Western Land Co. v. Truskolaski
495 P.2d 624 (1972)
When the Southland Heights
subdivision was created the neighborhood was residential.
When the subdivision was
originally divided, there was a covenant that restricted all construction to single-family homes.
Twenty years later the area
had changed and surrounding streets were filled with commercial
The main road next to the
subdivision had become a major commercial thoroughfare, with a shopping
mall across the street.
Western bought a plot of land
in the subdivision with the intent of building shopping center.
Truskolaski and the other residents of Southland Heights sued to enjoin
Western argued that the
nature of the area had changed so significantly that the covenant was no longer relevant.
The Trial Court found for Truskolaski
and issued an injunction barring construction. Western appealed.
The Trial Court found that
the area had not changed sufficiently to make it inequitable or
oppressive to restrict the property to only single-family residential
Although the land use
surrounding the subdivision had changed, the subdivision itself hadn't
The Nevada Supreme Court
The Nevada Supreme Court
noted that, in cases where there were significant changes within a
subdivision that made the property unsuitable for the original purpose of
a covenant, then that covenant could possibly be unenforceable.
Possibly, not always! Even
if the was evidence that the land could have more value if put to other
Western argued that the Reno
City Council was considering rezoning the subdivision from residential to
commercial. But the Court found that wouldn't override a privately-held covenant.
Restatement of Property states that changes to zoning laws do not
invalidate private covenants unless they make terms of the
covenant illegal. The general
rule is that where zoning and restrictive covenants conflict, the more
However, Restatement of
Property also says that, "if
the purpose of the servitude can be accomplished but because of the
changed conditions the servient estate is no longer suitable for the
uses permitted by the servitude, a court may modify the servitude to
permit other uses under conditions designed to preserve the benefit of
the original servitude."
Basically the court can
step in and create a compromise, where the land can be used for
something that isn't technically allowed under the covenant, but wouldn't be too much of a nuisance.
Western also unsuccessfully
argued that, due to some minor violations of the covenant by other residents, the covenant should be considered to be abandoned. However,
the Court found that a covenant is only abandoned when violations are so general as to frustrate
the original purpose of the agreement.
The land that Western owned
wasn't really useful for single-family homes, since it was across the
street from a shopping mall. Was it really fair to West to have an
essentially useless property?
This case was eventually
settled and Western agreed to put some offices on the land, which wasn't
as invasive as retail stores. This is similar to the suggestion made in
the Restatement of Property.