A. Except to the extent provided by the declaration, Subsection B of this section or Section 46 [47-7C-13 NMSA 1978] of the Condominium Act, the association is responsible for maintenance, repair and replacement of the common elements, and each unit owner is responsible for maintenance, repair and replacement of his unit. Each unit owner shall afford to the association and the other unit owners, and to their agents or employees, access through his unit reasonably necessary for those purposes. If damage is inflicted on the common elements or on any unit through which access is taken, the unit owner responsible for the damage, or the association if it is responsible, is liable for the prompt repair thereof.

B. In addition to the liability that a declarant as a unit owner has under the Condominium Act, the declarant alone is liable for all expenses in connection with real estate subject to development rights. No other unit owner and no other portion of the condominium is subject to a claim for payment of those expenses. Unless the declaration provides otherwise, any income or proceeds from real estate subject to development rights inures to the declarant.

History: Laws 1982, ch. 27, § 40.

Compiler's notes. — This section is substantially similar to § 3-107 of the Uniform Condominium Act.

COMMISSIONERS' COMMENT

1. The act permits the declaration to separate maintenance responsibility from ownership. This is commonly done in practice. In the absence of any provision in the declaration, maintenance responsibility follows ownership of the unit or rests with the association in the case of common elements. Under this act, limited common elements (which might include, for example, patios, balconies and parking spaces) are common elements. See § 1-103(16) [47-7A-3P NMSA 1978]. As a result, under subsection (a) [Subsection A], unless the declaration requires that unit owners are responsible for the upkeep of such limited common elements, the association will be responsible for their maintenance. Under § 3-115(c) [47-7C-15C NMSA 1978], the cost of maintenance, repair and replacement for such limited common elements is assessed against all the units in the condominium, unless the declaration provides for such expenses to be paid only by the units benefited. See Comment 1 to § 2-108 [47-7B-8 NMSA 1978].

2. Under § 2-110 [47-7B-10 NMSA 1978], a declarant may reserve the right to create units in portions of the condominium originally designated as common elements. Prior to creation of the units, title to those portions of the condominium is in the unit owners. However, under § 3-107(b) [47-7C-7B NMSA 1978], the developer is obligated to pay all of the expenses of (including real estate taxes properly apportionable to) that real estate. As to real estate taxes, see § 1-105(c) [47-7A-5C NMSA 1978].

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15A Am. Jur. 2d Condominiums and Cooperative Apartments §§ 16, 26, 29, 34, 38.

Liability of condominium association or corporation for injury allegedly caused by condition of premises, 45 A.L.R.3d 1171.

Validity and enforceability of condominium owner's covenant to pay dues or fees to sports or recreational facility, 39 A.L.R.4th 129.

Right of condominium association's management or governing body to inspect individual units, 41 A.L.R.4th 730.

31 C.J.S. Estates § 153 et seq.