2018 New Mexico Statutes
Chapter 3 - Municipalities
Article 33 - Improvement Districts
Section 3-33-23 - Improvement district; assessments; terms of payment; liens.

A. The governing body may, by ordinance:

(1) establish the time and terms of paying the assessment or installments on the assessment, including but not limited to any provision for differing optional time periods over which installments of assessments for the same district may be paid and, at the discretion of the governing body, differing interest rates on such assessments that are payable over different time periods; provided that in the situation where the governing body provides for such optional time periods for payment of assessment installments, the ordinance shall set a limit on the time during which the affected property owner must select one of the specified options in writing and shall provide that failure to so select one of the options within the time limit conclusively establishes the selection of a specific option designated in the ordinance;

(2) set any rate or rates of interest upon deferred payments of the assessment or provide for setting, by resolution, of the rate or rates of interest upon deferred payments after sale of bonds or assignable certificates as provided in Section 3-33-24 NMSA 1978, which shall commence from the date of publication or posting of the ordinance levying the assessment; provided that the same interest rate shall be set for assessments that are payable over the same time period; and provided further that no rate or rates of interest in excess of twelve percent a year upon such deferred payments of the assessment shall become effective unless the state board of finance or any successor thereof at any time approves a higher interest rate or rates in writing based upon the determination of the state board of finance that the higher rate is reasonable under existing or anticipated bond market conditions, which approval shall be conclusive;

(3) fix penalties to be charged for delinquent payment of an assessment;

(4) establish procedures and standards for an adjustment of assessment in order to allow transfer of a parcel free of an assessment lien, accomodate [accommodate] subdivision of an assessed parcel or accommodate property line corrections and adjustments without changing the original payment schedule, the priority or original amount of the assessment. Such an adjustment of assessment may allow the owner of the original tract of land to pay off any pro rata share of the assessment lien in advance of the schedule of payments. The procedures and standards may also provide for the method of assessment on the newly created parcels to vary from the method of assessment used on the original tract; and

(5) provide for the payment of any assessments levied pursuant to Chapter 3, Article 33 NMSA 1978 from other funds received by any owner of a tract or parcel in an improvement district in a location also intended by the governing body for the stimulation of manufacturing, industrial, commercial or business development pursuant to Section 3-33-4.1.

B. After the publication or posting of the ordinance levying an assessment as provided in Section 3-33-22 NMSA 1978, the assessment together with any interest or penalty accruing to the assessment is a lien upon the tract or parcel of land so assessed. Such a lien is coequal with the lien for general ad valorem taxes and the lien of other improvement districts and is superior to all other liens, claims and titles. Unmatured installments are not deemed to be within the terms of any general covenant or warranty. All purchasers, mortgagees or encumbrancers of a tract or parcel of land so assessed shall hold the tract or parcel of land subject to the lien so created unless the assessment lien is adjusted pursuant to this section.

C. Within sixty days after the publication or posting of the ordinance ratifying an assessment roll and levying the assessments, the municipal clerk shall prepare, sign, attest with the municipal seal and record in the office of the county clerk a claim of lien for any unpaid amount due and assessed against a tract or parcel of land.

D. Any tract or parcel so assessed shall not be relieved from the assessment or lien by the sale of the tract or parcel of land for general taxes or any other assessment, subject to the provisions of Section 3-33-30 NMSA 1978. The statute of limitations shall not begin to run against an assessment until after the last installment of the assessment becomes due.

E. The fact that an improvement is omitted for any benefited tract or parcel of land does not invalidate a lien or assessment made against any other tract or parcel of land.

History: 1953 Comp., § 14-32-16, enacted by Laws 1965, ch. 300; 1979, ch. 108, § 1; 1981, ch. 44, § 3; 1991, ch. 199, § 14.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Cross references. — For municipal liens, see 3-36-1 NMSA 1978 et seq.

For property tax lien, see 7-38-48 NMSA 1978.

For proof of publication, see 14-11-4 to 14-11-6 NMSA 1978.

For statute of limitations, see 37-1-4 NMSA 1978.

The 1991 amendment, effective April 4, 1991, deleted "foreclosure" following "liens" in the catchline; inserted "or posting" following "publication" in two places; in Subsection A, inserted "or provide for setting, by resolution, of the rate or rates of interest upon deferred payments after sale of bonds or assignable certificates as provided in Section 3-33-24 NMSA 1978" and substituted "levying" for "ratifying" near the beginning of Subsection A(2) and added Subsections A(4) and A(5); in Subsection B, substituted "levying an assessment" for "ratifying an assessment levied" in the first sentence and added "unless the assessment lien is adjusted pursuant to this section" at the end of the final sentence; inserted "and levying the assessments" in Subsection C; deleted former Subsection E, pertaining to foreclosure; substituted "for any benefited tract" for "in front of any tract" in Subsection F; designated former Subsection F as Subsection E; and made minor stylistic changes throughout this section.

Theory upon which municipal special assessments may be levied is that the property charged receives a corresponding physical, material and substantial benefit from the improvement, and the property assessed will be enhanced in value to the extent of the burden imposed. Waltom v. City of Portales, 1938-NMSC-022, 42 N.M. 433, 81 P.2d 58.

Power of municipality extends to making provision for payment of such assessments and deferred payment interest rates. Munro v. City of Albuquerque, 1943-NMSC-050, 48 N.M. 306, 150 P.2d 733.

Nature of assessments. — Municipal special assessments are quasi-taxes laid to enable the discharge of some of the functions of government, and the power to impose them is related to the taxing power. Waltom v. City of Portales, 1938-NMSC-022, 42 N.M. 433, 81 P.2d 58.

Liability for payment was in rem. — A legislative intent that the only liability for payment of bonds was in rem and not in personam was indicated. Munro v. City of Albuquerque, 1943-NMSC-050, 48 N.M. 306, 150 P.2d 733.

Priority of liens. — The legislature may provide that the lien of taxes obtained by special assessments shall be paramount to all prior liens created by contract, although statute was enacted subsequent to the lien by contract. City of Albuquerque v. City Elec. Co., 1927-NMSC-036, 32 N.M. 401, 258 P. 574.

Priority of existing liens. — Prior existing assessment liens which have been duly filed or recorded are superior to future liens for local improvement assessments. City of Albuquerque v. Middle Rio Grande Conservancy Dist., 1941-NMSC-021, 45 N.M. 313, 115 P.2d 66.

Security interest. — A security interest in property held by the small business administration was not subordinate to a special assessment which was not a tax due on the property, and which, under New Mexico law was on the same plane as a lien for general taxes. United States v. City of Albuquerque, 465 F.2d 776 (10th Cir. 1972).

Statutes elevating special assessment liens to parity with liens for general taxes did not violate constitutional provision against enactment of special or local laws, nor the constitutional provision against the release, exchange or diminution of any obligation or liability owed by any person or corporation to the state or a municipal corporation, except by payment or by a proper judicial proceeding. Waltom v. City of Portales, 1938-NMSC-022, 42 N.M. 433, 81 P.2d 58.

Four-year statute of limitations applies and runs against special assessments for street paving obligations, since such assessments are not levied for governmental purposes and are not "taxes." Altman v. Kilburn, 1941-NMSC-023, 45 N.M. 453, 116 P.2d 812.

Voluntary payment of part of assessment, payable in installments, was not of itself sufficient to estop one from defense of confiscation in suit to foreclose lien for unpaid installment. City of Clovis v. Scheurich, 1929-NMSC-022, 34 N.M. 227, 279 P. 876.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 70A Am. Jur. 2d Special or Local Assessments §§ 178 to 222.

Priority as between tax lien and lien of special assessment, 5 A.L.R. 1301, 65 A.L.R. 1379, 99 A.L.R. 1478.

Validity of promise based on invalid paving assessment, 20 A.L.R. 1326.

Liability of municipality because of its inability, refusal, or failure to collect cost of improvements from property primarily liable, 38 A.L.R. 1271, 51 A.L.R. 973, 172 A.L.R. 1030.

Inclusion in assessment of amount to cover delinquencies as contrary to constitutional guaranties, 40 A.L.R. 1352, 42 A.L.R. 1185.

Constitutionality of statute extinguishing or impairing lien of special assessments on sale of property for taxes, 53 A.L.R. 1140.

Transfer or assignment of municipality's right to enforce assessment or lien for local improvements, 55 A.L.R. 667.

General funds or credit of municipality, statute which provides for use of, in event of default or delay in payment of, or inability to collect, or insufficiency of, special assessments for local improvements, 70 A.L.R. 176, 135 A.L.R. 1287.

Unpaid public improvement assessment as breach of covenant or defect in vendor's title, 72 A.L.R. 302.

Judicial sale, assessment for local improvements as taxes within statute providing for payment of taxes out of proceeds, 73 A.L.R. 1227.

Judgment in action or proceeding involving an installment of an assessment for a public improvement as res judicata as regards other installments of assessment, 74 A.L.R. 880.

Constitutionality of statute giving priority to lien for public improvements over pre-existing contractual lien, 78 A.L.R. 513.

Liquidation of indebtedness incident to abandoned project cost of which, if made, would have been assessed against property benefited, 82 A.L.R. 559.

Validity and effect of agreement by property owner to pay assessment, 86 A.L.R. 779, 127 A.L.R. 551, 167 A.L.R. 1030.

Reimbursement by owner, character of action or proceeding in which purchaser at invalid sale for local improvement assessment may secure, and provisions of decree or judgment as to relief, 86 A.L.R. 1208.

Public property, manner of enforcing special assessments against, 95 A.L.R. 689, 150 A.L.R. 1394.

Power and duty to include in a periodical special assessment the amount of a deficiency for a previous period resulting from delinquent assessments which may eventually be paid, 96 A.L.R. 1275.

Anticipating payment of tax or special improvement assessment or deferred installments thereof, right of taxpayer, 96 A.L.R. 1475.

Constitutionality, construction, and application of statute permitting release of part of property subject to liens or special assessments, 100 A.L.R. 418.

Specific performance of parol contract to convey realty, payment of assessments as part performance entitling vendee to, 101 A.L.R. 1109.

Constitutionality of statute providing for relieving property subject to assessment for improvements from all or part of such assessment, 105 A.L.R. 1169.

Certificate or statement of treasurer or other public official regarding unpaid assessments against specific property, effect of, 107 A.L.R. 568, 21 A.L.R.2d 1273.

Forfeiture or sale of land to state or political subdivision for nonpayment of taxes as suspending right to enforce special assessment or improvement lien, 113 A.L.R. 920.

Installment plan of payment as affecting duration of lien of special assessment, 114 A.L.R. 399.

Right of one governmental unit, or officer thereof, to compensation for collecting or disbursing special assessments levied by or owed to another governmental unit, 114 A.L.R. 1098.

Relation back of title or interest embraced in escrow instrument upon final delivery or performance of condition, as affecting liability for assessments, 117 A.L.R. 89.

Right of holder of bond or other instrument representing or based upon assessment for benefits or improvement to purchase at tax sale or acquire tax title and hold same in his own right as against owner of land, 123 A.L.R. 398.

Failure of property owner to make formal election to avail himself of privilege of paying taxes or special assessment in installments, 140 A.L.R. 1442.

Tax sale as freeing property from possibility of further assessments for benefits to land, 11 A.L.R.2d 1133.

Power to remit, release or compromise assessments for public improvements, 28 A.L.R.2d 1425.

Contract or covenant exempting or releasing property from special assessment, power of municipality, 47 A.L.R.2d 1185.

Interest accruing during the construction of the public improvement and running until special assessments therefor become due, power to include in special assessments, 58 A.L.R.2d 1343.

Election of remedies, exclusiveness of method prescribed by statute or ordinance for enforcement of special assessment for public improvement or service, 88 A.L.R.2d 1250.

Superiority of special or local assessment lien over earlier private lien or mortgage, where statute creating such special lien is silent as to superiority, 91 A.L.R.2d 638.

Duty as between life tenant and remainderman as respects payment of improvement assessments, 10 A.L.R.3d 1309.

63 C.J.S. Municipal Corporations §§ 1452, 1564, 1569, 1570.