Walters v. Colford
297 Neb. 302
Neb.2017Background
- Plaintiffs (Adamy subdivision lot owners) live in a 1976 platted subdivision governed by recorded plat and restrictive covenants limiting structures.
- The common grantor, Daniel F. Adamy, retained and later sold adjacent acreage, including a 5-acre parcel west of the subdivision that the Colfords purchased in 2013 (the Colford Property).
- The Colfords’ parcel was not included in the 1976 plat and was not originally subject to the subdivision covenants; Adamy and the Colfords later negotiated different restrictions applicable to the Colford Property.
- After purchase, the Colfords erected a large metal building on their 5-acre parcel; plaintiffs sued alleging violation of the subdivision covenants (seeking injunctive relief), nuisance, and conspiracy to violate covenants.
- The district court granted summary judgment for defendants, holding the implied-reciprocal-negative-servitudes doctrine did not make the Colford Property subject to the subdivision covenants; plaintiffs appealed and the Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Colford Property is subject to Adamy subdivision restrictive covenants by implication (implied reciprocal negative servitudes) | Walters: The Colford Property should be bound because Adamy was common grantor and promotional materials and sales practice show a general plan including adjacent parcels | Colford/Adamy: The Colford Property was outside the recorded plat/declaration; Adamy did not intend to include it and later imposed different negotiated restrictions | Held: No. Doctrine does not apply because the subdivision’s restrictions were imposed by recorded plat/declaration that excluded the Colford Property, obviating the doctrine’s gap-filling role |
| Whether plaintiffs had reasonable expectation that adjacent property would be similarly restricted | Walters: Brochures and agent advertising implied the adjacent parcels were part of the development | Colford/Adamy: Advertising was not authorized by Adamy; recorded declaration made scope clear and purchasers could rely on records | Held: No reasonable expectation — recorded declaration put purchasers on notice the Colford Property was outside the development |
| Whether nuisance and conspiracy claims premised on covenant violation survive | Walters: Covenant breach supports nuisance and conspiracy claims | Colford/Adamy: If covenants don’t apply, those derivative claims fail | Held: No. Both claims fail as a matter of law because covenants do not bind the Colford Property |
| Standard for applying implied reciprocal negative servitudes when developer uses a declaration | Walters: Doctrine can apply based on representations and conduct | Colford/Adamy: Where developer records a declaration covering the development, the doctrine is inapplicable | Held: Doctrine is inapplicable where developer imposed restrictions by recorded declaration covering the development; it is a limited, gap-filling doctrine used with caution |
Key Cases Cited
- Pierce v. Landmark Mgmt. Group, Inc., 293 Neb. 890, 880 N.W.2d 885 (summary judgment standard and appellate review)
- Skyline Woods Homeowners Assn. v. Broekemeier, 276 Neb. 792, 758 N.W.2d 376 (doctrine of implied reciprocal negative servitudes; proof of general plan and notice)
- Egan v. Catholic Bishop, 219 Neb. 365, 363 N.W.2d 380 (application of implied servitudes where common grantor imposes uniform deed restrictions)
- Plumb v. Ruffin, 213 Neb. 335, 328 N.W.2d 792 (restrictive covenants enforceable among owners when created for mutual benefit)
- Reed v. Williamson, 164 Neb. 99, 82 N.W.2d 18 (historical treatment of restrictive covenants and mutual enforcement)