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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 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. 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 judgment 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 implication, 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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/29/2017 12:11 AM CDT
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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 development 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 development 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 subject 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 conclude 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 development 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 development 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 development, for purposes of the doctrine of implied reciprocal negative servitudes, 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 platted 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 neighboring 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 servitudes 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 doctrine to situations where restrictive covenants are placed in individual 

deeds serves the interest of promoting reliance on our property recording system.

Appeal from the District Court for Butler County: Mary 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, Kelch, 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 (collectively the plaintiffs), brought suit against the Colfords and 

Adamy. The suit alleges three claims: mandatory injunction 

for violation of the neighboring subdivision’s restrictive covenants, nuisance (derived from the alleged restrictive covenants 

violation), conspiracy to violate the restrictive covenants, and 

invasion of privacy (later voluntarily dismissed without prejudice by the plaintiffs).

The Colfords moved for summary judgment. The district 

court granted the motion with respect to the mandatory injunction 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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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 created from a piece of property consisting of around 16.5 acres. 

The Adamy family also owned much of the property adjacent 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, displaying 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 restrictive 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 covenants. 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 restrictive covenants that were in place on the Adamy subdivision. 

The Colfords were aware that there were restrictive covenants 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 matter 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 reasonable 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 summary judgment as a matter of law.5

V. ANALYSIS

1. The Plaintiffs’ Claim for Injunctive Relief: 

Adamy Subdivision Restrictive Covenants

Do Not Expressly Apply 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 negative servitudes.

2. The Plaintiffs’ Claim for Injunctive Relief: 

Application of Doctrine of Implied

Reciprocal Negative Servitudes

to the Colford Property

The plaintiffs argue that the Colford Property is subject to the Adamy subdivision restrictions through the doctrine 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 neighborhood in accord with the development plan and to protect property 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 servitudes10 allows—under very limited circumstances—a servitude to be created by implication, even where no express 

servitude applies to the property at issue. The requirements for the application of this doctrine are as follows: 

(1) There is a common grantor of property who has a general 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 development 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 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 implying 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 disfavored 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 writing requirement, courts are generally reluctant and cautious 

to conclude implied restrictive covenants exist.20 As another 

court said, “the doctrine [of implied reciprocal negative servitudes] 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 quality 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 development 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 development, 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 welldefined similarly situated lots.”28 And where a development 

is subdivided or platted in separate phases, each phase constitutes 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 functions as a gap-filler. It is an equitable doctrine created to protect 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 expectations 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 individual property deed. As one court explained:

[T]he implied negative reciprocal easement or servitude 

doctrine arose before the advent of comprehensive zoning 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 individual 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 remaining land included in the plan. Because the impliedreciprocal-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 practice 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 representations that all lots will be sold subject to the generalplan 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 developer’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 protecting 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-reciprocalservitude 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 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. 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 particular 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 purchaser 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 properties 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 subdivision 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 available, 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 summary 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 judgment of the district court.

Affirmed.

Cassel, J., participating on briefs.