But many real estate transactions in the area encompassing the historic Arroyo Hondo Land Grant are still on hold, because the attorney representing the land grant board is disputing the court order drafted by opposing counsel.
“I think it went too far,” said Santiago Juárez, the attorney representing the five board members. “What the judge ruled was very simple, legally. The judge found that the deed that was filed conveyed no interest in property. The other side put in a bunch of language I didn’t agree with. They want to put in there ‘null and void’ and all kinds of other things.”
On Feb. 26, 8th Judicial District Court Judge Sarah Backus ruled the deed did not create or transfer any interest in real property, so it had no legal basis. She asked Spencer Reid, the attorney representing three title companies and a trio of individuals who brought the lawsuit last October, to draft the order.
But since Juárez didn’t agree with it, Reid earlier this month filed a presentment with the court and called for another hearing to be held in the case.
As of Friday, no hearing date has been set.
The plaintiffs were seeking declaratory judgment and injunctive relief from a warrant deed the land grant board filed in the Taos County Clerk’s Office in 2010, claiming much of the land north of Taos belongs to the heirs of the original Arroyo Hondo Land Grant, dating back to the late 1700s and early 1800s.
By filing the deed, a cloud was put over more than 3,000 properties. The adverse claim prevented the sale and refinancing of many properties within the original boundaries of the land grant and caused title companies to refrain from issuing clear title insurance policies.
In a separate but related matter, the authenticity of the board’s deed was called into question in a lawsuit filed in 2011. The deed was purportedly signed by Manuel Ortiz Sr., who later denied signing the document. Ortiz, who is 101, was scheduled to give a deposition in that case but died before doing so.
A plea agreement involving Ortiz’s son, Lawrence Ortiz, also a member of the land grant board, was reached the day the case went to trial. Lawrence Ortiz, who was facing felony charges for forgery, pleaded guilty to one count of misdemeanor fraud in January. But the conviction had no impact on the warranty deed and the cloud over property titles.
In need of a fix
The filing of the deed caused quite a stir in the Taos area.
“The biggest problem is, people can’t sell their homes within the Arroyo Hondo land grant area,” Paul Romero, president of the Taos County Realtors Association, said soon after the lawsuit was filed. “People also aren’t able to refinance and take advantage of lower interest rates because they are not able to get title insurance.”
Romero said he couldn’t understand how it could be so easy for someone to disrupt the real estate market.
“It’s amazing to me that I could go to the clerk’s office in Santa Fe and say that I own the capitol (building) and that clouds the title,” he said, adding that he’d like to see lawmakers pass legislation making filing false documents a criminal offense.
Last year, the New Mexico Legislature did pass a bill introduced by Rep. Roberto J. “Bobby” Gonzales, a Taos Democrat, intended to discourage land grant claims. It would have made anyone who knowingly files a false claim of title against real property or an interest in real property subject to criminal prosecution.
But Gov. Susana Martinez vetoed the bill, saying there were already laws on the books covering fraud.
“While I have great sympathy for the property owners who may be damaged by these allegedly fraudulent deeds, their remedy will not come from the legislature in the form of yet another law,” she wrote in her executive message.
Gonzales introduced a similar bill during the legislative session that just ended, but it never made it to the House floor.
Harry Oakeley, his wife Louella and Thomas Gutierrez are among the plaintiffs in yet another lawsuit filed against members of the Arroyo Hondo land grant board.
Gutierrez lives in a two-bedroom home with his wife and two daughters on an acre of land in Arroyo Hondo.
“I tried to sell it but took it off the market in hope that this will go away,” he said. “But it just doesn’t seem to be going anywhere, so we’re trying to be proactive about it. Unfortunately, it has to go through the legal route.”
Gutierrez said the home is worth about $400,000, but the best offer he’s gotten for it is $200,000.
“It’s a bad situation that needs to be fixed,” he said. “People that own property need to be able to sell, refinance or acquire title insurance the way everyone else can in America.”
The Oakeleys, who are in their 60s, just want assurance their four acres of land near Taos goes to their son after they pass away.
“If something happens to either of us, we want to make sure there’s no encumbrance in transferring that property,” Harry Oakeley said. “The individuals that started this mess, they’ve put a lot of people in jeopardy and it’s not fair. They claim to own the entire 20,000 acres. In essence, they are claiming the quiet title for everything. Their argument should be with the U.S. government, not us.”
Attorney Juárez said the blame belongs with title companies, which have ignored land grant patents for over a century.
“My clients are not asking for anything that doesn’t belong to them legally,” he said.
Juárez said the real issue dates to the mid-1800s when two sets of cultural values clashed following the Mexican-American War. Mexican law provided for common land to be used by people within the land grant boundaries, but American law only recognized lands owned by individuals.
Hundreds of years in the making
As far back as the late 1700s, in an effort to get people to settle the territory, the Spanish crown granted large tracts of land to individuals. When Mexico took control of the territory, more land grants were issued, many of them community grants that included common lands that could be used for livestock grazing and collecting firewood.
At the end of the Mexican-American War in 1848, under the Treaty of Guadalupe Hidalgo, Mexico surrendered possession of land that now makes up all or part of seven Western states, including New Mexico. Under the treaty, land grants were supposed to be honored as long as their owners could prove their claims were valid.
For the most part, that didn’t happen and, over the years, speculators, and the U.S. government, seized land including many land grant properties.
In the 1960s, a movement to assert Hispano rights took hold, climaxing with the Tierra Amarilla Courthouse raid west of Taos in 1967, during which two lawmen were wounded by gunfire and another severely beaten.
Juárez said that by filing the deed, the Arroyo Hondo trustees were making the statement that the land grant was still viable. He called it a “celebratory” act, in that it was filed in 2010 – the 100th anniversary of the legal existence of the of the Arroyo Hondo land grant under U.S. law.
“They filed (the deed) to commemorate the 100 years after the patent was originally filed and give notice that it’s still viable to the extent they still have legitimate claims,” he said. “It’s like I told the judge, we’re living out of colonial history. But sometimes we ignore history, and we don’t want to look at it.”
Juárez said he’s not sure if he’ll appeal Judge Backus’s ruling after the order eventually gets signed.
“I’m going to wait and see,” he said. “Once the judge signs what she’s going to sign, we’ll figure it out.”
Juárez said he’d like to see the establishment of a reconciliation commission, as has been done in South Africa and other countries, to sort out these kinds of disputes.
“If we sought to understand our history, and worked to reconcile that history, we might get along much better,” he said.
— This article appeared on page A1 of the Albuquerque Journal