A. Except in cases of amendments that may be executed by a declarant under Section 47-7B-9 or 47-7B-10 NMSA 1978, the association under Section 47-7B-6, 47-7B-7, 47-7B-8, 47-7B-12 or 47-7B-13 NMSA 1978 or certain unit owners under Section 47-7B-8, 47-7B-12, 47-7B-13 or 47-7B-18 NMSA 1978 and except as limited by Subsection D of this section, the declaration, including the plats and plans, may be amended only by vote or agreement of unit owners of units to which at least sixty-seven percent of the votes in the association are allocated or any larger majority the declaration specifies. The declaration may specify a smaller number only if all of the units are restricted exclusively to nonresidential use.

B. No action to challenge the validity of an amendment adopted by the association pursuant to this section may be brought more than one year after the amendment is recorded.

C. Every amendment to the declaration shall be recorded in each county in which any portion of the condominium is located and is effective only upon recordation. An amendment shall be indexed in the grantee's index in the name of the condominium and the association and in the grantor's index in the name of the parties executing the amendment.

D. Except to the extent expressly permitted or required by other provisions of the Condominium Act, no amendment shall create or increase special declarant rights, increase the number of units or change the boundaries of any unit, the allocated interests of a unit or the uses to which any unit is restricted in the absence of unanimous consent of the unit owners.

E. Amendments to the declaration required by the Condominium Act to be recorded by the association shall be prepared, executed, recorded and certified on behalf of the association by any officer of the association designated for that purpose or, in the absence of designation, by the president of the association.

F. No amendment to the declaration which would limit, prohibit or eliminate the exercise of a special declarant right shall be effective, during the period of the reservation, without the concurrence of the declarant.

History: Laws 1982, ch. 27, § 29; 1983, ch. 245, § 4.

Compiler's notes. — This section is substantially similar to § 2-117 of the Uniform Condominium Act, with the main exception that New Mexico has added Subsection F.

The 1983 amendment substituted New Mexico citations for Uniform Condominium Act citations in the first sentence in Subsection A and added Subsection F.

COMMISSIONERS' COMMENT

1. This section recognizes that the declaration, as the perpetual governing instrument for the condominium, may be amended by various parties at various times in the life of the project. The basic rule, stated in subsection (a) [Subsection A], is that the declaration, including the plats and plans, may only be amended by vote of 67% of the unit owners. The section permits a larger percentage to be required by the declaration, and also recognizes that, in an entirely non-residential condominium, a smaller percentage might be appropriate.

In addition to that basic rule, subsection (a) [Subsection A] lists those other instances where the declaration may be amended by the declarant alone without association approval, or by the association acting through its board of directors.

2. Section 1-104 [47-7A-4 NMSA 1978] does not permit the declarant to use any device, such as powers of attorney executed by purchasers at closings, to circumvent subsection (d)'s [Subsection D's] requirement of unanimous consent. This section does not supplant any requirements of common law or of other statutes with respect to conveyancing if title to real property is to be affected.

3. Subsection (e) [Subsection E] describes the mechanics by which amendments recorded by the association are filed, and resolves a number of matters often neglected by bylaws.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15A Am. Jur. 2d Condominiums and Cooperative Apartments §§ 14 to 17.

31 C.J.S. Estates § 153 et seq.