Santa Fe, New Mexico - Tenant Eviction Process

How To Evict a Tenant / How Do I Evict a Tenant ?
EVICTION PROCESS IN NEW MEXICO – NEW MEXICO EVICTION PROCEDURE

• New Mexico Eviction Law
• Uniform Owner Resident Relations Act found within New Mexico Statutes Annotated (NMSA) § 47-8-1 through § 47-8-52
• Reasons for eviction
• Tenant not paying rent
• Lease violations
• Unauthorized pet (other than service animal)
• Unauthorized subleasing
• Unknown or unauthorized occupant
• Property damage
• Criminal activity
• Violation of rules and regulations
• Required Notices
• Week-to-week tenancy termination – 7 Day notice before the next rent payment is due NMSA § 47-8-37(A)
• Month-to-month tenancy termination – 30 Day notice before the next rent payment is due NMSA § 47-8-37(B)
• “Substantial” Violation of Rental Agreement – 3 Day notice NMSA § 47-8-33
• Non-compliance with Rental Agreement – 7 Day notice NMSA § 47-8-33, 47-8-37
• If a 2nd material non compliance occurs within 6 months of the initial breach, 7 Day notice is required to advise of termination NMSA § 47-8-33(B)
• Non-payment of rent – 3 Day notice NMSA § 47-8-33
• Eviction Suit
• Most frequently handled by Magistrate Court (Metro Court in Albuquerque), but sometimes may be handled by District Court
• Filing of Petition by Owner for Restitution
• Hearing date is set as soon as case is filed, typically 2 weeks out
• Petition and Hearing notice must be served on tenant
• At the first hearing, depending on tenant appearing and arguments in front of judge, judge might issue judgment or set case for trial
• If trial is set, want to gather evidence and witness in preparation for trial (typically 1-2 hour trial)
• If judgment, Judge typically provides 3-7 days to move out
• Landlord can also obtain Writ of Restitution empowering sheriff to carry out the eviction NMSA § 47-8-46
• Losing party may appeal to the District Court
• Writ of Execution or Garnishment may also be issued
• Personal Property
• Once a tenant has been evicted or voluntarily moves out, the landlord is required to hold any property left behind for only three days NMSA § 47-8-34.1(C). During this time Landlord must give tenant reasonable opportunity to come to the Property and move personal belongings
• After the three days the landlord does not have to store property NMSA § 47-8-34.1(C)
• Landlord may charge tenant reasonable costs of moving and storing property
• If property is not claimed, landlord may dispose of the property pursuant to NMSA § 47-8-34 rules

 

47-8-33. Breach of agreement by resident and relief by owner.
A.  Except as provided in the Uniform Owner-Resident Relations Act, 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 a 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 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 another 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, 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 an action for possession under Subsection I of this section, it shall be a defense that the resident took reasonable and lawful actions in defense of himself, others or his property.
M.  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.

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.

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.
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.

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.

47-8-47. Appeal stays execution.

A.  If either party feels aggrieved by the judgment, that party 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, within five days of the filing of the notice of appeal, pays to the owner or into an escrow account with a professional escrow agent 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, on a monthly basis on the date rent would otherwise become due. Payments pursuant to this subsection by a subsidized resident shall not exceed the actual amount of monthly rent paid by that resident. When the resident pays the owner directly, the owner shall immediately provide a written receipt to the resident upon demand. When the resident pays into an escrow account the resident shall cause such amounts to be paid over to the owner immediately upon receipt unless otherwise ordered by the court. Upon the failure of the resident or the escrow agent to make a monthly rent payment on the first day rent would otherwise be due, the owner may serve a three-day written notice on the resident pursuant to Subsection D of Section 47-8-33 NMSA 1978. If the resident or the resident's escrow agent fails to pay the rent within the three days, a hearing on the issue shall be scheduled within ten days from the date the court is notified of the failure to pay rent. In the case of an appeal de novo, the hearing shall be in the court in which the appeal will be heard. If, at the hearing, the court finds that rent has not been paid, the court shall immediately lift the stay and issue the writ of restitution unless the resident demonstrates a legal justification for failing to comply with the rent payment 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.

 

Disclaimer: The law is constantly changing and there may be times when the information on this web site will not be current. This information is provided for general informational purposes only and is not intended as legal advice. This information is not a comprehensive treatment of the subject and is not a substitute for advice from an attorney.