2020 New Mexico Statutes
Chapter 47 - Property Law
Article 5 - Subdivisions Generally
Section 47-5-1 - Short title.
This act [47-5-1 to 47-5-8 NMSA 1978] may be cited as the "Land Subdivision Act."
History: 1953 Comp., § 70-3-1, enacted by Laws 1963, ch. 217, § 1.
ANNOTATIONSCross references. — For applicability of Land Subdivision Act, see 47-5-9 NMSA 1978.
For the New Mexico Subdivision Act, see 47-6-1 NMSA 1978 et seq.
Amendment procedures of restrictive covenants were ambiguous. — Where plaintiffs attempted to enforce a subdivision's restrictive covenants that prohibited trees in the subdivision from interfering with homeowners' views; the majority of owners amended the restrictive covenants to eliminate the foliage restriction that plaintiffs sought to enforce; the duration clause of the restrictive covenants required that seventy-five percent of the owners approve revisions of the covenants during the term of the covenants; and the amendment clause required that fifty-one percent of the owners approve amendments, the covenants were ambiguous as to the majority required to amend the covenants so that the validity of the amendment of the foliage restriction could not be determined as a matter of law. Lawton v. Schwartz, 2013-NMCA-086.
Rules for construing restrictive covenants. — In construing restrictive covenants, words in a restrictive covenant will be given their ordinary and intended meaning; the language will be construed strictly in favor of the free enjoyment of the property and against restrictions, but not so strictly as to create an illogical, unnatural, or strained construction; and restrictions will not be read into covenants by implication. Sabatini v. Roybal, 2011-NMCA-086, 150 N.M. 478, 261 P.3d 1110, cert. denied, 2011-NMCERT-007, 268 P.3d 46.
Meaning of the term "private garage" was ambiguous. — Where restrictive covenants allowed a "private garage" to be built on a subdivision lot and the covenants did not define the term or include an explicit limitation on the size of a garage, the term was ambiguous with respect to size. Sabatini v. Roybal, 2011-NMCA-086, 150 N.M. 478, 261 P.3d 1110, cert. denied, 2011-NMCERT-007, 268 P.3d 46.
Meaning of the term "private garage". — The term "private garage" means a structure or area whose essential purpose is the storage of motor vehicles by the owners and not by the general public. Sabatini v. Roybal, 2011-NMCA-086, 150 N.M. 478, 261 P.3d 1110, cert. denied, 2011-NMCERT-007, 268 P.3d 46.
Structure was a "private garage". — Where restrictive covenants allowed a "private garage" to be built on a subdivision lot; the covenants did not define the term or include an explicit limitation on the size of a garage; the owner of the lot, who was a car collector, built a 50 x 10 garage to store the owner's car collection; and the garage had three doors capable of admitting two cars side-by-side and a taller, more narrow door allowing entrance into a bay containing a hydraulic lift and a small room for an office; the garage was a "private garage" within the meaning of the covenants. Sabatini v. Roybal, 2011-NMCA-086, 150 N.M. 478, 261 P.3d 1110, cert. denied, 2011-NMCERT-007, 268 P.3d 46.
Restrictive covenant disallowing poultry was ambiguous. — Where subdivision association sued defendant hen owners to rid their properties of hens, claiming that a subdivision covenant disallowed "animals, birds, or poultry" on residents' lots unless kept as recognized household pets, summary judgment in favor of the subdivision association was improper where the district court found that the covenant language was unclear and ambiguous, but failed to resolve the restrictive covenant in favor of the free enjoyment of the property and against the restrictions; failure to apply the rules of construction of restrictive covenants is an error of law. Eldorado Cmty. Improvement Ass'n v. Billings, 2016-NMCA-057.
Elements of covenants running with the land. — To establish an enforceable covenant running with the land, the covenant must touch and concern the land, the original covenanting parties must intend the covenant to run with the land, and the successor to the burden must have knowledge of the covenant. Dunning v. Buending, 2011-NMCA-010, 149 N.M. 260, 247 P.3d 1145, cert. denied, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.
General plan of development may establish the existence of a covenant running with the land. — A general plan of development can be relevant to the determination of whether an enforceable covenant running with the land exists by proving that the covenanting parties intended a covenant to run with the land and that a purchaser had notice of the covenant, and by imposing restrictions on parcels of land in a common development even if the restrictions have been omitted from the deeds of the property against which a party seeks to enforce the restrictions. While the existence of a common development plan can be used to determine whether a covenant is enforceable and whether a restriction applies to property in a subdivision that is not expressly restricted, a covenant running with the land does not require a common scheme or plan. Dunning v. Buending, 2011-NMCA-010, 149 N.M. 260, 247 P.3d 1145, cert. denied, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.
Amendment of restrictive covenants. — Where restrictive covenants that were recorded in 1936 provided that the covenants would remain in force until July 1, 1960, and thereafter until such time as the covenants were modified or abrogated by a vote of two-thirds of the owners of lots within the subdivision; the unanimous agreement in 1940 of all the then-owners of the property in the subdivision was effective to amend the 1936 covenants and replaced them with the 1940 covenants. Heltman v. Catanach, 2010-NMCA-016, 148 N.M. 67, 229 P.3d 1239, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.
Where restrictive covenants provided that the covenants would be binding until January 1, 1965, at which time the covenants would be automatically extended for successive periods of ten years unless by a vote of the majority of the then-owners of lots it was agreed to change the covenants, and in May 2005, a majority of the owners of lots in the subdivision recorded an agreement to modify the covenants, the amendments would not go into effect until January 1, 2015. Heltman v. Catanach, 2010-NMCA-016, 148 N.M. 67, 229 P.3d 1239, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.
Clear language of restrictive covenants prohibited subdivision of lot. — Where the landowner's lot was .511 acres; the landowner proposed to subdivide the lot into a .215-acre lot and a .294-acre lot, each with a single-family home on it; and the restrictive covenants of the subdivision provided that "no residential structure shall be erected or placed on any building plot, which plot has an area of less than one-half acre", the landowner was prohibited from dividing the landowner's lot into two lots that are less than one-half acre and maintaining a residential structure on each lot. Heltman v. Catanach, 2010-NMCA-016, 148 N.M. 67, 229 P.3d 1239, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.
Relevant evidence of changed conditions and acquiescence. — Where defendant proposed to subdivide a lot into two lots with a single-family home on each lot; each of the proposed lots was less than one-half acre; the restrictive covenants of the subdivision prohibited defendant from dividing the lot into lots that were less than one-half acre and maintaining a residential structure on each lot; and defendant raised equitable defenses to enforcement of the restrictive covenants, evidence that a significant number of lots in the subdivision contained multifamily residences, that guest houses associated with primary single-family residences were being used as additional single-family residences, and that non-residential structures had been built on residential lots in violation of the covenants was relevant to the question of whether changed conditions and plaintiff's acquiescence in covenant violations prevented enforcement of the restrictive covenants. Heltman v. Catanach, 2010-NMCA-016, 148 N.M. 67, 229 P.3d 1239, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.
Short term rental did not violate restrictive covenant limiting use to single-family residential purposes. — Where the restrictive covenants of the subdivision provided that lots could be used only for single-family purposes; defendant rented defendant's home to families for a minimum rental term of three nights; defendant did not rent individual rooms or rent to more than eight people; and defendant charged renters a lodger's tax but did not have a business license for defendant's rental activity, an economic benefit accruing to defendant from the rental of defendant's home, whether long-or-short term, did not by itself constitute an impermissible business or commercial activity under the "single-family residential purposes" restrictive covenant. Estates at Desert Ridge Trails v. Vasquez, 2013-NMCA-051, 300 P.3d 736.
Scope of homeowners' association's rule-making authority. — Under a general grant of rule-making authority, a homeowners' association's authority to impose restrictions on individually owned property pursuant to the homeowners' association's rules is limited to protecting common property and individually owned lots from any unreasonable interference by another lot owner's use of that owner's property. Estates at Desert Ridge Trails v. Vasquez, 2013-NMCA-051, 300 P.3d 736.
Homeowners' association exceeded its rule-making authority in adopting rules prohibiting short term rentals. — Where the restrict covenants of a subdivision did not prohibit short-term rental of property in the subdivision; the initial rules for the subdivision contained design principles for the subdivision and granted the homeowners' association authority to adopt further rules to govern the conduct of all persons occupying any part of the subdivision; the homeowners' association promulgated a rule that prohibited owners from renting their homes for less than a thirty day term; and defendant rented defendant's home to families for a minimum rental term of three nights, the homeowners' association had no authority under the general grant of authority to promulgate rules to restrict rental activity in the subdivision and the rule was an unreasonable and invalid restriction on defendant's use of defendant's property. Estates at Desert Ridge Trails v. Vasquez, 2013-NMCA-051, 300 P.3d 736.
Amendment of restrictive covenants was invalid. — Where the duration clause of the declaration of covenants of a subdivision provided that the declaration would run for twenty-five years, after which the declaration would be extended for additional successive periods of ten years unless owners of two-thirds of the lots in the subdivision approved amendments to the declaration and during the initial twenty-five year term of the declaration, more than two-thirds, but not all, of the owners of lots approved an amendment of the declaration that prohibited rentals of property in the subdivision for less than ninety days, the amendment was void because the unanimous approval of the homeowner's association's members was required to amend the declaration during the initial twenty-five-year term. Estates at Desert Ridge Trails v. Vasquez, 2013-NMCA-051, 300 P.3d 736.
Federal preemption of state subdivision provisions. — Congress intended to and has accomplished a preemption by the United States of all control over the leasing of Indian lands, and this includes the subdivision, planning and platting of these lands. There is no room for the state or its political subdivisions to impose additional or conflicting controls. Sangre de Cristo Dev. Corp. v. City of Santa Fe, 1972-NMSC-076, 84 N.M. 343, 503 P.2d 323, cert. denied, 411 U.S. 938, 93 S. Ct. 1900, 36 L. Ed. 2d 400 (1973).
Where non-Indians entered into long-term lease with an Indian tribe under which the non-Indians were to develop the land as a subdivision, state laws concerning subdivision control, construction, licensing and water could not be held inapplicable to the lessee because of federal preemption. Norvell v. Sangre de Cristo Dev. Co., 372 F. Supp. 348 (D.N.M. 1974), rev'd on jurisdictional grounds, 519 F.2d 370 (10th Cir. 1975).
Subdivision originally approved under Land Subdivision Act. — As long as a subdivision originally approved under the Land Subdivision Act and 3-20-6 NMSA 1978 continues to comply with all of the statutory requirements of those laws, the approval of the subdivision cannot be revoked or suspended, nor can additional requirements be imposed by the county for maintaining such approval. 1977 Op. Att'y Gen. No. 77-24.
When resubdivision must comply with current subdivision standards. — The later resubdivision or alteration of or amendment to pre-1973 subdivisions must comply with the new, current subdivision standards if such resubdivision activity substantially affects the new regulated areas of concern which are addressed by the new 1973 New Mexico Subdivision Act (i.e., sufficiency of water, quality of water, roads, etc.). 1982 Op. Att'y Gen. No. 82-11.
If the county commission determines that amendments to a pre-1973 plat are merely minor adjustments of boundaries, the amendments fall within the scope of the 47-6-2 I(7) NMSA 1978 exemption from the 1973 definition of "subdivision" and no reevaluation under the 1973 New Mexico Subdivision Act is triggered. If the commission concludes, on the other hand, that the plat amendments constitute a major revision of the original subdivision, the 1973 standards apply. In either event, the county commission must examine the proposed amendments to the old plats to make such a determination. 1982 Op. Att'y Gen. No. 82-11.
Application of act. — The Land Subdivision Act was intended to apply to those developers who, for the purpose of sale, pursue a regular plan of dividing a tract into 25 specific parcels, or more. Therefore, until a developer actually divides or frames a definite proposal to divide land into at least 25 specific parcels, the Land Subdivision Act cannot apply. 1963 Op. Att'y Gen. No. 63-154.
Law reviews. — For note, "Subdivision Planning Through Water Regulation in New Mexico," see 12 Nat. Res. J. 286 (1972). For note, "Need for a Federal Policy in Indian Economic Development," see 2 N.M.L. Rev. 71 (1972).
For comment on Sangre de Cristo Dev. Corp. v. City of Santa Fe, 84 N.M. 343, 503 P.2d 323 (1972), cert. denied, 411 U.S. 938, 93 S. Ct. 1900, 36 L. Ed. 400 (1973), see 13 Nat. Res. J. 535 (1973).
For comment, "A Rebuttal to 'The Pre-emption Doctrine and Colonias de Santa Fe' " see 14 Nat. Res. J. 283 (1974).
For note, "Definitional Loopholes Limit New Mexico Counties' Authority to Regulate Subdivisions," see 24 Nat. Res. J. 1083 (1984).
