Walters v. Colford
297 Neb. 302
Neb.2017Background
- The Adamy subdivision (platted 1976) contains 14 lots with recorded plat and a declaration of restrictive covenants limiting structures; those documents were of record when plaintiffs bought their lots.
- The Adamy family (common grantor) retained and later sold adjacent acreage, including a 5‑acre parcel (the Colford Property) sold to Steven and Sara Colford in 2013; that parcel was not part of the recorded subdivision and was not originally subject to the subdivision covenants.
- Marketing materials produced by real estate agents showed the subdivision lots adjacent to undeveloped Adamy-owned parcels (including the Colford tract) and used the names “Adamy Division” and “Valley View Subdivision”; one brochure referenced covenants with a caveat that they “may change.”
- After purchase the Colfords built a large metal building on their 5‑acre parcel; plaintiffs sued claiming the building violated the Adamy subdivision covenants and sought a mandatory injunction, nuisance and conspiracy claims (invasion of privacy later dismissed).
- The district court granted summary judgment for the Colfords and Adamy, concluding the Adamy subdivision covenants did not expressly apply to the Colford Property and that the doctrine of implied reciprocal negative servitudes did not impose those covenants on the Colford Property.
- The Nebraska Supreme Court affirmed, holding the recorded declaration/plat defined the plan of development, the Colford Property lay outside that recorded plan, and the implied‑servitude doctrine does not apply where a developer has used a declaration covering the development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Colford Property is subject to Adamy subdivision covenants by implication (implied reciprocal negative servitudes) | Walters: the common grantor’s conduct and marketing show a general plan and implied representations that Colford Property was part of the development, so covenants should be implied | Colford/Adamy: the subdivision’s plat and recorded declaration show the plan; Colford Property was outside and later sold without those covenants—no implied servitude applies | Court: No. Recorded plat/declaration controlled; doctrine does not apply because developer used a declaration covering the subdivision and the Colford Property was outside that plan |
| Whether marketing materials created a triable issue of developer intent or notice sufficient to imply servitudes | Walters: brochures and maps reasonably inferred developer intent and put purchasers on inquiry notice | Colford/Adamy: advertising alone is insufficient against a recorded declaration; plaintiffs had the opportunity to inspect public records showing the Colford tract was outside the subdivision | Court: Advertising did not overcome the recorded declaration; buyers should rely on the records; no genuine issue of material fact |
| Whether nuisance and conspiracy claims premised on covenant violation survive if covenants do not apply | Walters: claims flow from alleged covenant breach | Colford/Adamy: if covenants do not apply, those derivative claims fail | Court: Dismissed nuisance and conspiracy claims as a matter of law because covenants do not bind Colford Property |
| Standard for applying implied reciprocal negative servitudes where developer used a declaration | Walters: implied servitudes doctrine should still protect purchasers’ expectations here | Colford/Adamy: Restatement approach bars implication when developer records a declaration covering the development | Court: Adopted Restatement rule that doctrine generally has no application where developer records a declaration restricting the development; limits doctrine to deed‑by‑deed gap‑filling situations |
Key Cases Cited
- Pierce v. Landmark Management Group, Inc., 293 Neb. 890, 880 N.W.2d 885 (2016) (summary judgment standards and appellate review)
- Skyline Woods Homeowners Assn. v. Broekemeier, 276 Neb. 792, 758 N.W.2d 376 (2008) (discussing general‑plan evidence and implied servitudes doctrine)
- Egan v. Catholic Bishop, 219 Neb. 365, 363 N.W.2d 380 (1985) (doctrine applies where common grantor incorporated uniform restrictions in many deeds)
- Evans v. Pollock, 796 S.W.2d 465 (Tex. 1990) (describing doctrine as gap‑filler and modern limits)
- Restatement (Third) of Property: Servitudes § 2.14 (and accompanying commentary) was relied on extensively (treatise authority guiding the doctrinal framework and limitation when a declaration is recorded).