¶1(specially concurring).
¶2{28} I fully concur in Judge Vigil’s opinion, but want to provide additional comments.
¶3{29} I agree with Judge Vigil’s view that the covenant clearly and unambiguously excludes the Browns’ manufactured home, and does not violate any public policy, statute, or constitutional provision. I respectfully do not agree with Judge Bustamante’s view, as I understand it, that the finding that no significant difference existed between federal and state construction standards, and the resulting conclusion that the covenant was therefore unreasonable, was tantamount to a determination by the trial court that the covenant violated public policy and was therefore unenforceable.
¶4{30} The very plain language of the covenant, as well as the only reasonable interpretation and understanding of the covenant and the intent of the landowner governing body (the Association) adopting it, is that the type of home the Browns put on the property was not permitted. The Association, a purely democratic institution made up of all landowners, each with a vote, plainly did not want a manufactured home placed on any lot in the Subdivision even if it met federal and state standards for construction. The former covenant and the amended one at issue in this case were consistently enforced for over thirty years to prohibit and exclude manufactured homes.
¶5{31} This is a clear, express, and unambiguous equitable servitude adopted through a democratic process of landowner vote according to procedures set out in a valid governing document. Unless the servitude violates public policy, a statute, or the constitution, the servitude ought to be enforced.
¶6{32} “Restrictive covenants are to be enforced where the clear language, as well as the surrounding circumstances, reveal an intent to restrict land use.” Wilcox v. Timberon Protective Ass’n, 111 N.M. 478, 484, 806 P.2d 1068, 1074 (Ct.App.1990). Unambiguous restrictive covenants are “valuable property rights that run with the land and are strictly enforced by the courts.” Id. at 488, 806 P.2d at 1078. There exists no statute or applicable case law in New Mexico that requires invocation of a reasonableness test under these circumstances.
¶7{33} The landowners established a prima facie case for enforcement of the covenant in this case by injunction. I see nothing so patently arbitrary or inequitable about the covenant or the circumstances surrounding its application, or about enforcement of the covenant, that permitted the trial court to ignore or override it. The Browns did not present evidence showing the covenant had no redeeming purpose or value. For example, the Browns did not prove that adoption of the covenant had no valid purpose to maintain the development’s aesthetics, conformity, or value, or to reduce costly litigation. The Browns had the burden to present such evidence.
¶8{34} Even were the court to be entitled under the evidence before it to weigh and balance all of the circumstances, in this case, with the evidence before it, and the Browns’ failure to rebut the landowners’ prima facie case for enforcement of the covenant, I would determine that the strong New Mexico policy favoring the protection of landowners’ property rights, including the right to rely on a clear, unambiguous, express equitable servitude contained in a valid governing document, must prevail as a matter of law.
¶9{35} Last, because the issue is the enforceability of the covenant under the facts and circumstances of this ease, including the intent of the landowners and the wording of the covenant, it is significant that the Browns had clear notice of the covenant. They understood it. Originally, the Browns decided to place on the property a conventional home, built by Preferred Building Systems, that had specifically been approved and was allowed by the covenant. Instead, the Browns consciously ignored the covenant and placed a different type of home on their property because they felt that waiting a few months was too long to wait for a Preferred home. The Browns lack any equitable ground to bar enforcement of the covenant.
¶10(dissenting).
¶11{36} I respectfully dissent. The majority refuses to recognize that there can or ought to be any limit on the enforcement of restrictive covenants other than statutory, constitutional or (undefined) public policy strictures. I believe there are and should be limits on the scope of private-law devices such as restrictive covenants.
¶12{37} The Restatement (Third) of Property (Servitudes) § 3.1 (1998) recognizes such a limit:
A servitude created as provided in Chapter 2 is valid unless it is illegal or unconstitutional or violates public policy.
Servitudes that are invalid because they violate public policy include, but are not limited to:
(1) servitude that is arbitrary, spiteful, or capricious;
(2) a servitude that unreasonably burdens a fundamental constitutional right;
(3) a servitude that imposes an unreasonable restraint on alienation under § 3.4 or § 3.5;
(4) a servitude that imposes an unreasonable restraint on trade or competition under § 3.6; and
(5) a servitude that is unconscionable under § 3.7.
¶13The provision applicable to this case is subsection (1). In this context the term “unreasonable”-used by the parties and the district court-is synonymous with arbitrary and capricious. The record in this case supports a finding that the covenant distinguishing between New Mexico CID and HUD-regulated homes is “arbitrary” and “capricious.”
¶14{38} The trial court considered the deposition testimony of the director of CID and the Manufactured Housing Division of the New Mexico Department of Regulation and Licensing. Viewed in the light most favorable to upholding the trial court’s decision, his testimony is that there is no substantive difference between CID and HUD-regulated manufactured homes. The homes are equivalent with regai'd to safety, longevity, performance, and placement on-site.
¶15{39} The trial court found that there was no substantive difference between the two types of homes. Plaintiffs do not challenge the trial court’s finding in this regard. As an appellate court, we must accept finding of facts that are supported by substantial evidence. Stueber v. Pickard, 112 N.M. 489, 491, 816 P.2d 1111, 1113 (1991). If there is no difference between the two types of homes, there is no reason for the prohibition of non-CID homes other than pure preference untethered to any reasonable rationale. See Mulligan v. Panther Valley Prop. Owners Ass’n, 337 N.J.Super. 293, 766 A.2d 1186 (2001) (imposing reasonableness standard on amendment to covenants); Armand Arabian, Condos, Cats, and CC & RS: Invasion of the Castle Common, 23 Pepp. L.Rev. 1 (1995).
¶16{40} Restrictive covenants serve a useful purpose. They have developed into powerful instruments regulating everyday neighborhood life in much of the country. But, their regulatory power must be shown to serve some legitimate purpose — aesthetic, economic, health, and safety interests chief among them. I cannot believe we would enforce, for example, a covenant allowing Pomeranians as pets, but forbidding Pekingese. The Association failed to demonstrate to the trial court any real, much less legitimate, purpose served by excluding homes that are the functional equivalent of homes that are allowed. We should affirm.