Walters v. Colford
297 Neb. 302
| Neb. | 2017Background
- Adamy platted the 14-lot Adamy subdivision in 1976 and recorded a plat/declaration of restrictive covenants limiting structures on those lots. The founder (Adamy) owned large adjacent acreage including a 5-acre parcel later sold to the Colfords.
- Plaintiffs (neighbors in the Adamy subdivision) sued the Colfords and Adamy after the Colfords built a large metal building on their 5-acre parcel, asserting the building violated the Adamy subdivision covenants.
- The Colford parcel was conveyed without the Adamy subdivision covenants; Adamy later negotiated different, separate restrictions with the Colfords and testified he never intended the Colford parcel to be subject to the Adamy subdivision covenants.
- Plaintiffs argued the doctrine of implied reciprocal negative servitudes (an implied restrictive covenant doctrine) made the Colford parcel subject to the Adamy subdivision restrictions based on a common grantor and marketing materials.
- The district court granted summary judgment to defendants, concluding the Adamy declaration/plat controlled and the implied-servitude doctrine did not apply; the Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Colford property is subject to Adamy subdivision covenants via implied reciprocal negative servitudes | Walters: a common grantor and promotional materials manifested a general plan so the Colford lot should be bound by the subdivision restrictions | Colford/Adamy: the Adamy subdivision restrictions were imposed by a recorded plat/declaration that did not include the Colford parcel; Adamy did not intend to include the parcel | Court: No — implied servitudes do not apply where a recorded declaration/plat defines the development and excludes the parcel |
| Whether promotional brochures and sales conduct created a material issue on grantor intent / inclusion of the Colford parcel in the plan | Walters: brochures and agent marketing created reasonable inference that the general plan included adjacent parcels | Colford/Adamy: Adamy disavowed the brochures and the recorded declaration/plat was the controlling record | Court: No material fact; recorded declaration placed purchaser on notice and rebutted any claim that Colford parcel was part of plan |
| Whether nuisance and conspiracy claims based on alleged covenant violations survive if covenants do not apply | Walters: nuisance/conspiracy stem from alleged covenant violation and should proceed | Defendants: claims fail if covenants don’t run to Colford property | Court: Dismissed — because covenants do not apply, related nuisance and conspiracy claims fail as matter of law |
| Standard for applying implied reciprocal servitudes where developer used a declaration of restrictions | Walters: implied servitude should still be recognized given representations in marketing | Defendants: Restatement and precedent limit implied servitudes where developer records a declaration for the plan | Court: Adopted Restatement approach — doctrine is a gap-filler and generally does not apply when restrictions were imposed by a recorded declaration/plat |
Key Cases Cited
- Skyline Woods Homeowners Assn. v. Broekemeier, 276 Neb. 792 (2008) (discusses elements and caution in applying implied reciprocal servitudes)
- Egan v. Catholic Bishop, 219 Neb. 365 (1984) (addresses common-grantor general plan and recording/notice principles)
- Plumb v. Ruffin, 213 Neb. 335 (1983) (recognizes enforcement of restrictive covenants among property owners)
- Pierce v. Landmark Management Group, Inc., 293 Neb. 890 (2016) (summary judgment standard and appellate review principles)