Agua Fria Save the Open Space Ass'n v. Rowe
149 N.M. 812
| N.M. Ct. App. | 2011Background
- Country Club Tract is 7.23 acres of open space within the Agua Fria Subdivision, subject to covenants recorded in 1954.
- Section 3(B) permits the Country Club Tract to be used for hotel/clubhouse with associated commercial activities.
- Section 4(B) Saving Clause allows extinguishment or amendment of covenants for blocks/tracks by three-fourths owner vote, with front-foot voting rules, subject to certain conditions.
- Sue Davis transferred ownership to the V.R. Davis and Sue G. Davis Trust, which granted Defendant an exclusive option to purchase and develop the 54 lots on the Country Club Tract.
- Defendant exercised the option and proposed a 52-lot residential subdivision; Plaintiff sought to enforce covenants and enjoin development.
- Defendant extinguished the covenants on the Country Club Tract under the Saving Clause; Plaintiff amended the covenants to permanently keep the tract undeveloped.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an easement arose for open-space on the Country Club Tract | Plaintiff contends the Country Club Tract was sold with open-space inducement creating an easement. | Defendant argues there was no representation creating an easement since no open-space promise was made. | Issue unresolved; genuine issues of material fact exist regarding inducement and easement. |
| Whether the Saving Clause extinguished covenants on the Country Club Tract | Saving Clause does not apply to the Country Club Tract. | Saving Clause applies to all blocks/tracks, including Country Club Tract. | Ambiguity exists; summary judgment improper; issue for trial to determine intent of the extinguishment. |
| Whether Plaintiff's amendment to the covenants is valid | Amendment to keep the Country Club Tract undeveloped is valid as a majority action. | Amendment cannot impose new burdens on a single tract and was not properly preserved. | Not preserved for appellate review; remand possible to raise on remand. |
Key Cases Cited
- Ute Park Summer Homes Ass'n v. Maxwell Land Grant Co., 77 N.M. 730 (1967) (private easement from plat representations runs with land, not dependent on public dedication)
- Cree Meadows, Inc. (NSL) v. Palmer, 68 N.M. 479 (1961) (open space shown on plat may limit development despite covenants)
- Knight v. City of Albuquerque, 110 N.M. 265 (Ct.App.1990) (open space used to induce buyers creates private rights superior to rezoning power)
- C.R. Anthony Co. v. Loretto Mall Partners, 112 N.M. 504 (1991) (contextual extrinsic evidence permissible to interpret ambiguous terms)
- Montoya v. Barreras, 81 N.M. 749 (1970) (intent of parties governs restrictive covenants; changes must affect all described property)
- Hill v. Cmty. of Damien of Molokai, 1996-NMSC-008 (NMSC 1996) (ambiguous covenants resolved in favor of free enjoyment, but consider overall instrument intent)
- Jones v. Schoellkopf, 2005-NMCA-124 (N.M. Ct. App. 2005) (ambiguity standard; contextual evidence allowed in contract interpretation)
- Wilcox v. Timberon Protective Ass'n, 111 N.M. 478 (Ct.App.1990) (earlier approach rejected in light of C.R. Anthony)