2023 New Mexico Statutes › Chapter 22 - Public Schools › Article 26A - Public School Lease Purchase Act › Section 22-26A-5 - Lease purchase arrangements; terms.

Lease purchase arrangements:
A. may have payments payable annually or more frequently as determined by the governing body;
B. may be subject to prepayment at the option of the governing body at such time or times and upon such terms and conditions with or without the payment of such premium or premiums as determined by the governing body;
C. may have a final payment date not exceeding thirty years after the date of execution;
D. may be acquired or executed at a public or negotiated sale;
E. may be entered into between the governing body and the owner of the building or other real property who may be a trustee or other person that issues or sells certificates of participation or other interests in the payments to be made under the lease purchase arrangement, the proceeds of which may be used to acquire the building or other real property;
F. shall specify the principal and interest component of each payment made under the lease purchase arrangement; provided that the net effective interest rate shall not exceed the maximum permitted by the Public Securities Act [6-14-1 to 6-14-3 NMSA 1978];
G. shall provide that, if the school district or charter school makes capital improvements to the building or other real property, there shall be no change in the lease payments or final payment without a written amendment approved by the department;
H. shall provide that, if state, school district or charter school funds, above those required for lease payments, are used to construct or acquire improvements, the cost of the improvements shall constitute a lien on the real estate in favor of the school district or charter school and then, if the lease purchase arrangement is terminated prior to the final payment and the release of the security interest or the transfer of title at the option of the school district or charter school:
(1) the school district or charter school may foreclose on the real estate lien; or
(2) the current market value of the building or other real property at the time of termination, as determined by an independent appraisal certified by the taxation and revenue department, in excess of the outstanding principal due under the lease purchase arrangement shall be paid to the school district or charter school;
I. shall provide that there is no legal obligation for the school district or charter school to continue the lease purchase arrangement from year to year or to purchase the building or other real property;
J. shall provide that the lease purchase arrangement shall be terminated if sufficient money is not available to meet any current lease payment;
K. shall provide that, with the prior approval of the lessor, which shall not be unreasonably withheld, the lease purchase arrangement is assignable, without cost to the school district, or charter school and with all of the rights and benefits of its predecessor in interest being transferred to the assignee, to:
(1) a school district or charter school; or
(2) the state or one of its institutions, instrumentalities or other political subdivisions; and
L. shall provide that amendments to the lease purchase arrangement, except amendments that would improve the building or other real property without additional financial obligations to the school district or charter school, shall be approved by the department.
History:
Laws 2007, ch. 173, § 5; 2009, ch. 132, § 4; 2015, ch. 106, § 3.
ANNOTATIONS
The 2015 amendment,
effective July 1, 2015, amended the Public School Lease Purchase Act to provide the governing body of a charter school or school district with the authority to set terms of lease purchase arrangements and provided for certain terms relating to charter schools that must be included in lease purchase arrangements; after "school district", added "or charter school" throughout the section; in Subsection A, after "determined by the", deleted "local school board" and added "governing body"; in Subsection B, after "at the option of the", deleted "local school board" and added "governing body", and after "determined by the", deleted "local school board" and added "governing body"; in Subsection E, after "between the", deleted "local school board" and added "governing body"; in the introductory paragraph of Subsection H, after "state", deleted "or"; in Subsection K, deleted "if the lessee is a charter school" and added "and with all of the rights and benefits of its predecessor in interest being transferred to the assignee", and after "to:", added the designation for Paragraph (1) of Subsection K, and after "a", deleted "locally chartered or state-chartered school district or", after "charter school; or", added the designation for Paragraph (2) of Subsection K, and after "political subdivisions", deleted "The assignee shall acquire all rights and benefits of its predecessor in interest under the terms and conditions of the lease purchase arrangement".
The 2009 amendment,
effective June 19, 2009, in Subsection A, after "payable", deleted "at intervals or at maturity as may be" and added the phrase "annually or more frequently as"; in Subsection C, after "payment date", deleted "or mature at any time or times" and after "exceeding", deleted "twenty" and added the word "thirty"; deleted former Subsection D, which provided for payment at one time or in installments; deleted former Subsection E, which provided for pricing at or below par; deleted former Subsection F, which provided for acquisition by public bid, negotiated sale or placement; and added Subsections D through H, K and L.
Priority of liens.
— The legislature, in drafting the Charter School Act, 22-26A-1 to 22-26A-20 NMSA 1978, did not choose to include a priority provision in 22-26A-5(H) NMSA 1978, and therefore the New Mexico public education department's interpretation of this section to require that all lease purchase agreements include language granting these liens first priority is improper, because it is contrary to long established statutory construction concepts to imply a priority provision when none is stated in the statute. The lien on school improvements does not take first priority over all other liens on the real property.
Liens on Charter School Improvements
(1/22/16), Att'y Gen. Adv. Ltr. 2016-01.
Constitutionality.
— The prohibition, that "no appropriation shall be made for charitable, educational or other benevolent purposes to any person, corporation, association, institution or community, not under the absolute control of the state . . .," N.M. Const., Art. IV, § 31, does not apply to lease purchase agreements under this section, because the legislature does not make appropriations directly to charter schools and school districts. Moreover, this section does not violate the anti-donation clause, N.M. Const., Art. IX, § 14, because consideration can be found in the fact that the school will have the benefit and value of the use of any improvements for the life of the lease-purchase arrangement.
Liens on Charter School Improvements
(1/22/16), Att'y Gen. Adv. Ltr. 2016-01.