Dunning v. BUENDING
149 N.M. 260
N.M. Ct. App.2010Background
- In 1988, Edmund Lary formed Penobscot Development Co. and Cumberland Land Corp. to develop a 123-acre Taos County tract governed by a recorded covenant restricting subdivision to at least one acre.
- The 37.875-acre Eastern Nighthawk Trail tract was subdivided into 13 lots; Penobscot and Lary owned four lots each, Cumberland owned five.
- In 1989, Defendant purchased a 4.2-acre lot within the tract; her deed initially appeared to allow subdivision, but the warranty deed later imposed a total subdivision prohibition contrary to the recorded Restriction.
- Some 1989 deeds contained express subdivision prohibitions; later deeds did not, but all purchasers were informed they could not subdivide and received restrictions reflecting that prohibition.
- In 2000, Defendant obtained a corrected warranty deed purporting to revert to the record Restriction, allowing subdivision to parcels of at least one acre.
- Plaintiffs sued for declaratory relief to enforce the original restriction; the district court granted summary judgment for Defendant, concluding no common development plan notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the covenant run with the land (touch and concern, intent) to bind successors? | Covenant touches and runs with land; intent shown by uniform restrictions and grantor's plan. | No run with land without clear intent and lack of notice; common plan not proven. | Questions of fact on touch/concern and intent; not entitled to summary judgment |
| Did the covenant running with the land require notice to the burdened property owner? | Actual notice via recorded deed suffices; constructive notice from common plan not required. | No notice established; she purchased without knowledge of a common plan. | Evidence supports actual notice via deed; summary judgment inappropriate |
| Is there a genuine issue of material fact about whether a common development plan exists to enforce the restriction? | Even without all deeds containing express terms, common plan evidenced by surrounding restrictions and Lary's statements. | Enforcement cannot rely solely on implied common plan; actual/recorded restrictions govern. | Existence of a common plan raises factual questions; not resolved on summary judgment |
Key Cases Cited
- Lex Pro Corp. v. Snyder Enters., Inc., 100 N.M. 389 (1983) (touch and concern and intent to run with land; precedence for covenant analysis)
- Cypress Gardens, Ltd. v. Platt, 1998-NMCA-007 (1998) (notice and common plan considerations; covenant running with land)
- Rowe v. May, 44 N.M. 264 (1940) (identical language expresses grantor's intent for broader benefit)
- Pollock v. Ramirez, 117 N.M. 187 (Ct.App.1994) (uniform appearance and common scheme place purchaser on notice)
- Sharts v. Walters, 107 N.M. 414 (Ct.App.1988) (implied restrictive covenants and common development considerations)