Sharts v. Walters

759 P.2d 201, 107 N.M. 414
CourtNew Mexico Court of Appeals
DecidedJune 14, 1988
Docket9662
StatusPublished
Cited by38 cases

This text of 759 P.2d 201 (Sharts v. Walters) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sharts v. Walters, 759 P.2d 201, 107 N.M. 414 (N.M. Ct. App. 1988).

Opinion

OPINION

BIVINS, Judge.

Plaintiffs appeal and defendants cross-appeal from a declaratory judgment entered September 22, 1986. Plaintiffs raise two issues: (1) sufficiency of the evidence to support the trial court’s ruling that a tract of land (Tract A) was subject to certain restrictive covenants; and (2) denial of a fair trial due to trial court bias. Defendants’ cross-appeal challenges two findings of fact and two conclusions of law to the effect that a portion of Tract A and another tract of land (Tract B) were exempt from the covenants.

We consider plaintiffs’ first issue and defendants’ cross-appeal issues together and plaintiffs’ second issue separately and summarily. We affirm the trial court. FACTS

Wallace Sharts, one of the plaintiffs, was the common owner of two contiguous tracts of land in Taos County: Tract A (containing 60 acres) and Tract B (containing 15.044 acres and located to the south of Tract A). During 1978, Sharts conveyed the northern 30 acres of Tract A (Tract A-N) to some of the defendants here and to the grantors of the other defendants. Most of the deeds to the land conveyed in Tract A-N specifically incorporated by reference a Declaration of Restrictive Covenants (declaration) that was filed in 1978. Among other restrictions, the declaration restricted the land to single family residences on lots no smaller than 3 acres in size.

During the next few years, Sharts attempted to develop the retained land in the southern portion of Tract A (Tract A-S) contrary to the restrictive covenants contained in the declaration. Thereafter, Sharts conveyed the remainder of Tract A and Tract B to most of the other plaintiffs. None of the deeds to these conveyances contained any reference to the declaration, however, the title insurance policies for all of these later conveyances contained exceptions for the effect of the declaration.

After an attempt to modify the covenants, Sharts and other plaintiffs sought by declaratory judgment to have Tract A-S and Tract B declared not bound by the declaration. The trial court ruled that all of Tract A, except a 2-acre lot in Tract A-S upon which the Stakeout Restaurant (restaurant) was located, was subject to the declaration. The trial court also ruled that Tract B was not subject to the declaration. Plaintiffs appeal the trial court’s ruling that Tract A-S is bound by the declaration. Defendants cross-appeal the trial court’s ruling that the restaurant's 2-acre lot and Tract B were not subject to the declaration.

I. Plaintiffs’ First Issue and Defendants’ Cross-Appeal Issues

The existence of express restrictions on the use of land as contained in the declaration filed by plaintiff Sharts is undisputed. At issue here is whether the restrictions are applicable to land retained by Sharts, specifically Tract A-S and Tract B, that was subsequently conveyed to plaintiffs by deeds that did not contain any reference to the restrictions.

The declaration includes the following language:

DECLARATION OF RESTRICTIVE COVENANTS RUNNING WITH THE LAND
WALLACE G. SHARTS, the owner of real property situated in Taos County, hereby declares the following restrictive covenants to run with land which may be hereinafter conveyed by WALLACE G. SHARTS, his heirs and assigns:
1. No parcel subject to this Declaration will be smaller than three (3) acres, and no parcel will be divided into smaller parcels nor any portion of any parcel conveyed so as to create a parcel less than three (3) acres.
5. The property shall be used for single family residence only, with such structures as are customarily incidental to single family dwellings. No business or commercial activities shall be conducted upon the property or any parcels therein.
16. The Grantor, or any Grantee purchasing a portion of the property may proceed at law or in equity to prevent the occurrence, continuation or violation of any of the restrictions.
19. Any grantee of a warranty deed or any contract purchaser acquiring an interest in a parcel within the properties shall, upon acceptance of the deed or execution of the contract, become bound by the restrictions contained herein ... and shall keep, observe, and comply with the restrictions contained herein for all time.

New Mexico follows the general rule that where an owner of a tract subdivides and sells under a general plan of restrictions, the restrictions may be enforced by one grantee against another. Suttle v. Bailey, 68 N.M. 283, 361 P.2d 325 (1961). In this case, the trial court applied the doctrine of implied reciprocal negative servitudes, also referred to as implied restrictive covenants or equitable servitudes. See Rowe v. May, 44 N.M. 264, 101 P.2d 391 (1940). Under this doctrine, when a common grantor develops land for sale in lots, pursues a course of conduct that indicates an intention to follow a general plan of development and imposes substantially uniform restrictions, conditions, and covenants concerning the use of the property in the conveyance of numerous lots, thereby benefitting the retained land, a grantee can enforce similar restrictions against the part of the land retained by the grantor or against any lot subsequently sold without the restrictions to a purchaser with actual or constructive notice of them. See Mackinder v. OSCA Dev. Co., 151 Cal.App.3d 728, 198 Cal.Rptr. 864 (1984); Rieger v. Wessel, 319 S.W.2d 855 (Ky.1958); Mid-State Equip. Co. v. Bell, 217 Va. 133, 225 S.E.2d 877 (1976); 20 Am.Jur.2d Covenants, Conditions, and Restrictions, § 173 (1965).

Under the doctrine of implied reciprocal negative easements, the land retained by the common grantor is viewed as restricted by the same conditions imposed on the land conveyed. Rieger v. Wessel. The law imposes these restrictions upon the land retained by the common grantor upon the recording of the first deed which effectively imposes restrictions on land conveyed. Mackinder v. OSCA Dev. Co. While recorded declarations of restrictions should be incorporated by reference in each deed, all subsequent grantees of parcels of the retained land, who take with notice of the restrictions, are bound by the restrictions notwithstanding that similar restrictive clauses have been omitted from their deeds. Id.

A general plan of development can be established by: express covenant; implication from filed maps; parol representations made in sales brochures, maps and advertisements; and oral statements upon which purchasers rely. Lehmann v. Wallace, 510 S.W.2d 675 (Tex.Civ.App.1974); 20 Am. Jur.2d, supra, § 175; see also Ute Park Summer Homes Ass’n, Inc. v. Maxwell Land Grant Co., 83 N.M. 558, 494 P.2d 971 (1972).

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Bluebook (online)
759 P.2d 201, 107 N.M. 414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sharts-v-walters-nmctapp-1988.