Landlords in New Mexico can’t just change the locks, toss your belongings out on the front yard, or shut down essential utilities. A landlord must follow the eviction process in order to have a tenant evicted for any reason. Here's an overview of what this means for tenants in New Mexico.
Written by Upsolve Team.
Updated November 30, 2021
If you’re a tenant or renter in New Mexico, you have special legal protections if your landlord is trying to evict you. This article will provide a basic overview of your rights and how to take advantage of them. There will also be information on where to get legal help if you need guidance during the eviction process. If you’re a renter in New Mexico, you’ll find this article especially helpful if your landlord is trying to evict you for being behind on rent or if your lease is about to end.
What Is Eviction?
An eviction is where a landlord uses the court to get a renter or tenant removed from their property. For residential evictions, landlords must follow the rules of the New Mexico Uniform Owner Resident Relations Act (NM-UORRA). If a landlord tries to evict a residential tenant without going through the court, the landlord could be liable for an illegal eviction.
For the most part, the eviction process is the same regardless of the reason for the eviction. The primary difference is how much notice the landlord must give a tenant before evicting them.
Who Can Be Evicted in New Mexico?
Most evictions involving New Mexico renters take place between a landlord and tenant. A landlord-tenant relationship exists when two parties create a rental agreement or lease. This is a contract that outlines the rights and obligations of the landlord and the renter.
New Mexico also allows landlords to use the eviction process to remove individuals who aren’t a part of the lease agreement. For example, individuals living with a tenant can be evicted along with the tenant.
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Why Can Someone Be Evicted in New Mexico?
Evictions in New Mexico can occur for one or more of the following reasons:
The tenant is behind, short, or late on rent.
The tenant is materially noncompliant with the lease, not including the requirement to pay rent. Material noncompliance means the tenant’s violation of the lease is significant, but not substantial. Tenants can also be evicted for committing a substantial violation of the lease.
The lease has ended or there’s no lease.
The tenant is doing something that negatively affects the health and safety of others.
The eviction process is similar for each of these reasons. There are some minor differences, though, especially concerning the eviction notice requirements. Two of the most common reasons landlords evict tenants are nonpayment of rent and termination or expiration of the lease.
Late, Short, or Behind on Rent?
New Mexico is like many other states in that rent is considered late if it’s not paid on or by the due date. If the tenant must pay the rent by the first of the month, the rent is late by the second day of the month. State laws don’t provide a grace period that gives the tenant time after the due date to make the payment before it’s considered late. But your lease may contain a clause that grants you a rent payment grace period.
Lease Expiration or Termination
New Mexico allows landlords to evict tenants even when the tenant is current on rent and hasn’t violated any law or committed any lease violations. But landlords can only do this if the lease has expired. A lease will often expire because the current lease term has ended, but the landlord doesn’t want to renew or extend the lease.
Landlords may also evict tenants by terminating the lease. This could occur if the tenant does something that violates the lease, such as having a pet when the lease has a no-pet policy. The eviction process for lease termination and expiration are largely the same. But depending on why the tenant breached the lease, they may have a short period of time to fix the issue that’s leading to the eviction.
The New Mexico Eviction Process
Evictions can occur for both commercial and residential tenants. But this article, including the following sections, only focuses on residential evictions under the NM-UORRA.
What does a landlord have to do to begin an eviction?
The eviction process starts with the landlord giving the tenant a written eviction notice. The amount of notice and how the landlord must give the notice depends on the reason for the eviction.
For evictions for the nonpayment of rent, the landlord gives the tenant three days’ notice. This tells the tenant they have three days to either make up their past-due rent or move out. If they do neither, the landlord will begin eviction proceedings against them.
If the landlord wants to evict the tenant because they breached the lease, there are two paths the landlord can take, depending on the nature of the breach.
For “material noncompliance” evictions, the landlord must give the tenant seven days’ notice to either leave the rental property or fix the problem. If the tenant doesn’t fix the problem or leave by the deadline, the landlord can start eviction proceedings. If another material noncompliance occurs within six months, the landlord must provide another seven-day notice explaining the noncompliance. But the landlord isn’t required to allow the tenant to cure this second lease violation.
If there’s a “substantial violation” of the rental agreement, then the landlord must give the tenant three days’ notice before starting the eviction. The notice will also provide the tenant with at least three days to move out. Tenants who are evicted for substantial lease violations don’t get an opportunity to fix the problem. Examples of substantial violations of a lease include:
Intentional or reckless damage to property resulting in more than $1,000 in damages.
The sale, use, or manufacture of illegal drugs.
Any unlawful behavior that seriously harms another person.
If the landlord believes the tenant is responsible for something that significantly affects the health and safety of others, then the landlord must give the tenant seven days’ notice before starting an eviction. The landlord must also give the tenant a chance to correct the issue within that time period. If a tenant fails to move out or stop whatever is harming the health and safety of others, the landlord can then file an eviction lawsuit against the tenant.
If the lease is ending or there’s no lease, then the landlord must provide notice in accordance with the type of tenancy.
For a week-to-week tenancy, the landlord must give seven days’ notice.
For a month-to-month tenancy, the tenant gets 30 days’ notice.
For fixed-term leases, no notice is required as the tenant already knows when the current lease is expiring.
But most leases contain provisions explaining the automatic renewal process (if it exists) or how much notice the landlord will provide to the tenant if the landlord doesn’t want to renew the lease.
What happens once the eviction action is filed with the court?
The eviction action officially begins when the landlord goes to a magistrate, district, or metropolitan court to file a document called a Petition by Owner for Restitution. Also sometimes called a Complaint in Forcible Entry or Unlawful Detainer, this sets out the landlord’s reasons for evicting you.
The court then issues a summons. This has information about the eviction case, including what you can do and the time and day of the eviction court hearing. This hearing is usually 7-10 days after the landlord files their complaint with the court.
The landlord must serve you a copy of the complaint and summons (some courts may combine these documents into a Service Packet) at least seven days before the court date. The exact method of service (how they give you the papers) will depend on where the landlord filed the eviction action since different courts follow different rules. But generally speaking, service may be made by a:
Private process server, or
Person at least 18 years of age and who isn’t part of the eviction lawsuit.
The person serving the tenant may complete service in one of several ways, including:
Handing the documents to the tenant.
Mailing a copy of the documents to the tenant (or their representative) with a signed receipt.
Posting the documents at the tenant’s residence and mailing a copy to the tenant.
Giving the documents to someone who lives with the tenant, as long as this person is at least 16 years old and the landlord also mails the documents to the tenant’s last known address.
After being served with the complaint and summons, you have the option to file a formal answer. This is your response to the landlord’s complaint. It’s your first chance to identify what defenses you have to the eviction. You’re not required to file an answer. Instead, you can present your defenses at the eviction hearing.
If you don’t appear for the hearing, the court may enter a default judgment against you and grant your landlord the eviction. A court grants default judgments when one side to a lawsuit doesn’t appear in court or respond to another party’s allegations.
You must present your defenses to the eviction on the day of the hearing. Filing an answer beforehand only identifies the affirmative defenses and/or counterclaims you intend to raise at the hearing.
The format of the hearing will depend on where it’s held. If it’s in the district court, the hearing is similar to what you often see on television or in the movies, but without the extra drama. Eviction hearings held in a magistrate or metropolitan court are less formal, more like a small claims court proceeding. Regardless of which court holds the eviction trial, each side gets a chance to present its case and defenses, along with the ability to call witnesses and submit evidence.
Most landlords will seek monetary damages in addition to evicting you. Often, the eviction hearing only resolves the issue of whether you’ll be evicted or not. The court will normally hold a separate hearing to rule on monetary damages at a later date (whether requested by the landlord in the eviction action or tenant in a counterclaim).
Telling Your Side of the Story: Affirmative Defenses and Counterclaims
You’ll want to list your defenses in your answer. Then you’ll need to present them to the court at the eviction trial. Your defenses can take two possible forms.
One form is the affirmative defense. This is a legal defense you must raise on your own. You can’t rely on the judge to do it for you. It directly counters the landlord’s reasons for evicting you. In other words, if the court accepts your affirmative defense, the landlord won’t get to evict you. An example of an affirmative defense would be that your landlord is evicting you in retaliation for filing a complaint with the local health department about unsanitary conditions at your apartment.
Another form of eviction defense is the counterclaim. This is a legal claim that’s separate from the eviction but may relate to it. For instance, if your landlord illegally locked you out of your apartment, you could recover monetary damages in a counterclaim against the landlord.
What Happens After an Eviction Trial?
If the court finds in favor of the landlord, the court issues a judgment called the writ of restitution. This is like a court order that authorizes your eviction. A judge must give you at least three days to move out, but they aren’t allowed to give you more than seven days. If you don’t leave as ordered by the writ of restitution, a sheriff’s deputy will physically remove you from the property. As for your personal property, you’ll need to either remove it immediately or the sheriff’s deputy will lock up the property and tell you to make arrangements later to have your property taken somewhere else.
Any party may file an appeal after the eviction trial. Because many eviction cases are first heard in a metropolitan or magistrate court, those judgments get appealed to the district court. A party filing an appeal has 15 days to do so. If you want to continue living at the rental property during your appeal, you must continue paying your rent to your landlord, the court clerk, or a private escrow company.
Practical Tips for Tenants Facing Eviction in New Mexico
If you believe your landlord’s attempts to evict you are improper, you need to prove that to the court. To do this, you’ll want to get all the information necessary to support your claims. This means gathering documents, photographs, videos, social media screenshots, and anything else that relates to the eviction. If part of your defense to the eviction involves the rental property’s condition, it might be a good idea to have a municipal building inspector visit the property and issue a report about any problems with the property.
Do everything in your power not to miss your eviction hearing. If you have a good reason to have your court date rescheduled, the courts in New Mexico should be able to grant you a continuance. But you’ll need to ask for this continuance before your hearing. You can’t miss your court date, then ask for a new hearing date. If you do this, the court will likely deny your request because they’ll have already entered a default judgment against you.
If you get a chance to cure (fix) your breach of the lease, double-check any deadlines and procedures. For example, if you have to make up past rent, check to see if the landlord or property manager has a different process for you to make these additional rent payments. Also, be sure to get a receipt that notes when the payment was made.
Keep an open line of communication with your landlord. This will make the eviction process go more smoothly and can avoid any misunderstandings or confusion. It can also facilitate an agreement between you and your landlord.
If you’re prompt in responding to your landlord and letting them know what’s going on, they’re more likely to negotiate with you. Perhaps they’ll give you extra time to cure a lease violation or pay back rent. Or maybe they’ll be willing to drop the eviction lawsuit in return for your promise to leave by a certain time. This can be helpful as it keeps an eviction out of your rental history, which can make finding a new apartment easier.
Just keep in mind that whatever you agree on should be put into writing and signed by you and your landlord or their representative.
Finally, take advantage of the various landlord-tenant resources that are available. Evictions and housing issues are among the most common legal problems people face. So there are many nonprofit organizations and lawyers willing to offer New Mexicans free or low-cost legal advice.