A. The association of unit owners shall elect whether:

(1) the entire property shall be deemed a single parcel for the purposes of assessment and taxation, in which event the association shall promptly notify the unit owners of the payment of the taxes. For purposes of assessment or valuation and taxation under this paragraph, the association shall be deemed to be the owner as defined in Section 7-35-2 NMSA 1978; or

(2) each unit and its percentage of undivided interest in the common elements shall be deemed to be a parcel and shall be subject to separate assessment and taxation by each assessing unit and special district for all types of taxes authorized by law, including ad valorem levies and special assessments.

B. Any portion of the common elements for which the declarant has reserved any development right must be separately taxed and assessed against the declarant, and only the declarant is liable for payment of such taxes.

C. If there is no unit owner other than a declarant, the real estate comprising the condominium may be taxed and assessed in any manner provided by the Property Tax Code [Chapter 7, Articles 35 to 38 NMSA 1978].

History: Laws 1982, ch. 27, § 4; 1983, ch. 245, § 1.

Compiler's notes. — This section is similar to § 1-105 of the Uniform Condominium Act, with the following main exceptions: subsections (a) and (b) of the Uniform Condominium Act have been substantially subsumed within Subsection A of the state Condominium Act, which allows unit owners to choose between two methods of treating the property for purposes of assessment and taxation.

The 1983 amendment substituted "elements" for "areas" in Subsection A(2).

COMMISSIONERS' COMMENT

1. A condominium may be created, by the recordation of a declaration, long before the first unit is conveyed. This happens frequently with existing rental apartment projects which are converted into condominiums. Subsection (d) [Subsection C] spares the local taxing authorities from having to assess each unit separately until such time as the declarant begins conveying units, although separate assessment from the date the condominium is created may be permitted under other law. See subsection (d) [Subsection C]. When separate tax assessments become mandatory under this section, the assessment for each unit must include the value of that unit's common element interest, and no separate tax bill on the common elements is to be rendered to the association or the unit owners collectively. Any common elements subject to development rights, however, are separately taxed to the declarant.

2. Even if real estate subject to development rights is a part of the condominium and lawfully "owned" by the unit owners in common, it is in fact an asset of the declarant, and must not be taxed and assessed against unit owners. Under subsection (c) [Subsection B], the declarant is exclusively liable for those taxes.

3. If there is any question in a particular state that a unit occupied as a residential dwelling is not entitled to treatment as any other residential single-family detached dwelling under the homestead statutes, this section should be modified to insure that units are similarly treated.

4. Unlike the law of New York and perhaps other states, this section imposes no limitation on the power of a jurisdiction to tax the condominium unit based on its fair market value. In most jurisdictions, experience has shown that the conversion of an apartment building to the condominium form of ownership greatly increases the fair market value of that building. Accordingly, a jurisdiction under this act may impose real estate taxes on condominium units which reflect the fair market value of those units in the same way that the jurisdiction taxes other forms of real estate.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15A Am. Jur. 2d Condominiums and Cooperative Apartments §§ 48 to 50.

Real estate taxation of condominiums, 71 A.L.R.3d 952.

31 C.J.S. Estates § 153 et seq.; 84 C.J.S. Taxation §§ 94, 95.