Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
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WALTERS v. COLFORD
Cite as 297 Neb. 302
Gary J. Walters et al., appellants, v.
Steven W. Colford et al., appellees.
___ N.W.2d ___
Filed July 28, 2017. No. S-16-641.
1. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to any material
facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, the court views the
evidence in the light most favorable to the party against whom the
judgment was granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Trial: Juries: Evidence. Where the facts are undisputed or are such that
reasonable minds can draw but one conclusion therefrom, it is the duty
of the trial court to decide the question as a matter of law rather than
submit it to the jury for determination.
4. Summary Judgment: Evidence: Proof. A movant for summary judg-
ment makes a prima facie case by producing enough evidence to dem-
onstrate that the movant is entitled to a judgment if the evidence were
uncontroverted at trial. At that point, the burden of producing evidence
shifts to the party opposing the motion, who must present evidence
showing the existence of a material fact that prevents summary judg-
ment as a matter of law.
5. Restrictive Covenants. When restrictive covenants are created for the
mutual benefit of all of the properties within a development, they may
be enforced by each of the property owners against the other.
6. ____. The doctrine of implied reciprocal negative servitudes allows—
under very limited circumstances—a servitude to be created by implica-
tion, even where no express servitude applies to the property at issue.
7. ____. The requirements for the application of the doctrine of implied
reciprocal negative servitudes are as follows: (1) There is a common
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grantor of property who has a general plan or scheme of development
for the property; (2) the common grantor conveys a significant number
of parcels or lots in the development subject to servitudes (restrictive
covenants) designed to mutually benefit the properties in the develop-
ment and advance the plan of development; (3) it can be reasonably
inferred, based on the common grantor’s conduct, representations, and
implied representations, that the grantor intended the property against
which the servitude is implied to be subject to the same servitudes
imposed on all of the properties within the plan of development; (4)
the property owner against whom the restriction is enforced has actual
or constructive notice of the implied servitude; (5) the party seeking to
enforce the restriction possesses an interest in property in the develop-
ment that is subject to the servitude and has reasonably relied upon the
representations or implied representations of the common grantor that
other properties within the general scheme of development will be sub-
ject to the servitude; and (6) injustice can be avoided only by implying
the servitude.
8. ____. The law disfavors restrictions on the use of land. Logically, if
express restrictive covenants are disfavored under the law, implied
restrictive covenants are to be viewed with even less favor.
9. ____. Because implied restrictive covenants mandate relaxation of the
writing requirement, courts are generally reluctant and cautious to con-
clude implied restrictive covenants exist.
10. ____. The doctrine of implied reciprocal negative servitudes should be
applied with extreme caution because in effect it lodges discretionary
power in a court to deprive a person of his or her property by imposing
a servitude through implication.
11. Property: Boundaries. Whether a general plan or scheme of devel-
opment exists and the scope and boundary of that plan are questions
of fact.
12. Property: Intent: Proof. A grantor’s intent to create a plan of develop-
ment may be proved from the conduct of parties or from the language
used in deeds, plats, maps, or general building development plans and
by looking to matters extrinsic to related written documents, including
conduct, conversation, and correspondence.
13. Property: Boundaries: Presumptions. Where property is subdivided
or platted pursuant to a plan of development, a presumption arises
that the plan of development includes only those properties in the plat
or subdivision.
14. Restrictive Covenants. The property included within a plan of develop-
ment, for purposes of the doctrine of implied reciprocal negative servi-
tudes, does not necessarily include all of the developer’s land, but can
be limited to certain well-defined similarly situated lots.
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15. Property: Boundaries. Where a development is subdivided or plat-
ted in separate phases, each phase constitutes its own separate plan
of development.
16. Restrictive Covenants. The doctrine of implied reciprocal negative
servitudes has no application where a developer follows the practice
of creating restrictions on a development through a declaration of
restrictions.
17. ____. A buyer of property has no reasonable expectation that neighbor-
ing property will be restricted as part of a plan of development pursuant
to the doctrine of implied reciprocal negative servitudes where the entire
development has been restricted through a declaration of restrictions that
does not include that neighboring property.
18. ____. The purpose of the doctrine of implied reciprocal negative servi-
tudes is to protect the reasonable expectations of purchasers of property
who reasonably rely on the representations or implied representations
of a developer that the other properties within a development will
be restricted.
19. ____. Limiting the scope of the implied reciprocal servitudes doc-
trine to situations where restrictive covenants are placed in individual
deeds serves the interest of promoting reliance on our property record-
ing system.
Appeal from the District Court for Butler County: M ary C.
Gilbride, Judge. Affirmed.
Jeffrey A. Silver for appellants.
Todd B. Vetter and Luke P. Henderson, of Fitzgerald, Vetter,
Temple & Bartell, for appellees Steven W. Colford and Sara
J. Colford.
Robert J. Bierbower for appellee Daniel F. Adamy.
Heavican, C.J., Wright, Miller-Lerman, Stacy, K elch, and
Funke, JJ.
Wright, J.
I. NATURE OF CASE
At issue in this case is whether the property owned by
Steven W. Colford and Sara J. Colford is subject to the
neighboring subdivision’s restrictive covenants by virtue of
the doctrine of implied reciprocal negative servitudes. The
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district court concluded that it was not and granted summary
judgment to the appellees, the Colfords and Daniel F. Adamy.
We affirm.
II. BACKGROUND
1. Procedural Background
The appellants, Gary J. Walters and Denise R. Walters, as
cotrustees of the Gary J. Walters and Denise R. Walters Trust;
Aaron Schmid; Jacquelyne J. Romshek; and Cory Micek (col-
lectively the plaintiffs), brought suit against the Colfords and
Adamy. The suit alleges three claims: mandatory injunction
for violation of the neighboring subdivision’s restrictive cov
enants, nuisance (derived from the alleged restrictive covenants
violation), conspiracy to violate the restrictive covenants, and
invasion of privacy (later voluntarily dismissed without preju-
dice by the plaintiffs).
The Colfords moved for summary judgment. The district
court granted the motion with respect to the mandatory injunc-
tion claim and the nuisance claim, but not with respect to the
invasion of privacy claim. The court’s order did not address
the conspiracy claim. The court set a pretrial hearing for the
remaining issues in the case. The plaintiffs appealed from the
court’s order. The appeal was dismissed for lack of a final,
appealable order. The plaintiffs then voluntarily dismissed their
invasion of privacy claim without prejudice. The Colfords
again moved for summary judgment, and Adamy joined this
motion. The district court granted the motion with respect to
the only remaining issue, the conspiracy claim, concluding that
because the covenants did not apply to the Colfords’ property,
there could be no civil conspiracy to violate the covenants. The
plaintiffs appealed, and we subsequently moved this case to
our docket.
2. Factual Background
The plaintiffs are neighbors to the Colfords. The plaintiffs
live in a platted subdivision known as the Adamy subdivision.
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WALTERS v. COLFORD
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The Adamy subdivision was platted and dedicated in 1976,
and the founding documents were filed with the Butler County
register of deeds. The plat and dedication included restrictive
covenants, which, among other things, limited the structures
on the lots to one single-family, two-story house and one
two- or three-car garage. The subdivision contains 14 lots cre-
ated from a piece of property consisting of around 16.5 acres.
The Adamy family also owned much of the property adja-
cent to the subdivision, including the entire quarter-section
(approximately 160 acres) of land in which the subdivision
was located.
Adamy later sold some of the property adjacent to the
Adamy subdivision without restrictive covenants, including to
the Walters. Adamy hired two real estate agents to sell some
of the lots in the Adamy subdivision that remained unsold as
well as some adjoining property. Adamy did not remember
when he hired the two agents.
The record contains promotional brochures produced by the
two real estate agents advertising the sale of properties owned
by Adamy. The brochures listed the property for sale under
the names “Adamy Division” and “Valley View Subdivision.”
The brochures contained maps of the properties for sale, dis-
playing lots within the Adamy subdivision alongside adjacent
property owned by Adamy. That adjacent property included
portions or all of the property later sold to the Colfords (the
Colford Property), a 5-acre parcel immediately to the west of
the Adamy subdivision. One of the brochures listed the restric-
tive covenants applicable to the Valley View subdivision and
said, “These covenants may change. Contact listing agents for
more information” (emphasis omitted). Adamy testified that he
did not approve of any of the advertising materials produced
by his real estate agents.
The Colfords purchased 5 acres of property from Adamy
in 2013 for $25,000. When Adamy sold the property to the
Colfords, the property was not subject to any restrictive cov-
enants. Later, Adamy placed restrictions on the property that
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he and the Colfords negotiated. These new restrictions on
the Colford Property were different from those in place on
the Adamy subdivision. He testified that he never intended
to make the Colford Property subject to the same restric-
tive covenants that were in place on the Adamy subdivision.
The Colfords were aware that there were restrictive cov-
enants in place on the Adamy subdivision, but did not know
their details.
After purchasing the property, the Colfords constructed a
large metal building, approximately 30 by 50 feet, which the
plaintiffs alleged was in violation of the Adamy subdivision
covenants. The Colfords used the building to store building
material to build a house on the property.
III. ASSIGNMENT OF ERROR
The Walters claim that the district court erred as a mat-
ter of law in granting each of the two motions for summary
judgment.
IV. STANDARD OF REVIEW
[1,2] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from
those facts and that the moving party is entitled to judgment
as a matter of law.1 In reviewing a summary judgment, the
court views the evidence in the light most favorable to the
party against whom the judgment was granted and gives such
party the benefit of all reasonable inferences deducible from
the evidence.2
[3,4] Where the facts are undisputed or are such that rea-
sonable minds can draw but one conclusion therefrom, it is
1
Pierce v. Landmark Management Group, Inc., 293 Neb. 890, 880 N.W.2d
885 (2016).
2
Id.
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the duty of the trial court to decide the question as a matter
of law rather than submit it to the jury for determination.3 A
movant for summary judgment makes a prima facie case by
producing enough evidence to demonstrate that the movant is
entitled to a judgment if the evidence were uncontroverted at
trial.4 At that point, the burden of producing evidence shifts
to the party opposing the motion, who must present evidence
showing the existence of a material fact that prevents sum-
mary judgment as a matter of law.5
V. ANALYSIS
1. The Plaintiffs’ Claim for Injunctive R elief:
A damy Subdivision R estrictive Covenants
Do Not Expressly A pply to the
Colford Property
There is no evidence that the Colford Property is expressly
subject to the Adamy subdivision restrictive covenants. The
Colford Property is not a part of the Adamy subdivision.
The Adamy subdivision restrictive covenants expressly apply
only to the lots within the subdivision. The plaintiffs may
prevail only if they can establish that the Colford Property
is restricted through the doctrine of implied reciprocal nega-
tive servitudes.
2. The Plaintiffs’ Claim for Injunctive R elief:
A pplication of Doctrine of Implied
R eciprocal Negative Servitudes
to the Colford P roperty
The plaintiffs argue that the Colford Property is sub-
ject to the Adamy subdivision restrictions through the doc-
trine of implied reciprocal negative servitudes. The district
court concluded that there was no material issue of fact as
3
Id.
4
Id.
5
Id.
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to the application of the doctrine because “[a]lthough all
of the land at issue was conveyed by a common grantor,
there is no showing that the grantor had a common plan of
development for the Colford land or had any intent to restrict
the use of it.”
(a) Overview of Doctrine
[5] Restrictive covenants on property use are often utilized
in developments to maintain the character of the neighbor-
hood in accord with the development plan and to protect prop-
erty values.6 When restrictive covenants are created for the
mutual benefit of all of the properties within a development,
they may be enforced by each of the property owners against
the other.7 While at common law, restrictive covenants on land
use were categorized as either “real covenants” or “equitable
servitudes” depending on whether they were enforced in law or
equity, the distinction between these two has blurred over time.8
6
See, generally, 1 Restatement (Third) of Property: Servitudes § 2.14,
comment a. (2000); Citizens for Cov. Comp. v. Anderson, 12 Cal. 4th 345,
352, 906 P.2d 1314, 1318, 47 Cal. Rptr. 2d 898, 902 (1995) (“[m]odern
subdivisions are often built according to a general plan containing
restrictions that each owner must abide by for the benefit of all”).
7
See, Plumb v. Ruffin, 213 Neb. 335, 328 N.W.2d 792 (1983); Reed
v. Williamson, 164 Neb. 99, 82 N.W.2d 18 (1957). See, generally, 1
Restatement, supra note 6.
8
9 Richard R. Powell & Michael Allan Wolf, Powell on Real Property
§ 60.01[5] at 60-11 (2000). See, generally, id., § 60.01[4] and [5]; 7
Thompson on Real Property §§ 61.02(b) and (c) and 61.05 (David A.
Thomas 2d ed. 2006); 1 Restatement, supra note 6, §§ 1.4 and 2.1,
comment a.; Citizens for Cov. Comp. v. Anderson, supra note 6, 12 Cal.
4th at 348, 906 P.2d at 1316, 47 Cal. Rptr. 2d at 900 (referring to law of
real covenants and equitable servitudes as “‘the most complex and archaic
body of American property law remaining in the twentieth century’” and
as “‘an unspeakable quagmire’”).
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The modern trend, as represented by the Restatement (Third)
of Property: Servitudes,9 is to refer to both real covenants and
equitable servitudes simply as servitudes.
[6,7] The doctrine of implied reciprocal negative servi-
tudes10 allows—under very limited circumstances—a servi-
tude to be created by implication, even where no express
servitude applies to the property at issue. The require-
ments for the application of this doctrine are as follows:
(1) There is a common grantor of property who has a gen-
eral plan or scheme of development for the property;11
(2) the common grantor conveys a significant number of
parcels or lots in the development subject to servitudes
(restrictive covenants) designed to mutually benefit the
properties in the development and advance the plan of
9
See, 1 Restatement, supra note 6, §§ 1.3 and 1.4; 9 Powell & Wolf, supra
note 8, § 60.01[6]. See, also, generally, Lawrence Berger, Integration of
the Law of Easements, Real Covenants and Equitable Servitudes, 43 Wash.
& Lee L. Rev. 337 (1986); Uriel Reichman, Toward a Unified Concept of
Servitudes, 55 S. Cal. L. Rev. 1177 (1982); Ralph A. Newman & Frank R.
Losey, Covenants Running with the Land, and Equitable Servitudes; Two
Concepts, or One?, 21 Hastings L.J. 1319 (1970).
10
See, generally, 1 Restatement, supra note 6, § 2.14; 20 Am. Jur. 2d
Covenants, Etc. § 156 (2015); 21 C.J.S. Covenants § 4 (2016); Krueger
v. Oberto, 309 Ill. App. 3d 358, 724 N.E.2d 21, 243 Ill. Dec. 712 (1999);
Schovee v. Mikolasko, 356 Md. 93, 737 A.2d 578 (1999); Evans v. Pollock,
796 S.W.2d 465 (Tex. 1990); Sharts v. Walters, 107 N.M. 414, 759 P.2d
201 (N.M. App. 1988); Mid-State Equipment Co. v. Bell, 217 Va. 133,
225 S.E.2d 877 (1976); Williams v. Waldrop, 216 Ga. 623, 118 S.E.2d
465 (1961); Nashua Hospital v. Gage, 85 N.H. 335, 159 A. 137 (1932);
Sanborn v. McLean, 233 Mich. 227, 206 N.W. 496 (1925).
11
Skyline Woods Homeowners Assn. v. Broekemeier, 276 Neb. 792, 758
N.W.2d 376 (2008); Egan v. Catholic Bishop, 219 Neb. 365, 363 N.W.2d
380 (1985).
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development;12 (3) it can be reasonably inferred, based on
the common grantor’s conduct, representations, and implied
representations, that the grantor intended the property against
which the servitude is implied to be subject to the same
servitudes imposed on all of the properties within the plan
of development;13 (4) the property owner against whom the
restriction is enforced has actual or constructive notice of
the implied servitude;14 (5) the party seeking to enforce the
restriction possesses an interest in property in the devel-
opment that is subject to the servitude and has reason-
ably relied upon the representations or implied representa-
tions of the common grantor that other properties within
the general scheme of development will be subject to the
12
See Egan v. Catholic Bishop, supra note 11, 219 Neb. at 370, 363
N.W.2d at 384 (stating that doctrine applies where common grantor “by
numerous conveyances incorporates in the deeds substantially uniform
restrictions, conditions, and covenants against the use of the property”).
See, also, Patch v. Springfield School Dist., 187 Vt. 21, 33, 989 A.2d
500, 508 (2009) (requiring for application of doctrine that “‘vast majority
of subdivided lots contain restrictive covenants which reflect the general
scheme’”).
13
See, Skyline Woods Homeowners Assn. v. Broekemeier, supra note 11;
Egan v. Catholic Bishop, supra note 11; Nashua Hospital v. Gage, supra
note 10, 85 N.H. at 339, 159 A. at 139 (requiring that “‘restrictions were
intended by the common vendor to be and were for the benefit of all the
lots intended to be sold’”).
14
See, Skyline Woods Homeowners Assn. v. Broekemeier, supra note 11,
276 Neb. at 811, 758 N.W.2d at 390-91 (“‘[t]he recording acts have not
abolished the equity rule as to actual and constructive notice.’ Under this
rule, we consider whether there are circumstances which, in the exercise of
common reason and prudence, ought to put a man upon particular inquiry.
If so, then the purchaser will be charged with notice of every fact which an
inquiry, if made, would have given him or her”); Egan v. Catholic Bishop,
supra note 11.
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servitude;15 and (6) injustice can be avoided only by imply-
ing the servitude.16
[8-10] While the doctrine of implied reciprocal negative
servitudes has a long pedigree and is well established,17 courts
tend to use it only with great trepidation. We have said that
the law disfavors restrictions on the use of land.18 As one court
reasoned, “Logically, if express restrictive covenants are dis-
favored under the law, implied restrictive covenants are to be
viewed with even less favor.”19 We have also said that because
implied restrictive covenants mandate relaxation of the writ-
ing requirement, courts are generally reluctant and cautious
to conclude implied restrictive covenants exist.20 As another
court said, “the doctrine [of implied reciprocal negative ser-
vitudes] should be applied with extreme caution because in
15
See, Skyline Woods Homeowners Assn. v. Broekemeier, supra note 11;
Egan v. Catholic Bishop, supra note 11. See, also, Ski Masters of Texas,
LLC v. Heinemeyer, 269 S.W.3d 662, 669 (Tex. App. 2008) (“[q]uestions
about standing are implicated whenever a property owner seeks to enforce
such a restrictive covenant. Standing essentially depends on two things:
(1) the existence of a general plan or scheme of development (2) that was
part of the inducement for purchasers to obtain land within the restricted
area”) (citing Hooper v. Lottman, 171 S.W. 270 (Tex. App. 1914)).
16
1 Restatement, supra note 6, § 2.14(2)(b). See, also, Sullivan v. O’Connor,
81 Mass. App. 200, 961 N.E.2d 143 (2012). Cf. Mountain High
Homeowners Assn. v. J.L. Ward, 228 Or. App. 424, 438, 209 P.3d 347, 355
(2009) (limiting creation of implied equitable servitudes by estoppel to
where “establishment of a servitude is necessary to avoid injustice”).
17
E.g., Evans v. Pollock, supra note 10, 796 S.W.2d at 466 (“implied
reciprocal negative easement doctrine has long been recognized in many
jurisdictions”).
18
See, Latenser v. Intercessors of the Lamb, Inc., 250 Neb. 789, 553 N.W.2d
458 (1996); Egan v. Catholic Bishop, supra note 11.
19
Collins v. Rodgers, 938 So. 2d 379, 385 (Ala. 2006).
20
Skyline Woods Homeowners Assn. v. Broekemeier, supra note 11.
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effect it lodges discretionary power in a court to deprive a
[person] of his [or her] property by imposing a servitude
through implication.”21 Some courts, in agreement with the
Restatement drafters, require clear and convincing evidence
to establish that a property is subject to the restrictions of an
implied reciprocal negative servitude.22
[11,12] Whether a general plan or scheme of development
exists and the scope and boundary of that plan are questions of
fact.23 The Restatement commentary explains:
Representations by the developer normally provide
the basis for finding that land was conveyed pursuant to
a general plan of development. The representations may
take the form of direct expressions that the project is a
planned development, a restricted community, a qual-
ity residential subdivision, or the like. Representations
may be found in advertisements, brochures, or statements
21
Galbreath v. Miller, 426 S.W.2d 126, 128 (Ky. 1968). See, also, Land
Developers, Inc. v. Maxwell, 537 S.W.2d 904, 913 (Tenn. 1976) (stating
that doctrine should be applied with “‘“extreme caution”’”); Saccomanno
v. Farb, 492 S.W.2d 709, 713 (Tex. App. 1973) (stating that doctrine
should be applied with “extreme caution”).
22
1 Restatement, supra note 6, § 2.14, comment f. See, also, The Greylag
4 Maint. Corp. v. Lynch-James, No. CIV.A. 205-N, 2004 WL 2694905 at
*5 (Del. Ch. Oct. 6, 2004) (requiring “the party asserting the common
plan doctrine [to] show, by clear and convincing evidence, that a common
plan in fact existed”) (citing Leon N. Weiner & Associates v. Krapf, 623
A.2d 1085 (Del. 1993)); Joslyn v. Woods, No. 2001-CA-000320-MR,
2003 WL 1246955 (Ky. App. Feb. 14, 2003) (requiring proof by clear and
convincing evidence for doctrine of implied reciprocal easements) (citing
Bellemeade Company v. Priddle, 503 S.W.2d 734 (Ky. 1973)); McKenrick
v. Savings Bank, 174 Md. 118, 128, 197 A. 580, 585 (1938) (requiring
“clear and satisfactory proof” to establish existence of general scheme of
development and that land in question was intended by common grantor to
be subject to restrictions as part of scheme).
23
1 Restatement, supra note 6, § 2.14, comment f.; Ski Masters of Texas,
LLC v. Heinemeyer, supra note 15.
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made by sales personnel. Indirect representations may
be found in maps, or pictures displayed to prospective
purchasers. Representations may also be found in the
language or nature of the servitudes imposed on the
lots conveyed.24
We said in Skyline Woods Homeowners Assn. v.
Broekemeier25 that a grantor’s intent to create a plan of devel-
opment may be proved “from the conduct of parties or from
the language used in deeds, plats, maps, or general building
development plans” and by looking “‘to matters extrinsic to
related written documents, including conduct, conversation,
and correspondence.’”
[13] Determining which properties are included within a
plan of development is relatively easy where land is platted
or subdivided, because “[i]n the absence of other evidence,
the inference is normally justified that all of the land within
a platted subdivision is subject to the general plan, and that
land outside the subdivision is not included.”26 Thus, where
property is subdivided or platted pursuant to a plan of devel-
opment, a presumption arises that the plan of development
includes only those properties in the plat or subdivision.27
[14,15] The property included within a plan of development,
for purposes of the doctrine, does not necessarily include all
24
1 Restatement, supra note 6, § 2.14, comment f. at 185. See, also,
generally, Country Community v. HMW Special Utility, 438 S.W.3d 661
(Tex. App. 2014); Swanson v. Green, 572 So. 2d 1246 (Ala. 1990).
25
Skyline Woods Homeowners Assn. v. Broekemeier, supra note 11, 276 Neb.
at 805, 758 N.W.2d at 387.
26
1 Restatement, supra note 6, § 2.14, comment g. at 187. See, also,
generally, Roper v. Camuso, 376 Md. 240, 261, 829 A.2d 589, 602 (2003)
(“cases considering implied restrictions on land retained by a common
grantor have turned on two key inquiries: whether (1) there was a general
plan of development, and (2) if so, the retained land was intended to be a
part of the development”).
27
See 1 Restatement, supra note 6, § 2.14, comment g.
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of the developer’s land, but can be limited to “certain well-
defined similarly situated lots.”28 And where a development
is subdivided or platted in separate phases, each phase consti-
tutes its own separate plan of development.29
In addition to the aforementioned limitations on the scope
of this doctrine, there is another limitation on its application
that is key to the resolution of the case at bar.
(b) Gap-Filling Function
of Doctrine
The doctrine of implied reciprocal negative servitudes func-
tions as a gap-filler. It is an equitable doctrine created to pro-
tect property owners. Where a property owner purchases a lot
from a developer that is subject to a restrictive covenant in
the individual lot deed, but where the developer subsequently
conveys a lot within the development without a restriction in
the deed, the doctrine steps in to fill the gap. It fills the gap in
order to protect the other property owners’ reasonable expecta-
tions that all of the lots within the plan of development will be
similarly restricted.
The doctrine arose in the historical context of a time in
which developers typically restricted properties within a plan
28
Evans v. Pollock, supra note 10, 796 S.W.2d at 471. See, also, Byrd v.
Mahrou, No. 03-14-00441-CV, 2016 WL 3974702 (Tex. App. July 22,
2016).
29
1 Restatement, supra note 6, § 2.14, comment g. at 187 (“[w]hen a tract
is developed in phases, with separate units or subdivisions, the imposition
of servitudes in one phase should not give rise to the implication of
reciprocal servitudes burdening the remaining units or subdivisions”). See,
Evans v. Pollock, supra note 10; Duvall v. Ford Leasing, 220 Va. 36, 42,
255 S.E.2d 470, 473 (1979) (holding, in situation where development “was
developed in stages, the various sections having been created from time to
time over a period of many years by the recordation of a number of deeds
of dedication and plats,” that “each of these recordings created a separate
and distinct subdivision, with its own set of restrictions benefiting and
burdening only the land in that particular subdivision”).
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of development by placing restrictive covenants in each indi-
vidual property deed. As one court explained:
[T]he implied negative reciprocal easement or servitude
doctrine arose before the advent of comprehensive zon-
ing in order to provide a measure of protection for those
who bought lots in what they reasonably expected was
a general development in which all of the lots would
be equally burdened and benefitted. In those early days,
it was uncommon for the developer to evidence the
development or impose uniform restrictions through a
recorded Declaration that would later be incorporated
in individual deeds. They often filed subdivision plats
of one kind or another but did not take the extra step
of using one instrument to impose the restrictions. The
common, almost universal, practice, instead, was for the
developer to place the restrictions in the deeds to indi-
vidual lots and, sometimes, to represent to the purchasers
of those lots that the same restrictions would be placed
in subsequent deeds to the other lots. Litigation arose
most frequently when the developer then neglected to
include the restrictions in one or more of the subsequent
deeds and those buyers proceeded or proposed to use
their property in a manner that would not be allowed by
the restrictions.30
Because developers historically restricted properties as part of
their plan of development on a deed-by-deed basis, the doctrine
was created to fill the gap where a property was conveyed
without restrictions in the deed.
But a common practice today is for developers to place
restrictions on an entire development all at once through
30
Schovee v. Mikolasko, supra note 10, 356 Md. at 107-08, 737 A.2d at 586
(citing Restatement (Third) of Property: Servitudes § 2.14, comment b.
(Tentative Draft No. 1, 1989)).
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executing and recording a declaration of restrictions.31 Where
this occurs, there is no need for the doctrine’s gap-filling
function. The drafters of the Restatement took the position
that the doctrine has no application where a development’s
restrictions are created through a declaration of restrictions
rather than through restrictive covenants placed in individual
lot deeds:
The idea underlying the [implied-reciprocal-servitude]
doctrine is that when a purchaser buys land subject
to restrictions imposed to carry out a general plan of
development, the purchaser is entitled to assume that
all the land in the development is, or will be, similarly
restricted to carry out the general plan. By selling land
with restrictions designed to put into effect a general plan
of development, the developer impliedly represents to the
purchasers that the rest of the land included in the plan
is, or will be, similarly restricted. That representation is
enforced, on the grounds of estoppel, by imposing an
implied reciprocal servitude on the developer’s remain-
ing land included in the plan. Because the implied-
reciprocal-servitude doctrine undercuts the Statute of
Frauds and creates uncertainty in land titles, it should
be applied only when the existence of a general plan is
clear and establishment of the servitude is necessary to
avoid injustice.
The implied-reciprocal-servitude doctrine comes into
play only when the developer does not follow the prac-
tice of recording a declaration of servitudes applicable
to the entire subdivision or other general-plan area. The
31
See Black’s Law Dictionary 495 (10th ed. 2014) (defining “declaration of
restrictions” as “statement of all the covenants, conditions, and restrictions
affecting a parcel of land, usu[ally] imposed and recorded by a developer
of a subdivision. The restrictions usu[ally] promote a general plan of
development by requiring all lot owners to comply with the specified
standards, esp[ecially] for buildings. The restrictions run with the land”).
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doctrine protects the interests of purchasers who relied
on continued effectiveness of the general plan when
the developer decides to deviate from the general plan
of development before all lots have been sold. If the
purchasers have reasonably relied on the implied repre-
sentations that all lots will be sold subject to the general-
plan restrictions, and injustice can only be avoided by
establishment of the implied servitude, the purchasers
are entitled to the protection of an implied reciprocal
servitude burdening the lots remaining in the devel-
oper’s hands.32
[16] We agree with the Restatement that the doctrine of
implied reciprocal negative servitudes has no application where
a developer follows the practice of creating restrictions on a
development through a declaration of restrictions. We agree
with this approach because it furthers the interests of protect-
ing the reasonable expectations of property purchasers and
promoting reliance on our property recording system.
[17] A buyer of property has no reasonable expectation that
neighboring property will be restricted as part of a plan of
development where the entire development has been restricted
through a declaration of restrictions that does not include that
neighboring property. Such a buyer knows, or should know,
that the neighboring property is not a part of the development
and not necessarily subject to the same restrictions as the
buyer’s property.
32
1 Restatement, supra note 6, § 2.14, comment i. at 191 (emphasis
supplied). See, also, Save Sea Lawn Acres Ass’n v. Mercer, 140 Wash.
App. 411, 422, 166 P.3d 770, 776 (2007) (stating that “implied-reciprocal-
servitude doctrine applies only when the developer does not follow the
practice of recording a declaration applicable to the entire subdivision or
general-plan area”). But see, Roper v. Camuso, supra note 26; Schovee v.
Mikolasko, supra note 10 (declining to adopt Restatement’s categorical
rule that doctrine does not apply where developer uses declaration, but,
instead, creating strong presumption that doctrine does not apply beyond
scope of declaration).
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[18] The purpose of the doctrine is to protect the reason-
able expectations of purchasers of property who reasonably
rely on the representations or implied representations of a
developer that the other properties within a development will
be restricted. But the need for implied restrictions is obviated
when the entire plan of development is restricted at once with
a declaration of restrictions. A purchaser of property within
such a development knows precisely what properties are—
and what properties are not—subject to the same restrictions.
The buyer can look at the records. The declaration tells the
buyer what the restrictions are and to what properties they
apply. Where the restrictions of a development are imposed
all at once through a declaration of restrictions, the doctrine
of implied reciprocal negative servitudes is not necessary to
protect reasonable expectations of property buyers, because
the buyer knows exactly what he or she is getting.
[19] Limiting the scope of the implied reciprocal servitudes
doctrine to situations where restrictive covenants are placed
in individual deeds also serves the interest of promoting
reliance on our property recording system. By definition, an
implied servitude is not written and recorded. A prospective
property purchaser cannot trek down to the local register of
deeds and see if there are any implied servitudes on a particu-
lar piece of property. The potential for unwritten, unrecorded,
implied servitudes creates uncertainty. This uncertainty is at
odds with our recording system, which aims to yield clear
answers about the ownership of property. Where a purchaser
of property can find a recorded declaration of restrictions,
showing the scope of a development’s restrictions, the pur-
chaser should be able to rely on that information.
The doctrine of implied reciprocal negative servitudes
does not apply where the grantor restricts all of the proper-
ties within a planned development through a declaration of
restrictions. Where the grantor uses a declaration, the express
restrictions within the declaration control within the plan of
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development. The doctrine does not apply to property outside
the planned development.
Here, the restrictive covenants placed on the Adamy sub-
division were created through a plat and declaration in 1976.
The restrictions were put in place as to all of the lots within
the planned development. At the time the plaintiffs purchased
their lots within the subdivision, the plat and declaration
document was on file with the Butler County register of
deeds. All of the plaintiffs had the opportunity to look at
that record. Had they done so, they would have seen that the
Colford Property was not a part of their subdivision and not
subject to the same restrictions. With this information avail-
able, the plaintiffs had no reasonable expectation that the
Colford Property would be subject to the Adamy subdivision
restrictions, regardless of what any real estate sales brochures
may have implied. We affirm the district court’s grant of sum-
mary judgment.
3. The Plaintiffs’ Nuisance and
Conspiracy Claims
The plaintiffs’ nuisance and conspiracy claims are premised
on the alleged violation of the Adamy subdivision restrictive
covenants. Because we conclude that these restrictions do not
apply to the Colford Property through the doctrine of implied
reciprocal negative servitudes, these claims fail as a matter
of law. We affirm the district court’s order granting summary
judgment on these claims.
VI. CONCLUSION
For the reasons set forth in this opinion, we affirm the judg-
ment of the district court.
A ffirmed.
Cassel, J., participating on briefs.