What a New Mexico board can still enforce against a home child care operator
What a New Mexico board can still enforce against a home child care operator
2026-09-15 · New Mexico · Legislation
New Mexico's 2026 child care law tells associations what they may not do. What a board may still do is not obvious from the statute — and the answer comes partly from the record of how the bill was amended.1
What the statute forbids
Section 4 of Senate Bill 96, Laws 2026 Chapter 62, signed March 10, 2026, amended Section 47-16-18 NMSA 1978. 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.”
Nor may it “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.”
And in a conflict between an association restriction and the early childhood education and care department's registration or licensing requirements, “that department's requirements shall take precedent.”
What the statute preserves
The section expressly keeps 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.”
Why that list is there
According to the community association industry's own national advocacy account, it is there because it was negotiated. The Community Associations Institute states that it “opposed New Mexico SB 96, which as initially written would have forced associations to accept the presence of home-based childcare facilities without preserving the association's ability to adopt and enforce reasonable, uniformly applied rules addressing parking, traffic, common-area use, amenities, liability, insurance, and architectural standards” — and that its advocates “were able to successfully negotiate amendments, and the bill passed… with CAI's support.”
The practical line for a board
You cannot ban it, and you cannot charge for it. That much is on the face of the statute and admits of no argument. A use restriction reaching child care directly or indirectly — a commercial-use ban, a customer-traffic rule, a signage ban broad enough to stop a licence being posted, a single-family-use clause read to exclude a registered home — is unenforceable against a child care home. So is any charge that lands on that lot and not on every other.
You may still enforce uniformly applied rules of general application — parking, traffic, noise, common-area and amenity use, architectural standards — provided the rule is not a back-door prohibition and is not applied only to the child care home.
That second proposition should be labelled honestly. It is a reading of the enacted text combined with the industry's own account of what the amendment did. No New Mexico court has construed the subsection, and it contains no express savings clause for rules of general application. It is a reasoned inference, not a settled rule.
Where a rule genuinely collides with a licensing requirement — a fence height, a gate latch, an outdoor play surface, an egress door — the statute puts the burden on the association to accommodate, not on the provider to seek a variance. The department's requirements take precedence.
The test to apply before enforcing anything
Two questions, in order.
Does this rule apply to every lot? If it was adopted after a child care home appeared, or if it is enforced only against that lot, it will not survive. A parking rule that applies community-wide survives; the same rule written in response to one household does not.
Does enforcing it prevent the use? The statute reaches restrictions that prohibit “directly or indirectly.” A rule that is uniform in form but that makes operating a registered child care home impossible in practice is an indirect prohibition.
A board that can answer both questions in writing before it acts has a defensible position. One that cannot is inviting a dispute in which the statute is unambiguous on the two points that matter most.
Why this law is the outlier
Across the 2025 and 2026 sessions, every bill filed as an HOA bill died: lien foreclosure limits, a transfer fee ban, an attorney general remedy, solar covenant definitions, condominium occupancy requirements. The Homeowner Association Act was amended once, and it happened inside a child care zoning bill.
New Mexico was not alone. The industry places it in a 2026 cohort with Indiana, Rhode Island, Tennessee and Vermont on home-based child care legislation; a comparable Nevada bill passed in 2025 and was vetoed; a broader home-based-business bill carried over in Kansas is opposed on the ground that it lacks association protections.
The monitoring lesson
A board or manager watching only bills titled for associations would have missed this entirely — and gone on enforcing a covenant the Legislature had voided. The same is true of the two other 2025–26 changes that reach New Mexico associations: remote meeting authority arrived through a nonprofit corporations bill, and the only recording-statute amendment arrived at Section 148 of a tax bill.
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