Build a casita in Santa Fe and the City records a covenant against your land
Build a casita in Santa Fe and the City records a covenant against your land
2026-09-15 · New Mexico · Regulation
An owner who builds an accessory dwelling unit in Santa Fe ends up with two independently enforceable covenants on the lot: the association's declaration, and a City-drafted deed restriction that binds every future owner.1
What the City requires
The instrument is the City's mandatory recorded form, “Restrictive Covenant for Accessory Dwelling Unit, Per § 14-6.3(D)(1)(i) SFCC 1987.” Its stated purpose:
“The purpose of this Covenant is to provide for the City's enforcement of the accessory dwelling unit standards set forth in City of Santa Fe Land Development Code Section 14-6.3(D)(1), as the same may be amended from time to time, by appropriate legal proceedings, including, without limitation, revocation of certificates of occupancy for accessory dwelling units in violation…”
The consideration is explicit: “In consideration of the City's exemption of the Property from the City's density restrictions… and upon the issuance of a construction permit for an accessory dwelling unit on the Property, Owner hereby covenants and agrees, intending to bind himself, or itself and all future owners of the Property, to comply with the standards set forth in §14-6.3(D)(1) as the same may be amended from time to time.”
It runs with the land
“Owner… hereby agrees that any and all requirements of the laws of the State of New Mexico necessary to be satisfied in order for this Covenant to constitute a deed restriction and a covenant that runs with the land, shall be deemed to be satisfied in full… or in the alternative, that an equitable servitude has been created to ensure that this Covenant runs with the land.”
And a trap for co-owned property: “If the property is owned by more than one individual, all individuals must sign or this document is void; all permits issued hereunder will be revoked and the property will not be exempt from the density restrictions of the Land Development Code.”
Three consequences for an association
The City covenant does not displace the declaration. They coexist, and the owner has to satisfy both. An association's architectural standards for an accessory dwelling unit remain fully enforceable as a private contract; the City's covenant adds a second enforcement authority with its own remedy — revocation of the certificate of occupancy.
One party can change its covenant unilaterally. The City's form binds the owner to the ADU standards “as the same may be amended from time to time.” The obligation therefore tracks whatever the Land Development Code says in future, without any further act by the owner. A private declaration amends only through its own amendment process, with the votes that requires.
Title searches inside a Santa Fe association now turn up City covenants on individual lots. Resale packages, estoppel-style certificates and the association's own records should account for them, because a buyer discovering a recorded City covenant late in a transaction will ask the association why it was not disclosed.
The short-term rental interaction worth knowing
Santa Fe's short-term rental ordinance exempts code-compliant accessory dwelling units from its fifty-foot proximity rule. That makes an ADU the one route to a second short-term rental on a block that is otherwise closed by the separation requirement — unless the declaration says otherwise.
For a board, that is a concrete reason to know whether the association's documents address accessory dwelling units at all. A declaration drafted before ADUs were contemplated may permit one by silence and, in doing so, permit a rental use the community thought its proximity protections had foreclosed.
The two-covenant pattern is spreading
Santa Fe's arrangement is the clearest New Mexico example, but the underlying move — a municipality using a recorded instrument rather than a permit condition — is not unique to accessory dwelling units. Santa Fe County's defensible space certification works similarly in substance: an owner submits a Fuel Modification Plan, and failure to maintain it is a basis for denying future permits or certifications.
What both have in common is duration. A permit condition is satisfied at inspection. A recorded covenant, or a filed plan the county holds an owner to, continues indefinitely and passes to successors who were not party to the original bargain.
Where boards stand
Ask whether any lots in the community carry a recorded City ADU covenant, and record the answer. Decide whether the declaration permits accessory dwelling units, and if the documents are silent, decide that question deliberately rather than at the first application. And where an ADU exists, be clear which authority is enforcing what — because an owner facing both will otherwise assume that satisfying the City satisfies the association, and the City's own zoning code has already said it does not.
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