June 17, 2013 – Mary Lawton v. Richard Schwartz, Jane Schwartz, James Johnston, Barbara Johnstone, Allan Raff, Harriet M. Raff, Errol Levine, and Jill Meyers, No. 32,053

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	JUNE 17, 2013
NO. 32,053
MARY LAWTON,
Plaintiff-Appellant,
v.
RICHARD SCHWARTZ, JANE SCHWARTZ,
JAMES JOHNSTONE, BARBARA JOHNSTONE,
ALLAN RAFF, HARRIET M. RAFF,
ERROL LEVINE and JILL MEYERS,
Defendants-Appellees,
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Barbara J. Vigil, District Judge
Rubin Katz Ahern Herdman &
MacGillivray, P.A.
Frank T. Herdman
Jenny F. Kaufman
Santa Fe, NM
for Appellant
Long, Pound & Komer, P.A.
Nancy R. Long
Justin W. Miller
Santa Fe, NM

Hinkle Hensley Shanor & Martin
Thomas M. Hnasko
Dulcinea Z. Hanuschak
Santa Fe, NM
Todd M. Lopez
Santa Fe, NM
for Appellees

OPINION
FRY, Judge.
{1} 	Plaintiff Mary Lawton appeals the district court’s order granting Defendants’
motion for summary judgment and dismissing her claims for injunctive relief.
Plaintiff filed suit attempting to enforce a provision of the Estancia Primera
subdivision’s (Subdivision) restrictive covenants (CCRs) that prohibited trees
maintained within the Subdivision from interfering with homeowners’ views.
Plaintiff primarily raises two issues on appeal. 	First, Plaintiff argues that an
amendment to the CCRs that terminated the view restriction was improper during the
fifty-five year term of the CCR’s duration clause. Second, Plaintiff contends that the
voting procedures utilized to adopt the amendment failed to comply with the
amendment procedures of the CCRs. 	Because we conclude that the CCRs are
ambiguous and that the validity of the amendment should not have been determined
as a matter of law, we reverse the district court’s order.
BACKGROUND
{2} 	Plaintiff is a homeowner in the Subdivision and a member of the Estancia
Primera Community Services Association (Association). In 1993, Plaintiff purchased
a Subdivision lot situated on a small ridge with westerly views of the Jemez
Mountains. 	Plaintiff’s home was designed to take advantage of these views and

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includes two portals off the western-facing living room and master bedroom. In 2009,
Plaintiff notified the Association’s Architectural Review Board (ARB) that certain
cottonwood trees on Defendants’ properties were obstructing her view of the Jemez
Mountains and requested that the Association remedy the situation either through
extensive pruning or removal of the trees.
{3} 	The Subdivision’s original CCRs were recorded in 1982. Since that time, the
CCRs have been amended at least eight times. 	Plaintiff originally rooted her
challenge to the trees in Section 6.18 of the 2005 amended version of the CCRs. Both
the 1982 and 2005 versions of Section 6.18 provided, “No shrub, hedge, tree or other
landscaping which interferes with the view, solar access and/or privacy of any [l]ot
. . . shall be planted, permitted or maintained on any Lot, Living Unit or Parcel or
upon any Common Area.”
{4} 	The ARB initially denied Plaintiff’s request to enforce the view restriction.
Plaintiff’s appeal to the Association’s board of directors was also unsuccessful. In
July 2010, Plaintiff renewed her request that the ARB take action to enforce the view
restriction despite voluntary actions by some property owners to trim their trees.
While Plaintiff’s request was discussed at three subsequent ARB meetings, no action
was taken either granting or denying her request. 	Ultimately, Plaintiff opted to
withdraw her request from the ARB and file suit against the property owners in

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December 2010. Plaintiff’s original complaint sought to enforce Section 6.18 of the
2005 amended CCRs.
{5} 	However, in September 2010, Kurt Sommer, a member of the ARB, circulated
ballots among the Subdivision’s homeowners proposing to amend Section 6.18 by
deleting the word “view.” 	The Association did not hold meetings in regard to the
proposed amendment (Sommer Amendment). Instead, Sommer included a letter with
the ballots discussing the reasons for the amendment and requesting the homeowners
to return the ballots directly to him by mail.
{6} 	The Sommer Amendment received majority support by the homeowners.
Despite reservations by the Association’s attorney and some Association board
members as to the validity of the voting procedures utilized in adopting the
amendment, the Association considered this vote tally sufficient under the amendment
procedures provision of the CCRs to record the Sommer Amendment. The amended
CCRs, now no longer restricting foliage from obstructing homeowners’ views, were
recorded in April 2011 by a written instrument signed by the Association president
and vice-president.
{7} 	After the Sommer Amendment was recorded, Plaintiff sought and was granted
leave to file an amended complaint. In her amended complaint, Plaintiff sought relief
under Section 6.18 of the 2005 amended CCRs and the original CCRs and a

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declaratory judgment that the Sommer Amendment was void. Plaintiff subsequently
filed a motion for partial summary judgment arguing that the duration clause of the
CCRs prohibited the Sommer Amendment, and, alternatively, that the voting
procedures used to adopt it were improper under the CCRs. Defendants filed their
own joint motion for summary judgment arguing that the Sommer Amendment was
properly adopted and, as such, that the CCRs no longer contained the view restriction
that served as the basis for Plaintiff’s suit. 	The district court granted Defendants’
motion and ruled that the Sommer Amendment was valid and barred Plaintiff’s
remaining claims under the original and 2005 amended CCRs. Plaintiff now appeals.
DISCUSSION
Standard of Review
{8} 	“An appeal from an order granting a motion for summary judgment presents a
question of law subject to de novo review.” 	Farmington Police Officers Ass’n
Commc’n Workers of Am. Local 7911 v. City of Farmington, 2006-NMCA-077, ¶ 13,
139 N.M. 750, 137 P.3d 1204. “Summary judgment is appropriate where there are no
genuine issues of material fact and the movant is entitled to judgment as a matter of
law.” Romero v. Philip Morris, Inc., 2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d
280 (internal quotation marks and citations omitted).

1For similar reasons, we agree with Plaintiff that the fact that there have been
several amendments since the original CCRs were filed has no bearing on the initial
issue of whether the original CCRs permitted immediately enforceable homeowner
amendments. However, given our disposition in this case, the existence of subsequent
amendments may have some bearing on the fact finder’s determinations on remand.
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The CCR Provisions at Issue
{9} 	We primarily confine our analysis of the CCR provisions to those provisions
in the original CCRs unless otherwise stated. We do so because if the original CCRs
did not permit amendments during the fifty-five year duration period, it is immaterial
whether subsequent amendments granted homeowners the authority to amend the
CCRs by a majority vote. 1 The following provisions are taken from the original
CCRs.
Section 9.1 (duration clause) of the CCRs provides:
Term of Declaration. 	The covenants, conditions[,] and restrictions of
this Declaration shall run with and bind the Property and every part
thereof, and shall inure to the benefit of and shall be enforceable by the
Community 	Association 	or 	any 	Owner, 	his 	respective 	legal
representatives, heirs, successors and assigns, for a term of fifty-five (55)
years from the date this Declaration is recorded, after which time they
shall be automatically extended for successive periods of ten (10) years
each, unless an instrument in writing, signed by at least seventy-five
[percent (75%)] of the Owners, has been recorded within the year
preceding the beginning of any such ten-year period agreeding [sic] to
terminate or revise this Declaration.
{10} 	Section 9.2 of the original CCRs is entitled “Amendment Procedure.” Section
9.2 contains two subsections, one applicable to amendments prior to the first sale of

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a lot by the developer of the Subdivision (Declarant) and one for “Subsequent
Amendments.” Section 9.2’s subsections provide:
(a) 	Prior to First Sale. Prior to the close of the first sale of a
Lot, Living Unit or Parcel to an Owner other than Declarant or a
Merchant Builder, Declarant may amend this Declaration, without the
consent or assent of any individual or entity, provided said amendment
does not violate the purposes and intent of the Master Development Plan
and the Estancia Primera PRC Ordinance.
(b) 	Subsequent Amendments. After the close of said first sale
and subject to Section 9.3, this Declaration may be amended only by the
affirmative vote (in person or by proxy) or written assent of at least
[fifty-one percent (51%)] of the outstanding Class A votes and with the
consent of the Class C Member. Any such amendment shall not be in
violation of the Master Development Plan or the Estancia Primera PRC
Ordinance. 	Provided, however, Declarant shall have the right, at any
time and from time to time, to unilaterally amend this Declaration or the
provisions of any of the Founding Documents so as to cause the same to
comply with the then current requirements of the Master Development
Plan, as amended from time to time.
(Emphasis omitted.)
{11} 	Finally, 	Section 	9.3 	of 	the 	original 	CCRs 	is 	entitled 	“Limitations 	on
Amendments.” Section 9.3 states:
In addition to the restrictions stated in Section 9.6, by the
acceptance of a deed for their respective Lot, Living Unit or Parcel, each
Owner acknowledges and agrees, on behalf of himself and his respective
successors-in-interest, personal representatives, and assigns, that: 	(1)
this Declaration was created and recorded, in part, to protect and
otherwise enhance the value of the Estancia Primera Property; and (2) in
order to ensure such protection and enhancement in value, no provision
or condition of this Declaration which either directly or indirectly affects
the use and/or operation of the Estancia Primera Property, including, but

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not limited to, those provisions and conditions relating to the operation
and management of the Community or Common Areas, the use by any
Owner or his licensees and invitees of any part of the Property, and/or
the operation of the Community Association, shall be amended or
otherwise modified without the express written consent of Declarant (or
its successors-in-interest or assigns).
The Parties’ Constructions
{12} 	Each party maintains that their construction of the relevant CCR provisions is
the only logical and harmonious construction. See Montoya v. Barreras, 81 N.M. 749,
750, 473 P.2d 363, 364 (1970) (“Restrictive covenants must be considered reasonably,
though strictly, and an illogical, unnatural, or strained construction must be
avoided.”). 	“In construing a [restrictive] covenant, a court is to give effect 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.” Hines Corp. v. City of Albuquerque, 95 N.M. 311, 313, 621
P.2d 1116, 1118 (1980). We outline each of the parties’ constructions below.
{13} 	Plaintiff argues a two-step construction to harmonize the fifty-five year duration
period and the seventy-five percent voting requirement in Section 9.1 with the fifty-
one percent voting requirement in Section 9.2(b). First, Plaintiff contends that Section
9.1 requires homeowners to wait fifty-five years before they can take any action to
decide whether they want to “terminate or revise” the CCRs. An agreement by the
homeowners to terminate or amend would then require an “instrument in writing,

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signed by at least seventy-five [percent (75%)] of the Owners.” Second, once that
threshold approval has been attained, Section 9.2 takes effect and would govern the
actual adoption of proposed substantive amendments based upon the written assent
or vote of the lower fifty-one percent majority. Therefore, Plaintiff contends that the
Sommer Amendment is impermissible until the conclusion of the fifty-five year
duration term.
{14} 	Defendants, on the other hand, argue that while Section 9.1 does establish an
initial fifty-five year duration term, the heightened seventy-five percent voting
requirement of Section 9.1 is only applicable to instances in which homeowners agree
to “terminate [the CCRs], significantly abandon its restrictions and protections, or
revise the primary or extended term established in Section 9.1.” Defendants argue that
Section 9.2’s amendment procedures provide a means for making individual
amendments to the CCRs and allow for these amendments before the end of the fifty-
five year duration term in Section 9.1. 	Thus, Defendants argue that Section 9.2
expressly allows for the Sommer Amendment during the initial fifty-five year term
based upon a majority vote of the homeowners.
{15} 	The district court agreed with Defendants’ construction and concluded that the
CCRs “allow[ed] for amendments to the [CCRs] prior to the expiration of the fifty-
five year period and any subsequent extension periods specified in the duration clause

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in Section 9.1 of the [CCRs].” 	Therefore, because a majority of the homeowners
voted in favor of the Sommer Amendment, the district court concluded that there were
no genuine issues of material fact, and the Sommer Amendment was valid and
enforceable as a matter of law.
The CCRs Are Ambiguous
{16} 	In Heltman v. Catanach, we stated:
Where a provision [in restrictive covenants] provides that a
covenant shall remain in effect for an initial period, after which it may
be modified by less than unanimous consent, courts have interpreted
these provisions to simply provide an exception, after a certain number
of years, to the general rule that unanimity is required in order to amend
a restrictive covenant.
2010-NMCA-016, ¶ 7, 148 N.M. 67, 229 P.3d 1239. 	This strict enforceability of
duration clauses reflects the policy that lot owners should be able to “rely on the
restrict[ive covenants] for a substantial period of time without the concern that they
could be subject to a change at any moment which, as just one example, could result
in diminished property values.” Kauffman v. Roling, 851 S.W.2d 789, 794 (Mo. Ct.
App. 	1993). 	However, 	we 	also 	review 	restrictive 	covenants 	using 	contract
interpretation principles, see Agua Fria Save The Open Space Ass’n v. Rowe, 2011-
NMCA-054, ¶ 19, 149 N.M. 812, 255 P.3d 390, and if the document allows for
amendments during the duration period then we must give that language effect. Cain
v. Powers, 100 N.M. 184, 186, 668 P.2d 300, 302 (1983) (stating that the “words in

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a restrictive covenant must be given their ordinary and intended meaning”).
Therefore, our review of amendments to restrictive covenants that are passed without
unanimous consent and during the term stated in the duration clause requires us to
determine whether the restrictive covenants expressly provide for the type of
amendment at issue during the initial duration period. 	See Estates at Desert Ridge
Trails Homeowners’ Ass’n v. Vazquez, 2013-NMCA-051, ¶ 29, 300 P.3d 736 (stating
that “if the covenants provide an initial duration period, . . . absent other language in
the covenant to the contrary, amendments to the covenants during that initial period
are void unless there is unanimous approval among the property owners”).
{17} 	We disagree with the district court that Defendants’ construction harmonizes
the duration clause with the amendment procedures provision as a matter of law.
Defendants attempt to draw parallels to many of the cases we highlighted in Vazquez
as containing the types of express language in restrictive covenants that allow for
immediately enforceable amendments. See id. ¶ 33; see, e.g., Good v. Bear Canyon
Ranch Ass’n, 160 P.3d 251, 254 (Colo. App. 2007) (concluding that language in
duration clause stating, “This declaration and any amendments or supplements to it
shall remain in effect from the date of recordation for a period of fifty . . . years”
allowed for amendments during the duration period (emphasis, internal quotation
marks, and citation omitted)); Reinecke v. Kleinheider, 804 S.W.2d 838, 841 (Mo. Ct.

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App. 1991) (concluding that language in a restrictive covenant that amendments could
be undertaken “at any time” allowed for immediately enforceable amendments);
Miller v. Sandvick, 921 S.W.2d 517, 519-20 (Tex. Ct. App. 1996) (concluding that
restrictive covenants could be amended during duration period where amendment
procedures provision stated, “[t]hese covenants may be amended at any time by an
instrument signed by two-thirds (2/3) of the then owners” (internal quotation marks
omitted)).
{18} 	In contrast to those cases, however, the original CCRs in the present case grant
the Declarant, not the homeowners, the right to amend “at any time.” 	Similarly,
although “Declaration” is defined in the CCRs as “the covenants, conditions, and
restrictions . . . as they may from time to time be amended[,]” this language, by itself,
is not an express authorization to allow for amendments by homeowners during the
initial duration period. This is especially true where the authority to amend “from
time to time” is used throughout the CCRs in reference to the Declarant’s authority
to amend, not the homeowners’ authority. 	See Vazquez, 2013-NMCA-051, ¶ 34
(concluding that specific authorization in the declaration to amend to allow the
developer to transfer membership rights to homeowners did not evidence an intent to
allow use restriction amendments by homeowners).

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{19} 	However, Plaintiff’s construction of these provisions is also problematic.
Construing the seventy-five percent voting requirement in Section 9.1 as the voting
percentage required to pass an agreement to decide to amend the CCRs contradicts our
rule of construction in Heltman. 2010-NMCA-016, ¶ 7; see Vazquez, 2013-NMCA-
051, ¶ 29. Standing alone, Section 9.1 would prohibit amendments during an initial
fifty-five year term, after which the CCRs can be terminated or revised, including by
way of amendments, by seventy-five percent approval of homeowners. It would be
illogical to conclude that the mere addition of a separate amendment procedures
provision transforms the seventy-five percent voting requirement into a threshold
procedural hurdle for homeowners to substantively amend the CCRs after the
conclusion of the duration period. Furthermore, while we concluded in Vazquez that
a separate duration clause and amendment procedures provisions did not evidence an
intent to allow amendments during the duration term, we were not confronted in
Vazquez with separate voting requirement percentages in the provisions. See Vazquez,
2013-NMCA-051, ¶ 35. 	This structure could suggest that the heightened voting
requirement of Section 9.1 may correspond to extensive revisions to the CCRs, not to
an agreement to revise the CCRs in general before applying a majority vote to the
actual substantive changes, and that such extensive revisions could not take place until
the conclusion of the fifty-five year term. Under this view, Section 9.2(b) would grant

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homeowners the authority to adopt certain types of lesser amendments by majority
vote after sale of the first lot but subject to the limitations of Section 9.3. In other
words, it is possible that the CCRs contemplate some amendments to the CCRs by the
majority vote of homeowners “[a]fter the close of [the] first sale,” while prohibiting
other more significant amendments during the duration period and absent the seventy-
five percent approval of homeowners.
{20} 	In sum, we believe that both parties’ constructions highlight, rather than
harmonize, the conflicting nature of the duration clause and amendment procedures
provisions. 	Defendants would have us draw a distinction between “revise” and
“amend” 	such 	that 	“revise” 	would 	be 	construed 	as 	referring 	to 	significant
modifications to the CCRs commensurate with the heightened seventy-five percent
voting requirement of Section 9.1. Without further support in the CCRs for such a
distinction, or, at the least, an indication of the contours of the homeowners’
amendment power, agreeing with Defendants’ construction risks rendering the
duration clause meaningless. 	See Vazquez, 2013-NMCA-051, ¶ 35. 	Plaintiff’s
construction, on the other hand, asks us to disregard that the triggering event in
Section 9.2(b) allowing for homeowner amendments by majority vote is “[a]fter the
close of said first sale” and not at the conclusion of the fifty-five year duration period.
Regardless, 	assuming 	the 	homeowners 	were 	granted 	the 	authority 	to 	adopt

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immediately enforceable amendments, without a clearer indication of the extent of that
amendment power during the duration period, merely accepting that homeowner
amendments were contemplated does not necessarily lead to the conclusion that the
Sommer Amendment itself was permissible as a matter of law. This is especially true
where Sections 9.3 and 9.6 prohibit use restriction amendments under certain
circumstances 	without 	the 	Declarant’s 	consent 	and 	Section 	2.4(a) 	permits
“complementary” restrictions but prohibits revocation or significant modifications to
the restrictions when passing supplementary restrictions for annexed property.
{21} 	In acknowledging the conflicting nature of these provisions, we cannot escape
the conclusion that the CCRs are ambiguous. See Jones v. Schoellkopf, 2005-NMCA-
124, ¶ 12, 138 N.M. 477, 122 P.3d 844 (stating that an “ambiguity is . . . created when
provisions are reasonably and fairly susceptible to two constructions”). Resolving an
ambiguity is generally a question of fact. See Mark V, Inc. v. Mellekas, 114 N.M. 778,
781, 845 P.2d 1232, 1235 (1993). We recognize that in Mark V, our Supreme Court
stated that an ambiguity can be resolved as a matter of law when no evidence is
offered of the facts and circumstances surrounding the execution of the agreement
leading to the conflicting interpretations. 	Id. 	However, we conclude that the
conflicting interpretations of the CCRs present questions of fact that preclude

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summary judgment and, thus, that the parties may present evidence to the fact finder
regarding circumstances that may shed light on the meaning of the CCRs.
{22} 	In addition to addressing the conflicting provisions discussed above, the parties
may choose to introduce evidence relevant to questions remaining as to whether
Section 9.3 prohibits the Sommer Amendment and whether the 1998 amendment that
removed reference to the Declarant was valid. As noted above, the “[a]fter the close
of said first sale” language in Section 9.2(b) may indicate that the CCRs gave
homeowners some authorization to amend during the duration period. Section 9.2(b)
goes on to state that these amendments are subject to Section 9.3, which prohibits
amendments to provisions or conditions of CCRs that affect “the use by any
Owner . . . of any part of the Property” without the express written consent of the
Declarant or its successors-in-interest or assigns. 	The view restriction at issue is
among the “[u]se [r]estrictions” of Article 6 of the CCRs. Thus, under the original
CCRs, the Sommer Amendment would likely be invalid without the express written
consent of the Declarant or its successors-in-interest or assigns.
{23} 	In 1998, however, the CCRs were amended to remove references to the
Declarant who, according to the notice sent to homeowners, was bankrupt and “long
gone.” After this amendment, Section 9.3 only required the fifty-one percent majority
approval of homeowners under Section 9.2 to amend use restrictions. 	Thus, the

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question arises whether the 1998 amendment validly substituted a fifty-one percent
majority homeowner vote for the express written consent of the Declarant to amend
use restrictions. The parties have not argued this issue, and we express no opinion as
to the 1998 amendment’s ultimate validity. 	We merely state that this issue may
warrant attention by the parties on remand in addition to the remaining issues
regarding the Sommer Amendment’s validity. 	In any event, our reversal of the
summary judgment allows the parties to present whatever evidence they deem
necessary to aid the fact finder in determining the meaning of the CCRs.
Whether the Voting Procedures Complied With the CCRs Must Be Determined
on Remand
{24} 	Because we conclude that the district court erred in granting summary judgment
on the validity of the Sommer Amendment, we reverse the district court’s conclusion
that the “vote exercised by the majority of [the] lot owners was proper.” On remand,
the fact finder should revisit this issue in the context of interpreting the ambiguities
in the CCRs.
CONCLUSION
{25} 	For the foregoing reasons, we reverse the district court’s order granting
summary judgment and remand for proceedings consistent with this Opinion.

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{26} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
MICHAEL E. VIGIL, Judge