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Also see our new revised New Mexico State page at
http://rhol.org/rental/NM/New Mexico.asp
The following excerpts and compilation from state law may not reflect some recent amendments.
The best source for current information are the links we provide to state government web sites.
New Mexico Landlord Tenant Law
47-8-13. Service of notice.
47-8-18. Deposits.
47-8-33. Breach of agreement by resident and relief by owner.
47-8-35. Claim for rent and damages.
47-8-40. Action for possession by owner.
47-8-42. Petition for restitution.
47-8-43. Issuance of summons.
47-8-44. Absence from court of defendant.
47-8-45. Legal or equitable defense.
47-8-46. Writ of restitution.
47-8-47. Appeal stays execution.
47-8-48. Prevailing party rights in law suit; civil penalties.
47-8-49. Unlawful and forcible entry.
47-8A-1. Rent control prohibition.
47-8-13. Service of notice.
A. A person has notice of a fact if:
(1) he has actual knowledge of it;
(2) he has received a notice or notification of it; or
(3) from all facts and circumstances known to him at the time in question he has
reason to know that it exists.
B. A person notifies or gives a notice or notification to another by taking steps reasonably
calculated to inform the other in ordinary course, whether or not the other actually comes to
know of it.
C. A person receives a notice or notification:
(1) when it comes to his attention;
(2) where written notice to the owner is required, when it is mailed or otherwise
delivered at the place of business of the owner through which the rental agreement was made or
at any place held out by him as the place for receipt of the communication; or
(3) if written notice to the resident is required, when it is delivered in hand to the
resident or mailed to him at the place held out by him as the place for receipt of the
communication, or in the absence of such designation, to his last known place of residence.
D. Notwithstanding any other provisions of this section, notice to a resident for
nonpayment of rent shall be effective only when hand delivered or mailed to the resident or posted
on an exterior door of the dwelling unit. In all other cases where written notice to the resident is
required, even if there is a notice by posting, there must also be a mailing of the notice by first
class mail or hand delivery of the notice to the resident. The date of a posting shall be included in
any notice posted, mailed or hand delivered, and shall constitute the effective date of the notice. A
posted notice shall be affixed to a door by taping all sides or placed in a fixture or receptacle
designed for notices or mail.
E. Notice, knowledge or a notice or notification received by the resident or person is
effective for a particular transaction from the time it is brought to the attention of the resident or
person conducting that transaction, and in any event from the time it would have been brought to
the resident's or person's attention if the resident or person had exercised reasonable diligence.
F. Where service of notice is required under the Uniform Owner-Resident Relations Act
[47-8-1 to 47-8-51 NMSA 1978], and the item is mailed but returned as undeliverable, or where
the last known address is the vacated dwelling unit, the owner shall serve at least one additional
notice if an alternative address has been provided to the owner by the resident.
History: 1953 Comp., 70-7-13, enacted by Laws 1975, ch. 38, 13; 1995, ch. 195, 5.
47-8-18. Deposits.
A. An owner is permitted to demand from the resident a reasonable deposit to be applied by the owner to recover damages, if any, caused to the premises by the resident during his term of residency.
(1) Under the terms of an annual rental agreement, if the owner demands or receives of the resident such a deposit in an amount greater than one month's rent, the owner shall be required to pay to the resident annually an interest equal to the passbook interest permitted to savings and loan associations in this state by the federal home loan bank board on such deposit.
(2) Under the terms of a rental agreement of a duration less than one year, an owner shall not demand or receive from the resident such a deposit in an amount in excess of one month's rent.
B. It is not the intention of this section to include the last month's prepaid rent, which may be required by the rental agreement as a deposit as defined in Subsection D of Section 47-8-3 NMSA 1978. Any deposit as defined in Paragraph (1) of Subsection A of this section shall not be construed as prepaid rent.
C. Upon termination of the residency, property or money held by the owner as deposits may be applied by the owner to the payment of rent and the amount of damages which the owner has suffered by reason of the resident's noncompliance with the rental agreement or Section 47-8-22 NMSA 1978. No deposit shall be retained to cover normal wear and tear. In the event actual cause exists for retaining any portion of the deposit, the owner shall provide the resident with an itemized
written list of the deductions from the deposit and the balance of the deposit, if any, within thirty days of the date of termination of the rental agreement or resident departure, whichever is later. The owner is deemed to have complied with this section by mailing the statement and any payment required to the last known address of the resident. Nothing in this section shall preclude the owner from retaining portions of the deposit for nonpayment of rent or utilities, repair work or other
legitimate damages.
D. If the owner fails to provide the resident with a written statement of deductions from the deposit and the balance shown by the statement to be due, within thirty days of the termination of the tenancy, the owner:
(1) shall forfeit the right to withhold any portion of the deposit;
(2) shall forfeit the right to assert any counterclaim in any action brought to recover that deposit;
(3) shall be liable to the resident for court costs and reasonable attorneys' fees; and
(4) shall forfeit the right to assert an independent action against the resident for damages to the rental property.
E. An owner who in bad faith retains a deposit in violation of this section is liable for a civil
penalty in the amount of two hundred fifty dollars ($250) payable to the
resident.
History: 1953 Comp., 70-7-18, enacted by Laws 1975, ch. 38, 18; 1985, ch. 146, 2; 1989,ch. 340, 2.
47-8-33. Breach of agreement by resident and relief by owner.
A. Except as provided in the Uniform Owner-Resident Relations Act [47-8-1 to 47-8-51
NMSA 1978], if there is noncompliance with Section 47-8-22 NMSA 1978 materially affecting
health and safety or upon the initial material noncompliance by the resident with the rental
agreement or any separate agreement, the owner shall deliver a written notice to the resident
specifying the acts and omissions constituting the breach, including the dates and specific facts
describing the nature of the alleged breach, and stating that the rental agreement will terminate
upon a date not less than seven days after receipt of the notice if the breach is not remedied in
seven days.
B. Upon the second material noncompliance with the rental agreement or any separate
agreement by the resident, within six months of the initial breach, the owner shall deliver a written
notice to the resident specifying the acts and omissions constituting the breach, including the dates
and specific facts describing the nature of the alleged breach, and stating that the rental agreement
shall terminate upon a date not less than seven days after receipt of the notice. If the subsequent
breach occurs more than six months after the initial breach, it shall constitute an initial breach for
purposes of applying the provisions of this section.
C. The initial notice provided in this section shall state that the rental agreement will
terminate upon the second material noncompliance with the rental agreement or any separate
agreement by the resident, within six months of the initial breach. To be effective, any notice
pursuant to this subsection shall be given within thirty days of the breach or knowledge thereof.
D. If rent is unpaid when due and the resident fails to pay rent within three days after
written notice from the owner of nonpayment and his intention to terminate the rental agreement,
the owner may terminate the rental agreement and the resident shall immediately deliver
possession of the dwelling unit; provided that tender of the full amount due, in the manner stated
in the notice, prior to the expiration of the three-day notice shall bar any action for nonpayment of
rent.
E. In any court action for possession for nonpayment of rent or other charges where the
resident disputes the amount owed because:
(1) the resident has abated rent pursuant to Section 47-8-27.2 or 47-8-4 NMSA
1978; or
(2) the owner has allocated rent paid by the resident as payment for damages to the
premises, then, if the owner is the prevailing party, the court shall enter a writ of restitution
conditioned upon the right of the resident to remedy within three days of entry of judgment. If the
resident has satisfied the judgment within three days, the writ shall be dismissed. If the resident
has not satisfied the judgment within three days, the owner may execute upon the writ without
further order of the court.
F. Except as provided in the Uniform Owner-Resident Relations Act, the owner may
recover damages and obtain injunctive or other relief for any noncompliance by the resident with
the rental agreement or this section or Section 47-8-22 NMSA 1978.
G. In any judicial action to enforce a remedy for which prior written notice is required,
relief may be granted based only upon the grounds set forth in the written notice served; provided,
however, that this shall not bar a defendant from raising any and all defenses or counterclaims for
which written notice is not otherwise required by the Uniform Owner-Resident Relations Act.
H. When the last day for remedying any breach pursuant to written notice required under
this act [the Uniform Owner-Resident Relations Act] occurs on a weekend or federal holiday, the
period to remedy shall be extended until the next day that is not a weekend or federal holiday.
I. If the resident knowingly commits or consents to any other person in the dwelling unit
or on the premises knowingly committing a substantial violation, the owner shall deliver a written
notice to the resident specifying the time, place and nature of the act constituting the substantial
violation and that the rental agreement will terminate upon a date not less than three days after
receipt of the notice.
J. In any action for possession under Subsection I of this section, it shall be a defense that
the resident is a victim of domestic violence. If the resident has filed for or secured a temporary
domestic violence restraining order as a result of the incident that is the basis for the termination
notice or as a result of a prior incident, then the writ of restitution shall not issue. In all other
cases where domestic violence is raised as a defense, the court shall have the discretion to evict
the resident accused of the violation, while allowing the tenancy of the remainder of the residents
to continue undisturbed.
K. In any action for possession under Subsection I of this section, it shall be a defense that
the resident did not know of, and could not have reasonably known of or prevented, the
commission of a substantial violation by any other person in the dwelling unit or on the premises.
L. In any action for possession under Subsection I of this section, if the court finds that the
action was frivolous or brought in bad faith, the petitioner shall be subject to a civil penalty equal
to two times the amount of the monthly rent, plus damages and costs.
History: 1953 Comp., 70-7-33, enacted by Laws 1975, ch. 38, 33; 1977, ch. 130, 1; 1995,ch. 195, 14.
47-8-35. Claim for rent and damages.
If the rental agreement is terminated, the owner is entitled to possession and may have a claim for
rent and a separate claim for damages for breach of the rental agreement and reasonable attorney's
fees as provided in Subsection C of Section 33 [47-8-33 NMSA 1978] of the Uniform
Owner-Resident Relations Act.
History: 1953 Comp., 70-7-35, enacted by Laws 1975, ch. 38, 35.
47-8-37. Notice of termination and damages.
A. The owner or the resident may terminate a week-to-week residency by a written notice
given to the other at least seven days prior to the termination date specified in the notice.
B. The owner or the resident may terminate a month-to-month residency by a written
notice given to the other at least thirty days prior to the periodic rental date specified in the
notice.
C. If the resident remains in possession without the owner's consent after expiration of the
term of the rental agreement or its termination, the owner may bring an action for possession and
if the resident's holdover is willful and not in good faith the owner, in addition, may recover the
damages sustained by him and reasonable attorney's fees. If the owner consents to the resident's
continued occupancy, Subsection C of Section 15 [47-8-15 NMSA 1978] of the Uniform
Owner-Resident Relations Act applies.
History: 1953 Comp., 70-7-37, enacted by Laws 1975, ch. 38, 37.
47-8-40. Action for possession by owner.
A. Notwithstanding Subsections A and B of Section 47-8-39 NMSA 1978, an owner may
bring an action for possession if:
(1) the violation of the applicable minimum building or housing code was caused
primarily by lack of reasonable care by the resident or other person in his household or upon the
premises with the resident's consent;
(2) the resident is in default in rent;
(3) there is a material noncompliance with the rental agreement that would
otherwise give rise to the owner's right to terminate the rental agreement;
(4) a resident knowingly commits or consents to any other person in the dwelling
unit or on the premises knowingly committing a substantial violation; or
(5) compliance with the applicable building or housing code requires alteration,
remodeling or demolition that would effectively deprive the resident of use of the dwelling unit.
B. The maintenance of an action under Subsection A of this section does not release the
owner from liability under Section 47-8-20 NMSA 1978.
History: 1953 Comp., 70-7-40, enacted by Laws 1975, ch. 38, 40; 1995, ch. 195, 19.
47-8-42. Petition for restitution.
The person seeking possession shall file a petition for restitution with the clerk of the district or
magistrate court. The petition shall contain:
A. the facts, with particularity, on which he seeks to recover;
B. a reasonably accurate description of the premises; and
C. the requisite compliance with the notice provisions of the Uniform Owner-Resident
Relations Act [47-8-1 to 47-8-51 NMSA 1978].
The petition may also contain other causes of action relating to the residency, but such causes of
action shall be answered and tried separately, if requested by either
party in writing.
History: 1953 Comp., 70-7-42, enacted by Laws 1975, ch. 38, 42.
47-8-43. Issuance of summons.
A. The summons shall be issued and directed, with a copy of the petition attached to the
summons, and shall state the cause of the complaint, the answer day for other causes of action and
notice that if the defendant fails to appear, judgment shall be entered against him. The summons
may be served pursuant to the New Mexico rules of civil procedure and returned as in other
cases. Trial of the action for possession shall be set as follows:
(1) for any matter brought by the owner for possession, not less than seven or
more than ten days after the service of summons; or
(2) for any matter brought by the resident for possession, not less than three or
more than five days after the service of summons.
B. Upon finding of good cause, the court may continue the date of hearing on the action
for possession for up to seven days from the date of the initial hearing.
History: 1953 Comp., 70-7-43, enacted by Laws 1975, ch. 38, 43; 1995, ch. 195, 20.
47-8-44. Absence from court of defendant.
If the defendant shall not appear in response to the summons, and it shall have been properly
served, the court shall try the cause as though he were present.
History: 1953 Comp., 70-7-44, enacted by Laws 1975, ch. 38, 44.
47-8-45. Legal or equitable defense.
On or before the day fixed for his appearance, the defendant may appear and answer and assert
any legal or equitable defense, setoff or counterclaim.
History: 1953 Comp., 70-7-45, enacted by Laws 1975, ch. 38, 45.
47-8-46. Writ of restitution.
A. Upon petition for restitution filed by the owner if judgment is rendered against the
defendant for restitution of the premises, the court shall declare the forfeiture of the rental
agreement and shall, at the request of the plaintiff or his attorney, issue a writ of restitution
directing the sheriff to restore possession of the premises to the plaintiff on a specified date not
less than three nor more than seven days after entry of judgment.
B. Upon a petition for restitution filed by the resident, if judgment is rendered against the
defendant for restitution of the premises, the court shall, at the request of the plaintiff or his
attorney, issue a writ of restitution directing the sheriff to restore possession of the premises to
the plaintiff within twenty-four hours after entry of judgment.
History: 1953 Comp., 70-7-46, enacted by Laws 1975, ch. 38, 46; 1995, ch. 195, 21.
47-8-47. Appeal stays execution.
A. If either party feels aggrieved by the judgment, he may appeal as in other civil actions.
An appeal by the defendant shall stay the execution of any writ of restitution; provided that in
cases in which the resident is the appellant, the execution of the writ of restitution shall not be
stayed unless the resident shall, within five days of the filing of the notice of appeal, pay into an
escrow account established by the trial court an amount equal to the rental amount that shall come
due from the day following the judgment through the end of that rental period. The resident shall
continue to pay the monthly rent established by the rental agreement at the time the complaint was
filed, into the escrow account on a monthly basis on the date rent would otherwise become due.
Payments into an escrow account pursuant to this subsection by a subsidized resident shall not
exceed the actual amount of monthly rent paid by that resident. Such amounts shall be paid over
to the owner monthly unless otherwise ordered by the trial court. Upon the resident's failure to
make any monthly escrow deposit on the first day rent would otherwise come due, the owner
shall serve a three-day written notice on the resident pursuant to Subsection B of Section 47-8-33
NMSA 1978. If the resident fails to deposit the rent within three days, a hearing on the issue shall
be scheduled within ten days from the date the court is notified of the failure to deposit rent. The
trial court shall lift the stay and issue the writ of restitution forthwith, unless the resident
demonstrates a legal justification for failing to comply with the escrow requirement.
B. In order to stay the execution of a money judgment, the trial court, within its
discretion, may require an appellant to deposit with the clerk of the trial court the amount of
judgment and costs or to give a supersedeas bond in the amount of judgment and costs with or
without surety. Any bond or deposit shall not be refundable during the pendency of any appeal.
C. If judgment is rendered in favor of the owner, all money remaining in the escrow
account established by the court shall be paid over by the court, following judgment, to the owner
without penalty or charges.
History: 1953 Comp., 70-7-47, enacted by Laws 1975, ch. 38, 47; 1989, ch. 253, 2; 1995,ch. 195, 22.
47-8-48. Prevailing party rights in law suit; civil penalties.
A. If suit is brought by any party to the rental agreement to enforce the terms and
conditions of the rental agreement or to enforce any provisions of the Uniform Owner-Resident
Relations Act [47-8-1 to 47-8-51 NMSA 1978], the prevailing party shall be entitled to
reasonable attorneys' fees and court costs to be assessed by the court.
B. Any owner who violates a provision of Section 47-8-36 or 47-8-39 NMSA 1978 shall
be subject to a civil penalty equal to two times the amount of the monthly rent.
C. Any resident who intentionally violates a provision of Subsection F of Section 47-8-22
NMSA 1978 shall be subject to a civil penalty equal to two times the amount of the monthly rent.
History: 1953 Comp., 70-7-48, enacted by Laws 1975, ch. 38, 48; 1995, ch. 195, 23.
47-8-49. Unlawful and forcible entry.
The laws and procedures of New Mexico pertaining to complaints of unlawful and forcible entry
shall apply to actions for possession of any premises not subject to the provisions of the Uniform
Owner-Resident Relations Act [47-8-1 to 47-8-51 NMSA 1978] or the Mobile Home Park Act
[Ch. 47, art. 10 NMSA 1978].
History: 1953 Comp., 70-7-49, enacted by Laws 1975, ch. 38, 49; 1995, ch. 195, 24.
47-8A-1. Rent control prohibition.
A. No political subdivision or any home rule municipality shall enact an ordinance or resolution that controls or would have the effect of controlling rental rates for privately owned real property.
B. This section does not impair the right of a state agency, county or municipality to otherwise manage or control its property.
C. The provisions of Subsection A of this section do not apply to privately owned real property for which benefits or funding have been provided under contract by federal, state or local governments or a governmental instrumentality for the express purpose of providing reduced rents to low- or moderate-income tenants.
History: Laws 1991, ch. 23, § 1. |