Posted by: Patricia Salkin | May 14, 2014

NM Appeals Court Finds Lack Active Architectural Control Committee Did Not, of itself, Permit Neighbor to Violate Clear Prohibitions in Restrictive Covenants by Boarding Dogs

Curtis and Barbara Myers (Plaintiffs) and Defendant were neighbors in the Tierra del Sol Subdivision, located in Otero County, New Mexico. In 2000, Defendant opened a dog training business on her property, and in 2003, Defendant added a dog boarding business. In January 2009, Defendant began construction of a 3,000 square foot metal outbuilding on her property for use in connection with the businesses. Tierra Del Sol is a residential subdivision, with restrictive covenants put in place by the developer. These covenants provide that all lots in the subdivision are for residential purposes only. Dogs can only be maintained on any premises for household, residential, and non-commercial use or benefit. All improvements in the subdivision require the written approval of the Architectural Control Committee (ACC). Plaintiffs asserted that Defendant’s 3,000 square foot metal building used for the dog training businesses and constructed without ACC approval, as well as the businesses themselves, violated the Tierra Del Sol restrictive covenants. The district court agreed, and ruled in favor of the plaintiffs.

The appeals court first discussed that it was undisputed that the body empowered to enforce the covenants, the ACC, ceased to exist in a meaningful way before Defendant began operating her businesses from her property. Defendant concedes that she violated the restrictive covenants, but argues that, in the absence of an ACC, the covenants were unenforceable. Despite this, the court found that the defendant’s construction of a large commercial building clearly violates the covenant allowing only single-family residential and related structures, and the lack of an active ACC did not, of itself, permit Defendant to violate clear prohibitions in the restrictive covenants. Defendant also asserted that Plaintiffs’ failure to enforce the covenants against other violators, and delay in enforcement against her constitute acquiescence on the part of Plaintiffs. The court, however, rejected the notion that individual owners in a subdivision must move to enforce the covenants against relatively minor violations that have little impact on them in order to maintain the right to enforce against violations that significantly impact their rights. Accordingly, the restrictive covenant was upheld and the district court’s holding was affirmed.

Myers v Armstrong, 324 P. 3d 388 (NM App. 2/5/2014)

The opinion can be accessed at: https://coa.nmcourts.gov/documents/opinions/Myers%20FO.pdf


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