How to Evict a Tenant in New Mexico

Eviction Notice On Door
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Every state enacts its own laws regulating a landlord/tenant relationship. These laws may generally set out landlord duties and tenant rights including the steps a landlord must take to evict a tenant.

Eviction in New Mexico is regulated by the state codes. Under New Mexico eviction laws, the landlord must serve the tenant with written advance notice whether the eviction is for some wrongdoing or not. If the landlord provides the requisite notice in the manner prescribed by law and the tenant does not move out, the landlord must take the matter to court.

The Eviction Process

The beginning of a landlord/tenant relationship is often marked by hope and optimism. The landlord has finally found an appropriate tenant and the tenant is embarking on a new chapter of her life in a new home. But, like many marriages end in divorce, a number of tenancies end in eviction.

Eviction is a legal process that the landlord uses to remove a tenant from the dwelling. It is essentially a forcible removal, since a tenant who is willing to move would simply do so when requested. In New Mexico, eviction can be for cause – that is, based on a tenant's conduct that violated the provisions of the written rental or lease agreement – or it can be for no reason at all, as long as appropriate notice is provided.

No-Cause Eviction Notices in New Mexico

A landlord can terminate a tenancy in New Mexico without giving any reason. This type of no-cause eviction notice is legal as long as it is not for an illegal purpose, like getting rid of a tenant because of her gender or as retaliation against her for reporting a code violation or exercising any other tenant right under New Mexico or federal law.

However, the landlord cannot do this from one day to the next. The amount of advance notice required depends on how the rental/lease agreement is structured. If the agreement is periodic, meaning the rent is paid in advance by the week or month, the landlord must give an amount of notice equal to that period. In a weekly tenancy, notice must be at least seven days, whereas for a monthly tenancy, it must be at least 30 days.

If the tenant and landlord have signed a lease, the landlord cannot evict without cause until after the term of the lease is up. For example, if the lease is for one year, the landlord can only terminate the tenancy at the end of that lease unless the tenant has done something wrong.

Eviction Notice for Unpaid Rent in New Mexico

If the tenant has done something wrong, New Mexico eviction laws allow the landlord to evict the tenant on shorter notice. That is when the rent payable under the rental agreement is past due, a landlord may give the tenant a 3-day notice to pay rent or quit.

That notice must specify how much rent is past due and order the tenant to pay it or vacate the rental unit within the 3-day period. While New Mexico laws do not specify exact language that must be used in this kind of notice, the notice must clearly present the tenant with his two options: pay up or get out.

Eviction Notice for Breach of Contract in New Mexico

If a tenant breaks the terms of the rental contract in some way other than failure to pay rent, the landlord can use a similar notice. The appropriate notice in New Mexico is a 7-day notice to remedy the violation or quit. Like the 3-day notice to pay rent or quit, the 7-day notice sets out two options for the tenant to choose between: remedying the violation or getting out of the premises.

What types of violations are usually the basis for this type of notice? Anything from smoking in a non-smoking unit to keeping a pet in a no-pet unit to subletting a portion of the premises to a third party when subletting is forbidden. The tenant can get back into compliance with his agreement by stopping smoking indoors, getting rid of the pet or getting rid of the roommate. If he doesn't, he must move out.

Unconditional Eviction Notice for Substantial Violation

If the tenant has committed a substantial violation of the rental agreement or the law, the landlord can give her a 3-day notice to get out, without making it conditional on failing to remedy the situation. For example, if the tenant is selling drugs on the property, the landlord must set that out in the notice and tell the tenant that, because of this conduct, she must get out in three days.

In the case of a substantial violation, New Mexico law does not give the tenant an opportunity to fix the violation. At the end of the three days, the tenant must be out or the landlord can file an eviction lawsuit against the tenant.

If the Tenant Fails to Comply

A tenant who gets a conditional notice can pay the rent or remedy the breach of contract and continue living in the unit. When a tenant who gets an unconditional notice to quit doesn't leave, or a tenant who gets a conditional notice fails to meet the conditions and doesn't leave, the landlord must continue the eviction process by filing suit.

The landlord cannot do a "self-help" eviction, changing the locks or tossing the tenant's possessions onto the street. Rather, New Mexico requires that the landlord to file an unlawful detainer complaint (also called a petition by owner for restitution) against the tenant. It can be brought in the district court of the county in which the real property is located.

Since this starts a court process, it must be served on the tenant with a summons. The tenant is given the opportunity to respond to the complaint and appear in court to offer defenses or tell her side of the story. If a tenant's rights are being violated, she can bring these issues to the attention of the court in her response papers. She can also raise cross-complaints on these matters.

Tenant Eviction Defenses in New Mexico

The Federal Fair Housing Act as well as the state’s Human Rights Act protect New Mexico tenants. The federal law prohibits housing discrimination against seven classes of people from being discriminated. That is, it is illegal to discriminate based on:

  • Color.
  • Disability status.
  • Familial status.
  • National origin.
  • Race.
  • Religion.
  • Sex.

The New Mexico Human Rights Act adds four additional protections. It is illegal in the state to discriminate against someone based on:

  • Ancestry.
  • Gender identity.
  • Sexual orientation.
  • Spousal affiliation.

Any of these types of discrimination can be used as a tenant defense in an eviction action.

New Mexico Writ of Execution/Restitution

If the court proceeding is heard and the court rules in favor of the New Mexico landlord, it issues an order requiring the tenant to vacate within three to seven days. If the tenant remains, the landlord can get a writ of execution or writ of restitution from the court. The landlord delivers this to the sheriff who goes to the property and removes the tenant.