Walters v. Colford
297 Neb. 302
| Neb. | 2017Background
- Adamy platted and recorded the 14-lot Adamy subdivision in 1976 with a recorded plat and restrictive covenants applying to lots inside that subdivision.
- Adamy retained and later sold adjacent acreage (including a 5-acre parcel) outside the recorded subdivision; that parcel was sold to Steven and Sara Colford in 2013 and was not made subject to the Adamy subdivision covenants when sold.
- Promotional brochures prepared by real estate agents advertising sales showed the subdivision lots and adjacent parcels together and referenced covenants, but Adamy disclaimed approving those materials; the Colfords knew subdivision covenants existed but not their details.
- After purchase, the Colfords erected a large metal building on their 5-acre parcel; neighboring lot owners (Walters et al.) sued seeking injunction, nuisance, and conspiracy claims based on alleged violation of the subdivision covenants.
- The district court granted summary judgment for defendants (Colfords and Adamy) finding the subdivision covenants did not apply to the Colford Property via implied reciprocal negative servitudes; the Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Adamy subdivision covenants expressly bind the Colford Property | Walters: covenants should apply to Colford Property | Colford/Adamy: Colford Property is outside the platted subdivision and not expressly subject to those covenants | Not expressly bound — covenants apply only to lots within the recorded subdivision |
| Whether an implied reciprocal negative servitude binds the Colford Property | Walters: developer’s conduct and sales materials show a general plan; implied servitude should fill the gap and bind Colford | Colford/Adamy: no common plan including Colford Property; recorded declaration/plat shows scope, so no implication | Court: doctrine does not apply — no reasonable expectation because restrictions were imposed by recorded plat/declaration limited to subdivision |
| Whether promotional materials and common ownership give constructive notice of an implied plan | Walters: brochures and common grantor support inference of inclusion | Defendants: brochures insufficient; Adamy disavowed them and recorded documents controlled | Held: recorded plat/declaration prevails; buyer should rely on records, not unrecorded brochures |
| Whether nuisance and conspiracy claims premised on covenant violation survive if covenants don’t apply | Walters: claims stand if covenants effectively apply | Defendants: if covenants don’t apply, related tort claims fail | Held: nuisance and conspiracy claims fail as a matter of law because covenants do not bind Colford Property |
Key Cases Cited
- Pierce v. Landmark Mgmt. Group, Inc., 293 Neb. 890 (2016) (summary judgment standards and appellate review principles)
- Skyline Woods Homeowners Assn. v. Broekemeier, 276 Neb. 792 (2008) (doctrine of implied reciprocal negative servitudes and proof of common plan)
- Egan v. Catholic Bishop, 219 Neb. 365 (1985) (application of restrictive covenants by common grantor and requirement of notice)
- Evans v. Pollock, 796 S.W.2d 465 (Tex. 1990) (discussion of implied reciprocal negative servitude doctrine and its historical gap-filling role)