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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.
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