A. Except in the case of a sale where delivery of a disclosure statement is required, or unless exempt under Subsection B of Section 53 [47-7D-1 NMSA 1978] of the Condominium Act, a unit owner shall furnish to a purchaser before conveyance a copy of the declaration, other than the plats and plans, the bylaws, the rules or regulations of the association and a resale certificate from the association containing:

(1) a statement disclosing the existence and terms of any right of first refusal or other restraint on the free alienability of the unit;

(2) a statement setting forth the amount of the monthly common expense assessment and any unpaid common expense or special assessment currently due and payable from the selling unit owner;

(3) a statement of any other fees payable by unit owners;

(4) a statement of any capital expenditures anticipated by the association for the current and two next succeeding fiscal years;

(5) a statement of the amount of any reserves for capital expenditures and of any portions of those reserves designated by the association for any specified projects;

(6) the most recent regularly prepared balance sheet and income and expense statement, if any, of the association;

(7) the current operating budget of the association;

(8) a statement of any unsatisfied judgments against the association;

(9) a statement describing any insurance coverage provided for the benefit of unit owners; and

(10) a statement of the remaining term of any leasehold estate affecting the condominium and the provisions governing any extension or renewal thereof.

B. The association, within ten working days after receipt of a request by a unit owner, shall furnish a certificate containing the information necessary to enable the unit owner to comply with this section. A unit owner providing a certificate pursuant to Subsection A of this section is not liable to the purchaser for any erroneous information provided by the association and included in the certificate.

C. A purchaser is not liable for any unpaid assessment or fee greater than the amount set forth in the certificate prepared by the association. A unit owner is not liable to a purchaser for the failure or delay of the association to provide the certificate in a timely manner, but the purchase contract is voidable by the purchaser until the certificate has been provided and for seven days thereafter or until conveyance, whichever first occurs.

History: Laws 1982, ch. 27, § 61.

Compiler's notes. — This section is similar to § 4-109 of the Uniform Condominium Act, with the following main exceptions: in the introductory paragraph of Subsection A of this section of the state Condominium Act, "disclosure" is substituted for "public offering," "before execution of any contract for sale of a unit, or otherwise" is deleted preceding "before conveyance," and "resale certificate from the association" is substituted for "certificate"; "existence and terms" is substituted for "effect on the proposed disposition" in Paragraph (1) of Subsection A of this section of the state Condominium Act; "and the status of any pending suits in which the association is a defendant" is deleted at the end of Paragraph (8) of Subsection A of this section of the state Condominium Act; paragraphs (10) and (11) of subsection (a) of § 4-109 of the Uniform Condominium Act, relating to statements of the executive board as to knowledge of alterations or improvements to the unit or to limited common elements and as to knowledge of any health or building code violations with respect to the unit or any limited common elements assigned thereto or any other portion of the condominium, respectively, are deleted; "receipt of" is inserted in the first sentence of Subsection B of this section of the state Condominium Act; and "seven" is substituted for "(5)" near the end of Subsection C of this section of the state Condominium Act.

COMMISSIONERS' COMMENT

1. In the case of the resale of a unit by a private unit owner who is not a declarant or a person in the business of selling real estate for his own account, a public offering statement need not be provided. See § 4-102(c) [47-7D-2C NMSA 1978]. Nevertheless, there are important facts which a purchaser should have in order to make a rational judgment about the advisability of purchasing the particular condominium unit. Accordingly, each unit owner not required to furnish a public offering statement under § 4-102(c) [47-7D-2C NMSA 1978] and not exempt under § 4-101(b) [47-7D-1B NMSA 1978] is required to furnish to a resale purchaser, before the execution of any contract of sale, a copy of the declaration, bylaws and rules and regulations of the association and a variety of fiscal, insurance and other information concerning the condominium and the unit.

2. While the obligation to provide the information required by this section rests upon each unit owner (since the purchaser is in privity only with that unit owner), the association has an obligation to provide the information to the unit owner within 10 days after a request for such information. Under § 3-102(a)(12) [47-7C-2A(12) NMSA 1978], the association is entitled to charge the unit owner a reasonable fee for the preparation of the certificate. Should the association fail to provide the certificate as required, the unit owner would have a right to action against the association pursuant to § 4-117 [47-7D-17 NMSA 1978].

3. Under subsection (c) [Subsection C], if a purchaser receives a resale certificate which fails to state the proper amount of the unpaid assessments due from the purchased unit, the purchaser is not liable for any amount greater than that disclosed in the resale certificate. Because a resale purchaser is dependent upon the association for information with respect to the outstanding assessments against the unit which he contemplates buying, it is altogether appropriate that the association should be prohibited from later collecting greater assessments than those disclosed prior to the time of the resale purchase.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15A Am. Jur. 2d Condominiums and Cooperative Apartments §§ 38, 40.

Validity, construction and application of statutes, or of condominium association's bylaws or regulations, restricting sale, transfer or lease of condominium units, 17 A.L.R.4th 1247.

Liability of owner of unit in condominium, recreational development, time-share property, or the like, for assessment in support of common facilities levied against and unpaid by prior owner, 39 A.L.R.4th 114.

31 C.J.S. Estates § 153 et seq.