A. The association has a lien on a unit for any assesssment [assessment] levied against that unit or fines imposed against its unit owner from the time the assessment or fine becomes due. The association's lien may be foreclosed in like manner as a mortgage on real estate. Unless the declaration otherwise provides, fees, charges, late charges, fines and interest charged pursuant to Section 47-7C-2 NMSA 1978 are enforceable as assessments under this section. If an assessment is payable in installments, the full amount of the assessment is a lien from the time the first installment becomes due.

B. Unless the declaration otherwise provides, if two or more associations have liens for assessments created at any time on the same real estate, those liens have equal priority.

C. Recording of the declaration constitutes record notice and perfection of the lien. No further recordation of the claim of lien for assessment under this section is required.

D. A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within three years after the full amount of the assessments becomes due.

E. This section does not prohibit actions to recover sums for which Subsection A of this section creates a lien or prohibit an association from taking a deed in lieu of foreclosure.

F. A judgment or decree in any action brought under this section may include costs and reasonable attorney's fees for the prevailing party.

G. The association upon written request shall furnish at a unit owner's request a recordable statement setting forth the amount of unpaid assessments against his unit. The statement shall be furnished within ten business days after receipt of the request and is binding on the association, the executive board and every unit owner.

H. To the extent provided in the declaration, the lien established by this section shall be subordinate to other liens or encumbrances.

History: Laws 1982, ch. 27, § 49; 1983, ch. 245, § 5.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Compiler's notes. — This section is similar to § 3-116 of the Uniform Condominium Act, with the following main exceptions: Subsection A of this section of the state Condominium Act does not incorporate the bracketed optional language in subsection (a) of § 3-116 of the Uniform Condominium Act; subsection (b) of § 3-116 of the Uniform Condominium Act, relating to priority of a lien for assessments over all other liens and encumbrances except mechanics' or materialmen's liens or liens for other assessments made by the association, is not incorporated by this section of the state Condominium Act; and New Mexico has added Subsection H.

The 1983 amendment substituted a New Mexico citation for a Uniform Condominium Act citation in the second sentence in Subsection A and added Subsection H.

COMMISSIONERS' COMMENT

1. Subsection (a) [Subsection A] provides that the association's lien on a unit for unpaid assessments shall be enforceable in the same manner as mortgage liens. In addition, if the use of a power of sale pursuant to a mortgage is permitted in a particular state, the bracketed language (with an appropriate statutory citation inserted) may be used to ensure that the association's lien for unpaid assessments may also be enforced through the power of sale device. The bracketed language requiring notice of foreclosure should be adopted only in states in which the power of sale statute does not require notice to junior lienholders.

2. To ensure prompt and efficient enforcement of the association's lien for unpaid assessments, such liens should enjoy statutory priority over most other liens. Accordingly, subsection (a) [(b)] provides that the association's lien takes priority over all other liens and encumbrances except those recorded prior to the recordation of the declaration, those imposed for real estate taxes or other governmental assessments or charges against the unit, and first mortgages recorded before the date the assessment became delinquent. However, as to prior first mortgages, the association's lien does have priority for six months' assessments based on the periodic budget. A significant departure from existing practice, the six months' priority for the assessment lien strikes an equitable balance between the need to enforce collection of unpaid assessments and the obvious necessity for protecting the priority of the security interests of mortgage lenders. As a practical matter, mortgage lenders will most likely pay the six months' assessments demanded by the association rather than having the association foreclose on the unit. If the mortgage lender wishes, an escrow for assessments can be required. Since this provision may conflict with the provisions of some state statutes which forbid some lending institutions from making loans not required by first priority liens, the law of each state should be reviewed and amended when necessary.

3. Subsection (e) [Subsection E] makes clear that the association may have remedies short of foreclosure of its lien that can be used to collect unpaid assessments. The association, for example, might bring an action in debt or breach of contract against a recalcitrant unit owner rather than resorting to foreclosure.

4. In view of the association's powers to enforce its lien for unpaid assessments, subsection (f) [(h)] [Subsection G] provides unit owners with a method to determine the amount presently due and owing. A unit owner may obtain a statement of any unpaid assessment, including fines and other charges enforceable as assessments under subsection (a) [Subsection A], currently levied against his unit. The statement is binding on the association, the executive board and every unit owner in any subsequent action to collect such unpaid assessments.

5. Units may be part of a condominium and of a larger real estate regime (see the Uniform Planned Community Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 1980, which would govern most associations with assessment powers). For example, a large real estate development may consist of a larger planned community which contains detached single family dwellings and town houses which are not part of any condominium and a highrise building which is organized as a condominium within the planned community. In that case, the planned community association might assess the condominium units for the general maintenance expenses of the planned community and the condominium association would assess for the direct maintenance expenses of the building itself. In such a situation, subsection (c) [Subsection B] provides that unpaid liens of the two associations have equal priority regardless of the relative time of creation of the two regimes and regardless of the time the assessments were made or become delinquent.

Compiler's notes. — The reference to subsection (a) of § 3-116 of the uniform act in the second sentence in Comment 2 seems incorrect, as that subsection deals with the creation and foreclosure of liens. Subsection (b) of § 3-116 deals with priority of liens.

The reference to subsection (f) of § 3-116 of the uniform act in the first sentence in Comment 4 seems incorrect, as that subsection deals with other remedies. Subsection (h) of § 3-116 deals with assessment statements furnished to unit owners.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15A Am. Jur. 2d Condominiums and Cooperative Apartments §§ 36, 37, 47.

Expenses for which condominium association may assess unit owners, 77 A.L.R.3d 1290.

31 C.J.S. Estates § 149.