47-12-1. Short title.

This act [47-12-1 to 47-12-6 NMSA 1978] may be cited as the "Land Use Easement Act".   

47-12-2. Definitions.

As used in the Land Use Easement Act [47-12-1 to 47-12-6 NMSA 1978]:   

A.     "holder" means any nonprofit corporation, nonprofit association or nonprofit trust, the purposes or powers of which include retaining or protecting the natural or open space values of real property, assuring the availability of real property for agricultural, forest, recreational or open space use, protecting natural resources or maintaining production uses of real property;   

B.     "land use easement" means a holder's nonpossessory interest in real property imposing any limitation or affirmative obligation the purpose of which includes retaining or protecting natural or open space values of real property, assuring the availability of real property for agricultural, forest, recreational or open space use or protecting natural resources; and   

C.     "third-party enforcement right" means a right expressly provided by the parties to a land use easement empowering a specifically identified nonprofit corporation, nonprofit association or nonprofit trust that, although eligible to be a holder, is not a holder, to enforce any term of the easement. No party shall have any third-party enforcement right unless that right is expressly provided for in a land use easement.   

47-12-3. Creation, conveyance, recording, acceptance and duration.

A.     Except as otherwise provided in the Land Use Easement Act [47-12-1 to 47-12-6 NMSA 1978], a land use easement may be created, conveyed, recorded, assigned, released, modified, terminated or otherwise altered or affected in the same manner as any other easement.   

B.     A land use easement is not effective and creates no rights or obligations until it is recorded in the office of the county clerk of the county or counties in which any part of the real property subject to the land use easement is located.   

C.     No right or duty in favor of or against a holder and no right in favor of a person having a third-party enforcement right arises under a land use easement prior to its acceptance by that holder and recordation of that acceptance in the office of the county clerk of the county where the real property subject to a land use easement is located, in whole or in part.   

D.     Except as provided in Subsection B of Section 4 [47-12-4 NMSA 1978] of the Land Use Easement Act, the term of a land use easement shall be the term stated in the easement.   

E.     No land use easement may impair an interest in real property existing at the time the land use easement is created, unless the owner of that interest is a party to the land use easement and consents to it.   

F.     The rights, obligations and duties created by a land use easement shall only be enforceable upon and impact the land located within that easement.   

47-12-4. Actions.

A.     An action affecting a land use easement may be brought by any of the following:   

(1)     an owner of an interest in the real property burdened by the land use easement;   

(2)     a holder of a land use easement; or   

(3)     a person having a third-party enforcement right.   

B.     This section does not affect the power of a court to modify or terminate a land use easement in accordance with any principle of law or equity.   

47-12-5. Validity of land use easement.

A land use easement is valid even though the land use easement:   

A.     is not appurtenant to an interest in real property;   

B.     imposes a negative covenant that is a restriction on the use of the land that is subject to the terms of the easement;   

C.     imposes affirmative obligations upon the owner of any interest in the burdened property or upon the holder;   

D.     does not touch or concern real property; or   

E.     does not establish any privity of estate or of contract.   

47-12-6. Effect on enforceable interests.

A.     Nothing in the Land Use Easement Act [47-12-1 to 47-12-6 NMSA 1978] invalidates any interest, whether designated as a land use easement, covenant, equitable servitude, restriction or easement that is enforceable under the laws of this state.   

B.     No interest benefiting or encumbering real property cognizable under the statutes or common law in effect in this state prior to the enactment of the Land Use Easement Act, nor any application or permit for a change of a point of diversion place or purpose of use of a water right at any time shall be impaired, invalidated or in any way adversely affected by reason of any provision of that act.   

C.     Nothing in the Land Use Easement Act shall be construed to diminish or impair the rights of any person authorized by the laws of this state to acquire rights-of-way, easements or other property rights through the exercise of eminent domain. Nothing in that act shall be construed to authorize a governmental body or any charitable corporation or trust to acquire a conservation or preservation restriction through the exercise of eminent domain.   

D.     Nothing in the Land Use Easement Act shall be deemed to constitute a denial of surface owner consent for the surface mining of coal under the Surface Mining Act [Chapter 69, Article 25A NMSA 1978] or the federal Surface Mining Control and Reclamation Act of 1977 or to restrict, condition or affect the alienability, commercial development or extraction of leasable or locatable minerals under federal laws.