- 14 - Property 3d (Servitudes), sec. 1.3(1) & (2), cmt. d, illus. 1 & 2.4 New Mexico law recognizes both “real covenants” and “equitable servitudes”.5 E.g., Pollock v. Ramirez, 870 P.2d 149, 153 (N.M. Ct. App. 1994). In Pollock, a restrictive covenant was not enforceable because the instrument creating it did not meet the requirements for recordation in real property records. The court in Pollock, however, noted that the restriction could still be enforced as an equitable servitude assuming the requirements for establishing and enforcing such an equitable servitude were met. See id. at 153. Under New Mexico law, there are three requirements for a covenant to be an equitable servitude: (1) The covenant must touch and concern the land; (2) the original “covenanting” 4Vol. 1 Restatement, Property 3d (Servitudes), sec. 1.1 (2000) defines a “servitude” as a legal device that creates a right or an obligation that runs with land or an interest in land. “Running with land” means that the right or obligation passes automatically to successive owners or occupiers of the land or the interest in land with which the right or obligation runs. Id. sec. 1.1(1)(a). Servitudes covered by the Restatement include easements, profits, and covenants. Id. sec. 1.1(2). As defined by the Restatement, an “easement” creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement, whereas a “profit” is an easement that confers the right to enter and remove timber, minerals, oil, gas, game, or other substances from land in possession of another. Id. sec. 1.2(1) & (2). 5Vol. 1 Restatement, supra sec. 1.4 has dropped the terms “real covenant” and “equitable servitude” to describe servitudes encompassed within covenants that run with the land.Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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