Homeowners associations (HOAs) manage many planned communities in New Mexico. Various local, state, and federal regulations as well as governing documents oversee HOAs in New Mexico.
Who Regulates HOAs in New Mexico?
In New Mexico, HOAs are regulated by the New Mexico Homeowners Association Act found in Chapter 47 Article 16 of the New Mexico Statutes. This act governs lot owners in a development created by a recorded declaration.
An HOA is also regulated by its own governing documents. The governing documents typically include: Articles of Incorporation, Bylaws, Declaration of Covenants, Conditions and Restrictions, and other rules and regulations. However, all HOAs are different in what documents they may or may not include.
HOAs in New Mexico may be subject to applicable federal laws such as:
HOAs may be subject to certain state laws such as:
- New Mexico Nonprofit Corporation Act
- New Mexico Building Ownership Act
- New Mexico Condominium Act
- New Mexico Human Rights Act
How to Find HOA Regulations in New Mexico
HOA governing documents are public records in New Mexico. HOAs are required to file with the office of the county clerk in each county where the HOA is located. To obtain these documents, visit the local county clerk’s office.
Additionally, the type of business records that are filed with the New Mexico Secretary of State can be viewed online by conducting a Business Search.
These records can include by-laws, Articles of Incorporation, and other reports. To view these records, anyone can submit a request form via email or mail to the New Mexico Secretary of State.
HOA Powers in New Mexico
In New Mexico, HOAs have the power to:
- Levy reasonable fines
- Collect payments for common assessments
- Impose a lien for unpaid assessments
- Foreclose on a home for unpaid liens
- Suspend the use of the common areas
Moreover, an HOA’s governing documents can grant added powers such as restrictions on membership, parking, fencing, and exterior paint colors.
Can an HOA Impose Fines on a Homeowner in New Mexico?
In New Mexico, HOAs can impose fines for violation of its governing documents and unpaid assessments. Before imposing a fine, the HOA must give the homeowner a written notice and an opportunity to dispute the violation. The HOA’s governing documents will note the amount and types of fees.
An HOA cannot fine a homeowner for (or generally prohibit) any of the following:
- Displaying flags so long as they are consistent with federal law
- Installing solar energy devices
- Installing satellite dishes and antennas
An HOA’s governing documents may include reasonable regulations and rules about the placement, manner, and display of flags, solar panels, and satellite dishes and antennas.
Can an HOA Take a Homeowner’s House in New Mexico?
In New Mexico, HOAs can foreclose on a homeowner’s house for unpaid liens from overdue assessments. Notice requirements and late periods are determined by the HOA’s governing documents.
There is no provision regarding if an HOA can evict tenants or homeowners. However, if the homeowner is leasing a tenant, the HOA may be able to evict the tenant. For example, an HOA may be able to evict a tenant if the lease was not properly authorized by the HOA.
In addition, the HOA may have other powers or restrictions regarding rental properties in its governing documents.
Can an HOA Enter a Homeowner’s Property in New Mexico?
No state statute in New Mexico governs HOAs entering a homeowner’s property. The powers of an HOA in entering a homeowner’s house will be listed in its governing documents.
Typically, an HOA may be able to enter a homeowner’s property due to an emergency, maintenance, or violation of any rules or regulations.
Except for emergencies, reasonable notice should be provided to the homeowner before the HOA is to enter the property. A reasonable timeline can range depending on the reason for entry between three days and a couple of weeks.
Where Do Homeowners File Complaints Against Their HOA in New Mexico?
The appropriate agency to file a complaint against an HOA depends on the type of complaint.
If a homeowner feels they are a victim of housing discrimination, they can file a complaint with the U.S. Department of Urban Housing or file a private lawsuit in New Mexico state or federal court.
For complaints concerning HOA fees, a homeowner can file a complaint with the New Mexico Attorney General, the Federal Trade Commission, or the Consumer Financial Protection Bureau. Under the Fair Debt Collection Practices Act, homeowners may also file in state or federal court within one year of the violation date.
A homeowner can bring all other complaints to state court in the appropriate jurisdiction by filing a claim.
Joining and Leaving an HOA in New Mexico
New Mexico state statutes do not have any explicit laws on joining or leaving an HOA. These clauses are outlined in the HOA’s governing documents.
Typically, there are two types of HOAs that govern members joining or leaving:
- Mandatory HOAs. When a person buys a home, they automatically become a member required to abide by any HOA rules listed in the governing documents. This usually includes that a homeowner is not able to leave the HOA freely.
- Voluntary HOAs. When a person buys a home, membership is a choice for each homeowner. If they choose to become a member, they may leave at any time by stopping their payments with the HOA.
To leave a mandatory HOA, a homeowner can sell their house or try to petition the HOA, court, or hire a private attorney to have their home removed. However, there is no guarantee the petition will be granted.
How to Dissolve an HOA in New Mexico
The process for dissolution of an HOA in New Mexico may be set forth in the HOA’s governing documents. If it is not, the HOA board must propose dissolution to HOA members at a meeting with proper notice of the meeting.
The HOA members need to vote at least ⅔ to adopt dissolution. If dissolution is adopted, the HOA must also propose a plan of distribution for its assets and debts to be approved in the same way as dissolution.
Once the plan has been executed, the HOA can file an Articles of Dissolution with the New Mexico Secretary of State. The New Mexico Secretary of State will issue a Certificate of Dissolution to the HOA as proof that the HOA has been fully dissolved.
Sources
- 1 N.M. Stat. Ann. § 47-16-4 (2013)
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A. An association organized after July 1, 2013 shall record a notice of homeowner association in the office of the county clerk of the county or counties in which the real property affected thereby is situated no later than thirty days after the date on which the association’s declaration is recorded as provided in Section 3 [47-16-3 NMSA 1978] of the Homeowner Association Act. B. An association organized prior to July 1, 2013 shall, before June 30, 2014, record a notice of homeowner association in the office of the county clerk of the county or counties in which the development is situated.
Source Link - 2 N.M. Stat. Ann. § 47-16-6 (2013)
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B. The association shall have a lien on a lot for any assessment levied against that lot or for fines imposed against that lot’s owner from the time the assessment or fine becomes due. If an assessment is payable in installments, the full amount of the assessment shall be a lien from the time the first installment becomes due. The association’s lien may be foreclosed in like manner as a mortgage on real estate…
Source Link - 3 N.M. Stat. Ann. § 47-16-18 (2019)
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B. Unless otherwise provided for in the community documents, the association may, after providing written notice and an opportunity to dispute an alleged violation other than failure to pay assessments: (1) levy reasonable fines for violations of or failure to comply with any provision of the community documents; and (2) suspend, for a reasonable period of time, the right of a lot owner or the lot owner’s tenant, guest or invitee to use common areas and facilities of the association.
Source Link - 4 N.M. Stat. Ann. § 47-16-16 (2015)
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An association shall not adopt or enforce a restriction related to the flying or displaying of flags that is more restrictive than the applicable federal or state law or county or municipal ordinance.
Source Link - 5 N.M. Stat. Ann. § 47-3-2 (2007)
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The legislature declares that the state of New Mexico recognizes that economic benefits can be derived for the people of the state from the use of solar energy. Operations, research, experimentation and development in the field of solar energy use shall therefore be encouraged. While recognizing the value of research and development of solar energy use techniques and devices by governmental agencies, the legislature finds and declares that the actual construction and use of solar devices, whether at public or private expense, is properly a commercial activity which the law should encourage to be carried out, whenever practicable, by private enterprise.
Source Link - 6 Over-the-Air Reception Devices Rule (OTARD Rule)
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Enforceable placement preferences must be clearly articulated in writing and made available to all residents of the community in question. A requirement that an antenna be located where reception or transmission would be impossible or substantially degraded is prohibited by the rule… A valid enforceable placement preference should not contain prohibited provisions such as prior approval or require professional installation… when an antenna is professionally installed, the installer often determines the location of the antenna at the time of installation based upon the type of antenna installed and the ability of the antenna to receive an acceptable quality signal.
Source Link - 7 When You Must Allow an HOA Representative to Enter Your Unit
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…an HOA representative can enter an owner’s unit in emergency situations, or for health and safety reasons… Many HOAs also have the right to enter an owner’s unit to maintain common elements… An HOA might also have the right to enter an owner’s unit to inspect for a violation of the development’s rules or regulations. Normally this is allowed only if the HOA has good reason to believe a violation is occurring… State statutes commonly require that HOAs provide an owner with “reasonable” notice. What’s considered “reasonable” depends on the situation. For example, prior notice of between three days and a week might be reasonable for an HOA wishing to enter an owner’s unit to perform periodic common area maintenance… if immediate entrance is necessary for health or safety reasons (such as if there is a fire in the unit), minimal or no notice is probably acceptable.
Source Link - 8 Can you refuse to join an HOA?
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… membership in voluntary HOAs is optional… If you enter into a voluntary HOA, you can leave whenever you want by stopping your payments, although you’ll stop receiving the benefits of the HOA… When you buy a house in a community governed by a mandatory HOA, you automatically become a dues-owing HOA member. When you become a member, you stay a member for as long as you own the property or until the HOA is dissolved (which is very rare). At your home’s closing, you will have to sign documents agreeing to abide by the HOAs rules and pay any assessments, fees, or fines associated with the HOA or incurred by violating HOA rules…. Unless you can gain enough support in your community to let you leave the HOA voluntarily, you will have to hire an attorney to try to convince a judge that you should be allowed to leave.
Source Link - 9 N.M. Stat. Ann. § 53-8-47 (1975)
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A. A corporation may dissolve and wind up its affairs in the following manner: (1) if there are members entitled to vote thereon, the board of directors shall adopt a resolution recommending that the corporation be dissolved, and directing that the question of the dissolution be submitted to a vote at a meeting of members entitled to vote thereon… A resolution to dissolve the corporation shall be adopted upon receiving at least two-thirds of the votes which members present at the meeting or represented by proxy are entitled to cast…
Source Link - 10 N.M. Stat. Ann. § 53-8-49 (1975)
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A. if there are members entitled to vote thereon, the board of directors shall adopt a resolution recommending a plan of distribution and directing the submission thereof to a vote at a meeting of members entitled to vote thereon, which may be either an annual or a special meeting. Written notice setting forth the proposed plan of distribution or a summary thereof shall be given to each member entitled to vote at the meeting, within the time and in the manner provided in the Nonprofit Corporation Act for the giving of notice of meetings of members. The plan of distribution shall be adopted upon receiving at least two-thirds of the votes which members present at such meeting or represented by proxy are entitled to cast…
Source Link - 11 N.M. Stat. Ann. § 53-8-52 (2003)
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- An original and a copy, which may be a photocopy of the original after it was signed or a photocopy that is conformed to the original, of the articles of dissolution shall be delivered to the commission [secretary of state]. If the commission [secretary of state] finds that such articles of dissolution conform to law… B. The certificate of dissolution, together with the copy of the articles of dissolution affixed thereto by the commission [secretary of state], shall be returned to the representative of the dissolved corporation. Upon the issuance of a certificate of dissolution, the existence of the corporation shall cease, except for the purpose of suits, other proceedings and appropriate corporate action by members, directors and officers as provided in the Nonprofit Corporation Act.
