Montoya v. Barreras
| Decision Date | 10 August 1970 |
| Docket Number | No. 8990,8990 |
| Parties | Joseph M. MONTOYA, Plaintiff-Appellee, v. Lucy BARRERAS et al., Defendants-Appellants. |
| Court | New Mexico Supreme Court |
Twenty of the defendants in a quiet-title action appeal from that portion of the final decree which relieved and excluded from the burden of residential restrictions and covenants one lot owned by plaintiff in a subdivision in Santa Fe, New Mexico in which these defendants also owned lots.
Defendants rely on three points, but because we hold that the second point is controlling and requires reversal the other points need not be discussed. Point II reads as follows:
'The 'Declaration of Protective Covenants to the Linda Vista Addition of the City of Santa Fe' does not permit the removal of restrictions on only one lot in the subdivision while retaining the restrictions on all other lots in the subdivision, and therefore, the trial court erred in overruling appellants' legal defense 1(E).'
Legal defense 1(E), as it appears in the amended answer of defendants, reads:
'The Covenant (X) does not permit the relinquishment of the restrictions on only one lot or one portion of the subdivision while retaining the restrictions on other lots in the subdivision.'
In 1940, the owner of a tract of land in Santa Fe, New Mexico, whom we will refer to as the grantor, executed and recorded an instrument title 'Declaration of Protective covenants for the Linda Vista Addition to the City of Santa Fe, New Mexico,' which declared that all of the described tract was encumbered by and subject to twelve paragraphs of restrictions. Paragraph (X) of the restrictive covenants, which contains the language directly in dispute, provides:
'These covenants are to run with the land and shall be binding on all the parties and all persons claiming under them until January 1, 1966, at which time said covenants shall be automatically extended for successive periods of ten (10) years unless by a vote of the majority of the then owners of the lots it is agreed to change the said covenants in whole or in part.'
All of the evidence before the trial court was documentary. No plat of the addition is included in the transcript. The parties executed a Stipulation Agreement in which they agreed that during December, 1967, and January and February, 1968, a majority of the owners of lots within the residential subdivision had signed a 'Consent to Change of Protective Covenants' pertaining to the plaintiff's lot, by which they voted for and consented to the removal of all of the restrictions from that one lot and to its use for commercial purposes.
Plaintiff contends that such removal of the residential restrictions from one lot only was proper because the language of paragraph (X) is ambiguous and must be construed strictly against the grantor and in favor of free use of the land. By such construction they argue that the phrase '* * * change the said covenants in whole or in part' in paragraph (X) is not limited to changing the residential covenants themselves as they affect all of the lots, but permits the complete removal of the covenants from one lot while retaining them on all other lots.
The plaintiff's authorities recite the long-established rules that, if ambiguous, a restriction on property must be construed against its grantor and in favor of free use. But alleging that a restriction is ambiguous does not necessarily make it so. These general rules can have significance only as applied to the particular facts of the individual case. Restrictive covenants must be considered reasonably, though strictly, and an illogical, unnatural, or strained construction must be avoided. H. J. Griffith Realty Co. v. Hobbs Houses, Inc., 68 N.M. 25, 357 P.2d 677 (1960). In the Griffith case this court noted that in construing restrictive covenants, perhaps more than in any other field of law, each case must depend on its own particular facts, and an attempt to apply general rules is unsatisfactory.
The issue to be determined is therefore whether, considering the declaration of restrictive covenants as a whole, paragraph (X) can be reasonably and logically construed to permit the residential restrictions to be removed on one lot only, or on a lot-by-lot basis, by a majority of the owners in the subdivision. We do not believe that it can.
Before applying the general rule that restrictive covenants should be construed in favor of the free use of property, the court must recognize that '* * * effect is to be given to the intention of the parties as shown by the language of the whole instrument, considered with the circumstances surrounding the transaction, and the object of the parties in making the restrictions.' Hoover v. Waggoman, 52 N.M. 371, 199 P.2d 991 (1948). See also Suttle v. Bailey, 68 N.M. 283, 361 P.2d 325 (1961); Rowe v. May, 44 N.M. 264, 101 P.2d 391 (1940).
Considering the entire document, by clear statement and with plain intent, it constitutes a detailed plan for residential development and restriction as to all of the lots in the subdivision. Under the facts and circumstances of this case, we are not faced with the resolution of an ambiguous restriction.
Examination of the entire declaration reveals that the original restrictions were clearly imposed on all of the described property. The declaration describes the property and is then followed by the granting clause which declares that all of the property shall be encumbered by the restrictions. Following this granting clause, twelve paragraphs of restrictive covenants are listed, including the provision in covenant (X) that they may be changed in whole or in part. The phrase 'in whole or in part' in covenant (X) clearly modifies the words 'to change,' and the direct object of 'to change' is the word 'covenants,' not the word 'lots.' Thus, the covenants may be changed in whole or in part, but we cannot construe this language as permitting any such change or changes to apply to only a portion of the lots on which the restrictions were imposed. Nor is there anything in the covenants themselves which can be construed as either expressly or impliedly modifying or changing the granting clause itself, which expresses the intent and purpose that all of the described property is encumbered by the restrictions, whether they remain as originally stated or are subsequently changed in whole or in part. The original restrictions were clearly imposed on all of the described property, and though the restrictions themselves may be changed in whole or in part, the change or changes which might be made must affect all of the described property.
Historically, restrictive covenants have been used to assure uniformity of development and use of residential area to give the owners of lots within such an area some degree of environmental stability. To permit individual lots within an area to be relieved of the burden of such covenants, in the absence of a clear expression in the instrument so providing, would destroy the right to rely on restrictive covenants which has traditionally been upheld by our law of real property. As in Gorman v. Boehning, 55 N.M. 306, 232 P.2d 701, 26 A.L.R.2d 868 (1951), the declaration of the grantor in this case contemplates a plan of development...
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