New Mexico bans HOA covenants that block child care homes
New Mexico bans HOA covenants that block child care homes
2026-09-15 · New Mexico · Legislation
The only change New Mexico made to its Homeowner Association Act in two legislative sessions arrived as Section 4 of a child care zoning bill. Senate Bill 96, signed by the Governor on March 10, 2026 as Laws 2026, Chapter 62, amended Section 47-16-18 NMSA 1978 so that a homeowner association may no longer enforce a covenant, rule or governing-document provision that blocks a registered or licensed child care home.1
What the statute now says
The operative language is a flat prohibition on three fronts. First, on the restriction itself:
“an association shall not adopt or enforce a restriction, covenant, condition, bylaw, rule, regulation, provision of a governing document or master deed provision or take any other action that effectively prohibits, unreasonably restricts or limits, directly or indirectly, the use of a lot as a child care home…”
Second, on money. An association “shall not require, assess or collect a fee, tax or assessment on a child care home… that is not also required, assessed or collected on all other lots within the same association.” A surcharge aimed at the child care operator is out, whatever it is called.
Third, on who wins a conflict: “in the event of a conflict between an association's restriction… and the early childhood education and care department's registration or licensing requirements for a child care home, that department's requirements shall take precedent.”
What an association may still enforce
The section is not a general exemption from the covenants. It expressly preserves uniformly applied association rules on “parking and traffic,” “noise or nuisance impacts,” “safety and security measures,” “architectural or exterior appearance standards,” and “use, scheduling or access to common elements.”
The word doing the work in that list is uniformly. A parking rule that applies to every lot survives. A parking rule written in response to one child care home does not.
How this became law when every HOA bill failed
The procedural record is the part worth a second read. SB 96 was sponsored by Sens. Heather Berghmans, Linda M. Trujillo and Linda Serrato and titled as a child care zoning bill. It went to the Senate Committees' Committee on January 22, 2026, was ruled germane to the 30-day session on January 28, drew a Do Not Pass on the original bill but a Do Pass on a committee substitute from Senate Health & Public Affairs on February 5, cleared Senate Tax, Business & Transportation on February 9, took a floor amendment and passed the Senate 25–13 on February 11. The House Commerce & Economic Development Committee reported it Do Pass on February 14 and the House passed it 41–23 on February 17. The Governor signed it on March 10, 2026.2
In the same two-session window, every bill introduced as an HOA bill died: HB 440 on lien foreclosure, SB 239 on an attorney general remedy, HB 232 on transfer fees, SB 98 on solar covenants, HB 122 on condominium occupancy. Section 47-16-18 — the very section SB 239 tried and failed to amend in 2025 — was amended anyway, by a bill filed under a different subject.
What a board has to do about it
Three practical consequences follow, and none of them waits for a complaint.
A use restriction that names day care, child care or “home business” is now partly unenforceable. The statute reaches restrictions that prohibit the use “directly or indirectly,” which takes in the common indirect routes: a commercial-use ban, a customer-traffic rule, a signage ban written broadly enough to stop a licence being posted, an owner-occupancy or single-family-use clause read to exclude a registered home.
Approval processes cannot be used as a substitute. Because the department's registration or licensing requirements take precedence in a conflict, an architectural or use-approval committee cannot condition approval on something the state's own licensing scheme does not require, and cannot withhold approval on a ground the licensing scheme has already resolved.
Fee schedules need a read-through. Any charge that lands on a child care home and not on every other lot — an increased assessment, a commercial-use fee, a parking permit charge, an insurance surcharge — is prohibited by subsection (2) whether or not it was adopted with child care in mind.
What to watch next
The broader lesson is a monitoring problem rather than a compliance one. New Mexico's Homeowner Association Act now changes through bills that are not filed as HOA bills, and nothing in the state's legislative tracking flags a covenant provision buried in Section 4 of a subject-matter bill. A board or manager watching only bills titled for associations would have missed this one entirely, and the association would have gone on enforcing a covenant the Legislature had voided.
The 58th Legislature convenes January 19, 2027 for a 60-day session, with prefiling open January 4–15, 2027.
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