A New Mexico covenant can die the moment one person owns every lot — permanently
A New Mexico covenant can die the moment one person owns every lot — permanently
2026-09-15 · New Mexico · Courts
Three New Mexico landowners tried to stop a concrete batch plant being built in their subdivision using a recorded anti-nuisance restriction. The restriction had been extinguished years earlier, at the moment it was created, and no later sale brought it back.1
The case
Miller v. Roper Construction, Inc., No. A-1-CA-41926, filed August 25, 2025 in the New Mexico Court of Appeals, on appeal from the District Court of Lincoln County. The document is captioned “DECISION” and the Court expressly invoked the non-precedential disposition rule, so this is not binding authority — but it is the most substantive covenant reasoning any New Mexico appellate court produced in the period.
Owners of tracts in an unincorporated Lincoln County subdivision sought a preliminary injunction against a concrete batch plant on another tract in the same subdivision. Their lever was a recorded restriction barring “[a]ny other use which, by [its] nature (whether noise, odor, hours of operation, etc.) would be a nuisance to adjoining owners.”
The district court denied the injunction on the ground that the covenant had likely been terminated by merger — because at the moment the restrictions were recorded, one couple, later a single trust, owned every burdened and benefited tract. The Court of Appeals affirmed.
The doctrine
“'The doctrine of termination by merger is still the law of New Mexico.' … 'A servitude is terminated when all the benefits and burdens come into a single ownership. Transfer of a previously benefitted or burdened parcel into separate ownership does not revive a servitude terminated under the rule of this section. Revival requires re[]creation.'”
And, quoting earlier New Mexico authority: “The obligation concerning the use of land is not merely suspended by the coming of the benefit and the burden into the hands of one person but is extinguished for all time. Hence, the later severance of ownership will not cause it to be revived. If it or a like obligation is to exist after the severance, it must be by virtue of a new creation.”
The fallback that did not work
The plaintiffs argued that even if the restriction failed as a covenant, it survived as an equitable servitude. The court closed that route:
“any distinction that once existed between restrictive covenants and equitable servitudes is no longer recognized in American jurisprudence in general, and the two terms have been expressly done away with in New Mexico as separate doctrines.”
That is a useful clarification in its own right. In New Mexico the two labels describe the same thing, so relabelling a failed covenant does not rescue it.
Why this is a chain-of-title problem, not a governance problem
The decision says nothing about the running of associations. What it says is that a recorded restriction is only as good as the ownership pattern at the moment it was created and at every moment since.
The conditions the outcome turned on were specific: all benefited and burdened tracts were held by a single owner — joint tenants, later a single trust — when the restrictions were recorded; and nobody re-created the restriction after ownership was split again.
The court also noted that the restrictions had been added as part of a plan to work around the county's subdivision ordinance. That is context rather than a separate holding.
Where this reaches an association
The merger scenario is not exotic in New Mexico, and three fact patterns produce it.
A small subdivision that a developer took back. If a declarant or a successor ends up owning every lot — through foreclosure, through a failed build-out, through buying neighbours out — the servitudes among those lots can extinguish. Selling the lots again does not restore them.
A phased development where a phase was never sold. Restrictions recorded across tracts still in single ownership are exposed to the same argument.
A community with very few lots. The fewer the parcels, the easier it is for unity of ownership to have occurred at some point in the chain.
What a board can actually do about it
Very little retroactively, which is the uncomfortable part. Merger is a title fact, not a governance decision, and it happened when it happened.
What a board can do is find out. If the community is small, or was ever consolidated in one owner's hands, a title review of when the restrictions were recorded and who owned what at that moment is the only way to know whether the association is enforcing something that exists. The time to learn the answer is not in the middle of a contested injunction application.
And if the answer is bad, the remedy the court names is the only one available: re-creation. A new recorded instrument, executed by the current owners, creating the restriction afresh — which requires the owners' agreement and cannot be done by board resolution.
One caution on weight
This is a non-precedential decision. It restates doctrine New Mexico already had rather than announcing anything new, which is why it can be relied on as a description of the law without being binding — but before a district judge it settles nothing.
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