{1} Agua Fria Save the Open Space Association (Plaintiff) filed an action for injunctive relief seeking to prevent James Rowe (Defendant) from developing residential town-homes in an area of open space known as the Country Club Tract. The district court granted partial summary judgment in favor of Defendant, concluding that Defendant successfully had extinguished the restrictive covenants on the property. Plaintiff appeals, claiming that (1) Defendant is barred from developing the Country Club Tract, pursuant to Ute Park Summer Homes Association v. Maxwell Land Grant Co.,
I. BACKGROUND
{2} The Country Club Tract is composed of 7.23 acres of open space located in the Agua Fria Subdivision in Lincoln County, New Mexico. The Agua Fria Subdivision is subject to a plat and restrictive covenants recorded with the Lincoln County Clerk by the original developers, Bruce and Georgia Griffith, on July 7,1954.
{3} Section 3(B) of the restrictive covenants provides as follows:
The Country Club Tract may be used for a hotel and/or club house and commercial activities for profit, which generally accompany such establishments, such as restaurants, bars, rooms and halls for dancing, tennis courts, swimming pools, fishing, boating[,] and other athletic events and activities operated in connection with such hotel or club house only.
{4} Section 4(b) of the Saving Clause states:
All of the covenants [herein] shall run with the ownership of the above described propex'ty and shall be binding on the undersigned parties and all persons claiming under them uixtil December 31, 1995, at which time said covenants shall be automatically extended for periods of ten years unless by vote of a majority in number of the then owners of lots and tracts within the exterior boundaries of the land described in Section 1-Blanket Restrictions, hex-eof, it is agreed to change the said covenants in whole or in part.
Provided, however, that at any time hereafter any of said covenants or restrictions, in whole or in pax-t, except the Blanket Restrictions in Section 1 hereof, may be alleviated, [amended], released or extinguished as to any block or tract by written instrument duly executed, acknowledged and recorded by three-fourths of the owners of said block or tract voting according to front foot holding, each front foot counting as one vote, and provided further that the undersigned now own land within the aforesaid boundaries or in close proximity thereto, and that these covenants are a general plan for the benefit of all and any of said land, and consequently that if said restrictions are alleviated or released as aforesaid at any time within ten years from the date hereof, and if at such time Bruce Griffith and Georgia ... Griffith, or either of them, own any land within the aforesaid boundaries, then in addition to the aforesaid vote of property owners, it shall also be necessary to obtain the consent thereto of the undersigned.
{5} Sue Davis, the daughter of Bruce and Geox-gia Griffith, inherited the Country Club Tract and transferred ownership to the V.R. Davis and Sue G. Davis Trust (the Trust). On November 30, 2004, the Trust granted Defendant the exclusive optioxx to purchase and develop into townhomes “any or all of the 54 lots” situated on the Country Club Tract. Defendant exercised the option and proposed to build a fifty-two lot development entitled “Escondido Hills, A Subdivision of the Country Club Tract, Agua Fria Subdivision[.]”
{6} Plaintiff, an unincorporated association of homeowners in the Agua Fria Subdivision, filed a complaint in district court seeking to enforce the restrictive covenants and enjoin Defendant from developing the Country Club Tract. Defendant moved for summary judgment, arguing that “[n]othing in the Restrictive Covenants prohibits the building of single family residences in the Country Club [T]ract.” The district court denied the motion because “genuine issue[s] of material facts exist[ed].”
{7} On February 21, 2006, Defendant exercised his right under the Saving Clause to extinguish, alleviate, and release all restx-ictive covenants, except for the Blanket Restrictions, on the Country Club Tract. Appx'oximately one month later, Plaintiff filed an “Amendment to Restrictive Covenants,” which was adopted by a majority of the homeowners in the Agua Fria Subdivision. The amendment provided that “[t]he Country Club Tract shall remain permanently undeveloped and an open space park, as it has for the last ... 51 years, for the benefit of Agua Fria owners.”
{8} Thereafter-, Defendant moved for x-e-consideration of his motion for summary judgment based on new circumstances, namely, the extinguishment of the x-estx-ictive covenants. The district court granted Defendant’s motion “to the extent that the Restrictive Covenants have been propexiy extinguished by Defendant as to the Country Club Tract.” Thus, Plaintiff was “foreclosed from relying on the Restrictive Covenants, other than [the Blanket Restrictions] at the trial.” However, the district court allowed Plaintiff to present evidence of the “oral misrepresentations allegedly made by the developer to support its argument that the Country Club Tract was meant to remain an ‘open space.’ ”
II. DISCUSSION
{10} “When reviewing a trial court’s grant of summary judgment, we view the facts in the light most favorable to the party opposing summary judgment, drawing all inferences in favor of that party.” Gormley v. Coca-Cola Enters.,
A. Whether the Homeowners Acquired an Easement to the Open Space in the Country Club Tract
{11} Plaintiff claims that Defendant is barred from developing the Country Club Tract, pursuant to Ute Park, Cree Meadows, and Knight, which hold that “a developer [is not] allowed to induce purchasers to buy property by purporting to include open space such as parks or golf courses in a subdivision plat, only to subsequently change the uses of those open space areas.” Knight,
{12} “[W]here land is sold with reference to a map or plat showing a park or like open area, the purchaser acquires a private right, generally referred to as an easement, that such area shall be used in the manner designated.” Ute Park,
The rationale of the rule is that a grant- or, who induces purchasers, by use of a plat, to believe that streets, squares, courts, parks, or other open areas shown on the plat will be kept open for their use and benefit, and the purchasers have acted upon such inducement, is required by common honesty to do that which he represented he would do. It is the use made of the plat in inducing the purchasers, which gives rise to the legally enforceable right in the individual purchasers, and such is not dependent upon a dedication to public use, or upon the filing or recording of the plat.
Ute Park,
{13} The factual issue of whether the original developer, Bruce and Georgia Griffith, had induced homeowners to purchase lots in the Agua Fria Subdivision based on the representation of open space in the Country Club Tract was tried to the jury. The jury found, by special interrogatory, that the original developer “of the Agua Fria
B. Whether Defendant Extinguished the Restrictive Covenants
{14} We next address whether Defendant successfully extinguished the restrictive covenants on the Country Club Tract. Plaintiff claims that the extinguishment provision in the Saving Clause plainly and unambiguously does not apply to the Country Club Tract. Defendant responds that the Saving Clause explicitly provides for the extinguishment of the restrictive covenants on all blocks or tracts within the Agua Fría Subdivision, including the Country Club Tract.
{15} Whether the language of a restrictive covenant is ambiguous is a question of law. Jones v. Schoellkopf
{16} “Restrictive covenants must be considered reasonably, though strictly, and an illogical, unnatural, or strained construction must be avoided.” Montoya v. Barreras,
{17} The Saving Clause provides, in relevant part, that “three fourths of the owners” of “said block or tract” may alleviate, amend, release, or extinguish any of the restrictive covenants, except the Blanket Restrictions, by “voting according to front foot holding, each front foot counting as one vote[.]” The Country Club Tract plainly is a “block or tract” of land in the Agua Fría Subdivision and, therefore, it appears that the restrictive covenants are subject to extinguishment. See Cree Meadows,
{18} In light of this ambiguity, we must determine whether partial summary judgment was properly granted. The Supreme Court has held that ambiguous or unclear language in a restrictive covenant must be resolved “in favor of the free enjoyment of the property and against restrictions.” Hill,
{19} Restrictive covenants “constitute a contract between the subdivision’s property owners as a whole and the individual lot owners,” based on the consideration “given and relied upon in the conveyance of land.” Aragon v. Brown,
{20} In C.R. Anthony Co. v. Loretto Mall Partners,
[I]f the court finds ambiguity, the jury (or the court as the fact finder in the absence of a jury) resolves the ambiguity as an issue of ultimate fact before deciding issues of breach and damages. The question of interpretation of language and conduct (the question of the meaning to be given the words of the contract) is a question of fact where that meaning depends on reasonable but conflicting inferences to be drawn from events occurring or circumstances existing before, during, or after negotiation of the contract.
Id. at 509,
{21} Contextual understanding is necessary to construe restrictive covenants in
{22} We recognize that this Court previously has held that “[t]he secret, unexpressed intentions of the developer are not admissible to interpret the meaning of a covenant running with the land” and that “[t]he developer’s testimony may not be used to decide what is essentially a threshold question — is the covenant, as it reads, ambiguous?” Wilcox v. Timberon Protective Ass’n,
{23} Our holding is consistent with the Restatement (Third) of Property: Servitudes § 4.1 (2000), which instructs that “[a] servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding the creation of the servitude, and to carry out the purpose for which it was created.” The Restatement “departs from the often expressed view that servitudes should be narrowly construed to favor the free use of land” in recognition of the fact that “servitudes are widely used in modern land development and ordinarily play a valuable role in utilization of land resources.” Restatement (Third) of Property: Servitudes § 4.1 cmt. a; see Jones,
{24} A majority of our sister states similarly have rejected the rule of strict construction, reasoning “that private land use restrictions have been particularly important in the twentieth century when the value of property often depends in large measure upon maintaining the character of the neighborhood in which it is situated.” Joslin v. Pine River Dev. Corp.,
{25} Applying the foregoing principles to the facts of this ease, we conclude that genuine issues of material fact exist regarding the applicability of the extinguishment provision
C. Whether Plaintiff's Amendment to the Restrictive Covenants is Valid
{26} In its request for relief, Plaintiff asks this Court to recognize the validity of its amendment to the restrictive covenants, which provides that the “[t]he Country Club Tract shall remain permanently undeveloped and an open space park, as it has for the last ... 51 years, for the benefit of Agua Fria owners.” Defendant responds that Plaintiffs amendment is invalid because “a majority of property owners cannot amend the restrictive covenants to impose new burdens on only one select property.”
{27} “To preserve a question for review[,] it must appear that a ruling or decision by the district court was fairly invoked}.]” Rule 12-216(A) NMRA; see Chrysler Credit Corp. v. Beagles Chrysler-Plymouth,
III. CONCLUSION
{28} The district court improperly granted partial summary judgment in favor of Defendant because genuine issues of material fact exist with respect to whether the extinguishment provision of the Saving Clause was intended to apply to the Country Club Tract. Accordingly, we reverse the judgment of the district court and remand for further proceedings.
{29} IT IS SO ORDERED.