Subject to the provisions of the declaration, a declarant has an easement through the common elements as may be reasonably necessary for the purpose of discharging a declarant's obligations or exercising special declarant rights, whether arising under the Condominium Act or reserved in the declaration.
History: Laws 1982, ch. 27, § 28.
Compiler's notes. — This section is substantially similar to § 2-116 of the Uniform Condominium Act.
COMMISSIONERS' COMMENT
1. This section grants to declarant an easement across the common elements, subject to any self-imposed restrictions on that easement contained in the declaration. At the same time, the easement is not an easement for all purposes and under all circumstances, but only a grant of such rights as may be reasonably necessary for the purpose of exercising the declarant's rights. Thus, for example, if other access were equally available to the land where new units are being created, which did not require the declarant's construction equipment to pass and repass over the common elements in a manner which significantly inconvenienced the unit owners, a court might apply the "reasonably necessary" test contained in this section to consider limitations on the declarant's easement. The rights granted by this section may be enlarged by a specific reservation in the declaration.
2. The declarant is also required to repair and restore any portion of the condominium used for the easement granted under this section. See § 4-119(b) [47-7D-19B NMSA 1978].
Am. Jur. 2d, A.L.R. and C.J.S. references. — 15A Am. Jur. 2d Condominiums and Cooperative Apartments §§ 14, 26, 34.
Proper party plaintiff in action for injury to common areas of condominium development, 69 A.L.R.3d 1148.
31 C.J.S. Estates § 153 et seq.
Structure 2021 New Mexico Statutes
Article 7B - Condominium Act - Creation, Alteration and Termination of Condominiums
Section 47-7B-1 - Creation of condominium.
Section 47-7B-2 - Unit boundaries.
Section 47-7B-3 - Construction and validity of declaration and bylaws.
Section 47-7B-4 - Description of units.
Section 47-7B-5 - Contents of declaration.
Section 47-7B-6 - Leasehold condominiums.
Section 47-7B-7 - Allocation of common element interests; votes; common expense liabilities.
Section 47-7B-8 - Limited common elements.
Section 47-7B-9 - Plats and plans.
Section 47-7B-10 - Exercise of development rights.
Section 47-7B-11 - Alterations of units.
Section 47-7B-12 - Relocation of boundaries between adjoining units.
Section 47-7B-13 - Subdivision of units.
Section 47-7B-14 - Easement for encroachments.
Section 47-7B-15 - Use for sales purposes.
Section 47-7B-16 - Easement rights.
Section 47-7B-17 - Amendment of declaration.
Section 47-7B-18 - Termination of condominium.
Section 47-7B-19 - Rights of secured lenders.