Verbatim from the public record. The law itself is a government work — always confirm the current version on the official source before you rely on it.
A. Subject to the provisions of this section, the declaration shall provide for a period
of declarant control of the association, during which period a declarant, or persons
designated by the declarant, may appoint and remove the officers and members of the
board.
B. Regardless of the period provided in the declaration, the period of declarant
control shall terminate no later than the earlier of:
(1) sixty days after conveyance of seventy-five percent of the lots that are part
of the development and any additional lots that may be added to the development to lot
owners other than a declarant;
(2) two years after all declarants have ceased to offer lots for sale in the
ordinary course of business;
(3) two years after a development right to add new lots was last exercised; or
(4) the day that the declarant or the declarant's designee, after giving written
notice to the association, records an instrument voluntarily terminating all rights to
declarant control.
C. Subsection B of this section does not apply to a master planned community.
D. A declarant may voluntarily terminate the right to appoint and remove officers
and members of the board before termination of the period of declarant control, but in
that event, the declarant may require, for the duration of the period of declarant control,
that specified actions of the association or board, as described in a recorded instrument
executed by the declarant, be approved by the declarant or the declarant's designee
before they become effective.
E. Not later than sixty days after conveyance of twenty-five percent of the lots that
are part of the development, and any additional lots that may be added to the
development, to lot owners other than a declarant, at least one member and not less
than twenty-five percent of the members of the board shall be elected by lot owners.
F. Not later than sixty days after conveyance of fifty percent of the lots that are part
of the development, and any additional lot that may be added to the development, to lot
owners other than the declarant, no less than thirty-three percent of the members of the
board shall be elected by lot owners other than the declarant.
G. Not later than the termination of a period of declarant control, the lot owners shall
elect a board of at least three members, at least a majority of whom shall be lot owners.
The board shall elect the officers. The board members and officers shall take office
upon election.
H. No amendment to the declaration that would limit, prohibit or eliminate the
exercise of a development right shall be effective without the concurrence of the
declarant.
I. A declarant shall not utilize cumulative or class voting for the purpose of evading
any limitation imposed on declarants by the Homeowner Association Act, nor shall lots
constitute a class because they are owned by a declarant.
History: Laws 2013, ch. 122, § 8.
ANNOTATIONS
Effective dates. — Laws 2013, ch. 122, § 16 provided that the Homeowner Association
Act was effective July 1, 2013.
Compiler's notes. — Laws 2013, ch. 122, §§ 1 through 14 were erroneously compiled
as 47-7E-1 through 47-7E-14 NMSA 1978, and have been recompiled as 47-16-1
through 47-16-14 NMSA 1978 by the compiler.
Transfer of HOA board representation from developer to lot owners. — When a
master-planned community transitions from developer ownership to resident ownership,
the New Mexico Homeowners Association Act (HOAA), 47-16-1 to 47-16-16 NMSA
1978, governs the composition of the HOA's board, and once twenty-five percent of the
lots in the development, including undeveloped lots, are owned by lot owners other than
the developer, at least one member of the HOA board and no less than twenty-five
percent of the members of the board must be elected by lot owners, and as ownership
continues to transition from developer to lot owners, additional statutory requirements
governing HOA board composition are triggered, and therefore to the extent that at least
twenty-five percent of the Mariposa housing subdivision located in Rio Rancho, New
Mexico has been transferred to lot owners other than the developer, the requirements of
47-16-8 NMSA 1978 have been triggered and the lot owners are entitled to elect HOA
board members in accordance with state law. 2024 Op. Att'y Gen. No. 24-13.
Planned community has not yet reached the threshold required for lot owners to
elect a board member to the homeowner's association. — The Homeowner
Association Act (HOAA), 47-16-1 to 47-16-18 NMSA 1978, dictates that the period of
declarant control shall terminate, if not voluntarily terminated by the declarant sooner,
no later than the earlier of certain specific conditions, and as the percentage of lots
conveyed to lot owners increases, so too does the percentage of board members
elected by the lot owners; this allows for the orderly transition of authority to control the
board from the declarant to parcel owners. Determining whether a sufficient percentage
of lots have been sold to someone other than the declarant must take into account the
total number of parcels in the development, present and anticipated, including those
owned by the declarant, and therefore, where the Picacho mountain community master
plan allowed for a total of 1560 total lots, with 1493 of those lots designated for
residential purposes, and, at most, only 252 lots have been transferred, the lots sold to
date versus the total number of lots in the master plan does not require members of the
board be elected by lot owners other than the declarant because the total number of lots
sold has not reached the twenty-five percent threshold set forth in 47-16-8(E) NMSA
1978 of the HOAA. End of Exclusive Declarant Control under Home Owner Association
Act (8/17/22), Att'y Gen. Adv. Ltr. 2021-05.