How to Evict a Tenant in New Mexico

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A New Mexico landlord cannot simply evict a tenant on a whim. They must follow proper procedures according to state law. For example, a landlord must serve a tenant with a notice stating their attempt to evict the tenant and the reasons for doing so. If the tenant doesn’t fix the problems within the time frame on the notice or refuses to leave the property, the landlord can begin eviction proceedings in court.

Renter and Landlord Obligations

Both landlords and tenants have obligations to each other. The landlord has a responsibility to keep a tenant’s unit safe and habitable. This includes keeping utilities in good working order and providing running hot and cold water. If a problem causes the unit to be uninhabitable, the renter must notify the landlord in writing of the issues, and the landlord's failure to repair them can be grounds to cancel a lease.

Conversely, the renter has obligations to the landlord. Aside from paying their rent promptly, renters must:

  • Comply with basic state code standards that affect health or safety.
  • Keep their unit clean and safe, and when moving out, leave it in the condition they found it except for normal wear and tear.
  • Dispose of all trash and waste in a clean and safe manner.
  • Keep plumbing and electrical fixtures in working order as their condition permits.
  • Use air conditioning, appliances, electrical, heating, plumbing, sanitary and ventilation systems and other facilities on the property, including elevators, in a reasonable fashion.
  • Not damage, deface, destroy, impair or remove any part of the property or knowingly permit someone else to do so.
  • Conduct themselves in a manner that does not disturb other tenants' peaceful enjoyment of the property.
  • Abide by condominium, cooperative housing agreement, or neighborhood association bylaws, covenants, regulations and rules.
  • Not knowingly consent or commit to another person intentionally committing a substantial violation.

Nonpayment of Rent

A landlord can evict a tenant for not paying rent on time. New Mexico considers a tenant's rent to be late on the day after the due date; if there are any grace periods, landlords will typically address them in the lease. When a rent payment is past due, the landlord will send the tenant a 3-Day Notice of Non-Payment of Rent.

The notice states that the renter has three days to pay what they owe, shows the amount of rent due and lets the renter know that the landlord has the right to terminate their tenancy. If the renter does not pay the amount owed within that time, the landlord can begin eviction proceedings.

Violating the Terms of a Rental Agreement

New Mexico landlords can evict tenants if they do not uphold their responsibilities under the terms of the lease or rental agreement. In this case, the landlord must provide the renter with a 7-Day Notice of Non-Compliance giving them seven days to correct the violation. If they do not fix it in that time period, the landlord can proceed with the eviction process.

Typical lease violations include subletting the unit, damaging the unit, living with too many people, or having a pet in a property that doesn't allow them. If the tenant commits a second rental or lease agreement violation, the landlord does not have to give them seven days to fix the issue — they can just start the eviction process.

Evicting Someone Without a Lease or Rental Agreement

New Mexico "hold over" tenants stay in their unit after their lease or rental agreement expires. Even though they do not have a contract with the landlord, they must be given notice before eviction proceeds. This includes renters without a lease and those with week-to-week and month-to-month tenancies.

If a tenant remains in their unit after they are given notice to leave, and that period expires, the landlord can start the eviction process. The amount of time in the tenant's notice depends on the tenancy type. For example:

Material Health and Safety Violations

A New Mexico landlord can evict a renter who violates building, safety, housing or health codes. Examples of these types of violations include allowing trash to pile up inside an apartment, causing a rodent or pest infestation, or deliberately damaging wiring or plumbing on the property.

In this circumstance, the landlord will give the tenant a 7-Day Notice of Noncompliance. If they do not fix the issue, the landlord can start eviction proceedings. This notice allows the landlord to serve the renter with an eviction notice again if they commit the same violation a second time within six months. In that instance, the landlord can force the renter to move out with just seven days' notice.

Illegal Activity and Eviction

Illegal activity is considered a "substantial violation" of a lease under New Mexico law. It includes, but is not limited to, these actions:

  • Sexual assaults.
  • Illegal distribution, manufacture, possession, sale or use of controlled substances.
  • Illegal use of a deadly weapon.
  • Illegal acts that cause serious harm.
  • Forceful theft or attempted theft.
  • Entry with intent to commit theft or assault.
  • Reckless or intentional property damage valued at $1,000 or higher.

Landlords must give renters involved in illegal activities a Three-Day Unconditional Quit Notice. If the tenant remains on the property after that time, the landlord can start the eviction process.

Serving the Eviction Petition

To evict a tenant, a New Mexico landlord must file a petition in their local district or magistrate court. Magistrate fees vary, but filing an eviction petition in New Mexico District Court costs $132. The landlord must file these documents and pay the filing fee to the court clerk’s office to begin the eviction action:

A sheriff will serve the renter with the summons and petition within seven to 10 days before the court hearing. They may serve the tenant in any of these ways:

  • Giving a copy to the renter in person.
  • Leaving a copy where the renter can be found.
  • Mailing a copy to the renter (that they will sign for).
  • Leaving a copy with someone over 15 years old at the renter’s residence and mailing it to the renter if the first three methods of delivery fail.
  • If none of these attempts work, leaving a copy with the renter's employer, mailing one to their last known address, and mailing another to their place of employment.

If the tenant does not send a return receipt showing they received the summons within 23 days, the court will perform another service method.

Eviction Court Process

New Mexico does not require renters to file a formal answer with the court to show up at the hearing, although they can file an answer if they wish. If the renter does not appear, the hearing does not continue, and the court can rule on the eviction the same day.

Both parties may request a continuance of seven days, if needed, for example, if a renter needs to obtain legal counsel. If the judge rules in favor of the eviction, it will issue a Writ of Restitution based on a request from the landlord, which can be issued the same day as the hearing.

Appealing an Eviction Decision

Either party can appeal the decision. However, if the renter files an appeal, the eviction will not be postponed during that time, unless the renter pays the landlord rent or puts it into a special escrow account within five days of filing the appeal.

Removing a Tenant from a Rental Property

A Writ of Restitution is the renter’s last notice to leave the property; it gives them the option to move out before the sheriff returns and forcibly removes them. The sheriff will remove the tenant from the property within three to seven days after the landlord wins the case.

Retaliatory Evictions in New Mexico

Landlords cannot just evict a tenant without a court order and cannot act illegally to encourage the renter to leave. They cannot:

  • Threaten to remove or act to remove the renter.
  • Change the locks.
  • Turn off any services or utilities to the unit.
  • Remove a renter's personal property or appliances from the renter’s apartment.
  • File an eviction lawsuit against a renter who complains to a government agency, becomes a residents' union or association member, or gives the landlord a written complaint asking them to make repairs within six months.

When a tenant leaves the unit, but fails to take their personal property, the landlord must store it for 30 days and send a written notice to the tenant by first-class mail that the property will be disposed of if they do not claim it within that time. If the lease agreement ends by a Writ of Restitution, the landlord does not have an obligation to store the property after three days of its execution.

New Mexico Eviction Process and Tenant Defenses

When evicting a tenant in New Mexico, it is important that a landlord follows all the rules; if they do not, the eviction they seek may not be valid. For example, if a renter fails to pay rent, the landlord must send them a 3-Day Notice of Nonpayment of Rent.

If the landlord fails to give the renter this notice and begins the eviction process in court, the renter can use the landlord’s failure to send the notice as an eviction defense. The eviction would cease, and the landlord would then have to give the renter proper notice and file a new eviction petition with the court.

This defense does not stop the eviction, it only delays it. Once the landlord fixes the issues, the eviction process will continue. Landlords that attempt "self-help" or retaliatory evictions can be sued by a tenant for damage and possession of the rental unit.

Housing Discrimination and Tenant Rights

According to the federal Fair Housing Act, it is also illegal for a landlord to discriminate against a renter based on their disability, familial status (including minors under 18 and pregnant women), gender, national origin, race and religion. Additionally, New Mexico’s Human Rights Act protects renters against discrimination for their ancestry, color, gender identity, sexual orientation and spousal affiliation.