tenant under the lease was never a party to the grant under the deed so there was no "privity of estate" between Adams and Wasson. In addition, the two tracts are not in the same subdivision. As a result Adams has no legal right to enforce the deed restriction.

07/22/2013 Provision of TREC Contracts Invalidated
Magill v. Watson. The seller sued after buyer terminated an earnest money contract. In accordance with the contract terms the trial court awarded the seller the earnest money, plus liquidated damages in an amount equal to three times the earnest money, and attorney's fees, interest, and costs. The appellate court states that the contract "makes no attempt to quantify the actual damages that would be caused by a failure to release the earnest money." Accordingly the treble earnest money is not a valid liquidated damages provision but rather an illegal and unenforceable penalty.

07/03/2013 Home Equity Loans May Not Be Closed Using Power of Attorney
Finance Commission of Texas v. Norwood. Plaintiffs sued state agencies to invalidate certain regulations relating to home equity loans. The Texas Supreme Court holds that the state agencies exceeded their authority in the way they defined the term "interest" because the Constitution does not define the term. The Court also holds the agencies erred in allowing home equity loans to be closed using a power of attorney because a loan may be “closed only at the office of the lender, an attorney at law, or a title company," and a rule allowing the borrower to be somewhere else while his agent closes under the power of attorney is inconsistent with this requirement.

05/17/2013 Wife Did Not Wait Too Long to Probate Husband's Will
In the Matter of the Estate Willard O. Allen, Deceased. Husband died in 2005 and wife met with an attorney to discuss probating the will. Believing that an affidavit of heirship would cause everything to pass to her faster and with less expense than a probate, and knowing that her husband had successfully used an affidavit of heirship to resolve his own father's estate, wife chose not to probate the will. In 2010 wife had a dispute with one of her sons regarding some ranch land, and learned for the first time that (unlike the will) the affidavit of heirship caused the son to inherit an interest in that land. She then filed the will for probate and the son contested the probate, pointing out that under Texas law a will generally cannot be admitted to probate after four years from the death of the testator. The Court finds that wife was not in default in failing to timely file the will, given that she acted on the advice of an attorney, believed in good faith that she had done everything required of her, had no prior experience in such matters, and acted promptly once she learned of the problem.

04/30/2013 Buyer Mistakenly Waives Fraud Claim by Modifying Loan Terms
R&L Investment Property L.L.C v. Hamm. Buyer purchased land from Seller on seller-financing. Buyer claimed the Seller misrepresented that the property had an active waste-water permit, but that Buyer did not learn of the misrepresentation until after the closing. The Court finds that after learning the permit was expired, Buyer entered into a "Reinstatement, Modification, and Extension Agreement" as an inducement to Seller to stop a foreclosure. Under the agreement, Buyer stipulated that the Seller's lien was "valid and subsisting," and that Buyer had "no claims or offsets against or defenses or counterclaims to" the loan documents. Ratification is the adoption or confirmation by a person with knowledge of all material facts of a prior act which did not then legally bind him and which he had the right to repudiate. Accordingly, when the Buyer signed the modification agreement with the full knowledge of the alleged fraud Buyer ratified the transaction and any fraud claim it may have had was waived.

02/22/2013 Lender Lucks Out Because Borrower Waited Too Long to Sue
Priester v. JP Morgan Chase Bank N.A. In 2005 the Priesters obtained a home equity loan and signed the mortgage agreement in their living room. Almost five years later they sued to invalidate the lien and wipe out the debt. The Court agrees that under the Texas Constitution a lien on homestead is valid only if closed at the office of the lender, an attorney, or a title company. However, a four-year statue of limitations applies to home equity lending violations, calculated from the date of closing. Because the Priesters waited too long to sue their claims are dismissed.

02/05/2013 Free Legal Forms Screw Things Up Again
In re the Estate Olen F. Cunningham. Olen owned about 84 acres of land in various tracts. It appears from the opinion that all tracts were either owned before his marriage to his wife, Helena, or inherited from his parents, so all the land would have been his separate property. During his marriage he conveyed partial interests to Helena. Shortly before he died, Olen and Helena filled out and signed a fill-in-the-blank form entitled “Agreement to Establish Right of Survivorship to Community Property between Spouses.” The form described the land as community property and specified that it would pass to Helena on Olen's death. After Olen died one of his children from a former marriage sued to challenge the Agreement. On appeal, the Court holds that a mere transfer of a spouse's separate property to the name of the other spouse is insufficient to convert separate property to community property. Because the land was separate property rather than community property, the do-it-yourself form did not create any survivorship rights in Helena. The case is sent back to the trial court for further proceedings. (The opinion doesn't say so, but in Texas when someone dies without a will leaving behind a spouse and children, the spouse acquires only a ⅓ life estate in the separate property land. So to avoid spending a couple hundred dollars for a pair of good wills Olen and Helena tried to do their own legal work, and as a result Helena has had to spend two years of her life and untold thousands of dollars in legal fees fighting to hang onto land that she will probably lose.)

09/14/2012 Self-Help Legal Sites Not Much Help
Consumer reports recently evaluated several self-help legal sites to see how well they fared at generating simple legal forms. Their verdict: the product is probably better than something you would draft on your own, but most-consumers are better off consulting a lawyer.

08/15/2012 The Writing is on the ... Gable?
Jamison v. Allen. The Allens filed suit when they noticed their neighbors installing HardiPlank siding in violation of subdivision restrictions requiring "exterior walls" to be covered in other materials such as brick, stone or logs. In court the Jamisons claimed that because the Allens had used HardiPlank on their own gables they did not have any right to complain. The Court holds that the term "wall" means a vertical architectural member that connects the foundation and roof, and thus the term includes gables. The Court further holds that quasi-estoppel precludes a person from asserting a right inconsistent with a position previously taken. Because the Allens admitted using HardiPlank on their gables, the Court holds that they are estopped from complaining about the Jamison's use of the same material on an entire side of their home. The suit is effectively dismissed.

06/12/2012 An Important Distinction: Restrictions Are Not Reservations
Farm & Ranch Investors Ltd. v. Titan Operating L.L.C. Developer filed a set of restrictions prohibiting oil and gas operations on the property, stating that it would continue to own all mineral rights. Developer later subdivided the land and sold off various parcels by deeds that recited that the conveyance was subject to all restrictions and mineral reservations of record. However, none of the deeds contained a specific reservation of mineral interests. Titan entered into mineral leases with the individual property owners and then sued for a declaratory judgment that it had acquired the mineral rights. The Court observes that the mineral estate may be severed from the surface estate by a grant of the minerals in a deed or lease, or by reservation in a conveyance. Because the Developer's restrictions were not a deed, lease or conveyance, the restrictions did no more than to confirm that the Developer owned the minerals at the time the restrictions were filed. Further, the law says that a general warranty deed conveys all of the interest that a grantor has in the land unless there is language in the instrument which clearly shows an intention to convey a lesser interest, and there is not reserved to the grantor any interest absent a clear and unequivocal expression in the deed itself of such intent. So, when the Developer later executed deeds without an express reservation of mineral interests it conveyed its interests in both the minerals and the surface, and Titan validly acquired those interests.

05/02/2012 No Real Estate Commission Without a Proper Contract
Litton Loan Servicing LP v. Zachariah Manning and Intrarealty Inc. Plaintiff sued to recover a real estate commission after the seller's delay in closing caused the deal to fall through. The Texas Real Estate License Act (RELA) provides that a person may not sue to recover a commission for the sale or purchase of real estate unless the promise or agreement on which the suit is based is in writing and signed by the owner. Strict compliance with the Act is required. In this case, none of the documents on which the Plaintiff relies contains a promise to pay a real estate commission or identifies Plaintiff as a broker to whom a commission will be paid, so Plaintiff is not entitled to any recovery.

04/20/2012 Suit Claims Ghosts in Rental Home Justify Return of Security Deposit
A couple in Toms River, N.J., claim in a lawsuit that they are entitled to a refund of their security deposit because their rental home is haunted.

01/11/2012 In Collections, Be Specific In Your Threats
APM Enterprises LLC v. National Loan Acquisitions Co. Creditor sued maker and guarantors on a promissory note. The defendants alleged they had not received notice of intent to accelerate or notice of acceleration. A negotiable instrument that is payable at a definite time may provide for the right of acceleration on default. However, because acceleration of a debt is viewed as a harsh remedy any such clause will be strictly construed. Texas law requires clear notice of intent to exercise acceleration rights, followed by notice of actual acceleration if the debtor continues in default. In this case, the loan documents apparently did not waive the required notices. The Court observes that the law does not necessarily require the use of the words "intent to accelerate," in this case the holder's repeated threats to refer the note to legal counsel for collection were not sufficient.

11/01/2011 The Wrong Way to Fight Foreclosure of a Home Equity Loan
Huston v. Bank National Association. Lender filed a Rule 736 application for an order allowing foreclosure of a Texas home equity loan. Homeowners countersued, claiming the lender did not have a valid assignment, that the loan violated various provisions of the law, and that the wife did not sign the loan. The Court finds the countersuit is improper in this context; such claims must be brought, if at all, in a separate lawsuit.

10/13/2011 How To Terminate a 99 Year Lease in 30 Days
Providence Land Services LLC v. Jones. Starting in the 1970's, the Howells began leasing lakefront lots to tenants on lease forms that the Howells drafted themselves. Many of the leases provided that they were of "indefinite" term. Some of the tenants made substantial improvements under the assumption that they had "long-term" leases. The trial court agreed, and interpreted the leases to be for a term of 99 years. However, on appeal the Court finds that "indefinite" is not ambiguous; it simply means "uncertain." In Texas, a lease for an indefinite and uncertain length of time is an estate at will. The trial court's ruling is reversed.

09/13/2011 Unsigned Lease is Still Valid
Thomas J. Sibley, P.C v. Brentwood Investment Development Co. Sibley rented a suite in Brentwood's building in 2001. In 2008, Brentwood sued for past-due rent payments and other sums. Sibley claimed that the lease was not enforceable because it was never signed by a Brentwood representative. The Court holds that the absence of a party's signature does not necessarily destroy an otherwise valid contract. A party may accept a contract and indicate its intent to be bound to the terms by acts and conduct in accordance with the terms. In this case, it is undisputed that Sibley occupied the space defined in the lease, operated a law firm from the premises, and made several partial payments of base rent. Likewise, there is no dispute that Brentwood continually operated and maintained the building in accordance with the lease terms. Because the parties treated the lease as if it were fully executed, the absence of the landlord's signature is not fatal and the lease is enforceable.

07/18/2011 Property Remains Restricted to Residential Use
Davis v. Canyon Creek Estates Homeowners Association. Owner sued to invalidate restrictive covenants limiting the use of its property to residential purposes. A court may nullify or void a restrictive covenant limiting property use to residential only when the party seeking to nullify or modify the restriction proves either: (1) the property owners have acquiesced in violations of the residential restriction so as to amount to an abandonment of the covenant or a waiver of the right to enforce it; or (2) there has been "such a change of conditions in the restricted area or surrounding it that it is no longer possible to secure in a substantial degree the benefits sought to be realized through the covenant." To justify voiding a residential restriction based on changed circumstances, the changed conditions must be "radical." In considering whether such a "radical" change has occurred, courts look to: (1) the size of the restricted area; (2) the location of the restricted area with respect to where the change has occurred; (3) the type of change or changes that have occurred; (4) the character and conduct of the parties or their predecessors in title; (5) the purpose of the restrictions; and (6) to some extent, the unexpired term of the restrictions. Greater weight is given to changes that occur within the subdivision than those occurring outside the restricted area. Additionally, Texas courts have recognized a landowner cannot rely on "changed conditions" that have already occurred by the time he acquires the property. In this case, the owner did not meet the required standard of proof, but because the owner had never expressed an absolute refusal to abide by the restrictions it would not be required to pay attorney's fees.