The term "real estate", as used in Chapter 47 NMSA 1978, shall be so construed as to be applicable to lands, tenements and hereditaments, including all real movable property and leaseholds. As used in this section "leasehold" means an estate in real estate or real property held under a lease.
History: Laws 1851-1852, p. 372; C.L. 1865, ch. 44, § 2; C.L. 1884, § 2749; C.L. 1897, § 3940; Code 1915, § 4758; C.S. 1929, § 117-102; 1941 Comp., § 75-101; 1953 Comp., § 70-1-1; 1991, ch. 234, § 3.
ANNOTATIONSCross references. — For void indemnity agreements, see 56-7-1 NMSA 1978.
The 1991 amendment, effective April 4, 1991, added the section heading; added "and leaseholds" at the end of the first sentence; added the second sentence; and made a minor stylistic change.
Validating clauses. — Laws 1991, ch. 234, § 4 defined "leasehold" to mean an estate in real estate or real property held under a lease and validates as correct and legally effective filings or recordings to give constructive notice any actions taken prior to April 4, 1991 to file or record leases, memoranda, assignments or amendments thereto, leasehold mortgages or other writings affecting leaseholds or any interests in leaseholds in accordance with legal requirements for the filing or recording of writings affecting the title to real estate or real property.
Section not applicable to conveyance by decree or master. — The definition of "real estate" as contained in this section as originally enacted could not have been intended to control the meaning of the same word in Section 47-1-12 NMSA 1978, relating to conveyance by decree or master. State ex rel. Truitt v. Dist. Court of Ninth Judicial Dist., 1939-NMSC-061, 44 N.M. 16, 96 P.2d 710.
Leaseholds conveyable as personalty. — Though inclusion of leaseholds under this section makes conveyances of leaseholds subject to the rules and procedures that pertain to the conveyance of real property, it does not change them from personal into real property. Resolution Trust Corp. v. Binford, 1992-NMSC-068, 114 N.M. 560, 844 P.2d 810.
Lease for a term of years is not real estate. State ex rel. Truitt v. Dist. Court of Ninth Judicial Dist., 1939-NMSC-061, 44 N.M. 16, 96 P.2d 710 (decided prior to 1991 amendment including leaseholds within the definition).
Reformation of sublease deemed personal. — An action to reform a sublease with reference to rentals and renewals was strictly personal, and district court was without jurisdiction to enter decree adjudicating issues therein, in the absence of personal service of summons in state of nonresident defendant. State ex rel. Truitt v. Dist. Court of Ninth Judicial Dist., 1939-NMSC-061, 44 N.M. 16, 96 P.2d 710, (decided prior to 1991 amendment including leaseholds within the definition).
Section does not attempt to convert what was personal property at common law into real estate, but only to bring leasehold estates within the compass of the conveyancing statutes. Garrison Gen. Tire Serv., Inc. v. Montgomery, 1965-NMSC-077, 75 N.M. 321, 404 P.2d 143 (decided prior to 1991 amendment including leaseholds within the definition).
Lis pendens held valid. — Because the legislature retroactively has validated the filing of interests in leaseholds for giving of constructive notice, and a notice of lis pendens may act merely as constructive notice to third persons of a fact open to public notoriety, the notice of lis pendens is valid. Resolution Trust Corp. v. Binford, 1992-NMSC-068, 114 N.M. 560, 844 P.2d 810.
Intention controls whether chattel considered realty. — Only three general tests have been subscribed to so be applied in determining whether an article used in connection with realty is to be considered a fixture. First, annexation to the realty, either actual or constructive; second, adaptation or application to the use or purpose to which that part of the realty to which it is connected is appropriated; and third, intention to make the article a permanent accession to the freehold. In determining whether personal property loses or retains its identity as a chattel by being placed on land, the general intention of the parties is a controlling factor. Garrison Gen. Tire Serv., Inc. v. Montgomery, 1965-NMSC-077, 75 N.M. 321, 404 P.2d 143.
Townhouse is real estate. — Where plaintiffs purchased a new townhouse and the underlying lot from the builder; the purchase price included gross receipts taxes the builder paid on the value of the townhouse, the lot was realty and the townhouse was a tenement and plaintiff could not deduct the gross receipts taxes on their federal income tax returns on the theory that plaintiffs paid the tax on personal property in the form of the material used to construct the townhouse. Casey v. Comm'r of Internal Revenue, 830 F.2d 1092 (10th Cir. 1987).
Law reviews. — For article, "Toward Clarification of New Mexico's Real Property Statutes," see 1 Nat. Res. J. 163 (1961).
For note, "Vendor and Purchaser - Increased Risks of Forfeiture and Malpractice Resulting from the Use of Real Estate Contracts: Albuquerque National Bank v. Albuquerque Ranch Estates, Inc.," see 15 N.M.L. Rev. 99 (1985).
For comment, "Survey of New Mexico Law: Property Law," see 15 N.M.L. Rev. 345 (1985).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Property §§ 13 to 19, 48, 49, 51.
Solid mineral royalty as real or personal property, 68 A.L.R.2d 728.
Oil and gas royalty as real or personal property, 56 A.L.R.4th 539.
Air-conditioning appliance, equipment, or apparatus as fixture, 69 A.L.R.4th 359.
Mine tailings as real or personal property, 75 A.L.R.4th 965.