Ross v. Newman, 42598

• Decision Date: 15 April 1980
• Docket Number: No. 42598,42598
• Citation: 206 Neb. 42,291 N.W.2d 228
• Parties: K. W. ROSS and Karen Powell Ross, husband and wife; George D. Young and Willie Podesta Young, husband and wife, Appellees and Cross-Appellants, v. Murray NEWMAN, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 228

291 N.W.2d 228

206 Neb. 42

K. W. ROSS and Karen Powell Ross, husband and wife; George D. Young and Willie Podesta Young, husband and wife, Appellees and Cross-Appellants, v. Murray NEWMAN, Appellant and Cross-Appellee.

No. 42598.

Supreme Court of Nebraska.

April 15, 1980.

Syllabus by the Court

1. Restrictive Covenants: Deeds. A restrictive covenant requiring approval of an owner's use of property is unenforceable if it fails to provide a clear standard by which such approval will be judged and when such approval will be required.

2. Restrictive Covenants: Deeds. Restrictions on the erection or use of buildings will be construed, if possible, so as to effectuate the intention of the parties.

3. Restrictive Covenants: Deeds. Covenants restricting the use of property are not favored in the law and, if ambiguous, will be construed in a manner permitting the maximum unrestricted use of the property.

John H. Cotton, of Gaines, Otis, Mullen & Carta, Omaha, for appellant and cross-appellee.

Elizabeth Stuht Borchers and Gunderson, Abrahamson & Borchers, Omaha, for appellees and cross appellants.

Heard before BOSLAUGH, McCOWN, CLINTON and WHITE, JJ., and MARTIN, District Judge.

MARTIN, District Judge.

Appellant Murray Newman, the owner of a townhouse in Country Club Acres, a condominium regime in Omaha, Nebraska, installed a skylight in his townhouse. Other owners in the condominium sought injunctive relief against him for violation of the restrictive covenants of the condominium. The District Court for Douglas County, Nebraska, enjoined Newman from further violations of the covenants and ordered removal of the skylight. He appeals the decision and asserts that the covenants are vague and ambiguous; that the covenants were applied in an arbitrary and capricious manner; and that the violation, if any, was minor and did not warrant the remedy ordered.

The covenants in question here are section 5c: No clustered residence will be altered, built, constructed, or otherwise maintained on any townhome lot without an express written approval executed by a majority of the owners of such townhome lots as to general appearance, exterior color or colors, harmony of external design and location in relation to surroundings and topography and other relevant architectural factors, location within townhome lot boundary lines, quality of construction, size, and suitability for clustered residential purposes . . . .

and paragraph 8:

Modification, Revocation. The covenants contained herein may be modified or revoked upon a majority vote of all townhome lot owners. Any Easement contained herein may be revoked in whole or in part by the grantee thereof, its successor or assign.

The evidence indicates that other owners objected verbally to Newman or his contractor to the installation of the skylight. Newman, through his attorney, attempted to seek the informal approval of the other coowners to installation of the skylight, but when this endeavor failed, went ahead with the installation. Previously, Newman had installed an exterior front door and bevelled glass window, and others in the condominium had expressed their individual tastes by installing a door knocker, different colored front doors, and a patio, all without a vote under the provisions of paragraph 8, above. At one time, TV antennas had been placed on two...