A. The declaration for a condominium shall contain:

(1) the names of the condominium, which shall include the word "condominium" or be followed by the words "a condominium", and the association;

(2) the name of every county in which any part of the condominium is situated;

(3) a description, legally sufficient for conveyance, of the real estate included in the condominium;

(4) a statement of the maximum number of units that the declarant reserves the right to create;

(5) a description of the boundaries of each unit created by the declaration, including the unit's identifying number;

(6) a description of any limited common elements, other than those specified in Subsections B, D and E of Section 47-7B-2 NMSA 1978, as provided in Section 47-7B-9 NMSA 1978;

(7) a description of any real estate, except real estate subject to development rights, that may be allocated subsequently as limited common elements, other than limited common elements specified in Subsections B, D and E of Section 47-7B-2 NMSA 1978, together with a statement that they may be so allocated;

(8) a description of any development rights and other special declarant rights reserved by the declarant, together with a legally sufficient description of the real estate to which each of those rights applies, and a time limit within which each of those rights must be exercised;

(9) if any development right may be exercised with respect to different parcels of real estate at different times, a statement to that effect together with either a statement fixing the boundaries of those portions and regulating the order in which those portions may be subjected to the exercise of each development right, or a statement that no assurances are made in those regards, and a statement as to whether, if any development right is exercised in any portion of the real estate subject to that development right, that development right must be exercised in all or in any other portion of the remainder of that real estate;

(10) any other conditions or limitations under which the rights described in Paragraph (8) of this subsection shall be exercised or they shall lapse;

(11) an allocation to each unit of the allocated interests in the manner described in Section 47-7B-7 NMSA 1978;

(12) any restrictions on use, occupancy and alienation of the units;

(13) if required by local ordinance, written confirmation from the local zoning official that the condominium complies with the zoning density requirements of local zoning and subdivision ordinances or regulations as required in Section 47-7A-6 NMSA 1978; and

(14) all matters required by Sections 47-7B-6 through 47-7B-9, 47-7B-15, 47-7B-16 and Subsection D of Section 47-7C-3 NMSA 1978.

B. The declaration may contain any other matters that the declarant deems appropriate.

History: Laws 1982, ch. 27, § 17; 1983, ch. 245, § 2; 2012, ch. 43, § 1.

The 2012 amendment, effective May 16, 2012, required confirmation that the condominium complies with local zoning and subdivision laws, and in Subsection A, added a new Paragraph (13) and renumbered former Paragraph (13) as Paragraph (14).

The 1983 amendment substituted New Mexico citations for Uniform Condominium Act citations throughout the section.

COMMISSIONERS' COMMENT

1. Many statutes and other regulatory schemes in the multi-owner project field do not separate the functions of a recorded declaration and unrecorded public offering statements or disclosure documents. As a result, many of the developer's representations and assurances concerning his future plans must appear in the declaration as well as the public offering statement, even though they may have nothing to do with the legal structure or title of the project. See e. g., § 47-70, Conn. Gen. Stat. (1980). This results in duplicative requirements and unnecessarily complex declarations.

This act seeks functionally to distinguish between the declaration and the public offering statement. It requires the declaration to contain only those matters which affect the legal structure or title of the condominium. This includes the reserved powers of the declarant to exercise development rights within the condominium. A narrative description of those rights, however, and the possible consequences flowing from their exercise, are required to be disclosed only in the public offering statement and not in the declaration.

2. This section requires a statement of the name of the association for the condominium as well as the name of the condominium itself, in order that the declaration may be indexed in the name of the association. See § 2-101 [47-7B-1 NMSA 1978].

3. The act requires that the declaration for a condominium situated in two or more recording districts be recorded in each of those districts. While the bracketed language refers to the "county" as the recording district in which the declaration is to be recorded, it would be appropriate in states where recording is done at the city, town or parish level to amend the bracketed language accordingly.

4. Paragraph (a)(5) [(a)(4)] [Subsection A(4)] requires the declarant to state the largest number of units he reserves the right to build. Unlike many current condominium statutes, this act imposes no time limit, measured by an absolute number of years, at the expiration of which the declarant must relinquish control of the association. Instead, declarant control ends when 75% of the maximum number of units which may be created by the declarant have been sold, or at the end of a two-year period during which development is not proceeding. See § 3-103(d) [47-7C-3D NMSA 1978]. The flexibility afforded by this section may be important to a declarant as he responds to unanticipated future changes in his market.

In theory, a declarant might overstate the maximum number of units in an attempt to artificially extend the period of declarant control, since the time might never come when a declarant had sold 75% of that number of units. As a practical matter, however, such a practice would not likely achieve long-term control.

EXAMPLE:

A declarant reserves the right to build 100 units, even though zoning would permit only 75 units on the site, and the declarant actually plans on building only 50 units. As a result of the reservation, the declarant would not lose control of the association under the 75% rule stated in § 3-103(d)(i) [47-7C-3D NMSA 1978] even when all 50 units had been built and sold, because that percentage applies to all potential units, not units actually built. See § 3-103(d)(i) [47-7C-3D NMSA 1978].

However, there are practical constraints on the declarant's decision in this matter. Substantial exaggeration of the future density of the development might tend to impede sales of units in that project. Moreover, such a statement might also produce negative governmental reaction to proposals which might require local approval.

Even if the declarant did overstate the number of units to retain control, however, other limitations imposed by § 3-103(d) [47-7C-3D NMSA 1978] will require turnover at an appropriate time. In the example, once the declarant had exercised the right to add the last of the 50 units which he intends to build, the two-year period imposed by § 3-103(d)(ii) and (iii) [47-7C-3D NMSA 1978] would begin to run, and the declarant would lose the right to control the association two years from the time the last units were added, even though he had reserved the right to add more units.

5. Paragraph (a)(5) [Subsection A(5)] requires that the boundaries of each unit created by the declaration be identified. The words "created by the declaration" emphasize that in an expandable project, new units may be created in the future by amendments to the declaration. Until those new units are actually added to the project by amending the declaration, however, they are not units within the meaning of that defined term, and they need not be described.

6. Section 2-102 [47-7B-2 1978] makes it possible in many projects to satisfy paragraph (a)(5) [Subsection A(5)] of this section by merely providing the identifying number of the units and stating that each unit is bounded by its ceiling, floor and walls. The plats and plans will show where those ceilings, floors and perimetric walls are located, and § 2-102 [47-7B-2 NMSA 1978] provides all other details, except to the extent the declaration may make additional or contradictory specifications because of the unique nature of the project.

7. Paragraph (a)(6) [Subsection A(6)] makes clear that the limited common elements described in § 2-102(2) and (4) [47-7B-2B and D NMSA 1978] need not be described in the declaration. These limited common elements are typically porches, balconies, patios or other amenities which may be included in a project. Such improvements are treated by the act as limited common elements, rather than either common elements or parts of units, in order to minimize the attention which the documents need to give them, and to secure the result that would be desired in the usual case. Thus, if these improvements remain limited common elements, and no special provisions concerning them are included in the declaration, they may be used only by the units to which they are physically attached; maintenance of those improvements must be paid for by the association; and such improvements need not be specially referred to in the declaration. Porches, balconies and patios must be shown on the plats and plans (see § 2-109(b)(10) [47-7B-9B(10) NMSA 1978]), but other limited common elements described in § 2-102(2) and (4) [47-7B-2B and D NMSA 1978] need not be shown.

8. Paragraph (a)(7) [Subsection A(7)] contemplates that the common elements in the project may be allocated as limited common elements at some future time, either by the declarant or the association. For example, a swimming pool might serve an entire project during early phases of development. At the outset, that pool might be a common element which all the unit owners may use. At a later time, with more units and additional pools built in subsequent phases, either the declarant or the association might determine that the first pool should become a limited common element reserved for the use only of units in the first phase, while the other pools should be reserved exclusively for units in the subsequent phases. Such a potential allocation should be described in the declaration pursuant to this section.

9. Paragraph (a)(8) [Subsection A(8)] requires the declaration to describe all development rights and other special declarant rights which the declarant reserves. The declaration must describe the real estate to which each right applies, and state the time limit within which each of those rights must be exercised. The act imposes no maximum time limit for the exercise of those rights, and the particular language of a declaration will vary from project to project depending on the requirements of each project. This act contemplates that those rights may be exercised after the period of declarant control terminates.

10. Plats and plans are made a part of the declaration for legal purposes by § 2-110 [§ 2-109] [47-7B-9 NMSA 1978], and their content may in part provide some of the information required by this section.

11. Paragraph (a)(14) [Subsection A(13)] is a cross-reference to other sections of the act which require the declaration to contain particular matters. Some of these sections, such as 2-107 [47-7B-7 NMSA 1978] on the allocations of allocated interests or 2-109 [47-7B-9 NMSA 1978] on plats and plans, will affect all projects. Others, such as 2-106 [47-7B-6 NMSA 1978] on leasehold condominiums, will apply only to particular kinds of projects.

12. Subsection (b) [Subsection B] contemplates that, in addition to the content required by subsection (a) [Subsection A], other matters may also be included in the declaration if the declarant or lender feel they are appropriate to the particular project. In particular, the draftsman should carefully consider any desired provisions which would vary any of the many sections of the act where variation is permitted, including such matters as expanding or restricting the association's powers. A list of sections which may be varied appears in the comment to § 1-104 [47-7A-4 NMSA 1978].

Compiler's notes. — The reference to paragraph (a)(5) of the uniform act in the first sentence in the first paragraph of Comment 4 seems incorrect, as that paragraph deals with the description of the boundaries. Paragraph (a)(4) deals with the maximum number of units.

The reference to § 2-110 of the uniform act in Comment 10 seems incorrect, as that section deals with the exercise of development rights. Section 2-109 deals with plats and plans.

This section is similar to § 2-105 of the Uniform Condominium Act, with the following main exception: the state Condominium Act omits paragraph (13) of subsection (a) of § 2-105 of the Uniform Condominium Act, which deals with recorded data for recorded easements and licenses.

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

31 C.J.S. Estates § 153 et seq.