Regency Homes Assn. v. Schrier

regency homes assn. v. schrier 	
cite as 277 neb. 
acts both underlying the offense and throughout the disciplin-
ary proceeding.8
Boose was convicted of a felony for failing to report his
client’s felonious activity. as an attorney, Boose has an obli-
gation to uphold the laws of the United states. his failure to
do so is a grievous breach of professional ethics. it violates
basic notions of honesty and endangers public confidence in
the legal profession.
[4] Boose has violated his oath of office as an attorney and
§ 3-08.4(b). The motion for reciprocal discipline is granted.
Boose is disbarred from the practice of law in the state of
nebraska, effective immediately. he shall comply with neb.
ct. r. § 3-316, and upon failure to do so, he shall be sub-
ject to punishment for contempt of this court. Furthermore,
Boose is directed to pay costs and expenses under neb. rev.
stat. §§ 7-114 and 7-11 (reissue 2007) and neb. ct. r.
§§ 3-310(P) and 3-323 within 60 days after an order imposing
costs and expenses, if any, is entered by this court.
Judgment of disbarment.
8 see Finney, supra note 2.
regency Homes association, a nebraska
not -for-profit corporation, appellee , v.
Jeffrey l. scHrier , appellant.
79 n.W.2d 484
Filed January 23, 2009. 	no. s-07-903.
1. Restrictive Covenants: Equity. a homeowner’s action to determine the enforce-
ability of a subdivision’s restrictive covenants is equitable in nature.
2. Equity: Appeal and Error. in an appeal of an equitable action, an appellate
court tries factual questions de novo on the record and reaches a conclusion
independent of the findings of the trial court, provided, when credible evidence
is in conflict on a material issue of fact, the appellate court considers and may
give weight to the fact that the trial judge heard and observed the witnesses and
accepted one version of the facts rather than another.
3. Associations: Contracts. The management and internal affairs of a voluntary
association are governed by its constitution and bylaws, which constitute a con-
tract between the members of the association.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

4. Contracts. if the language of an organization’s agreement is unambiguous, it
shall be enforced according to its plain language.
. ____. an agreement is ambiguous if it is susceptible to two or more reasonable
but conflicting interpretations or meanings.
6. ____. The fact that the parties have suggested opposite meanings of a disputed
instrument does not necessarily compel the conclusion that the instrument is
ambiguous.
7. Associations. general powers of an architectural control committee must be exer-
cised in a fair and reasonable manner.
Petition for further review from the court of appeals, inbody,
chief Judge, and sievers and carlson, Judges, on appeal
thereto from the District court for Douglas county, tHomas a.
otepka, Judge. Judgment of court of appeals affirmed.
robert 	W. 	mullin 	and 	andrew 	g. 	Davis, 	of 	Lieben,
Whitted, houghton, slowiaczek & cavanagh, P.c., L.L.o., for
appellant.
Bruce h. Brodkey and Jason c. Demman, of Brodkey,
cuddigan, Peebles & Belmont, L.L.P., and steven g. olson ii,
of engles, Ketcham, olson & Keith, P.c., for appellee.
H eavican, 	c.J., 	WrigHt, 	connolly, 	gerrard, 	stepHan,
mccormack , and miller-lerman, JJ.
mccormack , J.
naTUre oF case
regency homes association (association) sued Jeffrey L.
schrier after he replaced his roof in violation of a covenant
prohibiting asphalt shingles. The covenant had been passed as
an amendment 2 years before the roof replacement. The origi-
nal covenants did not specify roofing materials, but subjected
all alterations to approval by the association’s architectural
control committee (committee). The question in this case is
whether a vote to pass the amendment by three-quarters of
those voting, but only a minority of the total homeowners, was
valid under bylaws stating covenants could be “extended, modi-
fied, or terminated . . . by a three-quarters vote of the entire
number of memberships of regular members present in person
or by proxy.” also in issue is whether the roof covenant was
invalid because it was outside the scope of what a homeowner
6 	277 neBrasKa rePorTs

could reasonably expect from an “extension, modification, or
termination” of the original covenants.
BacKgroUnD
in 1968, the association adopted its original bylaws and
filed a declaration setting forth covenants and easements for
the properties governed by the association. The association’s
bylaws separated members into two classes, “regular” members
and “special” members. individuals had one “regular” member-
ship vote for each lot or dwelling unit owned in the area, but
could only have one “special” membership vote, regardless of
the number of properties owned. a “quorum” was defined in
the bylaws as “[s]uch members present in person or by proxy
. . . for any meeting of the regular members or for any meet-
ing of any one or both membership classes.”
The covenants were to run through December 31, 1998,
and included the requirement that the dwellings be detached
single-family homes not more than 21⁄2 stories high, that they
have enclosed garages with automatic doors, and that they
follow specific driveway requirements and limitations on the
location of recreational equipment. in addition, the covenants
prohibited exterior trash burners, undesirable vegetation, visi-
ble rubbish, livestock, and specified activities on the lots. The
covenants did not set forth any other specific building require-
ments, but stated:
c. no single-family residence will be altered, built,
constructed, or otherwise maintained on any lot with-
out an express written approval executed by association
through [the] committee or [the association’s] permis-
sion by implied approval secured in the manner set out in
its articles of incorporation or its By-Laws, as from time
to time amended, as to general appearance, exterior color
or colors, harmony of external design and location in rela-
tion to surroundings and topography and other relevant
architectural factors.
The bylaws established the committee and charged it with
considering “preliminary plans, sketches, or specification or
other provisional data for all buildings . . . or modifications
thereof.” The bylaws further described that within 30 days of
regency homes assn. v. schrier 	7
cite as 277 neb. 

receipt of final plans and specifications, the committee shall
approve or disapprove the plans “as to harmony of exter-
nal design and location in relation to surroundings, topog-
raphy, and other relevant architectural factors of concern to
the corporation.”
The declaration stated that the “association will have the
right in the manner set out in its articles of incorporation or its
By-Laws, as from time to time amended, at any time or from
time to time to extend, modify, or terminate all or any part or
parts of this Declaration.” The bylaws provided:
[a]ll or any part [of the declaration] shall be extended,
modified, or terminated only when no one person holds
more than one-fourth of the entire number of member-
ships of regular members and upon recommendation of
the Board of Directors accepted by a three-quarters vote
of the entire number of memberships of regular members
present in person or by proxy at any annual or special
meeting or responsive to a vote thereon by mail.
in 1988, the association extended the declaration through
December 31, 2028. no other relevant amendments were
made at that time. in 2002, at the annual meeting, the mem-
bers voted on changes to the declarations and bylaws, after
being notified of the specific changes proposed. out of 481
members in the association, only 137 participated in the
vote, and the amendments were considered passed after 119
voted in favor and 18 voted against. During the time of both
amendments, no one person held more than one-quarter of the
entire number of memberships of regular members, and both
amendments were made upon recommendation of the board
of directors.
The amendments set forth more detailed building specifica-
tions, including the added requirement that all roofs be covered
with wood shakes or wood shingles, tile, or slate. asphalt and
woodruff products were specifically prohibited. improvements
made prior to the adoption of the amended declarations were
generally not required to conform to the amended provisions,
“until such time as any replacement or repair or substantial
construction is made.” and as to roofs specifically, “[h]omes
with 	non-conforming 	roofing 	material 	as 	of 	the 	effective
8 	277 neBrasKa rePorTs

date of these covenants must use conforming materials when
replacement of said roof or repair of more than twenty-five
percent (2%) of the roof surface occurs, unless approved by
the committee.”
in 2004, schrier’s parents purchased a home in the sub-
division governed by the association. The purchase was made
with the expectation of selling it shortly thereafter to schrier.
schrier contracted to have the roof replaced with asphalt
shingles, and in 200, he purchased the property. schrier did
not obtain permission from the committee for the replace-
ment. The association eventually notified schrier that the
new roof materials were in violation of the covenants and
demanded they be replaced with approved materials. When
schrier refused, the association brought action for injunctive
relief restraining schrier from maintaining the roof and for
an order mandating removal of the nonconforming materials.
schrier moved for summary judgment, and the association
moved for partial summary judgment. The trial court entered
partial summary judgment in favor of the association, and after
schrier removed his only remaining defense of estoppel, the
court entered a final judgment against him.
in a memorandum opinion, the nebraska court of appeals
affirmed.1 The court of appeals reasoned that the bylaws
were clear that an amendment could be made simply by
three-quarters of those members participating in the vote—as
opposed to three-quarters of all members in the association.
The court of appeals also concluded that the roof requirement
merely defined alterations to the property with more specificity
than the original declarations and was not an attempt to enact
restrictions of which schrier would have had no notice. We
granted further review.
assignmenTs oF error
schrier asserts that the court of appeals erred in determining
(1) that a minority of members of a homeowners’ association
can modify, extend, or terminate declared restrictive covenants;
1 Regency Homes Assn. v. Schrier, no. a-07-903, 2008 WL 4960468 (neb.
app. July 7, 2008) (selected for posting to court Web site).
regency homes assn. v. schrier 	9
cite as 277 neb. 

(2) that an amended restrictive covenant that limits roof con-
struction to wood shingles and that prohibits asphalt products
is not a new covenant where the parties have stipulated that
the prior original declarations did not limit or restrict roof con-
struction or materials; and (3) that the proper interpretation of
the bylaws of the association is that the declaration containing
restrictive covenants can be modified, extended, or terminated
by a minority of the lot owners.
sTanDarD oF reVieW
[1,2] a homeowner’s action to determine the enforceability
of a subdivision’s restrictive covenants is equitable in nature.2
in an appeal of an equitable action, an appellate court tries fac-
tual questions de novo on the record and reaches a conclusion
independent of the findings of the trial court, provided, when
credible evidence is in conflict on a material issue of fact, the
appellate court considers and may give weight to the fact that
the trial judge heard and observed the witnesses and accepted
one version of the facts rather than another.3
anaLysis
it is undisputed that schrier’s actions in replacing his roof
with asphalt shingles were in clear violation of the plain lan-
guage of the previously adopted roof covenant amendment.
schrier contends, however, that this amendment is invalid and
unenforceable. We agree with the court of appeals that the
amendment was validly passed and does not violate law or
public policy.
We first address whether the vote for the amendment com-
plied with the bylaws. The parties dispute the meaning of
“three-quarters vote of the entire number of memberships of
regular members present in person or by proxy at any annual
or special meeting or responsive to a vote thereon by mail.”
according to schrier, this language is ambiguous and cannot,
2 see, Boyles v. Hausmann, 246 neb. 181, 17 n.W.2d 610 (1994); Egan
v. Catholic Bishop, 219 neb. 36, 363 n.W.2d 380 (198); 1733 Estates
Assn. v. Randolph, 1 neb. app. 1, 48 n.W.2d 339 (1992).
3 Loontjer v. Robinson, 266 neb. 902, 670 n.W.2d 301 (2003).
10 	277 neBrasKa rePorTs

as a matter of law, be construed to mean that a minority of
homeowners can amend the covenants. We disagree.
[3-6] The management and internal affairs of a voluntary
association are governed by its constitution and bylaws, which
constitute a contract between the members of the association.4
if the language of the organization’s agreement is unambig-
uous, it shall be enforced according to its plain language. The
agreement is ambiguous if it is susceptible to two or more
reasonable but conflicting interpretations or meanings.6 The
fact that the parties have suggested opposite meanings of the
disputed instrument does not necessarily compel the conclusion
that the instrument is ambiguous.7
in this case, while the provision refers to the “entire number
of memberships,” that phrase is clearly modified by “present
in person or by proxy.” Thus, the bylaws unambiguously allow
amendment to the declaration by three-quarters of those voting,
regardless of how many total homeowners choose to participate
in the vote. contrary to schrier’s assertion, we do not find that
the use of the word “entire” adds any ambiguity to the overall
meaning of the provision.
nor do we find, as schrier suggests, that homeowners can-
not, as a matter of law, agree to a bylaw that could result in
a minority of the homeowners’ passing an amendment to the
covenants. The association is a nonprofit corporation governed
by the nebraska nonprofit corporation act (the act).8 section
21-192(b) of the act emphasizes that the corporation’s bylaws
“may contain any provision for regulating and managing the
affairs of the corporation that is not inconsistent with law or
4 Straub v. American Bowling Congress, 218 neb. 241, 33 n.W.2d 11
(1984). see, also, Beaver Lake Assn. v. Beaver Lake Corp., 200 neb. 68,
264 n.W.2d 871 (1978).
 see, e.g., Latenser v. Intercessors of the Lamb, Inc., 20 neb. 789, 3
n.W.2d 48 (1996); Babcock v. Saint Francis Med. Ctr., 4 neb. app. 362,
43 n.W.2d 749 (1996). see, also, e.g., Turner v. Hi-Country Homeowners
Ass’n, 910 P.2d 1223 (Utah 1996).
6 see Boyles v. Hausmann, supra note 2.
7 Id.
8 neb. rev. stat. §§ 21-1901 to 21-19,177 (reissue 2007).
regency homes assn. v. schrier 	11
cite as 277 neb. 

the articles of incorporation.” nothing in the act prohibits the
bylaw provision in question in this case.
The act provides that “[u]nless the . . . act, the articles, or
the bylaws require a greater vote or voting by class, if a quo-
rum is present, the affirmative vote of the votes represented
and voting (which affirmative votes also constitute a majority
of the required quorum) is the act of the members.”9 Unlike
amendment of articles of incorporation10 or bylaws,11 under the
act, amendments to covenants or declarations do not require a
greater vote. section 21-1961(a) states: “Unless the . . . Act, the
articles, or [the] bylaws provide for a higher or lower quorum,
ten percent of the votes entitled to be cast on a matter must be
represented . . . to constitute a quorum . . . .” (emphasis sup-
plied.) There is nothing in the act that requires a minimum
quorum for amendments to covenants or declarations.
schrier’s 	reliance 	on 	secondary 	sources 	such 	as 	the
restatement (Third) of Property12 and american Jurisprudence13
is misplaced. Those sources set forth default rules for home-
owner agreements that either fail to provide for amendments
or do so ambiguously. Thus the restatement explains, “Unless
the declaration specifies a different number, an amendment
adopted by members holding two-thirds of the voting power
is effective . . . .”14 While schrier points out that the amend-
ment provision in issue here is found in the bylaws and not the
declaration, this is of no consequence. The comments to the
restatement indicate that the section upon which schrier relies
is designed to provide guidelines where no amendment pow-
ers are specified or for “interpretation” of expressly granted
amendment powers.1 as we have already explained, no such
interpretation is necessary here.
9 § 21-1962(a) (emphasis supplied).
10 § 21-19,107.
11 § 21-19,114.
12 restatement (Third) of Property: servitudes § 6.10 (2000).
13 20 am. Jur. 2d Covenants, Etc. §§ 22 and 226 (200).
14 restatement, supra note 12, § 6.10(b) at 19 (emphasis supplied).
1 Id., comment a. at 196.
12 	277 neBrasKa rePorTs

in fact, schrier’s characterization of the association bylaws
as allowing “a minority”16 to extend, modify, or terminate
restrictive covenants is not accurate. Under the bylaws, as well
as the act,17 all homeowners must be adequately notified of
any proposed amendment and the manner in which the amend-
ment would be voted on. if those homeowners all chose to
participate in the vote, then no amendment could be passed by
a minority. But when enough homeowners choose, after proper
notification, not to participate in a vote on a proposed amend-
ment, thereby leaving only a voting minority, it is hard to find
any reason to invalidate a clearly written provision that would
allow those participating to proceed with business.
We turn next to schrier’s argument that the roof amend-
ment created a “new and different”18 covenant that, under
Boyles,19 can only be passed unanimously. in Boyles, the
original covenants involved the size of a residence and its
garages, prohibited nuisances and temporary shelters, lim-
ited outbuildings and the type and number of animals, and
required preapproval of construction plans. it also prohibited
residential structures from being built “‘on any building lot
which is smaller in area than the original plotted number
on which it is erected.’”20 none of the provisions involved
property setbacks. after an itemization of the covenant provi-
sions, the covenants stated that “‘[t]hese covenants . . . shall
. . . continue . . . unless an instrument signed by a majority
of the then owners . . . to change same in whole or in part’”
shall have been recorded.21 Later, a majority of the lot own-
ers added a covenant prohibiting the building of residences
or other buildings within 120 feet of a country road that
ran through the subdivision. Because of the size and loca-
tion of a particular lot, the setback provision made that lot
16 Brief for appellant at 13.
17 § 21-19.
18 Brief for appellant at 22.
19 Boyles v. Hausmann, supra note 2.
20 Id. at 191, 17 n.W.2d at 617.
21 Id. at 183, 17 n.W.2d at 613.
regency homes assn. v. schrier 	13
cite as 277 neb. 

unsuitable for building, and the owners sued to invalidate the
new covenant.
on appeal, we agreed that the new setback provision was
invalid. We acknowledged the general rule that “courts shall
enforce changes to original covenants when such changes are
permitted by the covenant agreement.”22 But, we explained
that “[i]f a restrictive covenant agreement also contains a
provision which provides for future alteration, the language
employed determines the extent of that provision.”23 We
emphasized that “[a]lthough we will enforce those restric-
tions of which a landowner has notice, we will not hold
that a property owner is bound to that of which he does not
have notice.”24
We concluded that the specific language and context of the
“change these covenants” provision did not authorize a mere
majority of lot owners to bind all of the lot owners to “new and
different covenants which restricted the use of the land.”2 We
explained that there was thus nothing in the covenants which
would have put the plaintiffs on notice that their land would
one day be subject to a setback limit resulting in an inability to
build on their lot. We did not say that under all circumstances,
“new and different” covenants are invalid.
in this case, the declaration set forth that the members
could “extend, modify, or terminate all or any part or parts
of this Declaration.” Therefore, the question is whether the
roof covenant can be considered an “extension” or “modifica-
tion” of the original covenants such that a homeowner in the
association would be on notice that his or her home could one
day be subject to the roof amendment. schrier points out that
the parties stipulated that the original covenants did not specify
roofing materials. But we note that the original covenants did
describe that the committee would have control over the “gen-
eral appearance, exterior color or colors, harmony of external
22 Id. at 190, 17 n.W.2d at 617.
23 Id. at 189, 17 n.W.2d at 616.
24 Id. at 191, 17 n.W.2d at 617.
2 Id. at 192, 17 n.W.2d at 618.
14 	277 neBrasKa rePorTs

design and location in relation to surroundings and topography
and other relevant architectural factors.”
[7] general powers of an architectural control commit-
tee must be exercised in a fair and reasonable manner,26 and
we do not determine specifically whether, as the association
contends, it could have prohibited schrier from using asphalt
shingles even under the old covenants. We do determine, how-
ever, that the original covenants’ broad language contemplated
control over general appearance, and general appearance would
include roofing materials. a shake roof, for instance, has a dif-
ferent general appearance than an asphalt roof. homeowners
in the association would have reasonably contemplated that
an “extension” of the committee covenant could later include
a more specific description of roof materials acceptable for
the homes in the subdivision. accordingly, we hold that the
amended roof covenant does not violate the principles set forth
in Boyles.27
concLUsion
The roof amendment was passed in accordance with the
association’s bylaws and original declaration, and we find no
reason to invalidate that amendment. since it is undisputed
that schrier violated the amended roof covenant, we affirm
the judgment of the court of appeals, which affirmed the trial
court’s judgment in favor of the association.
affirmed.
26 see Normandy Square Assn. v. Ells, 213 neb. 60, 327 n.W.2d 101
(1982).
27 Boyles v. Hausmann, supra note 2.
regency homes assn. v. schrier 	1
cite as 277 neb.