A. Except for the limited common elements described in Subsections B, D and E of Section 47-7B-2 NMSA 1978, the declaration shall specify to which unit or units each limited common element is allocated. That allocation shall not be altered without the consent of the unit owners whose units are affected.

B. Except as the declaration otherwise provides, a limited common element may be reallocated by an amendment to the declaration executed by the unit owners between or among whose units the reallocation is made. The persons executing the amendment shall provide a copy of the amendment to the association, which shall record it. The amendment shall be recorded in the names of the parties and the condominium.

C. A common element not previously allocated as a limited common element may not be so allocated except pursuant to provisions in the declaration made in accordance with Paragraph (7) of Subsection A of Section 47-7B-5 NMSA 1978. The allocations shall be made by amendments to the declaration.

History: Laws 1982, ch. 27, § 20; 1983, ch. 245, § 3.

Compiler's notes. — This section is substantially similar to § 2-108 of the Uniform Condominium Act.

The 1983 amendment substituted New Mexico citations for Uniform Condominium Act citations in the first sentences in Subsections A and C and "of the amendment" for "thereof" in the second sentence in Subsection B.

COMMISSIONERS' COMMENT

1. Like all other common elements, limited common elements are owned in common by all unit owners. The use of a limited common element, however, is reserved to less than all of the unit owners. Unless the declaration provides otherwise, the association is responsible for the upkeep of a limited common element and the cost of such upkeep is assessed against all the units. See §§ 3-107(a) and 3-115(c)(1) [47-7C-7A and 47-7C-15C(1) NMSA 1978]. This might include the costs of repainting all shutters, or balconies, for example, which are limited common elements pursuant to § 2-102(4) [47-7B-2D NMSA 1978]. Accordingly, there may be occasions where, to meet the expectations of owners and to have costs borne directly by those who benefit from those amenities, the declaration might provide that the costs will be borne, not by all unit owners as part of their common expense assessments, but only by the owners to which the limited common elements are assigned.

2. Even common elements which are not "limited" within the meaning of this act may nevertheless be restricted by the unit owners' association pursuant to the powers set forth in § 3-102[(a)](6) and (10) [47-7C-2A(6) and (10) NMSA 1978], unless that power is limited in the declaration. For example, the association might assign reserved parking spaces to designated unit owners, or even to persons who are not unit owners. Such a parking space would differ from a limited common element in that its use would be merely a personal right of the person to whom it is assigned and this section would not have to be complied with to allocate it or to reallocate it.

3. Because a mortgage or deed of trust may restrict the borrower's right to transfer the use of a limited common element without the lender's consent, the terms of the encumbrance should be examined to determine whether the lender's consent or release is needed to transfer that right of use to another person.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15A Am. Jur. 2d Condominiums and Cooperative Apartments §§ 32 to 38.

Proper party plaintiff in action for injury to common areas of condominium development, 69 A.L.R.3d 1148.

Validity and construction of condominium association's regulations governing members' use of common facilities, 72 A.L.R.3d 308.

31 C.J.S. Estates § 153 et seq.