Provided courtesy of HOA Pulse and The Krupnik Law Firm
Current as of 1/1/12
Return to New Mexico Home Page
7A. Condominium Act - General Provisions, 47-7A-1 through 47-7A-14
Index
47-7A-1. Short title
47-7A-2. Applicability
47-7A-3. Definitions.
47-7A-4. Variation by agreement.
47-7A-5. Taxation.
47-7A-6. Applicability of local ordinances, regulations and building codes.
47-7A-7. Eminent domain.
47-7A-8. Supplemental general principles of law applicable.
47-7A-9. Construction against implicit repeal, amendment or expansion.
47-7A-10. Reserved.
47-7A-11. Severability.
47-7A-12. Unconscionable agreement or term of contract.
47-7A-13. Obligation of good faith.
47-7A-14. Remedies to be liberally administered.
47-7A-1. Short title
This act [47-7A-1 to 47-7D-20 NMSA 1978] may be cited as the "Condominium Act.
A. The Condominium Act applies to all condominiums created within this state after the effective date of that act.
B. The provisions of the Building Unit Ownership Act do not apply to condominiums created after the effective date of the Condominium Act. Any provisions of the declaration, bylaws, plats or plans of a condominium created before the effective date of the Condominium Act, which provisions are not expressly authorized by the Building Unit Ownership Act but which would have been authorized by the Condominium Act, had it been in effect, are hereby ratified. A condominium subject to the provisions of the Building Unit Ownership Act [47-7-1 NMSA 1978] shall become subject to the Condominium Act and not the Building Unit Ownership Act if a resolution to that effect is approved by a
majority of the unit owners and is then recorded as are instruments creating interests in real property. The declaration, bylaws, plats or plans of a condominium created before the effective date of the Condominium Act shall be amended in conformity with the procedures and requirements specified by those instruments and by the Building Unit Ownership Act. If the amendment grants to any person any rights, powers or privileges not expressly authorized by the Building Unit Ownership Act but permitted by the Condominium Act, all correlative obligations, liabilities and restrictions in the Condominium Act also apply to that person.
As used in the Condominium Act and declaration and bylaws, unless the context otherwise requires or otherwise specifically provided:
A. "affiliate of a declarant" means any person who controls, is controlled by or is under common control with a declarant. For the purpose of this subsection:
(1) a person "controls" a declarant if the person is a general partner, officer, director or employer of the declarant; directly or indirectly or acting in concert with one or more other persons, or through one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing, more than twenty percent of the voting interest in the declarant; controls in any manner the election of a majority of the directors of the declarant; or has contributed more than twenty percent of the capital of the declarant; and
(2) a person "is controlled by" a declarant if the declarant is a general partner, officer, director or employer of the person; directly or indirectly or acting in concert with one or more other persons, or through one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing, more than twenty percent of the voting interest in the person; controls in any manner the election of a majority of the directors of the person; or has contributed more than twenty percent of the capital of the person. Control does not exist if the powers described in this subsection are held solely as security for an obligation and are not exercised;
B. "allocated interests" means the undivided interest in the common elements, the common expense liability and votes in the association allocated to each unit;
C. "association" or "unit owners' association" means the unit owners' association organized under Section 34 [47-7C-1 NMSA 1978] of the Condominium Act;
D. "common elements" means all portions of a condominium other than the units;
E. "common expenses" means expenditures made by or financial liabilities of the association, together with any allocations to reserves;
F. "common expense liability" means the liability for common expenses allocated to each unit pursuant to Section 19 [47-7B-7 NMSA 1978] of the Condominium Act;
G. "condominium" means real estate, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of those portions. Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners;
H. "conversion building" means a building that at any time before creation of the condominium was occupied wholly or partially by persons other than purchasers or persons who occupy with the consent of purchasers, and shall for the purposes of Sections 64 and 65 [47-7D-12 and 47-7D-17 NMSA 1978] only of the Condominium Act include mobile housing parks;
I. "declarant" means any person or group of persons acting in concert who:
(1) as part of a common promotional plan, offers to dispose of its interest in a unit not previously disposed of;
(2) reserves or succeeds to any special declarant right; or
(3) executes and records a declaration;
J. "declaration" means any instruments, however denominated, that create a condominium, and any amendments to such instruments;
K. "development rights" means any right or combination of rights reserved by a declarant in the declaration to:
(1) add real estate to a condominium;
(2) create units, common elements or limited common elements within a condominium;
(3) subdivide units or convert units into common elements; or
(4) withdraw real estate from a condominium;
L. "dispose" or "disposition" means a voluntary transfer to a purchaser of any legal or equitable interest in a unit, but such term does not include the transfer or release of a security interest;
M. "executive board" means the body, regardless of name, designated in the declaration to act on behalf of the association;
N. "identifying number" means a symbol or address that identifies only one unit in a condominium;
O. "leasehold condominium" means a condominium in which all or a portion of the real estate is subject to a lease the expiration or termination of which will terminate the condominium or reduce its size;
P. "limited common element" means a portion of the common elements allocated by the declaration or by operation of Subsections B and D of Section 14 [47-7B-2 NMSA 1978] of the Condominium Act for the exclusive use of one or more but fewer than all of the units;
Q. "master association" means an organization described in Section 32 [47-7B-20 NMSA 1978] of the Condominium Act, whether or not it is also an association described in Section 34 [47-7C-1 NMSA 1978] of the Condominium Act;
R. "mobile housing park" means any site used for the business of renting, leasing or providing, for any form of compensation, a mobile housing unit for occupancy on property not owned by the mobile housing unit's occupant or providing space and facilities for a mobile housing unit owned by the occupant;
S. "mobile housing unit" means a movable or portable housing structure over thirty-two feet in length or over eight feet in width, constructed to be towed on its own chassis and designed so as to be installed without a permanent foundation for human occupancy as a residence which may include one or more components that can be retracted for towing purposes and subsequently expanded for additional capacity, or two or more units separately towable but designed to be joined into one integral unit, as well as a single unit; except that the definition does not include recreational vehicles or modular or premanufactured homes, built to Uniform Building Code standards, designed to be permanently affixed to real property;
T. "offering" means any advertisement, inducement, solicitation or attempt to encourage any person to acquire any interest in a unit, other than as security for an obligation. An advertisement in a newspaper or other periodical of general circulation or in any broadcast medium to the general public of a condominium not located in New Mexico is not an offering if the advertisement states that an offering may be made only in compliance with the law of the jurisdiction in which the condominium is located;
U. "person" means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, governmental entity or other legal or commercial entity;
V. "purchaser" means any person other than a declarant or a person in the business of selling real estate for his own account who by means of a voluntary transfer acquires a legal or equitable interest in a unit other than:
(1) a leasehold interest, including renewal options, of less than twenty years; or
(2) as security for obligation;
W. "real estate" means any leasehold or other estate or interest in, over or under land, including structures, fixtures and other improvements and interests which by custom, usage or law pass with a conveyance of land though not described in the contract of sale or instrument of conveyance, and includes parcels with or without upper or lower boundaries and spaces that may be filled with air or water;
X. "residential purposes" means use for dwelling or recreational purposes, or both;
Y. "special declarant rights" means rights reserved for the benefit of a declarant to:
(1) complete improvements indicated on plats and plans filed with the declaration;
(2) exercise any development right;
(3) maintain sales offices, management offices, signs advertising the condominium and models;
(4) use easements through the common elements for the purpose of making improvements within the condominium or within real estate which may be added to the condominium;
(5) make the condominium part of a larger condominium or a planned community;
(6) make the condominium subject to a master association; or
(7) appoint or remove any officer of the association or any master association or any executive board member during any period of declarant control;
Z. "time share" means a right to occupy a unit or any of several units during five or more separated time periods over a period of at least five years, including renewal options, whether or not coupled with an estate or interest in a condominium or a specified portion thereof;
AA. "unit" means a physical portion of the condominium designated for separate ownership or occupancy, the boundaries of which are described pursuant to Section 17 [14] [47-7B-2 NMSA 1978] of the Condominium Act; and
BB. "unit owner" means a declarant or other person who owns a unit, or a lessee of a unit in a leasehold condominium whose lease expires simultaneously with any lease the expiration or termination of which will remove the unit from the condominium, but does not include a person having an interest in a unit solely as security for an obligation.
47-7A-4. Variation by agreement.
Except as expressly provided in the Condominium Act [47-7A-1 NMSA 1978], the provisions of that act shall not be varied by agreement, and the rights conferred by the Condominium Act shall not be waived. A declarant shall not evade the limitations or prohibitions of that act or the declaration by use of a power of attorney or any other device.
A. The association of unit owners shall elect whether:
(1) the entire property shall be deemed a single parcel for the purposes of assessment and taxation, in which event the association shall promptly notify the unit owners of the payment of the taxes. For purposes of assessment or valuation and taxation under this paragraph, the association shall be deemed to be the owner as defined in Section 7-35-2 NMSA 1978; or
(2) each unit and its percentage of undivided interest in the common elements shall be deemed to be a parcel and shall be subject to separate assessment and taxation by each assessing unit and special district for all types of taxes authorized by law, including ad valorem levies and special assessments.
B. Any portion of the common elements for which the declarant has reserved any development right must be separately taxed and assessed against the declarant, and only the declarant is liable for payment of such
taxes.
C. If there is no unit owner other than a declarant, the real estate comprising the condominium may be taxed and assessed in any manner provided by the Property Tax Code [Articles 35 to 38, Chapter 7 NMSA 1978].
47-7A-6. Applicability of local ordinances, regulations and building codes.
No provision of the Condominium Act invalidates or modifies any provision of any zoning, subdivision, building code or other real estate use law, ordinance or regulation; provided, however, a zoning, subdivision, building code or other real estate use law, ordinance or regulation may not prohibit the condominium form of ownership or impose any requirement upon a condominium which it would not impose upon the same development under a different form of ownership.
A. If a unit is acquired by eminent domain, or if part of a unit is acquired by eminent domain leaving the unit owner with a remnant which may not practically or lawfully be used for any purpose permitted by the declaration, the award shall compensate the unit owner for his unit and his interest in the common elements, whether or not any common elements are acquired. Upon acquisition, unless the decree otherwise provides, that unit's allocated interests are automatically reallocated to the remaining units in proportion to the respective allocated interests of those units before the taking, and the association shall prepare, execute and record an amendment to the declaration reflecting the reallocations. Any remnant of a unit remaining after part of a unit
is taken under this subsection is thereafter a common element.
B. Except as provided in Subsection A of this section, if part of a unit is acquired by eminent domain, the award shall compensate the unit owner for the reduction in value of the unit and the unit's interest in the common elements, whether or not any common elements are acquired. Upon acquisition, unless the decree otherwise provides, that unit's allocated interests are reduced in proportion to the reduction in the size of the unit, or on any other basis specified in the declaration, and the portion of the allocated interests divested from the partially acquired unit are automatically reallocated to that unit and the remaining units in proportion to the respective allocated interests of those units before the taking, with the partially acquired unit participating in the reallocation on the basis of the unit's reduced allocated interests.
C. Unless the declaration provides otherwise, if part of the common elements is acquired by eminent domain, the portion of the award attributable to the common elements taken shall be paid to the association. Unless the declaration provides otherwise, any portion of the award attributable to the acquisition of a limited common element shall be equally divided among the owners of the units to which that limited common element was allocated at the time of acquisition.
D. The court decree shall be recorded in each county in which any portion of the condominium is located.
47-7A-8. Supplemental general principles of law applicable.
Except to the extent inconsistent with the Condominium Act, the principles of law and equity, including the law of corporations, the law of real property and the law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance or other validating or invalidating cause supplement the provisions of that act.
47-7A-9. Construction against implicit repeal, amendment or expansion.
The Condominium Act is a general act intended as a unified coverage of its subject matter; no part of it shall be deemed impliedly repealed, amended or expanded by subsequent legislation if that construction can reasonably be avoided.
If any part or application of the Condominium Act is held invalid, the remainder, or its application to other situations or persons, shall not be affected.
47-7A-12. Unconscionable agreement or term of contract.
A. The court, upon finding as a matter of law that a contract or contract clause was unconscionable at the time the contract was made, may refuse to enforce the contract, enforce the remainder of the contract without the unconscionable clause or limit the application of any unconscionable clause in order to avoid an unconscionable result.
B. Whenever it is claimed, or appears to the court, that a contract or any contract clause is or may be unconscionable, the parties, in order to aid the court in making the determination, shall be afforded a reasonable opportunity to present evidence as to unconscionability, including:
(1) the commercial setting of the negotiations;
(2) whether a party has knowingly taken advantage of the inability of the other party reasonably to protect his interests by reason of physical or mental infirmity, illiteracy or inability to understand the language of the agreement or similar factors; and
3) the effect and purpose of the contract or clause.
47-7A-13. Obligation of good faith.
Every contract or duty governed by the Condominium Act imposes an obligation of good faith in its performance or enforcement.
47-7A-14. Remedies to be liberally administered.
A. The remedies provided by the Condominium Act shall be liberally administered in order that the aggrieved party is placed in as good a position as if the other party had fully performed. However, consequential, special or punitive damages shall not be awarded except as specifically provided in the Condominium Act or by other law.
B. Any right or obligation declared by the Condominium Act is enforceable by judicial proceeding.
