Walters v. Colford
900 N.W.2d 183
| Neb. | 2017Background
- Adamy platted the 14‑lot Adamy subdivision in 1976 and recorded a plat/declaration of restrictive covenants applying to lots within that subdivision.
- Adamy retained and later sold adjacent acreage (including the 5‑acre Colford Property) separately; some adjacent sales had no covenants at the time of sale.
- Promotional brochures by agents showed the subdivision lots and adjacent Adamy land together and referenced covenants, but Adamy testified he did not approve the brochures.
- The Colfords bought the 5‑acre parcel from Adamy in 2013; that parcel was not subject to the 1976 subdivision covenants when sold and later received different negotiated restrictions.
- Plaintiffs (Adamy subdivision lot owners) sued the Colfords and Adamy seeking injunctions and related tort claims, arguing the Colford Property is bound by the subdivision covenants via the doctrine of implied reciprocal negative servitudes; the district court granted summary judgment for defendants and the Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Colford Property is expressly subject to Adamy subdivision covenants | Colfords’ building violates subdivision covenants; adjacent land should be bound | Colford Property was sold without the 1976 covenants and is outside the platted subdivision | Not expressly bound — no deed or plat makes Colford Property part of subdivision |
| Whether implied reciprocal negative servitudes make Colford Property subject to subdivision restrictions | Developers’ representations and sales materials supporting a common plan make the land subject to implied servitudes | The subdivision was governed by a recorded declaration/plat; doctrine is a gap‑filler and does not apply where a declaration defines scope—Colford Property was outside that declaration | Doctrine does not apply; recorded declaration/plat forecloses implication and there is no reasonable expectation that adjacent undeclared land was included |
| Whether promotional materials and common grantor conduct create fact issue for summary judgment | Brochures and agent marketing created reasonable inference of a common plan including Colford Property | Adamy disavowed the brochures and the declaration/plat was recorded and available; purchasers should rely on records | No material factual dispute: summary judgment proper because declaration controlled and no reasonable expectation existed |
| Whether nuisance and conspiracy claims premised on covenant violation survive if covenants don't apply | Nuisance/conspiracy stem from covenant breach by Colfords | If covenants do not apply, these derivative claims fail | Dismissed as a matter of law because underlying covenants did not bind Colford Property |
Key Cases Cited
- Pierce v. Landmark Management Group, Inc., 293 Neb. 890 (appellate standard for summary judgment)
- Skyline Woods Homeowners Assn. v. Broekemeier, 276 Neb. 792 (doctrine of implied reciprocal negative servitudes; proving common plan)
- Egan v. Catholic Bishop, 219 Neb. 365 (common grantor and general plan inquiries for implied servitudes)
- Evans v. Pollock, 796 S.W.2d 465 (doctrine is limited; historically gap‑filler where restrictions placed deed‑by‑deed)