Except as provided by the declaration:

A. if walls, floors or ceilings are designated as boundaries of a unit, all lath, furring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, finished flooring and any other materials constituting any part of the finished surfaces thereof are a part of the unit, and all other portions of the walls, floors or ceilings are a part of the common elements;

B. if any chute, flue, duct, wire, conduit, bearing wall, bearing column or any other fixture lies partially within and partially outside the designated boundaries of a unit, any portion thereof serving only that unit is a limited common element allocated solely to that unit, and any portion thereof serving more than one unit or any portion of the common elements is a part of the common elements;

C. subject to the provisions of Subsection B of this section, all spaces, interior partitions and other fixtures and improvements within the boundaries of a unit are a part of the unit;

D. any shutters, awnings, window boxes, doorsteps or stoops and all exterior doors and windows or other fixtures designed to serve a single unit, but located outside the unit's boundaries, are limited common elements allocated exclusively to that unit; and

E. any porches, balconies or patios designed to serve a single unit, but located outside the unit's boundaries, are limited common elements allocated exclusively to that unit.

History: Laws 1982, ch. 27, § 14.

Compiler's notes. — This section is similar to § 2-102 of the Uniform Condominium Act, with the following main exception: subsection (4) of the Uniform Condominium Act is encompassed in Subsections D and E of the state Condominium Act.

COMMISSIONERS' COMMENT

1. It is important for title purposes and other reasons to have a clear guide as to precisely which parts of a condominium constitute the units and which parts constitute the common elements. This section fills the gap left when the declaration merely defines unit boundaries in terms of floors, ceilings and perimetric walls.

The provisions of this section may be varied, of course, to the extent that the declarant wishes to modify the details for a particular condominium.

For example, in a townhouse project structured as a condominium, it may be desirable that the boundaries of the unit constitute the exterior surfaces of the roof and exterior walls, with the center line of the party walls constituting the perimetric boundaries of the units in that plane, and the undersurface of the bottom slab dividing the unit itself from the underlying land. Alternatively, the boundaries of the units at the party walls might be extended to include actual division of underlying land itself. In those cases it would not be appropriate for walls, floors and ceilings to be designated as boundaries, and the declaration would describe the boundaries in the above manner. The differentiations made clear here, in conjunction with the provisions of § 3-107 [47-7C-7 NMSA 1978], will assist in minimizing disputes which have historically arisen in association administration with respect to liability for repair of such things as pipes, porches and other components of a building which unit owners may expect the association to pay for and which the association may wish to have repaired by unit owners. Problems which may arise as a result of negligence in the use of components - such as stoops and pipes - are resolved by § 3-107 [47-7C-7 NMSA 1978], which imposes liability on the unit owner who causes damage to common elements, or under the broader provisions of § 3-115(e) [47-7C-15 NMSA 1978], which permits the association to assess common expenses "caused by the misconduct of any unit owner" exclusively against that owner. This would include, of course, not only damages to common elements, but fines or unusual service fees, such as clean-up costs, incurred as a result of the unit owner's misuse of common elements.

2. The differentiation between components constituting common elements and components which are part of the units is particularly important in light of § 3-107(a) [47-7C-7A NMSA 1978], which (subject to the exceptions therein mentioned) makes the association responsible for upkeep of common elements and each unit owner individually responsible for upkeep of his unit.

3. The differentiation between unit components and common element components may or may not be important for insurance purposes under this act. While the common elements in a project must always be insured, the units themselves need not be insured by the association unless the project contains units divided by horizontal boundaries; see § 3-113(b) [47-7C-13B NMSA 1978]. In a "high rise" configuration, however, § 3-113(a) [47-7C-13A NMSA 1978] contemplates that both will normally be insured by the association (exclusive of improvements and betterments in individual units) and that the cost of such insurance will be a common expense. That common expense may be allocated, however, on the basis of risk if the declaration so requires. See § 3-115(c)(3) [47-7C-15C NMSA 1978].

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15A Am. Jur. 2d Condominiums and Cooperative Apartments §§ 12, 18, 32, 33, 38.

Proper party plaintiff in action for injury to common areas of condominium development, 69 A.L.R.3d 1148.

Validity and construction of condominium association's regulations governing members' use of common facilities, 72 A.L.R.3d 308.

31 C.J.S. Estates § 153 et seq.