2023 New Mexico Statutes › Chapter 47 - Property Law › Article 16 - Homeowner Association › Section 47-16-8 - Declarant control of board.

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.
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.