Find out when a tenant can legally break a lease in New Mexico, when they can’t, and if a landlord is required by New Mexico law to make reasonable effort to re-rent.
Before we address the legally acceptable reasons to get out a lease early without penalty, it’s important to understand the notice requirements in New Mexico to end a tenancy.
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 (NM Stat. § 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 (NM Stat. § 47-8-37(B))
Delivering Notice in New Mexico
A tenant may deliver notice to the landlord by using one of the following methods:
- Delivering a copy in person; or
- Mailing a copy with a return receipt requested.
It’s best to review the lease agreement on the landlord’s preferred method of delivery.
Conditions for Legally Breaking a Lease in New Mexico
There are several 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 / Permanent Change of Station (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. 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.
For more information on habitability laws in New Mexico, click here.
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
Most states have 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 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 (NM Stat. § 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.
- Water and 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. (NM Stat. § 47-8-24(A))
- 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. (NM Stat. § 47-8-36)
5. Domestic Violence
New Mexico provides tenants who are victims of domestic violence with special rental provisions for their protection. If a tenant is confronting a domestic violence situation (this can also be stalking), and wants to move, check with local law enforcement regarding 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 domestic violence restraining order because 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. (NM Stat. § 47-8-33(J))
Examples of Insufficient Justification for Lease Breaking in New Mexico
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.
Since state landlord-tenant laws vary, the following reasons may legally permit a tenant to terminate their tenancy early in other states but are not applicable in New Mexico:
- Violation of the 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).
- Illegal Contract. In some scenarios, a lease agreement may be deemed illegal and as a result, is generally not enforceable.
- Mandatory Disclosures. Many state and local laws require landlords to disclose documentation, policies, or specific unit information to tenants prior to moving in. Disclosure laws typically impose heavy fines or legal ramifications to landlords if they are not followed. In rare cases, they contain penalty provisions that may allow you to break your lease.
- Senior Citizen or Health Issue. Some states offer age or health-related lease-breaking arrangements that permit early lease termination.
Breaking a lease for any of the above reasons or in any conditions not previously outlined can have tangible consequences for tenants.
Landlord’s Responsibility to Re-rent in New Mexico
According to New Mexico code (NM Stat. § 47-8-6), your landlord must make reasonable efforts to re-rent their unit instead of charging you for the total remaining rent due under the lease. This is referred to as the landlord’s duty to “mitigate damages”. If your landlord re-rents the property quickly, all you’ll be responsible for is the amount of time the unit was vacant.
Tenant’s Right to Sublet in New Mexico
If the lease does not prohibit subletting, then a tenant might be in the clear to sublet. However, the lease might contain a clause requiring a tenant to obtain a landlord’s approval prior to subletting. To get the landlord’s approval, a tenant shall 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 that a tenant has notified the 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 a landlord rejects the request, know that they can only refuse the proposed subtenant based on legitimate factors. The law states that a landlord cannot unreasonably refuse to sublet.
For more information and to get a FREE New Mexico sublease agreement click here.