In BLF LLC v. Landing at Blanco Prop. Owners Ass’n, member of a home owners association sued to prevent the association from selling certain common area property. No. 03-22-00423-CV, 2023 Tex. App. LEXIS 9300 (Tex. App.—Austin December 13, 2023, no pet. history). Among other theories, the members alleged that the trust existed for their benefit. After the trial court granted summary judgment for the association, the members appealed.

The appellate court affirmed and held that there was no trust:

First, the Bayliffs assert that the trial court erred in granting summary judgment because the summary-judgment evidence is sufficient to create a fact issue as to whether they have “equitable title in an undivided interest of the parkland and amenities” that prevents the Association from selling Lot 15 over their objections. Equitable title is a right, enforceable in equity, to have the legal title to real estate transferred to the owner of the right upon performance of specified conditions. In the trust context, the holders of equitable title to property “are considered the real owners,” and the trustee vested with legal title “holds [the property] for the benefit of” the equitable-title holder. In effect, the Bayliffs contend that the developer created a trust in Lot 15, with the homeowners as the beneficiaries and the Association as the trustee.

A trust is a method used to transfer property. To determine if a trust has been created, we look to the settlor’s intent. While technical words are not necessary, the beneficiary, the res, and the trust purpose must be identified in the written instrument. In this case, nothing in the deed language conveying Lot 15 from the developer to the Association suggests that the developer intended for the Association to hold title to the property in trust. For example, the deed does not use the terms “trust,” “beneficiaries,” or “trustee.” Although the Declaration generally defines “common areas” as “that portion of the subdivision owned by the Association for the common use and enjoyment of the members of the Association,” including “those areas of land and improvements thereon deeded to the Association,” we conclude that this language fails to demonstrate a clear intent to create a trust for the individual benefit of the Bayliffs in Lot 15. At best, the Declaration requires the Association to act in the collective interest of the Landing property owners in its maintenance of the Landing common areas, including Lot 15. In short, nothing in the language of the Declaration suggests that the Bayliffs have equitable title to Lot 15, such that any future transfer of the lot by the Association without the Bayliffs’ consent would be “illegal or against public policy.”


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Photo of David Fowler Johnson David Fowler Johnson

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law