A. Plats and plans are a part of the declaration. Separate plats and plans are not required by the Condominium Act [47-7A-1 to 47-7D-20 NMSA 1978] if all the information required by this section is contained in either a plat or plan. Each plat and plan shall be clear and legible and contain a certification that the plat or plan contains all information required by this section.

B. Each plat shall show:

(1) the name of the condominium and a survey or a general schematic map of the condominium;

(2) the location and dimensions of all real estate not subject to development rights, or subject only to the development right to withdraw, and the location and dimensions of all existing improvements within that real estate;

(3) a legally sufficient description of any real estate subject to development rights, labeled to identify the rights applicable to each parcel;

(4) the extent of any encroachments by or upon any portion of the condominium;

(5) to the extent feasible, a legally sufficient description of all easements serving or burdening any portion of the condominium;

(6) the location and dimensions of any vertical unit boundaries not shown or projected on plans recorded pursuant to Subsection D of this section and that unit's identifying number;

(7) the location with reference to an established datum of any horizontal unit boundaries not shown or projected on plans recorded pursuant to Subsection D of this section and that unit's identifying number;

(8) a legally sufficient description of any real estate in which the unit owners will own only an estate for years, labeled as "leasehold real estate";

(9) the distance between noncontiguous parcels of real estate comprising the condominium;

(10) the location and dimensions of limited common elements, other than the limited common elements described in Subsections B and D of Section 14 [47-7B-2 NMSA 1978] of the Condominium Act; and

(11) in the case of real estate not subject to development rights, all other matters customarily shown on land surveys.

C. A plat may also show the intended location and dimensions of any contemplated improvement to be constructed anywhere within the condominium. Any contemplated improvement shown shall be labeled either "MUST BE BUILT" or "NEED NOT BE BUILT." Any certification of a plat required by this section shall be made by a licensed surveyor.

D. To the extent not shown or projected on the plats, plans of the units must show or project:

(1) the location and dimensions of the vertical boundaries of each unit and that unit's identifying number;

(2) any horizontal unit boundaries, with reference to an established datum, and that unit's identifying number; and

(3) any units in which the declarant has reserved the right to create additional units or common elements, identified appropriately.

E. Unless the declaration provides otherwise, the horizontal boundaries of part of a unit located outside of a building have the same elevation as the horizontal boundaries of the inside part and need not be depicted on the plats and plans.

F. Upon exercising any development right, the declarant shall record either new plats and plans necessary to conform to the requirements of Subsections A, B and D of this section or new certifications of plats and plans previously recorded if those plats and plans otherwise conform to the requirements of those subsections.

G. Any certification of a plan required by this section shall be made by a licensed surveyor, architect or engineer.

History: Laws 1982, ch. 27, § 21.

Compiler's notes. — This section is similar to § 2-109 of the Uniform Condominium Act, with the following main exceptions: Paragraph (10) of Subsection B of the state Condominium Act substitutes "other than the" for "including porches, balconies and patios, other than parking spaces and the other"; the last sentence of Subsection C of the state Condominium Act does not appear in subsection (c) of § 2-109 of the Uniform Condominium Act; Subsection G of the state Condominium Act substitutes "licensed" for "independent (registered)."

COMMISSIONERS' COMMENT

1. The terms "plat" or "plan" have been given a variety of meanings by custom and usage in the various jurisdictions. Under this act, it is important to recognize that a "plat" need not mean a "survey" of the entire real estate constituting a project at the time the initial plat is recorded, although, through amendments to the plat as development proceeds, it ultimately becomes a survey of the entire project.

As to "plan," the act does not use that term to mean the actual building plans used for construction of the project. Instead, the required content of the plans in this act is described in subsection (d) [Subsection D]. Essentially, the plans constitute a boundary survey of each unit. Typically, the walls will be the vertical ("up and down" or "perimetric") boundaries, and the floors and ceilings will be the horizontal boundaries. Importantly, these boundaries need not be physically measured, but may instead be projected from the plat or from actual building construction plans. Thus, the plans under this act are not conceived to be "as built" plans.

2. Subsection (c) [Subsection C] permits, but does not require, the plats to show the location of contemplated improvements. Since construction of contemplated improvements by a declarant involves the exercise of development rights, a declarant may not create any improvement within real estate where no development rights have been reserved, unless the plats actually show that proposed improvement or unless the association (which the declarant may control) makes the improvement pursuant to § 3-102[a](7) [47-7C-2A(7) NMSA 1978]. Should the association attempt that improvement, in the face of unit owner's objections, it may involve risk of challenge. Within land subject to development rights, of course, construction may take place in accordance with the reserved rights, even if no contemplated improvements are shown on the plats. As to the declarant's obligation to complete an improvement that is shown, see § 4-118(a) [§ 4-119(a)] [47-7D-18A NMSA 1978].

3. As noted in the comments to § 2-101 [47-7B-1 NMSA 1978], a condominium unit may consist of unenclosed ground and/or airspace, with no "building" involved. If this were true of all units in a particular condominium, the provisions of § 2-109 [this section] relating to plans (but not plats) would be inapplicable.

4. In detailing the required contents of the plats, two different types of legal description are contemplated. First, in subsection (b)(1) [Subsection B(1)], the plat must show at least a general schematic map of the entire project. While this may be by survey, the act recognizes that a survey may be unduly expensive or impractical in a large project, and accordingly permits a general schematic map of the entire project at the commencement of development. With respect to those portions of the project, however, where no future development may take place, the flexibility of a general schematic map is not necessary. At the same time, it becomes important for title purposes to be able to identify precisely that portion of the project which is essentially completed. Accordingly, as development ceases in particular phases, subsection (b)(2) [Subsection B(2)] contemplates that the locations and dimensions of that real estate will be identified. As this process continues, all of the real estate originally shown in a general schematic map will have been surveyed, and the location and dimensions of that real estate identified, at the expiration of development rights. In addition, subsection [(b)](2) [Subsection B(2)] contemplates that existing improvements must be shown within real estate where no further development will take place. This does not mean the units which may be within each building, but it does mean the external physical dimensions of the buildings themselves. As implied by subsection [(b)](11) [Subsection B(11)], the nature of "existing improvements" required to be surveyed under subsection [(b)](2) should be determined by local practices in the particular state.

5. Subsection (b)(3) [Subsection B(3)] requires that the real estate which is subject to development rights must be identified with a legally sufficient description, that is, either a metes and bounds description, or reference to the deeds of that real estate. Since different portions of the real estate may be subject to differing development rights - for example, only a portion of the total real estate may be added as well as withdrawn from the project - the plat must identify the rights applicable to each portion of that real estate. The same reasoning applies to the legally sufficient description of easements affecting the condominium and any leasehold real estate.

6. Subsection (f) [Subsection F] describes the amendments to the plats and plans which must be made as development rights are exercised. This section requires that the plats and plans be amended at each stage of development to reflect actual progress to date. If an original schematic map was initially recorded as required by subsection (b)(1) [Subsection B(1)], the survey required by (b)(2) [Subsection B(2)] would also constitute the amendments required by subsection (f) [Subsection F].

7. The terms "horizontal" and "vertical" are now commonly understood in condominium parlance to refer, respectively, to "upper and lower" and "lateral or perimetric." Thus, § 2-102 [47-7B-1 NMSA 1978] contemplates that the perimetric walls may be designated as the "vertical" boundaries of a unit and the floor and ceiling as its "horizontal" boundaries. That is the sense in which the words "horizontal" and "vertical" are to be understood in this section and throughout this act.

8. Sections 4-118 and 4-119 [47-7D-18, 47-7D-19 NMSA 1978] reveal the effect of labeling an improvement "MUST BE BUILT" or "NEED NOT BE BUILT," as required by subsection (b)(3)[(c)] [Subsection C].

Compiler's notes. — The reference to § 4-118 of the uniform act in the last sentence in Comment 2 seems incorrect, as that section deals with labeling of promotional materials. Section 4-119 deals with the declarant's obligation to complete an improvement.

The reference to subsection (b)(3) of the uniform act in Comment 8 seems incorrect, as that subsection deals with the description of development rights. Subsection (c) deals with labeling an improvement.

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

31 C.J.S. Estates § 153 et seq.