February 08, 2013 – Estates at Desert Ridge Trails Homowners Ass’n, a Non-Profit Corporation v. David Vazquez, Nos. 30,944 & 31,590

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	FEBRUARY 8, 2013
NOs. 30,944 and 31,590
ESTATES AT DESERT RIDGE TRAILS
HOMEOWNERS’ ASSOCIATION, a New
Mexico non-profit corporation,
Plaintiff-Appellant,
v.
DAVID VAZQUEZ,
Defendant-Appellee,
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
C. Shannon Bacon, District Judge
Vance, Chavez & Associates, LLC
James A. Chavez
Claud E. Vance
Albuquerque, NM
for Appellant
Espinosa & Associates, P.C.
Richard D. Barish
Leonard G. Espinosa
Albuquerque, NM
for Appellee

OPINION
FRY, Judge.
{1} 	In this opinion we consider two lawsuits filed by the Estates at Desert Ridge
Trails Homeowners’ Association (HOA) seeking to enjoin David Vasquez, Defendant,
from renting his home on a short-term basis. 	The district court denied the HOA’s
request for injunctive relief in both cases, and the HOA now appeals those orders. In
its first appeal, the HOA primarily argues that the short-term rentals violate the
limiting language in the restrictive covenants that lots be used for “single-family
residential purposes” and the HOA’s rules and regulations barring certain business
activities within the subdivision and rentals for less than thirty days. Between the first
lawsuit and the second lawsuit, the HOA amended the restrictive covenants. In its
second appeal, the HOA primarily argues that the short-term rentals violate the
amended restrictive covenants barring rentals for less than ninety days. 	For
efficiency, we address both appeals in this opinion and affirm the district court.
BACKGROUND
{2} 	Defendant purchased a lot in the Estates at Desert Ridge Trails subdivision
(Subdivision) in 2006 and constructed a home on the lot. All lots purchased in the
gated Subdivision were subject to the Declaration of Covenants, Conditions, and
Restrictions recorded in 2004 (CCRs). In addition to the CCRs, rules and regulations
were promulgated in 2007 supplementing the initial rules and regulations recorded

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with the CCRs. The Subdivision’s HOA was subsequently formed and charged with
enforcing the CCRs and the Subdivision’s rules and regulations.
The HOA’s First Lawsuit
{3} 	In June 2010, Defendant began renting his home on a short-term basis.
Defendant’s internet advertisement of the home listed a minimum rental term of three
nights and did not provide for individual room rentals. 	Defendant testified at the
hearing that he rented the home to families and that he had never rented to more than
eight people. Defendant also testified that he charged renters a lodger’s tax but did
not carry a separate business license for his rental activities related to the home.
{4} 	In September 2010, the HOA’s counsel sent Defendant a letter notifying him
that the short-term rentals of his home violated the CCRs and the Subdivision’s rules
and regulations. The letter requested that Defendant cease and desist from any further
short-term rental activity. When Defendant did not stop renting the home, the HOA
sought and was granted an ex parte temporary restraining order and filed a verified
complaint for permanent injunctive relief barring Defendant’s short-term rentals.
Following two hearings and supplemental briefing by the parties, the district court
concluded that the CCRs did not prohibit Defendant from renting his home on a short-
term basis and that the HOA rules and regulations constituted an unreasonable
interference with Defendant’s use and enjoyment of his property and were therefore

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unenforceable. The district court issued an order dissolving the temporary restraining
order and denying the HOA’s request for injunctive relief. The HOA appealed the
district court’s order.
The HOA’s Second Lawsuit
{5} 	On November 11, 2010, the HOA board of directors resolved to amend the
CCRs to prohibit rentals for less than ninety days. Notice was sent to the members
of the HOA that a vote was to be held on the proposed amendments to the CCRs at the
annual meeting taking place on December 6, 2010. 	At the December meeting,
fourteen votes were cast in person and thirty-two by proxy in favor of amending the
CCRs. Realizing that it did not have what it believed to be the two-thirds vote needed
to amend the CCRs, the HOA called a special meeting for January 11, 2011, to again
vote on the proposed amendments. 	Forty-nine votes were cast in favor of the
proposed amendments at the January meeting. The thirty-two affirmative proxy votes
and the fourteen votes cast in person from the December meeting were also included
in the final vote tally, bringing the vote total to ninety-five in favor and four against.
The HOA considered this vote sufficient to amend and record the Supplemental
CCRs.
{6} 	The Supplemental CCRs were recorded on January 25, 2011. 	On March 3,
2011, the HOA filed suit against Defendant for a second time. The HOA’s complaint

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sought to enjoin Defendant from engaging in short-term rental activity pursuant to the
Supplemental CCRs and alleged various other violations stemming from separate
provisions of the Supplemental CCRs and HOA rules and regulations. The district
court concluded, however, that a valid amendment to the CCRs required unanimous
agreement of the lot owners, which the HOA did not have. 	Therefore, the district
court denied the HOA’s claims, finding that all of the alleged violations fell under the
Supplemental CCRs, which it concluded were void. The HOA appealed, again.
DISCUSSION
I. 	The First Lawsuit
A. 	The District Court Did Not Abuse Its Discretion in Declining to Consider
Violations of CCR Provisions Not Pleaded in the Complaint
{7} 	We begin by addressing the issues raised by the HOA on appeal regarding
alleged violations of CCRs and zoning code provisions that were not pleaded in the
HOA’s complaint or the motion for a temporary restraining order (TRO) in the first
lawsuit. The HOA’s complaint and motion for a TRO specifically alleged violations
of Article VI, Section 21 of the CCRs and Rules 2.1 and 2.2 of the HOA rules and
regulations (Rules 2.1 and 2.2). 	Neither the complaint nor the motion for a TRO
specifically alleged violations of Article VI, Sections 29 (nuisances), 45 (temporary
uses), or 49 (zoning; development). In addition, Defendant testified that the HOA
notified him that it believed he had violated only Article VI, Section 21 of the CCRs

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and Rules 2.1 and 2.2 of the rules and regulations. Immediately prior to the hearing,
the HOA apparently alerted Defendant that it intended to argue that Defendant
violated additional CCR sections. Defendant argued prior to the hearing and during
his closing argument that evidence and arguments on alleged violations of extraneous
provisions of the CCRs were beyond the pleadings and should not be considered. The
district court agreed and it specifically limited its ruling to the violations of Section
21 of the CCRs and Rules 2.1 and 2.2 of the HOA rules and regulations alleged in the
complaint.
{8} 	On appeal, the HOA argues that the district court’s refusal to rule on these
issues was an abuse of discretion because the district court’s order was inconsistent
with the record. 	The HOA claims that its general allegation in the complaint that
“Defendant has violated the covenants contained in the Declaration and the Rule[s]
and Regulations of the Subdivision” put Defendant on notice that his conduct not only
violated the provisions explicitly alleged in the complaint, but also any other provision
the HOA conceivably considered violated by Defendant’s conduct by the time of the
hearing. In other words, the HOA contends that violations of Sections 29, 45, and 49
were alleged in the complaint under its general allegation regarding Defendant’s
violation of the CCRs and that the court abused its discretion in not considering the
testimony and briefing on these alleged violations.

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{9} 	We are not persuaded. The complaint and the motion for a TRO specified only
Section 21 of the CCRs and Rules 2.1 and 2.2 of the rules and regulations. Therefore,
Defendant could reasonably understand the HOA’s claims to be limited to those
sections. 	To the extent that the HOA’s eleventh-hour attempt to add violations of
other sections of the CCRs and of the rules and regulations can be construed as an
attempt to amend its complaint, we review the district court’s denial of that attempt
for abuse of discretion. See Roark v. Farmers Group, Inc., 2007-NMCA- 074, ¶ 14,
142 N.M. 59, 162 P.3d 896. Here, Defendant prepared for the hearing on the basis of
the complaint and the motion for a TRO, and the HOA did not alert either Defendant
or the district court that it intended to assert claims beyond the specific provisions
cited in the complaint and the motion until immediately prior to the hearing.
Consequently, the district court could have reasonably determined that permitting the
purported amendment would be prejudicial to Defendant, and it acted within its sound
discretion in refusing to consider the HOA’s additional claims.
B. 	Defendant’s Short-Term Rentals Did Not Violate the Original CCRs
{10} 	We now turn to the violations alleged in the HOA’s complaint and motion for
a TRO and begin with the HOA’s contention that the CCRs prohibited Defendant’s
short-term rentals. 	The district court concluded that Article VI, Section 21 of the
CCRs did not prohibit such use. Article VI, Section 21 states, in relevant part, “No

CORRECTION PAGE: Estates at Desert Ridge HOA v. Vazquez, Nos. 30,944/31,590, Filed 2/8/13, FyBuW; Page 7, line
4: Changed “make” to “makes”.
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Lot or any portion thereof shall be used except for single-family residential purposes.”
The HOA argues that use of the home as a short-term rental is inconsistent with the
“single-family residential purposes” limitation on the lot because the short-term nature
of the rentals makes them more akin to business or commercial uses such as a hotel
or lodging house.
{11} 	Interpretation of language in a restrictive covenant is a question of law that we
review de novo. Heltman v. Catanach, 2010-NMCA-016, ¶ 5, 148 N.M. 67, 229 P.3d
1239. 	In interpreting a restrictive covenant, we look to certain general rules of
construction:
First, when the language of a restrictive covenant is unclear or is subject
to ambiguity, then the covenant will be resolved in favor of the free
enjoyment 	of 	the 	property 	and 	against 	the 	restriction. 	Second,
restrictions on land use will not be read into covenants by implication
lest the free alienability of property be frustrated. 	Third, restrictive
covenants must be considered reasonably, though strictly, so that
illogical, unnatural or strained construction will not be effected. [F]ourth,
words in a restrictive covenant must be given their ordinary and intended
meaning.
Cain v. Powers, 100 N.M. 184, 186, 668 P.2d 300, 302 (1983) (internal quotation
marks and citations omitted).
{12} 	The HOA does not argue that rentals in general are prohibited by the covenants.
Rather, the HOA’s argument necessarily depends on drawing a distinction between
short- and long-term rentals, which assumes that while the latter are a permissible

8
residential use, the former, by the nature of their duration, are transformed into a
business or commercial purpose. 	Because the language of the covenant does not
specifically draw such a distinction, we turn to an examination of the term “single-
family residential purposes” in light of case law both in New Mexico and in other
jurisdictions that have interpreted similar restrictive covenants.
{13} 	“Residential use” or “residential purposes” language in a restrictive covenant,
without further limiting language, has routinely been interpreted as intending a use of
the property for “living purposes, or a dwelling, or a place of abode.” 	Lowden v.
Bosley, 909 A.2d 261, 267 (Md. 2006). Courts following this interpretation read into
this term a prohibition on activities associated with a commercial or business purpose,
regardless of whether the covenants at issue include such an express prohibition. See
Blevins v. Barry-Lawrence Cnty. Ass’n for Retarded Citizens, 707 S.W.2d 407, 408
(Mo. 1986) (en banc) (stating that the plain and ordinary meaning of “residential
purposes” is “one in which people reside or dwell, or which they make their homes,
as distinguished from one which is used for commercial or business purposes”
(internal quotation marks and citation omitted)); Mullin v. Silvercreek Condo.
Owner’s Ass’n., 195 S.W.3d 484, 490 (Mo. Ct. App. 2006) (defining “residential
purposes” as limiting the use of the owner’s unit for the “purpose of residing or
dwelling . . . as distinguished from using the realty for commercial or business

CORRECTION PAGE: Estates at Desert Ridge HOA v. Vazquez, Nos. 30,944/31,590, Filed 2/8/13, FyBuW; Page 9, lines 2-4: Changed
“(defining the words ‘residence’ or ‘residential’ in restrictive covenants are those used in contradiction to the word ‘business’” to “(“The
words ‘residence’ or ‘residential’ in restrictive covenants are used in contradiction to the word ‘business’ ”; Page 9, line 14, changed
“signficantly” to “significantly”.
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purposes” (internal quotation marks and citation omitted); see also Catawba Orchard
Beach Ass’n. v. Basinger, 685 N.E.2d 584, 589 (Ohio Ct. App. 1996) (“The words
‘residence’ or ‘residential’ in restrictive covenants are used in contradiction to the
word ‘business’ ” (internal quotation marks and citation omitted)). Thus, resolution
of this issue is just as much a question of whether short-term rentals constitute a
business or commercial purpose as whether short-term rentals are, strictly speaking,
a residential purpose.
{14} 	In Mason Family Trust v. DeVaney, this Court held that deed restrictions that
limited use of the property to “dwelling purposes only” and specifically prohibited any
use of the property for “business or commercial purposes” did not prohibit short-term
rentals. 2009-NMCA-048, ¶¶ 1-3, 146 N.M. 199, 207 P.3d 1176. While we stated in
DeVaney that the defendant’s use of the property “may have constituted an economic
endeavor,” id. ¶ 10, we concluded that his “rental of a house or abode for a short-term
use as a shelter to live in [was] significantly different from using the property to
conduct a business or commercial enterprise on the premises.” Id. ¶ 14; see id. ¶ 15
(“Under our ruling . . . this commercial or business use restriction [does not] preclude
the economic aspect of an owner’s vacation home which is also partially used as a
short-term rental for dwelling purposes.”). We specifically limited DeVaney’s holding
to the facts presented in that case, but we see no reason to depart from its reasoning

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here. We therefore conclude, as we did in DeVaney, that an economic benefit flowing
to Defendant from the rental of his home, whether long- or short-term, does not by
itself 	constitute 	an 	impermissible 	business 	or 	commercial 	activity 	under 	the
“residential purposes” restrictive covenant. See Lowden, 909 A.2d at 267 (“While the
owner may be receiving rental income, the use of the property is unquestionably
‘residential.’ 	The fact that the owner receives rental income is not, in any way,
inconsistent with the property being used as a residence.” (emphasis omitted)); see
also Pinehaven Planning Bd. v. Brooks, 70 P.3d 664, 668 (Idaho 2003) (“Renting the
property for residential purposes, whether short[-] or long-term, does not fit within
[the covenant’s] prohibitions . . . [and] renting this dwelling to people who use it for
the purpose of eating, sleeping, and other residential purposes does not violate the
prohibition on commercial and business activity as such terms are commonly
understood.”).
{15} 	The HOA points us to a number of cases in which courts have held that
residential use restrictions prohibit short-term rentals or temporary occupancy. Most
of these cases dealt with “tourist” homes or bed and breakfast-type facilities in which
the homeowners rented out individual bedrooms to transient occupiers. See Fick v.
Weedon, 613 N.E.2d 362 (Ill. App. Ct. 1993); Bruni v. Thacker, 853 P.2d 307 (Or. Ct.
App. 1993); Carr v. Trivett, 143 S.W.2d 900 (Tenn. Ct. App. 1940); Deitrick v.

11
Leadbetter, 8 S.E.2d 276 (Va. 1940). 	However, this was not the case here where
Defendant rented the entire home, and we do not find these cases persuasive. 	See
DeVaney, 2009-NMCA-048, ¶ 14 (citing Hill v. Cmty. of Damien of Molokai, 1996-
NMSC-008, ¶ 11, 121 N.M. 353, 911 P.2d 861, in distinguishing the short-term rental
of the defendant’s home from a “commercial [use]—i.e., a boarding house that
provides food and lodging only—or is institutional in character” (internal quotation
marks omitted)).
{16} 	The HOA further cites Benard v. Humble, in which the court held that short-
term rentals of a home violated a deed restriction that stated, “No lot shall be used
except for single-family residence purposes.” 990 S.W.2d 929, 930, 931 (Tex. Ct.
App. 1999) (internal quotation marks omitted). While we note the similarity between
the restrictive covenant’s language in Humble and the one currently before us, we find
the reasoning used by the court in reaching its conclusion unpersuasive. In attempting
to give meaning to the term “residence,” the Humble court looked to both the Texas
Family Code’s requirements for establishing residency in order to file a divorce
proceeding and cases interpreting “residence” for purposes of the Texas Election Code
in ruling that the restrictive covenant prohibited rentals for less than ninety days. Id.
at 931-32. 	We do not agree, however, that the policies behind statutory residency
requirements for voting or to establish jurisdiction for divorce proceedings easily

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translate to the interpretation of restrictive covenants. Furthermore, adopting a similar
analysis to that in Humble would require us to disregard our express directive in
DeVaney that “[i]n the context of a residential subdivision, we interpret a dwelling
purpose to be use[d] as a house or abode, and once a proper use has been established,
we do not attach any requirement of permanency or length of stay.” 2009-NMCA-
048, ¶ 12; see Yogman v. Parrott, 937 P.2d 1019, 1021 (Or. 1997) (en banc) (stating
that “‘residence’ can refer simply to a building used as a dwelling place, or it can refer
to a place where one intends to live for a long time[.] 	The people who rent [the]
defendants’ beach house use it as a temporary home, and their purpose is to engage
in activities commonly associated with a dwelling place.”).
{17} 	Because we conclude that the “residential purposes” language of the covenant
would not, by itself, preclude Defendant’s short-term rentals, we now turn to the
“single-family” limitation and the CCR provision at issue as a whole.
{18} 	In Hill, our Supreme Court construed the term “single family” in a restrictive
covenant that stated, “No lot shall ever be used for any purpose other than single
family residence purposes,” as a limitation on the use of the property as opposed to
only a limitation on the type of structure that could be constructed. 1996-NMSC-008,
¶¶ 3, 12-21 (emphasis, internal quotation marks and citation omitted). While the use
of the home in Hill as a group home for individuals with terminal illnesses was

1 The HOA also encourages us to consider the distinction drawn between
“residence” and “transient occupancy” in the New Mexico Uniform Owner-Resident
Relations Act (the Act), NMSA 1978, §§ 47-8-1 to -52 (1975, as amended through
2007), in order to conclude that Defendant’s short-term rentals violate the CCRs.
Section 47-8-3(V). We disagree with the HOA that the Act is applicable to the case
before us since no claims have been alleged under the Act. We note in passing,
however, that the Act also includes a definition for “single family residence,”
seemingly a much closer match linguistically to the language before us but not cited
by the HOA, as a “structure maintained and used as a single dwelling unit.” Section
47-8-3(S) (emphasis added).
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significantly different from the use in the present case, we agree with the HOA that
New Mexico courts interpret the term “single family,” absent clear language in the
restrictive covenant to the contrary, as having an independent significance apart from
the physical design of the home. Contra Sissel v. Smith, 250 S.E.2d 463, 595, 596-97
(Ga. 1978) (holding that the defendant’s use of her residence as a beauty parlor did not
violate the “single family residence purposes only” restrictive covenant because the
covenant “should be interpreted as a restriction upon the types of buildings that can
be constructed on the lots . . . and not as a limitation on the types of activities”
(emphasis added) (internal quotation marks and citation omitted)).
{19} 	Because we must consider the use of Defendant’s house, the HOA urges us to
look not only to the definition of “family” used in 	Hill 	but also to various
Albuquerque ordinances and zoning code provisions in order to conclude that
Defendant’s short-term rentals are in violation of this provision of the CCRs. 1 While
ordinances and zoning code provisions could provide “persuasive evidence for a

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proper interpretation of [an] ambiguous term in the covenant,” Hill 1996-NMSC-008,
¶ 15, we conclude that the HOA simply did not provide sufficient evidence at the
hearing that Defendant was, in fact, violating the “single-family” limitation in the
CCRs, no matter how strictly or broadly we interpret that term. Defendant, on the
other hand, continuously maintained that his renters were families. 	For example,
when being questioned by Plaintiff’s counsel, Defendant repeatedly referred to his
renters as families. Furthermore, when specifically asked by his own counsel whether
he ever rented to more than one family, Defendant replied, “No sir, just one family.”
Presumably in rebuttal, the HOA introduced three surreptitiously taken photos of
Defendant’s renters, one taken over his backyard fence showing five middle-aged
adults sitting by the pool, and Defendant’s internet advertisement of the property,
which does not ask potential renters whether they are related. Regardless of what the
HOA intended these photos and the internet advertisement to prove, viewing the
evidence and its inferences in support of the district court’s ruling, we cannot hold that
the HOA’s evidence established that Defendant has violated the “single family”
limitation.
{20} 	Finally, our general rules of construction for restrictive covenants compel the
conclusion that Defendant’s short-term rentals do not violate the restrictive covenant
at issue. See Cain, 100 N.M. at 186, 668 P.2d at 302. As stated above, nothing in the

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plain language of the covenant draws a distinction between what the HOA views as
permissible long-term rentals and prohibited short-term rentals. Essentially, the HOA
asks us to read such a distinction into the covenant by implication, which we will not
do. See id. (stating that “when the language of a restrictive covenant is unclear . . . the
covenant will be resolved in favor of the free enjoyment of the property and against
the restriction . . . [and] restrictions on land use will not be read into [the] covenants
by implication lest the free alienability of property be frustrated”). 	In sum, we
emphasize again what we said in DeVaney: If a restrictive covenant is to preclude
short-term rentals it must be stated with sufficient specificity in the covenant. 2009-
NMCA-048, ¶ 15.
C. 	The HOA’s Rule Against Short Term Rentals is Void
{21} 	The HOA recorded initial rules and regulations with the CCRs in 2004. The
initial rules and regulations contained design principles for the Subdivision and
granted the HOA’s board of directors the authority to adopt further rules and
regulations to “govern the conduct of all persons occupying any part of the
Subdivision.” 	In 2007, the HOA promulgated a new set of rules and regulations
(HOA Rules) pursuant to that grant of authority. Article II of the HOA Rules contain
two provisions that the HOA argues prohibit Defendant’s short-term rentals. As for
Rule 2.1, which restricts business use of the property, we concluded above that

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Defendant’s short-term rentals were not a business or commercial use and affirm the
district court on that basis. 	Rule 2.2 states, “No [o]wner shall rent his house for less
than a thirty (30) day term” and requires the homeowner to forward a copy of the
written lease to the HOA. 	Relying on the Restatement (Third) of Property
(Servitudes) § 6.7 (2000), and Wilson v. Playa de Serrano, 123 P.3d 1148 (Ariz. Ct.
App. 2005), the district court concluded that any restriction on Defendant’s use of the
property needed to be contained in the CCRs and, therefore, this HOA Rule could not
be enforced against Defendant. For the following reasons, we affirm.
{22} 	The permissible scope of a homeowners’ association’s rule-making authority
to govern use of individually owned property is a matter of first impression in New
Mexico. After reviewing the cases and authorities relied upon by the parties, we agree
with the approach articulated in the Restatement (Third) of Property (Servitudes) §
6.7. Under the Restatement, a homeowners’ association has the “implied power to
adopt reasonable rules to (a) govern the use of the common property, and (b) govern
the use of individually owned property to protect the common property.” 	Id. §
6.7(1)(a), (b). 	Furthermore, if the homeowners’ association’s declaration grants a
general power to adopt rules, the homeowners’ association may adopt “reasonable
rules designed to . . . protect community members from unreasonable interference in
the enjoyment of their individual lots or units and the common property caused by use

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13: Changed “Ka.” to “Kan.”.
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of other individually owned lots or units.” 	Id. § 6.7(2)(a). 	The comments to the
Restatement note that this subsection is limited to the “prevention of nuisance-like
activities” because homeowners have a reasonable expectation that they will be
protected “from neighborhood nuisances by adoption of preventative rules.” Id. § 6.7
cmt. b. Otherwise, unless there is “specific authorization” in the homeowners’
association’s declaration, a homeowners’ association has no authority to “restrict the
use or occupancy of, or behavior within, individually owned lots or units” beyond
those rules permissible under subsections (1) and (2) of the Restatement. Id. § 6.7(3).
{23} 	Therefore, under a general grant of rule-making authority, the HOA’s authority
to restrict individually owned property pursuant to the HOA Rules was limited to
protecting common property and individually owned lots from any unreasonable
interference by another lot owner’s use of his or her property. On this point, the HOA
argues that rentals for a period of less than thirty days unreasonably interferes with
fellow lot owners’ enjoyment of their property because such rentals deprive them of
“their right to a limited access neighborhood and devalu[es] their investment.” Stated
another away, the HOA asks us to conclude that short-term rentals constitute a
nuisance activity that Rule 2.2 sought to prohibit.
{24} 	We disagree. The HOA points us to no evidence or authority that would lead
us to conclude that short-term rentals, more so than long-term rentals, or even access

18
to the Subdivision granted generally to guests of other property owners, constitute a
nuisance or unreasonably interfere with the Subdivision’s common property or
neighboring properties. We therefore conclude that the HOA has no authority under
a general grant of authority to promulgate rules to restrict rental activity in the
Subdivision and that Rule 2.2 is an unreasonable restriction on Defendant’s use of his
lot. 	See Restatement § 6.7(2)(a), cmt. b (“Rules are not valid unless they are also
reasonable.”). 	If Defendant’s short-term tenants engage in behavior that could
legitimately be considered a nuisance, the HOA certainly has valid rules in place that
would allow it to seek redress against Defendant or resort to traditional avenues such
as law enforcement. See Kiekel v. Four Colonies Homes Ass’n, 162 P.3d 57, 63-64
(Kan. Ct. App. 2007) (denying claim for injunctive relief to enjoin the defendant’s
rentals generally “in order to prevent specific instances of noxious activity” by
tenants).
{25} 	Thus, absent specific authorization in the declaration, the HOA had no authority
to promulgate a rule restricting rental activity in the Subdivision. The HOA points us
to three provisions of the CCRs which it contends granted the HOA this specific
authority. 	Contrary to the HOA’s assertions, these provisions do not specifically
authorize the HOA to restrict individually owned property uses, and they do not even
mention rentals. We have already determined that the “residential purposes” language

2Section 45 states, “Temporary Uses. Any lot or portion thereof may be used
by Declarant as a sales office, model home, storage area, or construction yard during
the construction and sales period. Any other temporary use by any party must have
the prior written approval of the Architectural Control Committee.”
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of Article VI, Section 21 does not prohibit short-term rentals. 	Furthermore, the
language in Article VI, Section 452 regarding “temporary use” grants no authority to
the HOA to restrict rentals. Rather, it requires a property owner to obtain permission
from the architectural control committee for temporary uses of a lot and, considering
the types of uses listed, implies that non-residential uses are the “temporary uses”
needing approval. 	Finally, the provision in Article IV, Section 4 allowing
homeowners to delegate their rights to the common facilities is not a grant of authority
to the HOA to restrict rentals on individually owned lots. See Kiekel, 162 P.3d at 62
(holding that a provision authorizing a homeowner to delegate his or her rights to
common areas to tenants did not authorize the homeowners’ association to later adopt
a bylaw provision restricting rentals). Thus, we see nothing in the CCRs that granted
the HOA specific authorization to restrict the rentals of individually owned lots or that
put homeowners on notice that the HOA had such authority to impose this type of
restriction in the future.
{26} 	For these reasons, we agree with the district court that Rule 2.2 is invalid and
cannot be enforced against Defendant. 	If the HOA desired to prevent short-term

20
rentals, this restriction should have been included in the originally filed CCRs, not in
the HOA Rules adopted nearly three years later. See Wilson, 123 P.3d at 1150 (“If the
recorded declaration does not contain or at least provide for later adoption of a
particular restriction or requirement, that restriction or requirement is invalid.”);
Kiekel, 162 P.3d at 62 (holding that without proper authorization in the declaration,
a homeowner’s association could not impose rental restrictions by amendment to its
bylaws and must “do so through an amendment to the Declaration.”). 	Cf. New
Mexico Condominium Act, NMSA 1978, §§ 47-7B-1 to -21 (1982, as amended
through 2012) (“The declaration for a condominium shall contain[] . . . any
restrictions on use, occupancy and alienation of the units”). Section 47-7B-5(A)(12).
II. 	The Second Lawsuit
A. 	The CCRs Were Not Validly Amended
{27} 	We now turn to the subject of the HOA’s second appeal and consider whether
the HOA’s purported amendment to the CCRs validly prohibited short-term rentals.
We review this issue de novo. See Heltman, 2010-NMCA-016, ¶ 5; Cain, 100 N.M.
at 185, 668 P.2d at 301.
{28} 	The district court determined that, absent unanimous agreement of the HOA
members, the CCRs could not be amended before the expiration of the twenty-five-

21
year period in the duration clause of the CCRs. Article VIII, Section 1 of the CCRs
states:
All of the provisions of this Declaration will run with and bind the land,
Members, and Owners . . . for a term of twenty-five (25) years from the
date on which this Declaration is recorded . . . after which date this
Declaration shall be automatically extended for successive periods of ten
(10) years each unless a Supplemental Declaration executed and
acknowledged by the President and any other one (1) officer or member
of the Board with the approval of the then-Owners of two-thirds . . . of
the Lots has been recorded . . . amending, modifying, or terminating this
Declaration, which Supplemental Declaration shall be effective upon
such recordation following the proper execution and acknowledgment
thereof.
The HOA argues that the plain language of the duration clause, along with other
provisions of the CCRs, indicate that the CCRs could be amended at any time upon
the affirmative vote of the two-thirds of the HOA members. We disagree.
{29} 	In Heltman, we stated,
Where a provision [in a restrictive covenant] 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. 	Thus, under Heltman, if the covenants provide an initial
duration period, such as the twenty-five-year term here, 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. See Johnson v.

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Howells, 682 P.2d 504, 505 (Colo. App. 1984) (holding that restrictive covenants
could not be amended before expiration of initial twenty-year period without
unanimous agreement of property owners); Kauffman v. Roling, 851 S.W.2d 789, 793
(Mo. Ct. App. 1993) (same); see also Post v. Murphy, 873 P.2d 118, 121 (Idaho 1994)
(construing 	similar 	restrictive 	covenant 	language 	and 	concluding 	that 	“[t]he
Restrictions clearly state that only after January 1, 1995, may the Restrictions be
amended by a two-thirds vote . . . until January 1, 1995, a unanimous vote is required
to amend them”).
{30} 	Notwithstanding Heltman, the HOA urges us to consider additional language
in the duration clause that the HOA argues evidences an intent to allow for
amendments to the CCRs at any time upon an affirmative vote of two-thirds of the
members. 	The HOA claims that the use of the term “has been” in the duration
clause—“unless a Supplemental Declaration . . . has been recorded”—contemplates
that a supplemental declaration could be recorded during the initial twenty-five years.
Similarly, the HOA claims that the language that a supplemental declaration “shall be
effective upon such recordation” means that once a supplemental declaration is
recorded, it is enforceable, regardless of whether it was amended prior to the
expiration of the initial twenty-five-year term.

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{31} 	We are not persuaded that the interpretation urged by the HOA is correct.
“Unless” and “has been” in the duration clause, which follow “after which date,”
clearly qualify the phrase providing that the CCRs will automatically extend at the
conclusion of the initial twenty-five-year term. Hale v. Basin Motor Co., 110 N.M.
314, 318, 795 P.2d 1006, 1010 (1990) (“Relative and qualifying words, phrases, and
clauses are to be applied to the words or phrase immediately preceding, and are not
to be construed as extending to or including others more remote.” (alteration, internal
quotation marks, and citation omitted)). 	Cf. Heltman, 2010-NMCA-016, ¶ 10
(construing “unless” in successive period clause). 	To construe this language as
permitting amendments at any time would render superfluous the language regarding
the initial twenty-five-year term. 	See Illini Fed. Sav. & Loan Ass’n v. Elsah Hills
Corp., 445 N.E.2d 1193, 1196 (Ill. App. Ct. 1983) (construing similar duration
provision and stating that “if the restrictions can be amended at any time, the [twenty]-
year and successive [ten]-year time periods would be rendered meaningless”); In re
Wallace’s Fourth Southmoor Addition to City of Enid, 874 P.2d 818, 820 (Okla. Civ.
App. 1994) (“If the owners had intended that the covenants could be amended at any
time by sixty percent of the owners, they would not have needed to include any
reference to a twenty-year period.”); Howells, 682 P.2d at 505 (“The plain meaning
of the paragraph in question is that the covenants will be binding for twenty years,

24
after which time they are automatically extended unless sixty percent of the property
owners agree to change them[.]”).
{32} 	For these same reasons, the “effective upon such recordation” language in the
duration clause does not evidence an intent to allow amendments during the initial
time period. In Heltman, we considered whether an amendment to the covenants after
expiration of the initial duration period, but during a successive ten-year period
following automatic extension, was effective immediately or at the conclusion of the
ten-year period. 2010-NMCA-016, ¶¶ 10-12. We held that the amendment was not
effective until the start of the next successive ten-year period because it was not
passed by a unanimous vote. Id. ¶ 12. Here, the language relied upon by the HOA is
located in the section of the duration clause regarding amendments to the CCRs after
the initial twenty-five-year time period has expired. 	If anything, this provision
actually seems intended to prevent the result found in cases such as Heltman wherein
the amendments do not become enforceable until an automatically triggered extension
period has expired. 	See, e.g., Scholten v. Blackhawk Partners, 909 P.2d 393, 396
(Ariz. Ct. App. 1995); In re Wallace’s Fourth Southmoor Addition to the City of Enid,
874 P.2d at 820.
{33} 	The cases cited by the HOA in support of its position, however, do highlight the
language in a restrictive covenant that can be used to allow amendments to become

CORRECTION PAGE: Estates at Desert Ridge HOA v. Vazquez, Nos. 30, 944/31,590, Filed 2/8/13, FyBuW: Page 26, line
18, Changed “Sec/tion” to “Section”.
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immediately enforceable despite the presence of an initial duration period. 	In
Reinecke v. Kleinheider, the restrictive covenant contained an initial fifteen-year
period but also allowed for amendments “at any time.” 804 S.W.2d 838, 841 (Mo. Ct.
App. 1991). The Reinecke court did not provide a quotation of the relevant portions
of the duration clause such that we could undertake an adequate comparison, but the
court clearly found the “at any time” language, which is not in the CCRs before us,
determinative to its outcome. Id. Similarly, in Good v. Bear Canyon Ranch Ass’n,
the duration clause stated, “This [d]eclaration and any amendments or supplements
to it shall remain in effect from the date of recordation for a period of fifty . . . years.”
160 P.3d 251, 254 (Colo. App. 2007) (internal quotation marks and citation omitted).
The Good court concluded that “[t]he inclusion of the terms ‘amendments’ and
‘supplements’ contemplates that amendments may be made to the covenants during
the initial fifty-year period.” Id. That is not the case here where the duration clause
states that only the original CCRs, and not amendments or supplements, are
enforceable for the twenty-five-year period. Finally, in Brockway v. Harkleroad, the
declaration provided, “These covenants and restrictions may be amended during the
first twenty . . . years . . . by an instrument signed by not less than seventy-five percent
. . . of the Lot Owners.” 615 S.E.2d 182, 184 (Ga. Ct. App. 2005). However, there

26
is no analogous provision in the CCRs currently before us expressly authorizing
amendments during the initial duration period.
{34} 	Finally, we also reject the HOA’s argument that other provisions of the CCRs
evidence an intent to allow amendments at any time. The HOA relies on Article VIII,
Section 2(a), to argue that since the CCRs have already been amended to transfer
Class B membership to Class A membership, then it is illogical to say that the CCRs
cannot be amended before expiration of the twenty-five-year period. 	As we have
noted, there are two avenues to an effective amendment during the initial duration
period. 	One would be by unanimous approval of all of the members. 	The second
would be express authorization in the CCRs allowing for such an amendment. 	See
Reinecke, Good, Brockway. Section 2(a) expressly authorizes the “declarant,” which
is the developer of the Subdivision, to unilaterally amend, modify, or terminate the
CCRs until either ninety percent of the lots are sold or, at the latest, December 31,
2015. Therefore, Subsection 2(a) permitted a specific amendment by the developer
to transfer membership rights to homeowners, but the CCRs did not authorize the
HOA to amend the CCRs to restrict the homeowners’ uses of their property.
{35} 	The HOA also points to Section 2(b), which sets out procedures for amending
the CCRs and specifically restates the two-thirds voting requirement for amendments
but does not restate the twenty-five-year duration period. Construing Section 2(b) as

27
allowing amendments at any time upon a two-thirds vote because it fails to restate the
duration period, however, would effectively abrogate the duration clause and render
the twenty-five-year duration period meaningless. 	See Cain, 100 N.M. at 186, 668
P.2d at 302 (stating that “restrictive covenants must be considered reasonably, though
strictly, so that illogical, unnatural or strained construction will not be effected”
(internal quotation marks and citation omitted)).
{36} 	Therefore, considered as a whole, the plain meaning of the duration clause
evidences an intent to allow a supplemental declaration to supplant an automatic
extension of the CCRs at any time after the expiration of the twenty-five-year period,
not during the twenty-five-year period itself. In other words, once the twenty-five-
year time period has expired, the CCRs automatically extend unless a supplemental
declaration has been recorded. Once recorded, the supplemental declaration becomes
effective regardless of whether an automatic extension has been triggered and not
completely run its ten-year course. For these reasons, we agree with the district court
that the Supplemental Declaration recorded by the HOA is void and unenforceable.
Because we conclude that unanimous approval of HOA members was required to
amend the CCRs during the initial twenty-five-year period, we do not consider the
issues argued by the parties regarding the validity of the votes cast at the December
annual meeting.

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B. 	The District Court Did Not Abuse Its Discretion in Declining to Consider
Alleged Violations Under the Original CCRs
{37} 	Having concluded that the Supplemental CCRs are unenforceable, we are faced
with a purported amendment issue similar to the one addressed earlier in this opinion.
The 	HOA’s 	complaint 	in 	the 	second 	lawsuit 	only 	alleged 	violations 	of 	the
Supplemental CCRs. Furthermore, Defendant specifically objected to the trial of any
claims based on the original CCRs because such violations were not pleaded in the
complaint. 	The district court agreed and considered only claims based on the
Supplemental CCRs, and it ruled that the Supplemental CCRs were unenforceable.
The HOA now argues on appeal that when the district court set aside the
Supplemental CCRs, it left the original CCRs still in effect. 	The HOA therefore
claims that we should now consider whether Defendant violated the original CCRs,
despite its allegations and arguments below that it was the Supplemental CCRs that
were violated.
{38} 	The HOA is correct in asserting that the original CCRs are still in effect.
However, in the second lawsuit, the HOA neither alleged violations of the original
CCRs as an alternative count in its complaint nor did it attempt to refute Defendant’s
argument that the district court should not consider alleged violations under the
original CCRs. 	The first time the HOA attempted to persuade the district court to
consider alleged violations of the original CCRs was in its untimely motion to

29
reconsider and amend the judgment. Therefore, the district court did not abuse its
discretion in denying the HOA’s attempt to amend its complaint.
C. 	The 	HOA 	Waived 	Its 	Arguments 	Regarding 	Defendant’s 	Alleged
Violations of HOA Rules
{39} 	Finally, the HOA argues that the district court erred in failing to rule upon the
HOA’s allegations in the complaint and the motion for preliminary and permanent
injunction that Defendant violated HOA Rule 8.5. The district court made no explicit
findings of fact or conclusions of law on these allegations, and the district court’s
order stated only that the HOA’s “request for preliminary and permanent injunctions
is denied” without clarification as to whether this applied to Defendant’s alleged
violations of HOA Rules.
{40} 	We conclude, however, that the HOA waived the arguments regarding an
alleged violation of HOA Rule 8.5 by failing to introduce evidence supporting its
allegations and by failing to file a timely motion to reconsider and amend the
judgment to include these issues. 	At the hearing, HOA’s counsel asked an HOA
witness whether the HOA requires homeowners to provide certain information to the
HOA under Rule 8.5. The witness replied in the affirmative. HOA’s counsel did not,
however, elicit any further testimony from the HOA representative or from any other
witness as to whether Defendant actually provided this information. The HOA points
us to the requests for admission attached to Plaintiff’s Exhibit 30, but the requests for

30
admission were never admitted as evidence at the hearing. 	Rather, the HOA
introduced only Defendant’s answers to interrogatories, which do not state whether
Defendant did or did not comply with the HOA Rules. 	See Ulibarri v. Homestake
Mining Co., 112 N.M. 389, 395, 815 P.2d 1179, 1185 (Ct. App. 1991) (stating that
“[t]he party alleging the affirmative of an issue has the burden of proving that issue”).
Finally, while the HOA did file a motion to reconsider and amend the judgment
arguing that the district court failed to rule on whether Defendant violated HOA Rule
8.5, this motion was filed nineteen days after the district court entered its order and
was therefore untimely. See Rule 1-052(D) NMRA (requiring a motion to amend to
be filed within ten days of judgment); Rule 1-059(E) NMRA (same). 	For these
reasons, we conclude that the district court did not err in not ruling on matters pleaded,
but not tried, by the HOA when the HOA failed to provide a factual basis for the
district court to rule in its favor.
CONCLUSION
{41} 	For the foregoing reasons we affirm the district court’s denial of the HOA’s
requests for injunctive relief in both cases.

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{42} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
MICHAEL D. BUSTAMANTE, Judge