Boyles v. Hausmann, 2 Neb. App. 388

Summary

The Nebraska Court of Appeals held that a majority of subdivision landowners lacked authority to amend restrictive covenants during the five-year principal term established by the 1990 covenant agreement. The court reversed the district court and remanded with directions to find invalid an attempted amendment imposing a 120-foot setback from Pioneer Hills Road. A concurrence additionally reasoned that a majority could not create new or more restrictive covenants without the consent of all landowners.

Holdings

1. The January 1990 agreement made the covenants binding until January 1, 1995; the provision allowing amendment by a majority of the property owners became operative only after that principal period expired. Accordingly, a majority of the landowners lacked authority to amend the agreement in August 1990.
2. The appellate court could recognize the timing error as plain error because the error was evident from the record, prejudicially affected the Boyleses' substantial rights, and, if left uncorrected, would cause a miscarriage of justice.

Questions Presented

1. Whether the January 1990 restrictive-covenant agreement authorized a majority of the current landowners to amend the covenants during the agreement's five-year principal period.
2. Whether the August 1990 amendment imposing a 120-foot setback was valid.

Disposition

reversed_and_remanded