New Mexico Building Unit Ownership Act

This act [47-7-1 to 47-7-25, 47-7-26 to 47-7-28 NMSA 1978] may be cited as the “Building Unit Ownership Act.”

History: 1953 Comp., § 70-4-1, enacted by Laws 1963, ch. 221, § 1; 1975, ch. 318, § 1.

As used in the Building Unit Ownership Act:

A. “unit” means a part of the property intended for residential, professional, commercial, industrial or any type of independent use, including one or more rooms or enclosed spaces located on one or more floors in a building, and with a direct exit to a public street or highway or to a common area leading to a public street or highway;

B. “unit owner” means the person or persons owning a unit in fee simple absolute and undivided interest in the fee simple or leasehold estate of the common areas and facilities in the percentage established by the declaration;

C. “association of unit owners” means all of the unit owners acting as a group in accordance with

the bylaws and declarations;

D. “blanket encumbrance” means a trust deed, mortgage or any other lien or encumbrance, including mechanics’ liens, securing or evidencing the payment of money or the furnishing of services or materials and affecting the entire property or affecting more than one unit but does not include taxes and assessments levied by a public authority;

E. “building” means a building or group of buildings having a total of two or more units and comprising a part of the property;

F. “common areas and facilities,” unless otherwise provided in the declaration, includes:

(1) the land on which the building is located;

(2) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, fire escapes and entrances and exits of the building;

(3) the basements, yards, gardens, parking areas and storage spaces;

(4) the premises for the lodging of persons in charge of the property;

(5) installations of central services including power, light, gas, water, heating, refrigeration, air conditioning and incinerating;

(6) the elevators, tanks, pumps, motors, fans, compressors, ducts and all apparatus and installations existing for common use;

(7) the community and commercial facilities provided in the declaration; and

(8) all other parts of the property necessarily in common use or convenient to its existence, maintenance and safety;

G. “common expenses” includes:

(1) all sums lawfully assessed against the unit owners by the association of unit owners;

(2) expenses of administration, maintenance, repair or replacement of the common areas and facilities; and

(3) expenses declared common expenses;

H. “common profits” means the balance of income, rents, profits and revenues from the common areas and facilities remaining after the deduction of common expenses;

I. “declaration” means the instrument by which the property is submitted to the provisions of the Building Unit Ownership Act and its lawful amendments;

J. “limited common areas and facilities” means common areas and facilities designated in the declaration as reserved for use of certain units to the exclusion of the others;

K. “majority” or “majority of unit owners” means the majority of voting unit owners;

L. “person” means individual, corporation, partnership, combination, association, trustee or other legal entity;

M. “property” means the land, the building, improvements and structures owned in fee simple absolute or long term ground lease, all easements, servitude, rights and appurtenances belonging thereto, and all chattels intended for use in connection therewith, which have been or are intended to be submitted to the provisions of the Building Unit Ownership Act; and

N. “condominium” means any property which is submitted to the provisions of the Building Unit Ownership Act.

History: 1953 Comp., § 70-4-2, enacted by Laws 1963, ch. 221, § 2; 1965, ch. 6, § 1; 1967, ch. 57, § 1; 1975, ch. 318, § 2; 1981, ch. 282, § 1.

The Building Unit Ownership Act shall apply to property, the sole owner or all of the owners of which submit it to the provisions of the act by duly executing and recording a declaration.

History: 1953 Comp., § 70-4-3, enacted by Laws 1963, ch. 221, § 3; 1975, ch. 318, § 3.

Each unit together with its undivided interest in the common areas and facilities, shall constitute real property.

History: 1953 Comp., § 70-4-4, enacted by Laws 1963, ch. 221, § 4; 1975, ch. 318, § 4.

Each unit owner shall be entitled to sole ownership and possession of his unit.

History: 1953 Comp., § 70-4-5, enacted by Laws 1963, ch. 221, § 5; 1975, ch. 318, § 5.

A. Each unit owner shall be entitled to an undivided interest in the common areas and facilities in the percentage established by the declaration. The percentage shall be computed by taking as a basis the value of the particular unit in relation to the value of the whole property.

B. The percentage of the undivided interest of each unit owner in the common areas and facilities as established by the declaration shall be permanent and shall not be altered without the consent of all of the unit owners expressed in an amended declaration duly recorded. The percentage of the undivided interest in the common areas and facilities shall not be separated from the unit to which it is appurtenant and shall be deemed to be conveyed or encumbered with the unit even though the interest is not expressly mentioned or described in a conveyance or other instrument.

C. The common areas and facilities shall remain undivided, and no unit owner or any other person shall bring any action for partition or division, unless the property has been removed from the provisions of the Building Unit Ownership Act as provided in Sections 47-7-17 and 47-7-27 NMSA 1978. Any covenant to the contrary is unenforceable.

D. Each unit owner may use the common areas and facilities, in accordance with the purpose for which they were intended, without hindering or encroaching upon the lawful rights of the other unit owners.

E. The necessary work of maintenance, repair and replacement of the common areas and facilities

and the making of any additions or improvements thereto shall be carried out only as provided in the Building Unit Ownership Act and in the bylaws.

F. The association of unit owners shall have the irrevocable right, exercisable by the manager or board of directors, of access to each unit from time to time during reasonable hours as may be necessary for the maintenance, repair or replacement of any of the common areas and facilities therein or accessible therefrom, and for making emergency repairs necessary to prevent damage to the common areas and facilities or to another unit.

History: 1953 Comp., § 70-4-6, enacted by Laws 1963, ch. 221, § 6; 1975, ch. 318, § 6.

Each unit owner shall comply strictly with the bylaws and with the administrative rules and regulations adopted pursuant thereto and shall comply with the covenants, conditions and restrictions set forth in the declaration or in the deed to his unit. Failure to comply shall be grounds for an action to recover sums due, for damages or injunctive relief, or both, maintainable by the manager or board of directors for the use of the association of unit owners or maintainable in a proper case by an aggrieved unit owner.

History: 1953 Comp., § 70-4-7, enacted by Laws 1963, ch. 221, § 7; 1975, ch. 318, § 7.

No unit owner shall undertake any work which would jeopardize the soundness or safety of the property, reduce the value or impair an easement or hereditament without the unanimous consent of all the other unit owners. Structural alterations shall not be made by a unit owner to the building or in the water, gas or steam pipes, electric conduits, plumbing or other fixtures connected therewith; nor shall a unit owner remove any additions, improvements or fixtures from the building without the written consent of the board of directors.

History: 1953 Comp., § 70-4-8, enacted by Laws 1963, ch. 221, § 8; 1975, ch. 318, § 8.

A. Subsequent to recording the declaration as provided in the Building Unit Ownership Act, and while the property remains subject to the act, no lien shall arise or be effective against the property. During the period, liens or encumbrances shall only arise or be created against each unit and the percentage of undivided interest in the common areas and facilities, appurtenant to the unit, in the same manner and under the same conditions as liens and encumbrances may arise or be created upon any other parcel of real property subject to individual ownership; provided, however, that no labor performed or materials furnished, with the consent or at the request of a unit owner or his agent or his contractor or subcontractor, shall be the basis for the filing of a lien pursuant to law against the unit or other property of another unit owner not expressly consenting to or requesting the same; except that express consent shall be deemed to be given by the owner of any unit in the case of emergency repairs. Labor performed or materials furnished for the common areas and facilities, if duly authorized by the association of unit owners, the manager or board of directors in accordance with the Building Unit Ownership Act, the declaration or bylaws, shall be deemed to be performed or furnished with the express consent of each unit owner and shall be the basis for the filing of a lien pursuant to law against each of the units.

B. In the event a lien is effected against two or more units, the unit owners of the separate units

may remove their unit and the percentage of undivided interest in the common areas and facilities appurtenant to the unit from the lien by payment of the fractional or proportional amount attributable to each of the units affected. Individual payment shall be computed by reference to the percentages established by the declaration. Subsequent to payment, discharge or other satisfaction, the unit and the percentage of undivided interest in the appurtenant common areas and facilities shall be released from the lien paid, satisfied or discharged. Partial payment, satisfaction or discharge shall not prevent the lienor from proceeding to enforce his rights against any unit and the percentage of undivided interest in the appurtenant common areas and facilities not released or discharged.

History: 1953 Comp., § 70-4-9, enacted by Laws 1963, ch. 221, § 9; 1975, ch. 318, § 9.

The common profits of the property shall be distributed among, and the common expenses shall be charged to, each unit owner according to the percentage of his undivided interest in the common areas and facilities.

History: 1953 Comp., § 70-4-10, enacted by Laws 1963, ch. 221, § 10; 1975, ch. 318, § 10.

The declaration shall contain:

A. a description of the land on which the building and improvements are or will be located;

B. a description of the building, stating the number of stories and basements, the number of units and the principal materials of which it is, or will be, constructed;

C. the number of each unit, and a statement of its location, approximate area, number of rooms and immediate common area to which it has access, and any other data necessary for its proper

identification;

D. a description of the common areas and facilities;

E. a description of the limited common areas and facilities, stating to which units their use is reserved;

F. the value of the property and of each unit, and the percentage of undivided interest in the common areas and facilities appertaining to each unit and its owner for all purposes including voting. In the case of any building consisting of separate units not substantially sharing any common structural elements, the value of each unit shall be computed on the basis of the square footage contained within its exterior dimensions;

G. a statement of the purposes for which the building and the units are intended and restricted;

H. the name and address of agent for service;

I. a provision as to the percentage of votes by the unit owners which shall be determinative of whether to rebuild, repair, restore or sell the property in the event of damage or destruction;

J. any further details in connection with the property which the person executing the declaration may deem desirable to set forth consistent with the Building Unit Ownership Act; and

K. the method by which the declaration may be amended.

History: 1953 Comp., § 70-4-11, enacted by Laws 1963, ch. 221, § 11; 1971, ch. 148, § 1; 1975, ch. 318, § 11.

The declaration shall specify a method by which the interest attributable to each unit shall be

apportioned. The apportionment may be based upon:

A. the square or cubic footage in the unit as a percentage of the square or cubic footage in all of the units;

B. the value, as that term is defined in the declaration, of the unit as a percentage of the value of all of the units; or

C. the unit itself as a percentage of all of the units in the property. The percentage interest shall change if additional units are added after the filing of the declaration.

History: 1953 Comp., § 70-4-11.1, enacted by Laws 1975, ch. 318, § 12.

Deeds of units shall include:

A. a description of the land as provided in Section 47-7-11 NMSA 1978, or the post-office address of the property, including in either case the book, page and date of recording of the declaration;

B. any other data necessary for proper identification of that unit;

C. a statement of the use for which the unit is intended, and restrictions on its use;

D. the percentage of undivided interest appertaining to the unit in the common areas and facilities; and

E. any other details which the grantor and grantee may deem desirable to set forth and which shall be consistent with the declaration and the Building Unit Ownership Act.

History: 1953 Comp., § 70-4-12, enacted by Laws 1963, ch. 221, § 12; 1975, ch. 318, § 13.

Simultaneously with the recording of the declaration, there shall be filed in the office of the county clerk a set of the floor plans of the building showing:

A. the layout, location and dimensions of the units, stating the name of the building or that it has no name, and bearing the verified statement of a registered architect or licensed professional engineer certifying that it is an accurate copy of portions of the plans of the building as filed with, and approved by, the governmental subdivision having jurisdiction over the issuance of permits for the construction of buildings; or

B. if the building consists of separate units not substantially sharing any common structural elements, the exterior dimensions of the units, their location and the common areas, and bearing the verified statement of a registered architect or licensed professional engineer certifying that it is an accurate copy of portions of the plans of the building as filed with, and approved by, the governmental subdivision having jurisdiction over the approval of plats for real estate.

The plans shall be kept by the county clerk in a separate file for each building, indexed in the same manner as a conveyance entitled to record, numbered serially in the order of receipt, each designated “unit ownership,” a reference to the book, page and date of recording of the declaration. The record of the declaration shall contain a reference to the file number of the floor plans of the building affected.

History: 1953 Comp., § 70-4-13, enacted by Laws 1963, ch. 221, § 13; 1971, ch. 148, § 2; 1975, ch. 318, § 14.

At the time of the first conveyance of each unit, every blanket encumbrance affecting the unit shall be paid and satisfied of record, or the unit being conveyed shall be released therefrom by partial release duly recorded.

History: 1953 Comp., § 70-4-14, enacted by Laws 1963, ch. 221, § 14; 1975, ch. 318, § 15.

A. The declaration, any amendment thereof, any instrument by which the provisions of the Building Unit Ownership Act may be waived and every instrument affecting the property or any unit shall be entitled to be recorded. Neither the declaration nor any amendment thereof shall be valid unless duly recorded.

B. In addition to the records and indexes required to be maintained by the county clerk, the county clerk shall maintain an index whereby the record of each conveyance of a unit affected by the declaration, and the record of each conveyance of a unit contains a reference to the declaration of the building of which the unit is a part.

History: 1953 Comp., § 70-4-15, enacted by Laws 1963, ch. 221, § 15; 1975, ch. 318, § 16.

A. All unit owners may remove a property from the provisions of the Building Unit Ownership Act by an instrument to that effect, duly recorded; provided that the holders of liens affecting any unit shall consent or agree by instrument duly recorded, provided that their liens be transferred to the percentage of the undivided interest of the debtor unit owner in the property as hereinbefore provided.

B. Upon removal of the property from the provisions of the Building Unit Ownership Act, the property shall be deemed to be owned in common by the unit owners. The undivided interest in the property owned in common which shall appertain to each unit owner shall be the percentage of undivided interest previously owned by an owner in the common areas and facilities.

History: 1953 Comp., § 70-4-16, enacted by Laws 1963, ch. 221, § 16; 1975, ch. 318, § 17.

The removal provided in Section 47-7-17 NMSA 1978 shall not bar the subsequent resubmission of the property to the provisions of the Building Unit Ownership Act.

History: 1953 Comp., § 70-4-17, enacted by Laws 1963, ch. 221, § 17; 1975, ch. 318, § 18.

The administration of every property shall be governed by bylaws, a true copy of which shall be annexed to the declaration and shall be a part thereof. No modification of or amendment to the bylaws shall be valid unless set forth in an amendment to the declaration and the amendment be duly recorded.

History: 1953 Comp., § 70-4-18, enacted by Laws 1963, ch. 221, § 18; 1975, ch. 318, § 19.

The bylaws may provide for:

A. the election from among the unit owners of a board of directors, the number of persons constituting the board, and that the terms of at least one-third of the directors shall expire annually; the powers and duties of the board; the compensation of the directors; and the authority of the board to engage the services of a manager or managing agent;

B. the method of calling meetings of the unit owners; what number of unit owners shall constitute a quorum;

C. the election of a president from among the board of directors who shall preside over the meetings of the board of directors and of the association of unit owners;

D. the election of a secretary who shall keep the minute book in which resolutions shall be

recorded;

E. the election of a treasurer who shall keep the financial records and books of account;

F. the maintenance, repair and replacement of the method of approving payment vouchers;

G. the manner of collecting from each unit owner his share of the common expenses;

H. the designation and removal of personnel necessary for the maintenance, repair and replacement of the common areas and facilities; designation, and any changes, of agent for process;

I. the method of adopting and of amending administrative rules and regulations governing the details of the operation and the use of the common areas and facilities;

J. the restrictions on and requirements of the use and maintenance of the units and the use of the common areas and facilities, not set forth in the declaration, which are designed to prevent unreasonable interference with the use of units and of the common areas and facilities by the several unit owners;

K. a method by which the manager, the board of directors or the association of unit owners may lease or rent unsold units; provided, that nothing in the Building Unit Ownership Act shall be construed to prevent the lease or rental of unsold units by the proper authorities before bylaws are adopted or before the declaration is executed;

L. the percentage of votes required to amend the bylaws; and

M. other provisions as may be deemed necessary for the administration of the property consistent with the Building Unit Ownership Act.

History: 1953 Comp., § 70-4-19, enacted by Laws 1963, ch. 221, § 19; 1975, ch. 318, § 20.

The manager or board of directors, shall keep detailed, accurate records in chronological order, of the receipts and expenditures affecting the common areas and facilities, specifying and itemizing the maintenance and repair expenses of the common areas and facilities and any other expenses incurred. The records and the vouchers authorizing payments shall be available for examination by any

unit owner at convenient hours of weekdays.

History: 1953 Comp., § 70-4-20, enacted by Laws 1963, ch. 221, § 20; 1975, ch. 318, § 21.

No unit owner may exempt himself from liability for his contribution toward the common expenses by waiver of the use or enjoyment of any of the common areas and facilities or by abandonment of his unit.

History: 1953 Comp., § 70-4-21, enacted by Laws 1963, ch. 221, § 21; 1975, ch. 318, § 22.

The association of unit owners shall elect whether:

A. 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

B. each unit and its percentage of undivided interest in the common areas and facilities 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.

History: 1953 Comp., § 70-4-22, enacted by Laws 1963, ch. 221, § 22; 1975, ch. 318, § 23.

A. All sums, assessed by the association of unit owners but unpaid, for the share of the common expenses chargeable to any unit shall constitute a lien on the unit prior to all other liens except:

(1) tax liens on the unit in favor of any assessing unit and special district; and

(2) all sums unpaid on a first mortgage of record. The lien may be foreclosed by suit by the manager or board of directors, acting on behalf of the unit owners, in like manner as a foreclosure of mortgage or real property. In any foreclosure the unit owner shall be required to pay a reasonable rental for the unit if so provided in the bylaws, and the plaintiff in the foreclosure shall be entitled to the appointment of a receiver to collect the rent paid. The manager or board of directors, acting on behalf of the unit owners shall have power, unless prohibited by the declaration, to bid on the unit at foreclosure sale, and to acquire and hold, lease, mortgage and convey. Suit to recover a money judgment for unpaid common expenses shall be maintainable without foreclosing or waiving the lien securing the same.

B. Where the mortgagee of a first mortgage of record or other purchaser of a unit obtains title to the unit as a result of foreclosure of mortgage, the acquirer of title, his successors and assigns, shall not be liable for the share of the common expenses or assessments by the association of unit owners chargeable to the unit which became due prior to the acquisition of title to the unit by the acquirer. The unpaid share of common expenses or assessments shall be deemed to be common expenses collectible from all of the unit owners including the acquirer, his successors and assigns.

History: 1953 Comp., § 70-4-23, enacted by Laws 1963, ch. 221, § 23; 1975, ch. 318, § 24.

In a voluntary conveyance the grantee of a unit shall be jointly and severally liable with the grantor for all unpaid assessments against the grantor for his share of the common expenses to the time of grant or conveyance, without prejudice to the grantee’s right to recover from the grantor the amounts paid by the grantee. However, any grantee shall be entitled to a statement from the manager or board of directors, setting forth the amount of the unpaid assessments against the grantor and the grantee shall not be liable for, nor shall the unit conveyed by [be] subject to a lien for, any unpaid assessments against the grantor in excess of the amount therein set forth.

History: 1953 Comp., § 70-4-24, enacted by Laws 1963, ch. 221, § 24; 1975, ch. 318, § 25.

A. By agreement of the unit owners, any two or more condominiums may be merged or consolidated into a single condominium. Unless the agreement provides otherwise, the combined condominium is, for all purposes, the legal successor to the preexisting condominiums. The associations of the preexisting condominiums shall also be merged or consolidated into a single association which shall hold all powers, rights, obligations, assets and liabilities of the preexisting associations.

B. An agreement of two or more condominiums to merge or consolidate pursuant to Subsection A of this section shall be evidenced by an agreement prepared, executed, recorded and certified by the president of the association of each of the preexisting condominiums following approval by owners of units to which are allocated the precentage [percentage] of votes in each condominium required to terminate that condominium. Any such agreement shall be recorded in each county in which a portion of the condominium is located and is not effective until recorded.

C. Every merger or consolidation agreement shall provide for the reallocation of the allocated interests in the new association among the units of the resultant condominium either by stating the reallocations or the formulas upon which they are based or by stating the percentage of overall allocated interests of the new condominium which are [is] allocated to all of the units comprising each of the preexisting condominiums; providing that the portion of the percentages allocated to each unit formerly comprising a part of the preexisting condominium shall be equal to the percentages of allocated interests allocated to that unit by the declaration of the preexisting condominium.

History: 1978 Comp., § 47-7-25.1, enacted by Laws 1981, ch. 282, § 2.

Without limiting the rights of any unit owner, actions may be brought by the manager or board of directors, in either case in the discretion of the board of directors, on behalf of two or more of the unit owners, as their respective interests may appear, with respect to any claim relating to the common areas and facilities or more than one unit. Service of process on two or more unit owners in any action relating to the common areas and facilities or more than one unit may be made on the person designated in the declaration to receive service of process.

History: 1953 Comp., § 70-4-25, enacted by Laws 1963, ch. 221, § 25; 1975, ch. 318, § 26.

A. All unit owners, tenants of owners, employees of owners and tenants, or any other persons that may in any manner use property or any part thereof submitted to the provisions of the Building Unit Ownership Act shall be subject to the act and to the declaration and bylaws of the association of unit owners adopted pursuant to the provisions of the act.

B. All agreements, decisions and determinations lawfully made by the association of unit owners in accordance with the voting percentages established in the Building Unit Ownership Act, declaration or bylaws, shall be deemed to be binding on all unit owners.

History: 1953 Comp., § 70-4-26, enacted by Laws 1963, ch. 221, § 26; 1975, ch. 318, § 27.

A. The manager or the board of directors if required by the declaration, bylaws or by a majority of the unit owners shall insure the property against the risks and under the terms required. The insurance coverage shall be written in the name of the manager, board of directors or the association of unit owners as trustees for each unit owner in the percentage established in the declaration. Insurance premiums shall be common expenses. The requirement of common insurance coverage shall not prejudice the right of each unit owner to insure separately his own unit.

B. In the case of fire or other disaster, the insurance indemnity shall be applied to reconstruct the building unless the damage comprises more than two-thirds of the building, in which case the indemnity may be delivered pro rata to the co-owners in accordance with the decision of three-fourths of the co-owners.

History: 1953 Comp., § 70-4-27, enacted by Laws 1963, ch. 221, § 27; 1975, ch. 318, § 28.