## Facts

- Larry and Olga Boyles bought Lot 18 in the Pioneer Hills Subdivision in Washington County, Nebraska, in 1977, subject to recorded restrictive covenants.
- The original covenants regulated matters such as type and number of residences, garages, outbuildings, grading, animals, and plan preapproval.
- The original covenants contained no setback or building-location restrictions.
- The covenants were to run with the land until January 1, 1983, and renew in five-year periods unless a majority of owners recorded an instrument agreeing to change them “in whole or in part.”
- In 1984, a majority (including the Boyles) amended several existing covenants concerning recreational vehicles, animals, outbuildings, factory-built homes, and plan approval.
- In 1990, a majority of owners adopted a new restriction prohibiting construction of any building within 120 feet of a county road.
- The Boyles did not consent to the 1990 setback restriction and alleged it substantially impaired their ability to place future structures on their lot.

## Issues

1. Whether a majority-owner amendment clause authorizing owners to “change” covenants “in whole or in part” permits adoption of an entirely new, qualitatively different restriction—specifically a 120-foot building setback—binding nonconsenting owners.
2. Whether the dispute presented a present, justiciable controversy suitable for declaratory relief rather than an impermissible request to adjudicate future or contingent rights.

## Decision

- The Nebraska Supreme Court reviewed the matter de novo because an action to declare a restrictive covenant invalid and unenforceable is essentially equitable.
- The court held a present, substantial controversy existed because the recorded 1990 amendment purported to bind the Boyles’ lot and immediately affected the parties’ legal relations.
- The court affirmed (as modified) the appellate judgment invalidating the 1990 setback covenant.
- The court concluded the amendment power did not extend to imposing an entirely new setback restriction not contemplated by the original covenant scheme, absent consent of affected owners.

## Legal Principles

- Declaratory relief is available only when parties have adverse legal interests involving a present actual controversy that is susceptible of immediate resolution and present judicial enforcement; it cannot be used to decide future, contingent, or uncertain effects.
- Restrictive covenants are enforced according to the parties’ intent at the time of creation; unambiguous language is applied as written.
- Because restrictive covenants limit common-law property rights, they are not expanded by implication or extended beyond their clear terms.
- A general clause allowing a majority to “change” covenants may permit modifications within the existing covenant framework, but does not necessarily authorize adding a new category of substantial burden that materially alters owners’ reasonable expectations under the recorded scheme.

## Conclusion

The court declared the 1990 amendment imposing a 120-foot building setback invalid as to the Boyles, holding that a majority-owner power to “change” covenants did not authorize imposing a new, fundamentally different restriction on nonconsenting owners, and that the dispute was properly resolved through declaratory judgment.


Boyles v. Hausmann, 517 N.W.2d 610 (Neb. 1994)