A. All provisions of the declaration and bylaws are severable.

B. The rule against perpetuities shall not be applied to defeat any provision of the declaration, bylaws, rules or regulations adopted pursuant to Section 35 [47-7C-2 NMSA 1978] of the Condominium Act.

C. In the event of a conflict between the provisions of the declaration and the bylaws, the declaration prevails except to the extent the declaration is inconsistent with the Condominium Act.

D. Title to a unit and common elements is not rendered unmarketable or otherwise affected by reason of an insubstantial failure of the declaration to comply with the Condominium Act. Whether a substantial failure impairs marketability is not affected by that act.

History: Laws 1982, ch. 27, § 15.

Compiler's notes. — This section is substantially similar to § 2-103 of the Uniform Condominium Act.

COMMISSIONERS' COMMENT

1. Subsection (b) [Subsection B] does not totally invalidate the rule against perpetuities as applied to condominiums. The language does provide that the rule against perpetuities is ineffective as to documents which would govern the condominium during the entire life of the project, regardless of how long that should be. With respect to deeds or devises of units, however, the policies underlying the rule against perpetuities continue to have validity and remain applicable under this act.

2. In considering the effect of failures to comply with this act on title matters, subsection (d) [Subsection D] refers only to defects in the declaration - which includes the plats and plans - because the declaration is the instrument which creates and defines the units and common elements. No reference is made to other instruments, such as bylaws, because these instruments have no impact on title, whether or not recorded. However, in all cases of violations of the act, a failure of the bylaws - or any other instrument - to comply with the act, would entitle any affected persons to appropriate relief under § 4-117 [47-7D-17 NMSA 1978].

3. No special prohibition against racial or other forms of discrimination is included in this act because the provisions of generally applicable federal and state law apply as much to condominiums as to other forms of real estate.

4. Some examples may help to clarify what sorts of defects in the declaration are to be regarded as "insubstantial" within the meaning of the first sentence of subsection (d) [Subsection D].

Suppose the declaration allocates common element interests to all the units, but fails to indicate the formula for the allocation as required by § 2-107 [47-7B-7 NMSA 1978]. This would be a substantial defect if the assigned interests were unequal, but if all units were assigned identical interests if would be possible to infer that the basis of allocation was equality - and the failure of the declaration to say so would be an insubstantial defect. Were this to happen in a condominium where the right to add new units is reserved, however, it should be noted that a subsequent amendment to the declaration adding new units could not use any formula other than equality for reallocating the common element interests unless a different formula were specified pursuant to § 2-107(b) [47-7B-7B NMSA 1978].

Other examples of insubstantial defects that might occur include failure of the declaration to include the word "condominium" in the name of the project, as required by § 2-105(1) [47-7B-5A NMSA 1978], or failure of the plats and plans to comply satisfactorily with the requirement of § 2-109(a) [47-7B-9A NMSA 1978] that they be "clear and legible," so long as they can at least be deciphered by persons with proper expertise. Failure to organize the unit owners' association at the time specified in § 3-101 [47-7C-1 NMSA 1978] would not be a defect in the declaration at all, and would not affect the validity or marketability of titles in the condominium. It would, however, be a violation of this act, and create a claim for relief under § 4-117 [47-7D-17 NMSA 1978].

5. Each state has case or statutory law dealing with marketability of titles, and the question of whether substantial failures of the declaration to comply with the act affect marketability of title should be determined by that law and not by this act.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15A Am. Jur. 2d Condominiums and Cooperative Apartments §§ 14 to 17, 31, 40.

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

Enforceability of bylaw or other rule of condominium or cooperative association restricting occupancy by children, 100 A.L.R.3d 241.

Validity and construction of regulations of governing body of condominium or cooperative apartment pertaining to parking, 60 A.L.R.5th 647.

31 C.J.S. Estates § 153 et seq.