Pine Tree Neighborhood Assn. v. Moses, 990 N.W.2d 884

Background

Pine Tree subdivision (32 lots) had original restrictive covenants that expired in 2010; a new Declaration was recorded in 2010 by the Pine Tree Neighborhood Association (PTNA) and 22 lot owners.
The Declaration (Article I ¶9) forbids boats/campers/trailers/mobile homes/camper trucks or similar chattels from being stored outside on any lot for more than 48 hours; only vehicles driven regularly by occupants may be parked outside.
Charles Moses and Melissa Hill purchased Lot 13 (one of the 22 bound lots) in Dec. 2019 and continuously parked an RV outside their driveway beginning mid-2020.
PTNA notified the homeowners to remove the RV; they did not, and PTNA sued for a permanent injunction in Feb. 2021.
The parties filed cross-motions for summary judgment; the district court found the covenant enforceable, rejected the homeowners’ waiver/selective-enforcement defenses, granted PTNA summary judgment, and enjoined the homeowners.
The homeowners appealed; the Nebraska Supreme Court reviewed de novo and affirmed the district court.

Issues

Issue	Plaintiff's Argument (PTNA)	Defendant's Argument (Homeowners)	Held
Whether the paragraph 9 covenant prohibits the homeowners’ RV parking	Paragraph 9 is unambiguous and prohibits storing/parking an RV outside >48 hours; homeowners violated it	Homeowners admitted parking but argued other defenses	Held: Covenant is plain and was violated; PTNA established prima facie entitlement to relief
Whether the Declaration is enforceable though only 22 of 32 lot owners signed	Covenants created by contract among signatories run with the land and are enforceable	Covenants are per se unenforceable because not all subdivision lots signed	Held: Not per se unenforceable; parties may create covenants by contract; enforceability sustained
Whether PTNA waived enforcement by selective or non-enforcement of other covenants	Waiver requires substantial, general noncompliance and knowledge; enforcement history here does not show abandonment	PTNA selectively enforced other covenants and failed to enforce paragraph 9 against other lots, so it waived enforcement	Held: Homeowners failed to show PTNA had knowledge of prior paragraph 9 violations or widespread, intentional nonenforcement; no waiver
Whether summary judgment was appropriate on cross-motions	PTNA: evidence undisputed; entitled to judgment as matter of law	Homeowners: raised genuine factual issues re: enforceability and waiver	Held: Court reviewed cross-motions separately; PTNA met its burden and homeowners failed to raise a material factual dispute; summary judgment for PTNA affirmed

Key Cases Cited

Farmington Woods Homeowners Assn. v. Wolf, 284 Neb. 280 (2012) (waiver requires evidence of substantial and general noncompliance and knowledge of violations)
Pool v. Denbeck, 196 Neb. 27 (1976) (waiver and acquiescence principles for restrictive covenants)
Lund v. Orr, 181 Neb. 361 (1967) (change of neighborhood conditions can defeat covenant enforcement where original purpose destroyed)
Estates at Prairie Ridge Homeowners Assn. v. Korth, 298 Neb. 266 (2017) (principles for construing and enforcing restrictive covenants)
State Bank v. Scoular-Bishop Grain Co., 217 Neb. 379 (1984) (waiver requires voluntary and intentional relinquishment of a known right)
Nelssen v. Ritchie, 304 Neb. 346 (2019) (ordinary waiver principles require clear, unequivocal acts and knowledge of material facts)