Breaking a Lease in New Mexico

Find out when a tenant can legally break a lease in New Mexico when they can’t, what options they have if they don’t have a proper cause, and what the consequences are of walking out on a lease agreement. Learn how landlords can break a lease, when they can break one without cause, and how much notice they have to give.

Importance of Fixed Periods in Lease Agreements

Without a fixed period, a landlord generally has the same rights as the tenant to terminate tenancy (with proper notice). In the same way that a landlord lacks long-term security on a month-to-month (or shorter period) lease if a tenant decides to leave, tenants lack the same security if the landlord decides to change the terms (i.e. raise the rent) or end the lease altogether. 

That’s why fixed periods are an important protection for both parties. They’re not just there to act as a restriction to tenants. 

As a result, there are real legal consequences for violating the agreement without proper cause on either side. It’s important to understand when a tenant can get out a lease with a fixed period that hasn’t ended, and when a tenant can’t.

Lease Termination Notice Requirements in New Mexico

In New Mexico, a tenant is not required to provide notice for fixed end date leases. New Mexico tenants have to provide written notice for the following lease terms:

  • Notice to terminate a week-to-week lease. 7-days written notice with the termination date specified in the notice (§ 47-8-37(A))
  • Notice to terminate a month-to-month lease. 30-day written notice prior to the periodic rental date specified in the notice (§ 47-8-37(B))

Conditions for Legally Breaking a Lease in New Mexico

There are a handful of scenarios where a tenant can legally break a lease in New Mexico without penalty. We’ll go through each of them below.

1. Early Termination Clause

Some modern lease agreements may provide specific terms that would allow a tenant to terminate a lease early in exchange for a penalty fee. Read over the lease and look for language that outlines agreed-upon terms for ending the lease before the end of the fixed period, such as the amount of the fee (i.e. equal to 2 month’s rent) and the amount of notice required (i.e. 30 days).

If a lease agreement contains an early termination clause, before executing it and paying the penalty fee, read further to learn about other conditions that, if met, would not require a penalty fee to be paid.

2. Active Military Duty

The Servicemembers Civil Relief Act (SCRA) helps protect active service members who are relocated due to deployment or permanent change of station. The protection begins on the date of entering duty and ends between 30-90 days after the date of discharge.

To break a lease in accordance with the relief act, a tenant must:

  • Prove the lease was signed before entering active duty 
  • Prove they will remain on active duty for at least the next 90 days
  • Deliver a written notice to the landlord (example, page 2), accompanied by a copy of the orders to deploy / PCS or a letter from their commanding officer stating their pending deployment.

With that said, the lease does not terminate immediately. Once the notice is delivered, the earliest the lease can terminate is 30 days after the beginning of the next rent period. So 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 (meaning, rent is still due for the month of April).

NOTE

In New Mexico, the term “servicemember” means a member of the armed forces, commissioned corps of the National Oceanic and Atmospheric Administration (NOAA), commissioned corps of the Public Health Service, and the activated National Guard.

3. Unit is Uninhabitable

Every state has specific health and safety codes that provide minimum standards for rental units, and New Mexico is no different. 

If those standards are not met, proper notice is given by the tenant and the repairs/fixes are still not made within the allowable time period, a tenant would be considered “constructively evicted”. As a result, the obligations of the tenant under the lease are no longer required, given that the landlord has not met their own responsibilities under New Mexico landlord-tenant law. According to New Mexico state law, landlord duties to provide habitable premises include the following (§ 47-8-20):

  • Compliance. Comply with the requirements of applicable minimum housing codes affecting health and safety.
  • Repairs. Make repairs and do whatever is necessary to put and keep the premises in a safe condition.
  • Common Areas. Keep all common areas of the premises in a clean and safe condition.
  • Maintenance. Maintain in good and safe working order and condition electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances, including elevators, if any, supplied or required to be supplied.
  • Heat. Supply running water and a reasonable amount of hot water at all times and reasonable heat, except where the building that includes the dwelling unit is not required by law to be equipped for that purpose or the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the resident and supplied by a direct public utility connection.

4. Landlord Harassment or Privacy Violation

If the action is serious enough, harassment by a landlord or their violation of a tenant’s privacy may be enough justification for relieving a tenant of their obligations of the lease.

  • Landlord entry.In New Mexico, a tenant has the right to receive 24-hour’s notice, except when the landlord enters to perform repairs or services within seven days of tenant request, or when the owner is accompanied by a public official conducting an inspection or cable television, electric, gas or telephone company representative. (§ 47-8-24(A)(1) and (2))
  • Changing the locks. In some states, if the locks are changed by a landlord without the tenant’s permission or without the protection of specific language in the lease agreement, this can qualify as being “constructively evicted”, and could relieve the tenant of their duties of the lease. In New Mexico, landlords are not allowed to lockout tenants. (§ 47-8-36)

5. Violation of Lease Agreement

If a landlord violates the terms of the lease agreement, it may be enough justification to break the lease and relieve the tenant from their own obligations (i.e. illegally raising the rent during the fixed period). Because each lease agreement is different, carefully read over the duties and requirements for both parties to understand if a violation has been made, and whether or not there is language describing how certain violations are to be handled. 

6. Illegal Contract

In some scenarios, a lease agreement may be deemed illegal in the state of New Mexico, and as a result, are generally not enforceable. 

  • Over 1-year lease without a description of the property. For a written lease agreement with a fixed period of greater than 1 year to be valid in New Mexico, it needs to have a clear description of the leased property.
  • Illegal units. The definition of what constitutes an illegal rental unit can vary by location and isn’t always entirely clear. On the state level, New Mexico does not appear to have clear information on what defines a legal rental unit. 

7. Domestic Violence

Many states protect tenants who are victims of domestic violence. If you are confronting a domestic violence situation (this can also be stalking), and want to move, check with local law enforcement regarding special state laws that may apply in domestic violence situations. New Mexico provides the following statute for victims of domestic violence:

  • Protection from Termination. If a landlord attempts to evict a tenant for a violation and the tenant is a victim of domestic violence, the tenant may use that as a defense to stop the eviction. Evictions are not allowed if the incident that caused the landlord to attempt eviction was related to domestic violence and the tenant has filed for a temporary restraining order as a result of the incident or a previous incident. In all other cases where domestic violence is raised as a defense, the court may evict the tenant accused of the violation, while allowing the other tenants to remain in the unit. (§ 47-8-33(J))

8. Mandatory Disclosures in New Mexico

Many state and local laws require landlords to disclose documentation, policies, or specific unit information to tenants prior to moving in. Since these laws vary from state to state (and sometimes by city or county) it is important to have your agreement looked over by a landlord-tenant attorney in your state to guarantee the correct disclosures are included in your lease. 

Some disclosure laws impose heavy fines or legal ramifications to landlords if they are not followed. Others contain penalty provisions and may allow you to break your lease. If your landlord fails to provide you with a mandatory state or local disclosure speak with a New Mexico landlord-tenant attorney to determine what can be done.

New Mexico requires that landlords provide the following disclosures to tenants, normally in writing and at the start of the lease:

  • Name and Addresses. The landlord or manager must disclose the name, address and telephone number of the person authorized to manage the premises as well as that of an owner of the premises or someone authorized to act on behalf of the owner for receiving legal notices and demands. (§ 47-8-19)
  • Copy of the Lease. Written rental agreement required to be given to each resident prior to move-in. (§ 47-8-20(G))
NOTE

The only federally required landlord disclosure pertains to lead-based. Known as Title X, this disclosure is designed to protect families from exposure to lead from paint, dust, and soil. Section 1018 of this law requires the disclosure of known information on lead-based paint and lead-based paint hazards before the sale or lease of housing built before 1978.

9. You or a Co-Tenant Face a Health Crisis

If you, a dependent living with you, or your co-tenant, face a serious physical or mental health issue you may qualify for early lease termination without obligation to pay the entire balance of rent due. Some states offer permitted, health-related lease-breaking arrangements that are age-restricted. Most states require a note from a locally licensed physician and at least 30 days’ notice. Since not all states allow this statute, be sure to check the New Mexico Landlord and Tenant Handbook for further information. 

Note About Illegal Retaliation in New Mexico

In July of 2019, House Bill 346 (which became § 44-7-24) went into effect providing tenants with protection against landlords that retaliate to actions such as giving the notice to make repairs or reporting to governmental entities about violations in building or housing codes. The bill does not state that these types of illegal retaliation are enough justification for lease termination, but the bill does allow for a sizable penalty against the landlord if they’re found in violation (1 month’s rent + legal fees + $500), which could help offset the costs of penalty fees associated with early termination. 

NOTE

In New Mexico, landlord retaliation is judged under section § 47-8-39.

Examples of Insufficient Justification for Lease Breaking

The below reasons are generally not enough justification (on their own) to release a tenant from the obligation of their lease term, and as a result, provide no legal protection against penalties for not honoring the lease.

  • They bought a house
  • They are relocating for a new job or school
  • They are upgrading or downgrading
  • They are moving in with a partner
  • They are moving to be closer to family

Breaking a lease for any of the above reasons or in any conditions not previously outlined can have tangible consequences for tenants.

Tenant’s Options if Legal Justification is Not Met

If the previously stated legal conditions are not met, there are still a few options that a tenant has that could allow for them to not be obligated to pay rent until the end of the fixed period.

Talk with the landlord

Some landlords may be understanding and willing to negotiate with a tenant. Every situation is different, and every landlord is different. A tenant’s best chance at getting a landlord to work with them is being honest about the reasons for leaving, to provide as much notice as possible, and to propose possible resolutions that could be mutually beneficial (i.e. by paying 2 month’s rent). 

Aid in finding a new tenant


If the tenant moves out before the end of the fixed period, they are still required to pay rent until the end of the period until a new tenant is found. During that remainder period, the landlord is required to make reasonable effort to find a new tenant (if they don’t, the previous tenant is not responsible for future rent). 

Therefore, the previous tenant may choose to be proactive and help to find a new tenant on their own, instead of waiting for the landlord to find one. The landlord does not have to accept the newly found tenant if they have reasonable justification (i.e. they have bad credit or rental history), but helping to find a new tenant can only help increase a tenant’s chances of being relieved of future rent.

NOTE

New Mexico law does require your landlord to make reasonable efforts to re-rent the unit instead of charging you for the total remaining rent due under the lease (§ 47-8-6(A)).

Sublet

If your lease does not prohibit subletting, then you are in the clear to do so. However, your lease might contain a clause requiring you to obtain your landlord’s approval prior to subletting. To get landlord approval you will want to send them a letter through certified mail, with a return receipt requested, outlining the terms of the sublet lease agreement. Certified mail is the only proof of delivery that most courts will accept in case you need proof that you notified your landlord. The letter should include the following information:

  • Sublet term 
  • Name of proposed subtenant or assignee
  • The permanent home address of proposed subtenant or assignee
  • Your reason for subletting or leaving permanently
  • Your new address during the sublease if applicable
  • The written consent of any co‑tenant
  • A copy of the proposed sublease

If your landlord rejects your request, know that they can only refuse the proposed subtenant based on legitimate factors. The law says your landlord cannot unreasonably refuse your sublet. 

Consequences of Illegal Lease Breaking

If a tenant breaks a lease without mutual agreement from the landlord or without the proper legal justification and does not pay the rent due for the remainder of the fixed period, the tenant faces the following consequences.

  • Loss of security deposit. Usually, at a minimum, a landlord may choose to withhold the security deposit. 
  • Lawsuit. A landlord may sue the tenant for unpaid rent during the fixed period, which if won, could result in the tenant facing a money judgment. That judgment, if not paid on the spot or if terms are not set for a long-term payment plan, could result in the garnishment of the tenant’s wages or bank account.
  • Impact on credit score. While a money judgment won’t show up on a tenant’s credit report (thanks to the National Consumer Assistance Plan), if the landlord chooses to go an alternative route to collecting on unpaid rent by using a debt collection agency, the tenant’s credit score could be severely impacted.
  • Difficulty in finding future housing. Whether or not a tenant provides the landlord’s name & contact information themselves when looking to buy or rent in the future, a background check will most likely provide the future landlord or mortgage lender with that information. That previous landlord could provide a very negative reference.

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