Walters v. Colford
297 Neb. 302
| Neb. | 2017Background
- Plaintiffs (Adamy subdivision homeowners) sued defendants Steven and Sara Colford and seller Daniel Adamy, alleging the Colford property violated Adamy subdivision restrictive covenants and asserting claims for injunctive relief, nuisance, and civil conspiracy.
- Adamy platted the Adamy subdivision in 1976 and recorded a plat and restrictive covenants that expressly applied only to the 14 lots inside that subdivision.
- Adamy retained and later sold adjacent acreage (including the 5-acre Colford Property) at various times; some adjacent sales were made without covenants.
- Promotional brochures produced by real estate agents showed the subdivision lots alongside adjacent Adamy-owned parcels and referenced covenants, but Adamy disavowed approval of those brochures.
- The Colfords purchased the 5-acre parcel from Adamy in 2013 (no subdivision covenants in the deed), built a large metal building, and later negotiated a different restriction with Adamy; plaintiffs sought to impose the subdivision covenants on the Colford Property via the doctrine of implied reciprocal negative servitudes.
- The district court granted summary judgment for defendants, concluding the subdivision covenants did not apply to the Colford Property; the Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Adamy subdivision covenants expressly burden the Colford Property | Walters: covenants should bind Colford Property because of developer’s common ownership and promotional materials | Colford/Adamy: covenants apply only to platted subdivision lots; Colford deed had no such covenant | Held: No express application — covenants apply only to lots within recorded subdivision |
| Whether the doctrine of implied reciprocal negative servitudes makes the Colford Property subject to subdivision covenants | Walters: a common grantor and promotional materials show a general plan; implied servitude should fill the gap and bind Colford | Colford/Adamy: no general plan including the Colford Property; developer later used a recorded declaration/plat; doctrine should not apply | Held: Doctrine inapplicable — no evidence the Colford Property was within the plan; recorded plat/declaration forecloses implication |
| Whether promotional brochures and agent conduct create a triable issue of the developer’s intent to include adjoining parcels in the plan | Walters: brochures and maps are representations creating reasonable purchaser expectations | Colford/Adamy: Adamy disavowed brochures; purchaser can rely on recorded plat/ declaration | Held: No genuine issue — recorded plat/declaration controls; buyer should rely on public records, not unapproved brochures |
| Whether nuisance and civil conspiracy claims based on alleged covenant violations survive summary judgment | Walters: claims derive from alleged enforceable covenants against Colford | Colford/Adamy: if covenants do not apply, related tort claims fail | Held: Dismissed — nuisance and conspiracy fail as a matter of law because covenants do not bind Colford Property |
Key Cases Cited
- Pierce v. Landmark Management Group, Inc., 293 Neb. 890 (appellate standard for summary judgment) (summarizes summary judgment review)
- Skyline Woods Homeowners Assn. v. Broekemeier, 276 Neb. 792 (doctrine of implied reciprocal negative servitudes; proof of developer intent)
- Egan v. Catholic Bishop, 219 Neb. 365 (doctrine applies where common grantor imposes uniform restrictions by numerous conveyances)
- Latenser v. Intercessors of the Lamb, Inc., 250 Neb. 789 (general proposition that law disfavors restrictions on land use)
- Evans v. Pollock, 796 S.W.2d 465 (Tex.) (discusses scope and cautious application of implied-reciprocal-servitude doctrine)