Breaking a Lease Early in New Mexico

Last Updated: September 8, 2023 by Phil Ahn

In New Mexico, a tenant can end a fixed-term lease early without penalty if one of several conditions are met, such as a privacy violation by the landlord. If none of the conditions are met, the tenant is liable for all remaining rent until a new tenant is found.

1. Active Military Duty

Military duty allows a tenant to break a lease early in New Mexico, without penalty. Federal law allows active service members who are relocated due to deployment or permanent change of station to break a lease early
[1]
. This protection begins on the date in which the tenant enters active duty and ends between 30-90 days after the date of discharge.

What Qualifies as Military Duty?

To qualify to break a lease early in New Mexico for military duty, all of the following conditions must be met
[2]
:

1. Servicemember Status. A tenant must be an active duty member of the military, Reserve, National Guard (mobilized under federal orders for more than 30 consecutive days), or be a commissioned officer of the Public Health Service or the National Oceanic and Atmospheric Administration.
2. Deployment. The tenant must receive a permanent change of station (“PCS”) order or deployment orders for a period of at least 90 days.
3. Prior Signed Lease. A tenant must have signed the lease prior to active military service.

How to Prove or Verify Military Duty

To prove or verify military duty in New Mexico, a tenant should give the landlord both of the following documents:

1. A military ID (example) and
2. Permanent Change of Station (PCS) orders (example) OR a letter from the tenant’s commanding officer (example)

If a landlord doubts the authenticity of a tenant’s request to terminate a lease due to military duty, the landlord may submit a Record Request to obtain a report certifying active duty status of a tenant. However, the landlord must create an account to use the Record Request.

How to Terminate a Lease Due to Military Duty

For a tenant to terminate a lease early due to military duty, they must provide the landlord with written notice and proper documentation. The lease does not terminate immediately—the earliest a tenant could terminate the lease is 30 days after the notice is delivered.

For example, if the notice was delivered on the 23rd of March and the rent is due on the 1st of each month, the earliest the lease can terminate is May 1st. Therefore, rent is still due for the month of April.

2. Early Termination Clause

A tenant can break a lease early in New Mexico, without penalty, if an early termination clause exists in the lease. A tenant would only be able to break a lease early if an early termination clause exists.

An early termination clause will allow a tenant to end a lease early by paying a penalty. After breaking the lease through an early termination clause, the tenant will be able to end the lease 30-60 days after providing notice.

Early Lease Termination Agreement

When a lease does not contain an early termination clause, a landlord and tenant could still opt to mutually end the agreement early. After writing the terms of the mutual agreement, the landlord and tenant would sign the agreement and start complying with the agreed upon terms in terminating the lease.

3. Domestic or Sexual Violence

In New Mexico, tenants who are victims of domestic or sexual violence are protected by local New Mexico ordinances, and can terminate their lease early without facing any penalties or consequences
[3]
. As long as the tenant can provide the landlord with sufficient proof of the abuse, they are entitled to this protection.

What Qualifies as Domestic Violence?

In New Mexico, for an act of domestic violence to qualify as grounds for breaking a lease, all must be true:

1. It is committed against the tenant or child of a tenant by a household member
2. It is intended to result in harm, injury, or sexual assault OR it reasonably places the victim in fear of imminent harm or assault

How to Prove or Verify Domestic Violence

A tenant can prove or verify domestic violence by providing the landlord with one of the following:

• Documentation of the stalking, assault, or abuse from a licensed healthcare provider or someone who is otherwise qualified or
• A copy of a court issued:
  • Temporary injunction
  • Temporary ex parte order
  • Protective order or
  • An order of emergency protection

Landlords are not permitted to request court documents that are not part of the public record. The orders are considered to be official court documents since they have been signed and stamped by a judge. Landlords may verify their legitimacy by consulting the list of current judges in the state.

To further verify if the court documents are legitimate, a landlord may call the court and ask for the clerk to confirm that the order was issued.

A healthcare provider or another qualified individual will sign the documentation showing evidence of domestic violence. While the provider cannot discuss the incidents with the landlord, the landlord can contact the provider to verify the document’s legitimacy.

How to Terminate a Lease Due to Domestic Violence

To terminate a lease early for domestic violence in New Mexico, a tenant must provide the landlord with proper documentation and 30 days’ written notice of termination. The tenant remains liable for any damage done to the rental unit as well as the rent due for the final month.

4. Uninhabitable Living Conditions

In New Mexico, a tenant can break a lease early, without penalty, due to uninhabitable living conditions if all of the following are true:

1. Certain health and safety codes are not met
2. The tenant notifies the landlord about the issue
3. The landlord fails to make repairs within a reasonable period of time
   [4]
   

What Qualifies as Uninhabitable Living Conditions

New Mexico law set forth specific instances that qualify as uninhabitable living conditions. To start, a unit must fail to meet certain physical health and safety standards under the implied warranty of habitability that are not as a result of the tenant’s actions or negligence.

Here are a few examples of conditions that meet habitability requirements:

• Working electrical and plumbing systems
• Working heating and air conditioning systems
• Places to remove garbage and waste
• Running hot and cold water

Any situation that materially affects the physical health or safety of an ordinary tenant makes that rental unit uninhabitable. For example, if the rental unit contains dangerous mold, it will be considered uninhabitable.

To break a lease for uninhabitable conditions, the landlord must notify the landlord. The notice must be in writing of the condition. After a reasonable time passes, if the landlord has not made the repairs, the lease is terminated.

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How to Prove or Verify Uninhabitable Living Conditions

In New Mexico, to prove or verify uninhabitable living conditions, a tenant must show all of the following:

1. Proof of the issue (i.e., a photo)
2. Proof the tenant gave notice of the issue to the landlord (i.e., certified mail)
3. Proof the issue remains

Upon receiving notice, the landlord may verify the conditions by inspecting the property. If the tenant intends to make the repair themselves, the tenant must provide the landlord with a copy of the repair bill and receipt for the payment.

How to Terminate a Lease Due to Uninhabitable Living Conditions in New Mexico

A tenant seeking to terminate their lease early due to unlivable conditions should provide the landlord with written notice. The letter should indicate that the tenant is terminating the lease because the landlord has not resolved the issues and, if feasible, should include evidence of the violation and a notice demanding repairs.

The tenant is entitled to a prorated refund of rent from the date of termination or the date the tenant moves out, whichever is later.

If the landlord disputes the legitimacy of the uninhabitable conditions, they may file a complaint with the New Mexico District Court asking a judge to determine whether the unit is truly uninhabitable.

5. Tenant Death

In New Mexico, a tenant’s estate can terminate a lease early, without penalty, if a tenant dies before the expiration of a lease.

What Qualifies as a Tenant Death?

The law in New Mexico specifies that if the tenant who signed the lease was the only occupant over 18 years old, their death would be a valid reason for terminating the lease. If there are minors living with the tenant who passed away, the landlord will work with their new legal guardian(s) to resolve the situation.

How to Prove or Verify a Tenant Death

To confirm tenant death, the estate can provide the landlord with the deceased tenant’s death certificate, or the landlord may contact the New Mexico Department of Health to request a copy of the tenant’s death certificate.

The personal representative of the deceased tenant’s estate, also known as an executor or administrator, must provide the landlord with a copy of the tenant’s will or a court order outlining the person’s role as the estate’s representative.

How to Terminate a Lease Due to a Tenant Death in New Mexico

In New Mexico, if a representative of the estate wants to end a lease early because of tenant death, they must notify the landlord in writing. The lease will terminate upon receipt of the written notice. Then, the representative must remove the tenant’s belongings from the property and sign an inventory of the removed items.

The tenant’s estate will still be responsible for any past due rent and any damages to the premises that are beyond normal wear and tear. Until the lease is officially terminated, the tenant’s estate will still be responsible for rent.

6. Unenforceable or Voidable Lease

In New Mexico, a tenant can break a lease early without penalty if there are unenforceable clauses or provisions that make the lease voidable
[5]
. Specifically, a tenant can break a lease early if the lease was signed under duress, if the tenant is a minor, or if the unit is illegal.

What Qualifies as an Unenforceable or Voidable Lease

In New Mexico, a lease would be deemed unenforceable or voidable if any of the following are true:

• A tenant was forced to sign the lease under duress. Duress is a defense to a signing when there is coercion by means of physical force or an unlawful threat that eliminates one’s free will to do what they want.
• The party signing the lease is a minor. In New Mexico, a minor is someone under the age of 18. With regards to leases, anyone can sign one, including a minor. But because leases are generally viewed as contracts, and a minor cannot be bound by their contracts, the law will automatically allow the minor to cancel, or “void” the contract. The minor can choose whether to honor the contract or void the obligation.
• The unit is illegal. An illegal unit is one that is used for residential purposes, but is not registered with the proper authorities as required by law. These are units that don’t comply with legal requirements for housing, such as too-low ceilings, no address, no dedicated gas/electric meter, or improper electrical systems.
• The tenant agrees to take the premises “as is.” Under the implied warranty of habitability, the facilities and services provided at the leased premises must allow the unit to be occupied for its reasonably intended purpose as a dwelling unit.
• The tenant waives their right to a hearing. The landlord cannot make the tenant agree to waive their rights to a hearing or confession of judgment.

How to Prove or Verify an Unenforceable or Voidable Lease

A tenant who wishes to prove that a lease was signed under duress must be able to demonstrate that they did not sign the lease voluntarily. Usually, duress is evidenced by threats of harm or physical violence, but the tenant must also prove that those threats were the reason they entered into the lease. The burden of proof then falls on the other party to demonstrate that the tenant was not coerced into signing the lease.

To prove or verify that the party signing the lease was a minor, the easiest way will be to prove documentation of a birth certificate showing exactly when the tenant was born. Once confirmed as a minor, they will then be given the choice of whether they want the lease to be void.

To prove or verify that the unit is illegal, a tenant can search public files at the local housing inspection department or agency. A tenant can search these files online by locating the “Certificate of Occupancy” document. Generally, every city or county will have a database where an individual can input the address of the property in question. Simply search “[the county or city name] + certificate of occupancy.”

To prove or verify that the tenant took the leased premises “as is” or has waived their right to a hearing, a tenant will need to look in the lease for language specifying the waiver of those rights,

How to Terminate a Lease Due to an Unenforceable Clause or Void Lease

If a lease is considered void or unenforceable, the lease is immediately terminated and it is as if the lease was never signed. Therefore, the tenant can move out immediately and does not have to pay rent anymore.

Furthermore, because the agreement is viewed as never having existed, any security deposits paid should be returned. The first step is asking the landlord to return the security deposit. However, if the landlord claims they do not owe money, a tenant may have to resort to filing a lawsuit in small claims court.

7. Landlord Harassment or Privacy Violation

In New Mexico, a tenant can terminate a lease early due to landlord harassment or privacy violations
[6]
. However, a court must determine whether landlord harassment occurred before a tenant can break the lease.

What Qualifies as Landlord Harassment

In New Mexico, the following behavior qualifies as landlord harassment:

• Landlord Entry. In New Mexico, landlords are required to provide notice (generally 24 hours) before entering a tenant’s home. Repeatedly entering a tenant’s home without notice qualifies as landlord harassment.
• Constructive Eviction. A landlord cannot remove exterior windows or doors, turn off utilities or change the locks without prior tenant permission in New Mexico. This type of behavior constitutes constructive eviction and qualifies as landlord harassment in New Mexico.
• Refusing to Make Necessary Repairs or Maintain the Property. Under the implied warranty of habitability, landlords cannot simply refuse to make repairs or intentionally delay maintenance needs. Doing so opens up the possibility of landlord harassment compensation.
• Engaging in Discrimination. Under the Fair Housing Act, a landlord may not discriminate against a tenant based on race, religion, national origin, and gender. This type of behavior qualifies as landlord harassment.

How to Prove or Verify Landlord Harassment

A tenant may prove or verify landlord harassment by keeping written records of any harassment or taking photos, if possible. At the hearing, a landlord may be able to counter this with similar evidence.

For example, a tenant may provide a court with pictures of an exterior door with no locks. In turn, the landlord may present evidence that the landlord was required to change the locks and show the court a receipt from a locksmith with an installation date for a new lock.

How to Terminate a Lease Due to Landlord Harassment

To terminate a lease for landlord harassment, a tenant must get court permission. The tenant must file a complaint with the New Mexico District Court.

Upon receiving the complaint, the District Court will timely review the documents and notify the parties whether the filing is accepted or rejected. The court will set a hearing, where the court will determine if landlord harassment occurred and if the lease should be terminated. The landlord and tenant are bound by the findings of the court.

8. Mental or Physical Disability

In New Mexico, as with all other states, a tenant can break a lease early, without penalty, because of a mental or physical disability.

Practically speaking, a tenant with a disability could request to terminate the lease if they are no longer able to function in a regular rental unit and need specialized care.

What Qualifies as a Physical or Mental Disability?

Reasonable accommodations are available to individuals with disabilities under the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA). These accommodations refer to any necessary changes, exceptions, or adjustments to policies, practices, or services to ensure individuals with disabilities have equal access to housing opportunities and can enjoy their living space.

For an individual to be classified as having a disability, they must have a physical or mental impairment that significantly limits one or more major life activities. Documentation of the impairment is required, which can include hospitalization records and evidence of time taken off due to the disability.

A physical or mental impairment includes diseases and conditions such as:

• Muscular dystrophy
• Visual, speech, or hearing impairments
• Cerebral palsy
• Multiple sclerosis
• Diabetes
• HIVHeart disease
• Autism
• Epilepsy

How to Prove or Verify Physical or Mental Disability

When proving or verifying disabilities, there are two methods by which to do so:

1. The disability is obvious and apparent. If a person’s disability and need for the requested accommodation is obvious and readily apparent, then the landlord may not request any additional information. These would most likely be physical impairments that one could easily identify as being limiting to the tenant.
2. Request verification of disability. If the disability and the need for the requested accommodation is not so obvious and readily apparent, the landlord can only request information that is necessary to evaluate the disability. Provided information will generally be from a medical professional or reliable third party who is in a position to know about the individual’s disability. These disabilities would usually encompass some sort of mental disability.

How to Terminate a Lease Due to a Physical or Mental Disability

If a tenant has a qualified disability, they can request early termination of their lease as a reasonable accommodation under the federal Fair Housing Act or the ADA. Once the landlord receives this request, they must honor it by terminating the lease.

If the landlord refuses to do so, the tenant can file a Fair Housing complaint or pursue legal action.

9. Landlord Retaliation

In New Mexico, a tenant can break a lease early, without penalty, if a landlord retaliates against the tenant
[7]
. New Mexico law does not allow a landlord to retaliate against a tenant for exercising their rights under the law.

What Qualifies as Landlord Retaliation?

New Mexico law sets forth specific instances that qualify as landlord retaliation. First a tenant must do one of the following:

• Exercise or attempt to exercise their rights under the law
• Request a repair or remedy under law or the lease
• Complain to a governmental entity responsible for enforcing building or housing codes, a public utility, or a civic or nonprofit agency

After a tenant exercises one of these rights, any of the following actions may qualify as landlord retaliation:

• Filing, or threatening to file, an eviction proceeding
• Banning the tenant from common areas
• Decreasing services (e.g., shutting off heat or hot water)
• Refusing to make repairs
• Increasing rent
• Terminating the lease

How to Prove or Verify Landlord Retaliation

In New Mexico, a tenant can establish a case for landlord retaliation by providing evidence of the rights exercised under the law. This could include documentation of a complaint filed with a governmental agency, an eviction proceeding, or an altered lease.

However, if the landlord can prove that the action was not taken for purposes of retaliation, they will not be held liable. This would require the landlord to provide evidence that they intended to take the same action before the tenant’s actions.

A landlord may also show that they exercised certain lawful rights through any of the following:

• Increasing rent under an escalation clause in a written lease for utilities, taxes, or insurance
• Increasing rent or reducing services as part of a pattern of rent increases or service reductions for an entire multi-unit building
• An otherwise valid eviction or lease termination because the tenant is delinquent in rent, intentionally damages property, or materially breaches the lease

How to Terminate a Lease Due to Landlord Retaliation

To terminate a lease for landlord harassment in New Mexico, a tenant must get court permission. To do so, the tenant must file a complaint or petition with the New Mexico Magisterial District Court.

After the landlord files an answer to the complaint, the court may set a hearing. If a court finds that landlord retaliation occurred, the tenant may terminate a lease and the landlord may be liable for monetary damages.

For example, by law, a tenant may recover one month’s rent plus $500, plus court costs and reasonable attorneys fees as well as moving costs (less any delinquent rents).

Can a Tenant Break a Lease Due to Job Relocation in New Mexico?

A tenant cannot break a lease early due to a job relocation in New Mexico. No laws exist in New Mexico to allow a tenant to automatically break a lease for a new job.

However, some leases contain a “transfer clause” which may allow a tenant to end a lease early if they are relocating for a new job.

Can a Tenant Break a Lease Due to Backing Out of a Lease After Signing?

In New Mexico, a tenant cannot break a lease early after signing the lease but before moving in. However, a tenant may terminate the lease under an early termination clause, if the lease contains one.

Can a Tenant Break a Lease Due to Buying a House in New Mexico?

In New Mexico, a tenant cannot break a lease early due to buying a house unless the lease contains a clause allowing the tenant to terminate the lease early because of a new home purchase.

What Happens if a Tenant Cannot Break a Lease Early?

If there is no legal justification for breaking a lease early, then the tenant will be responsible for the remaining rent due for the lease.

New Mexico does not have a law limiting the amount a tenant owes a landlord when breaking a lease early. A tenant could be liable for paying the remaining rent through the life of a lease. However, a landlord must mitigate damages and seek to replace the tenant.

Landlord’s Duty to Mitigate Damages in New Mexico

In New Mexico, a landlord needs to make reasonable efforts to re-rent the leased premise prior to charging the tenant for the total remaining rent due. This is known as the “duty to mitigate damages
[8]
.” If the premise is rented out, the original tenant will only be responsible for the amount of time the unit was vacant.

Tenant’s Right to Sublet in New Mexico

New Mexico state law does not grant tenants, by default, the right to sublease. Instead, they must have explicit, written consent from the landlord to do so. If a tenant is able to sublet the premises, they will not be liable for the total remaining rent due under the lease.

Consequences for Moving Out in New Mexico

In New Mexico, tenants will be held liable for all remaining rent and property damage unless the landlord found a new tenant.

If not, potential consequences include:

• The landlord keeping the security deposit
• The landlord suing the tenant for damages
• A lower credit score
• A potential bad reference