March 26, 2009 – Mason Family Trust v. Matt Devaney, No. 28,554

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: March 26, 2009
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 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.

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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.

1 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 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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{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
{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

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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

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year before the complaint was filed, a properly 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.
{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

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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

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(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.,

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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-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.

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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