IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2009-NMCA-048
Filing Date: March 26, 2009
Docket No. 28,554
MASON FAMILY TRUST,
Plaintiff-Appellant,
v.
MATT DEVANEY,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Karen L. Parsons, District Judge
Adam D. Rafkin, P.C.
Adam D. Rafkin
Ruidoso, NM
for Appellant
Richard A. Hawthorne, P.A.
Richard A. Hawthorne
Ruidoso, NM
for Appellee
OPINION
SUTIN, Judge.
{1} Plaintiff Mason Family Trust (Mason) sought an injunction against Defendant Matt
Devaney to prevent Devaney from renting his cabin on a short-term basis. Devaney’s
property lies within what is considered a residential subdivision, called the White Fir
Subdivision, located in an area called the Upper Canyon in Ruidoso, New Mexico. Mason
also sought a writ of mandamus against the Village of Ruidoso to require the Village to
enforce certain ordinances that Mason claimed prohibited Devaney’s activity. The
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mandamus action was stayed as to the Village, pending the outcome of the merits of Mason’s
claim against Devaney. Specifically, Mason complained that the short-term rental of the
property by Devaney violated deed restrictions requiring properties to be used only for
dwelling purposes and precluding properties from being used for business or commercial
purposes. The district court entered summary judgment in Devaney’s favor. We affirm and
hold that, under the particular circumstances in this case, Devaney’s rental of his cabin for
dwelling purposes is a permitted use and is not a use for business or commercial purposes.
BACKGROUND
{2} Mason’s motion for summary judgment asserted the following as undisputed facts.
Devaney purchased the property in question burdened with negative reciprocal easements
in the form of deed restrictions. These deed restrictions were set forth in the original deeds
to properties owned by Mason and Devaney. Devaney was a full-time resident of Texas, and
his primary residence was in Fort Worth, Texas. He used the cabin as a personal vacation
home and as a short-term rental. He contracted with a property management company to
manage the rental of the cabin, and the company advertised the property on the company’s
Internet website. In the year before the complaint was filed, Devaney had only stayed in the
property for fourteen nights and had rented it out sixty-six days, generating $12,625 in gross
receipts.
{3} The original warranty deeds to properties in the subdivision stated “that said property
and the improvements thereon shall be used for dwelling purposes only and that no part
thereof shall at any time be used for business or commercial purposes[.]” Mason argued in
its summary judgment memorandum that the deed restrictions precluded Devaney from
using the property as a short-term rental because this rental activity constituted use of the
property for business or commercial purposes.
{4} Devaney responded and filed a counter-motion for summary judgment. Devaney
agreed that the facts as set out by Mason were undisputed. Devaney set out further
undisputed facts relating to chain of title and reversionary rights. Mason did not dispute
these additional facts. Devaney argued that (1) Mason lacked standing, (2) the deed
restrictions did not preclude him from using his property as a short-term rental, and (3) the
quitclaim deed to Devaney extinguished any right the grantor or its assigns and successors
ever had to enforce the deed or to exercise the right of reversion.
{5} The district court determined, as a matter of law, that Devaney was entitled to
judgment in his favor, dismissed Mason’s claims with prejudice, and entered judgment to
that effect. The court specifically held that Devaney’s short-term rental of the property did
not violate the deed restrictions.1
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The court’s order appears to have also covered a second cabin in the subdivision
owned by Devaney. To the extent the issues presented in the district court and decided by
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{6} The only issue on appeal is whether Devaney’s short-term rental of his cabin
constituted a use of the property for business or commercial purposes, in violation of the
deed restrictions. Devaney does not mention his standing argument or his arguments
regarding the original grantor’s assign’s and successor’s right of reversion that he raised in
his summary judgment motion, and therefore, he has abandoned those arguments. See Cain
v. Champion Window Co. of Albuquerque, LLC, 2007-NMCA-085, ¶ 31, 142 N.M. 209, 164
P.3d 90 (stating that the plaintiffs abandoned claims set out in their complaint when they
failed to mention the claims on appeal from a summary judgment dismissing all counts of
his complaint); see also State ex rel. Office of State Eng’r v. Lewis, 2007-NMCA-008, ¶ 74,
141 N.M. 1, 150 P.3d 375 (filed 2006) (“A party that fails to present argument or authority
to support a contention runs a very substantial risk that this Court will not address the
contention, . . . because the party is deemed to have abandoned the contention.”).
DISCUSSION
{7} The question before us is whether, given the facts in this case, Devaney’s use of his
property violated the deed restrictions. The facts are undisputed. We review this question
de novo. See Bonito Land & Livestock, Inc. v. Valencia County Bd. of Comm’rs, 1998-
NMCA-127, ¶ 5, 125 N.M. 638, 964 P.2d 199.
{8} The parties agree that Devaney rented the property on a short-term basis when he was
not occupying the property himself. He rented the property for many more days than he
dwelled there, and Devaney received substantial rental fees. During the year before the
complaint was filed, a property management company advertised and managed the rental of
the cabin.
{9} Deed restrictions are to be read reasonably but strictly and, to the extent language is
unclear or ambiguous, the issue of enforcement of a restriction will be resolved in favor of
the free enjoyment of the property and against limitations. See Hill v. Cmty. of Damien of
Molokai, 1996-NMSC-008, ¶ 6, 121 N.M 353, 911 P.2d 861. We will not construe a deed
restriction so as to create an illogical, unnatural, or strained construction. See id. We will
give words in a deed restriction their ordinary and intended meaning. See id.
{10} While Devaney’s renting of the property as a dwelling on a short-term basis may
have constituted an economic endeavor on Devaney’s part, to construe that activity as one
forbidden by the language of the deed restrictions is unreasonable and strained. Strictly and
reasonably construed, the deed restrictions do not forbid short-term rental for dwelling
purposes.
the district court involved two cabins and not solely one cabin, we will assume that the
parties intend this Court’s decision to relate to the two cabins.
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{11} This conclusion is supported by the case of Yogman v. Parrott, 937 P.2d 1019, 1020
(Or. 1997), which involved a short-term vacation rental in a beach-front subdivision. The
restrictive wording differs slightly from the present case. The property in Yogman was
restricted to use “exclusively for residential purposes” and not for “commercial enterprise.”
Id. After analyzing the meanings of “residential,” “commercial,” and “commercial
enterprise,” and looking at the context of the restrictive language, the Oregon Supreme Court
determined that the language of the restriction was ambiguous. Id. at 1021-22. Yogman is
similar to the present case. Other than limited evidence in Yogman that other homes were
used as vacation rentals, there was no evidence in Yogman of the contracting parties’ intent.
Id. at 1022. The Oregon court followed the principle of strict construction because the use
complained of was not “plainly within the provisions of the covenant.” Id. (internal
quotation marks and citation omitted). In doing so, the court determined that the short-term
vacation rental of the property was not plainly included within the provisions of the covenant
and held in favor of the owners of the vacation property. Id. at 1023.
{12} We are not persuaded by Mason’s reliance on O’Connor v. Resort Custom Builders,
Inc., 591 N.W. 2d 216 (Mich. 1999), in which, concentrating on the concept of “interval
ownership,” the Michigan Supreme Court held that interval ownership did not constitute a
residential purpose because it is too temporary and not considered as a residence or
permanent home. Id. at 219-21. We are also not persuaded by the different circumstances
relied on by Mason in Munson v. Milton, 948 S.W.2d 813 (Tex. App. 1997), and Robins v.
Walter, 670 So. 2d 971 (Fla. Dist. Ct. App. 1995). In Munson, the court determined that
rentals through a professional rental agent were not a residential use because a “residence
generally requires both physical presence and an intention to remain.” 948 S.W.2d at 816.
In Robins, the court held that a bed and breakfast inn constituted an impermissible
commercial enterprise. 670 So. 2d at 974. In the present case, the property must be used as
for “dwelling purposes only.” In the context of a residential subdivision, we interpret a
dwelling purpose to be use 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.
{13} Dictionary definitions support the view that the rental here is for dwelling purposes
only. A “dwelling” is “a shelter (as a house) in which people live.” Merriam-Webster’s
Collegiate Dictionary 361 (10th ed. 1996). To “dwell” is “to remain for a time.” Id. A
“house” is “a building that serves as living quarters for one or a few families: home.” Id.
at 562. An “abode” is “a temporary stay: sojourn.” Id. at 3.
{14} We think that rental of a house or abode for a short-term use as a shelter to live in is
significantly different from using the property to conduct a business or commercial
enterprise on the premises. See Munson, 948 S.W.2d at 819 (Duncan, J., dissenting) (stating
that “residential purposes . . . does not preclude renting one’s home to third parties so long
as the third parties use the tract for living purposes” (footnote omitted) (internal quotation
marks omitted)); cf. Hill, 1996-NMSC-008, ¶ 11 (holding that the operation of group home
to be “distinguishable from a use that is commercial—i.e., a boarding house that provides
food and lodging only—or is institutional in character”); Smart v. Carpenter, 2005-NMCA-
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056, ¶ 14, 139 N.M. 524, 134 P.3d 811 (filed 2006) (holding that the owner’s use of the
premises to repair, park, and store vehicles used in his business constituted a commercial
activity).
{15} If a deed restriction is to preclude a short-term rental to be used for dwelling
purposes, the restriction needs to be more specific than the restrictions in the present case.
Under our ruling, a deed restriction for dwelling purposes only does not demonstrate an
intent to prohibit a short-term rental for dwelling purposes. Nor, in our view, does this
commercial or business use restriction preclude the economic aspect of an owner’s vacation
home which is also partially used as a short-term rental for dwelling purposes. We leave for
another day and a different factual setting the determination of whether the short-term rental
of a residential property falls within the definition of a commercial or business use.
CONCLUSION
{16} We hold that, under the particular circumstances in this case, Devaney’s short-term
rental of his property for dwelling purposes was a permitted use and not for business or
commercial purposes. Therefore, the use was not in violation of the deed restrictions. We
affirm the district court.
{17} IT IS SO ORDERED.
JONATHAN B. SUTIN, Judge
WE CONCUR:
ROBERT E. ROBLES, Judge
TIMOTHY L. GARCIA, Judge
Topic Index for Mason Family Trust v. DeVaney, No. 28,554
PR PROPERTY
PR-DD Deed
PR-ES Easement
PR-RC Restrictive Covenants
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