New Mexico Eviction Process

How to Evict a Tenant in New Mexico (5 Steps)

Step 1 – Serve Notice

Give the appropriate notice to the tenant, depending on the reason for eviction. You may serve the notice via any of the following methods, per NM. Stat. § 47-8-13(C) through (E):

• Hand delivery to the tenant.
• First-class mail with a certificate of mailing.
• One of the above two options plus posting on the property’s exterior door.

Step 2 – File for Possession

If the tenant does not solve the issue or leave within the notice period, you can file a lawsuit. File a petition by owner for restitution at the New Mexico magistrate court where your property is located. You will have to pay about $77 in filing fees.

The tenant must be served the complaint and summons by the sheriff of the county or anyone over 18 with no involvement in the case.

Step 3 – Attend Hearing

At least seven to 10 days after the tenant is served, the court will hold a hearing. If the tenant does not appear, the judge can make an immediate decision on eviction.

Either party can file for a seven day continuance at the hearing. Afterward, either party can file for an appeal.

Step 4 – Writ of Restitution Is Issued

If the eviction is granted, the court will issue a writ of restitution. The landlord must request this after the decision and it may be granted the same day or at a later date.

Step 5 – Possession of Property Is Returned

If the tenant does not move out after the writ of restitution is issued, then they may be forcibly removed by law enforcement. This must happen within three to seven days of the judgment.

Eviction Reasons

You may want to evict when the tenant is:

• Not paying rent.
• Breaking the terms in the lease either once or repeatedly.
• Staying at the property after a lease ends.
• Under a periodic lease the landlord wants to end.
• Violating health and safety codes on the property.
• Conducting illegal activity on the property.

These reasons are categorized as either “at-fault” or “no-fault” evictions. Most of the above are at-fault, meaning the tenant has done something wrong to lead to eviction. Ending a periodic lease, however, can be a no-fault reason, since the tenant does not have to violate any of their rules or responsibilities to cause the eviction.

At-Fault Evictions

At-fault evictions can either be “curable” or “incurable” in New Mexico. If curable, the tenant can stop the eviction process by:

• Paying back what they owe plus any late fees.
• Stopping a behavior that breaks the rules of the lease.
• Fixing a known problem on the property.

If incurable, the evicting offense is considered serious, and the tenant does not get a chance to solve the issue before being asked to move out.

1. Failure To Pay Rent

Overview:

• Landlord serves a three-day notice to pay rent to a tenant who has not paid.
• Curable by payment.
• See NM. Stat. § 47-8-33(D).

If a tenant misses a rent payment, a landlord can serve them a notice to pay or quit the day after the rent is due. This gives the tenant three days to pay or leave prior to the landlord seeking eviction in the courts.

2. Violating the Lease Agreement

Overview:

• Landlord serves a seven-day notice to comply — also known as a notice to remedy — to a tenant who breaks the rules of the lease agreement.
• If repeated violations occur, the landlord serves a seven-day unconditional quit notice requiring the tenant to leave.
• Can be curable if no illegal activity is involved, any property damage is fixable, and repeat violations don’t occur within a six-month period.
• See NM. Stat. § 47-8-33(A) and (B).

Examples of curable lease violations include:

• Incurring minor property damage.
• Subletting without the landlord’s consent.
• Allowing unauthorized guests or pets to stay on the property.
• Not allowing lawful entry to a unit from the landlord.

If the tenant breaks the same or another rule within a six-month period after receiving a notice to comply, the landlord can instruct them to leave with a seven-day notice to quit and no option to cure.

3. Health or Safety Violations

Overview:

• Landlord serves a seven-day notice to comply to a tenant who violates health or safety codes at the property.
• Can be curable if no illegal activity is involved and any property damage is fixable.
• See NM. Stat. § 47-8-33(A) and NM. Stat. § 47-8-22.

Health and safety violations are defined by:

• Acts or inaction that affect the well-being of the entire rental property.
• Any health, safety, building, or housing code violations that can cause health or safety issues to anyone at the property.

4. Conducting Illegal Activity

Overview:

• Landlord serves a three-day notice to quit to a tenant who has committed illegal acts on the property.
• Incurable.
• See NM. Stat. § 47-8-33(I).

Illegal acts that may lead to eviction include:

• Theft.
• Violence.
• Assault.
• Controlled substance creation, use, or sale.

5. Holdover Tenancy

Overview:

• Landlords can immediately file for eviction if a tenant stays on the property after their lease has ended.
• See NM. Stat. § 47-8-37.

A tenant is considered a “holdover” if they refuse to leave a property after their lease has ended. This is cause for an immediate eviction lawsuit.

No-Fault Evictions

A no-fault eviction occurs when the landlord decides to stop renting out a property or unit to a tenant in good standing. This cannot occur during a lease without just cause. Reasons for no-fault evictions can include when the owner wants to:

• Move into the property themselves or move a loved one in.
• Complete an extensive renovation on the property.
• Convert the property into something else.
• Sell the property or stop renting it out altogether.

To properly end any tenancy at no fault of the tenant, follow the rules set forth by N.M. Stat. § 47-8-37.

1. Ending a Month-to-Month Tenancy

Overview:

• Landlord uses a 30-day notice to terminate the tenancy.
• Tenant can choose to end the tenancy in the same manner.

2. Ending a Week-to-Week Tenancy

Overview:

• Landlord uses a seven-day notice to terminate the tenancy.
• Tenant can choose to end the tenancy in the same manner.

3. Ending a Fixed Term Lease

Overview:

• A landlord cannot end a tenancy during a fixed-term lease without cause.
• Unless specifically stated in the lease, the landlord does not have to notify the tenant of an upcoming lease expiry.
• Once the lease is over, if the tenant remains on the property, the landlord can file an eviction lawsuit.

Eviction Timeline

Tenant Rights in New Mexico

Certain types of evictions are illegal in order to protect tenants. For example, landlords cannot perform evictions on their own without the proper authorities. Also, landlords must not evict tenants as an act of revenge.

Self-Help Evictions

A “self-help” eviction occurs when a landlord does any of the following actions — or similar — to try to get a tenant to leave:

• Changing locks.
• Shutting off utilities.
• Blocking entrances.
• Removing or damaging the tenant’s personal property.
• Removing essential appliances or fixtures.

These are illegal in the State of New Mexico, per N.M. Stat. § 47-8-36.

Retaliatory Evictions

A “retaliatory” eviction occurs when a landlord evicts — or otherwise tries to get a tenant to leave — after they exercise a legal right like complaining about the property’s condition. Legally protected tenant rights include:

• Complaining about property issues to the landlord.
• Withholding rent due to a landlord neglecting the property’s maintenance.
• Complaining to the authorities about health and safety code violations.
• Making a complaint about housing discrimination to a governmental agency.
• Winning a lawsuit against the landlord.
• Testifying on behalf of another tenant.
• Joining a tenant’s union or organization.

N.M. Stat. § 47-8-39 prohibits evicting, raising rent, withholding maintenance services, or any similar acts in response to these protected tenant actions. If a landlord performs any self-help or retaliatory evictions, they may have to face and pay:

• Civil penalties.
• Restitution.
• Damages.
• 100% of the rent for each day they interrupted utility services (N.M. Stat. § 47-8-36).

Abandoned Property

Per N.M. Stat. § 47-8-34.1, owners must store any personal belongings the tenant leaves behind on the premises for at least three days after an eviction. This time period may be longer if agreed upon in advance.

The landlord must also provide adequate access and opportunity for the tenant to pick up their belongings. After three days, the landlord may dispose of the items by either claiming or selling them.

If keeping the items, the fair market value of them should:

• Go toward any outstanding amount the tenant owes the landlord.
• Any amount in excess of what’s owed should be sent to the tenant.

If selling the items, the proceeds should be dealt with similarly.

Resources

• Bernalillo County Metropolitan Court (where Albuquerque is located) forms and processes for filing civil complaints and motions, including eviction.
• Santa Fe landlord/tenant laws, information, and resources.
• New Mexico Legal Aid provides a Comprehensive Guide to Landlord-Tenant Law.