Evicting a tenant in New Mexico can take around 2 to 7 weeks depending on the reason for the eviction. If tenants request a continuance or file an appeal, the process can take longer.
Grounds for an Eviction in New Mexico
In New Mexico, a landlord cannot legally evict a tenant without cause. Legal grounds to evict include:
- Not paying rent on time
- Staying after the lease ends
- Violating the terms of the lease
- Committing illegal activity
Depending on the grounds for eviction, the landlord must give proper notice and provide the tenant a chance to cure the violation.
| Grounds | Notice Period | Curable? |
| Nonpayment of Rent | 3 Days | Yes |
| End of Lease or No Lease | 30 Days | No |
| Lease Violation | 7 Days | Yes |
| Repeat Lease Violation | 7 Days | No |
| Illegal Activity | 3 Days | No |
Nonpayment of Rent
In New Mexico, a landlord can evict a tenant for not paying rent on time. To do so, the landlord must first serve the tenant a 3 days’ notice to quit, which gives the tenant a chance to pay the balance due or move out.
Unless the lease states otherwise, rent is due at the beginning of each month and is considered late in New Mexico the day immediately after its due date. New Mexico landlords are not required to give tenants a rent payment grace period. However, if the lease or rental agreement allows for one, then the landlord must honor it.
If rent is due on November 1st, it will be considered late starting on November 2nd, unless the lease specifically states there is a grace period.
If the tenant does not pay the balance due or move out by the end of the notice period, the landlord can move forward and file an eviction lawsuit.
End of Lease or No Lease
In New Mexico, a landlord can evict a tenant who does not have a lease (“tenant at will”) or has a lease that has terminated and continues to remain on the premises (“holdover tenant”). To do so, the landlord must first terminate the tenancy by giving the tenant a proper 30-days’ notice to move out.
If the tenant does not move out by the end of the notice period, the landlord can move forward and file an eviction lawsuit.
Lease Violations
In New Mexico, a landlord can evict a tenant for violating the terms of their lease or not upholding their legal responsibilities. To do so, the landlord must first serve the tenant a 7 days’ notice to comply or vacate, which gives the tenant a chance to fix the issue or move out.
Examples of lease violations include:
- Failing to maintain the premises in a clean and sanitary manner
- Assigning the lease or subletting a room without the landlord’s knowledge or consent
- Causing minor property damage
- Allowing unauthorized occupants or pets to reside on the premises
- Refusing to allow the landlord access to the rental unit
If the tenant does not fix the issue or move out by the end of the notice period, the landlord can move forward and file an eviction lawsuit.
Repeat Lease Violations
In New Mexico, a landlord can evict a tenant for repeating the same or a similar lease violation within six months. To do so, the landlord must first serve the tenant a 7 days’ notice to vacate.
The tenant does not have a chance to fix the violation and must move out within the 7-day period. If the tenant does not move out by the end of the notice period, the landlord can move forward and file an eviction lawsuit.
Illegal Activity
In New Mexico, a landlord can evict a tenant for committing illegal activity on the premises. To do so, the landlord must first serve the tenant a 3 days’ notice to vacate. The tenant does not have the option to correct the issue and must move out within the 3-day period.
In New Mexico, illegal activity includes:
- Causing intentional or reckless destruction of the premises with damages of $1,000 or more
- Distributing, manufacturing or possessing controlled substances
- Attempting to commit theft or committing theft by force
- Committing theft of property or a vehicle on the premises
- Possessing or using a deadly weapon
- Threatening physical assault or causing serious physical harm upon another person
- Committing sexual assault or sexual molestation
If the tenant does not move out by the end of the notice period, the landlord can move forward and file an eviction lawsuit.
Illegal Evictions in New Mexico
In New Mexico, there are a few different types of evictions that are illegal. If the landlord is found liable, the tenant may be entitled to civil penalties, restitution, damages sustained, seek restitution, and abate 100% of the rent for each day the landlord caused the termination or diminished any utility service.
“Self-Help” Evictions
A landlord is not allowed to forcibly remove a tenant by:
- Changing the locks
- Shutting off utilities
- Blocking the entrance to the dwelling unit
- Removing tenant belongings
- Removing appliances or fixtures
A tenant can only be legally removed with a court order obtained through the formal eviction process.
Retaliatory Evictions
It is illegal for a landlord to evict a tenant in response to exercising a legally protected right. These rights include:
- Complaining about a building or housing code violations that materially affects health and safety to an authority tasked to enforce the law
- Complaining about habitability issues to the landlord
- Making a fair housing complaint to a governmental agency that prohibits discrimination in renting
- Abating rent in response to a landlord’s noncompliance
- Prevailing in a lawsuit as a defendant or plaintiff against the landlord
- Testifying on behalf of another tenant
- Joining a tenant’s union or organization
In New Mexico, all evictions follow the same process:
- Landlord serves tenant with written notice.
- Landlord files complaint with court for unresolved violations
- Court holds hearing with summons and complaint
- Writ of restitution is issued
- Possession of property is returned to landlord
Step 1: Landlord Serves Notice To Tenant
New Mexico landlords may deliver a written eviction notice by any method which results in actual notice to the other party. The law specifically guarantees the legal effectiveness of the following methods:
- Hand delivery to the tenant
- Delivery by first class mail with a certificate of mailing, to the tenant’s address of record (or last known residence, if there is no address of record)
- Posting the notice on an exterior door of the premises, PLUS either hand-delivering the notice OR delivering it by first class mail with a certificate of mailing
Posted notice must be placed in a box or slot designed for mail or notices, or else taped on all sides to ensure secure fixture. Posting a notice starts the count on the notice period, even if (for example) the mailed notice takes a few more days to deliver.
Landlords should always keep the original signed notice and declaration of service as proof of proper service if the case proceeds to court.
3-Day Notice To Quit
In New Mexico, if a tenant is late on paying rent (full or partial), the landlord can serve them a 3-Day Notice To Quit. This eviction notice gives the tenant 3 days, to pay the balance due or move out.
30-Day Notice To Vacate
For a tenant with no lease or a month-to-month lease in New Mexico, the landlord can serve them a 30-Day Notice To Vacate to terminate the tenancy. This lease termination notice allows the tenant 30 days to move out.
For tenants that don’t pay monthly, the amount of notice differs:
| Rent Payment Frequency | Notice Amount |
|---|---|
| Week-to-Week | 7 Days |
| Month-to-Month | 30 Days |
7-Day Notice To Comply or Vacate
In New Mexico, if a tenant violates the terms of their lease or legal responsibilities, the landlord can serve them a 7-Day Notice To Comply or Vacate. This eviction notice gives the tenant 7 days to fix the issue or move out.
7-Day Notice To Vacate
In New Mexico, if a tenant repeats the same or a similar lease violation within six months, the landlord can serve them a 7-Day Notice To Vacate. This eviction notice gives the tenant 7 days to move out without the chance to fix the issue.
3-Day Notice To Vacate
In New Mexico, if a tenant commits an illegal activity on the premises, the landlord can serve them a 3-Day Notice To Vacate. This eviction notice gives the tenant 3 days to move out without the chance to fix the issue.
Step 2: Landlord Files Lawsuit with Court
As the next step in the eviction process, New Mexico landlords must file a petition for restitution in the appropriate District or Magistrate Court. In Bernalillo County, this costs $132 in District Court filing fees.
The summons and petition may be served on the tenant by the sheriff of the county or anyone over the age of 18 who is not part of the case 7-10 days before to the hearing.
The tenant may be served by any one of the following methods for District Court:
- Giving a copy to the tenant in person
- Leaving a copy where the tenant is currently found
- Mailing a copy to the defendant and requiring a signed receipt;
- Leaving a copy with someone over the age of 15 where the tenant resides AND mailing a copy to the tenant if the first three methods fail
- If all other methods fail, leaving a copy with the tenant’s employer AND mailing a copy to the defendant’s last known address AND mailing a copy to the tenant’s workplace.
In Magistrate Court, service of the petition and summons is the same for the first four options, but there is no fifth option. Additionally, if a return receipt from mailing a copy to the defendant isn’t received within 23 days, then another method of service must be performed.
The summons and petition must be served 7-10 days prior to the hearing.
Step 3: Court Hearing and Judgment
The eviction hearing will be set 7-10 days after the summons was served on the tenant. Tenants are not required to file a formal answer with the court in order to appear at the hearing, although they have the option to file an answer if they so choose.
If the tenant fails to appear for the hearing, it will not be continued, and the judge will make a ruling on the eviction that day.
Either the landlord or the tenant may request a 7 day continuance; but this will add more time to the process. A continuance may be requested, for example, if the tenant needs more time to find legal counsel for the hearing.
If the judge rules in favor of the landlord, a writ of restitution will be issued and the eviction process will proceed.
Either party may file an appeal. If a tenant files an appeal, the eviction will not be postponed during the appeal unless the tenant pays rent to the landlord or a special escrow account within 5 days of filing the appeal.
A hearing cannot be set earlier than 7 days, or later than 10 days, after the summons is served on the tenant.
Step 4: Writ of Restitution Is Issued
The writ of restitution is the tenant’s final notice to leave the rental unit and gives them the opportunity to move out before the sheriff returns to the property to forcibly remove the tenant.
If the court has ruled in the landlord’s favor, the landlord will ask the court to issue a writ of restitution. This can be done at the hearing or at a later date, but it must be requested by the landlord.
The landlord must request the writ of execution, but it can be issued the same day as the hearing or at a later date.
Step 5: Possession of Property is Returned
The sheriff is required to remove the tenant from the premises 3-7 days after the judgment in favor of the landlord is issued.
The tenant will be forcibly removed from the rental unit 3-7 days after the date the judgment for restitution is issued if they don’t leave the premises before then.
New Mexico Eviction Process Timeline
In New Mexico, an eviction can be completed in 2 to 7 weeks but can take longer depending on the reason for eviction, whether the eviction is contested, which days courts are (or aren’t) in session and other various possible delays.
Below are the parts of the New Mexico eviction process outside the control of landlords for cases that go uncontested.
| Step | Estimated Time |
|---|---|
| Initial Notice Period | 3-30 Calendar Days |
| Court Issuing/Serving Summons | 7-10 Business Days |
| Tenant Response Period | 7 Business Days |
| Court Ruling | 7-10 Business Days |
| Court Serving Writ of Restitution | 1-3 Business Days |
| Final Notice Period | 3-7 Business Days |
Flowchart of New Mexico Eviction Process
New Mexico Eviction Court Fees
The cost of an eviction in New Mexico for all filing, court, and service fees can vary based on service fees. For cases filed in District Court the average cost is $212. For cases filed in Magistrate Court, the filing fee is $157.
| Fee | District | Magistrate |
| Initial Court Filing | $132 | $77 |
| Summons Service | ~$40 | ~$40 |
| Writ of Restitution Service | $40 | $40 |
| Notice of Appeal Filing (Optional) | $505 | $505 |
Sources
- 1 NM Stat §47-8-33 (2020)
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D. If rent is unpaid when due and the resident fails to pay rent within three days after written notice from the owner of nonpayment and his intention to terminate the rental agreement, the owner may terminate the rental agreement…tender of the full amount due…prior to the expiration of the three-day notice shall bar any action for nonpayment of rent.
- 2 NM Stat §47-8-37 (2020)
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A. The owner or the resident may terminate a week-to-week residency by a written notice given to the other at least seven days prior to the termination date specified in the notice. B. The owner or the resident may terminate a month-to-month residency by a written notice given to the other at least thirty days prior to the periodic rental date specified in the notice.
- 3 NM Stat §47-8-33 (2020)
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A…if there is noncompliance…materially affecting health and safety or upon the initial material noncompliance by the resident…the owner shall deliver a written notice to the resident specifying the acts and omissions constituting the breach…and stating that the rental agreement will terminate upon a date not less than seven days after receipt of the notice if the breach is not remedied in seven days.
- 4 NM Stat § 47-8-33
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B. Upon the second material noncompliance with the rental agreement or any separate agreement by the resident, within six months of the initial breach, the owner shall deliver a written notice to the resident specifying the acts and omissions constituting the breach, including the dates and specific facts describing the nature of the alleged breach, and stating that the rental agreement shall terminate upon a date not less than seven days after receipt of the notice. If the subsequent breach occurs more than six months after the initial breach, it shall constitute an initial breach for purposes of applying the provisions of this section.
- 5 NM Stat §47-8-33 (2020)
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I. If the resident knowingly commits or consents to another person in the dwelling unit or on the premises knowingly committing a substantial violation, the owner shall deliver a written notice to the resident specifying the time, place and nature of the act constituting the substantial violation and that the rental agreement will terminate upon a date not less than three days after receipt of the notice.
- 6 NM Stat §47-8-3 (2020)
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T. “substantial violation”…of the rental agreement or rules and regulations…(1) possession, use, sale, distribution or manufacture of a controlled substance…(2) unlawful use of a deadly weapon; (3) unlawful action causing serious physical harm…(4) sexual assault or sexual molestation…(5) entry into the dwelling unit or vehicle…with intent to commit theft or assault; (6) theft or attempted theft…by use or threatened use of force…(7) …damage to property in excess of…$1,000…
- 7 NM Stat § 47-8-36 (2021)
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C. If an owner commits any of the acts stated in Subsection A of this section, the resident may:
(1) abate one hundred percent of the rent for each day in which the resident is denied possession of the premises for any portion of the day or each day where the owner caused termination or diminishment of any service for any portion of the day;
(2) be entitled to civil penalties as provided in Subsection B of Section 47-8-48 NMSA 1978;
(3) seek restitution of the premises pursuant to Sections 47-8-41 and Section 47-8-42 NMSA 1978 or terminate the rental agreement; and
(4) be entitled to damages.
- 8 NM Stat § 47-8-36 (2021)
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A. Except in case of abandonment, surrender or as otherwise permitted in the Uniform Owner-Resident Relations Act, an owner or any person acting on behalf of the owner shall not knowingly exclude the resident, remove, threaten or attempt to remove or dispossess a resident from the dwelling unit without a court order by:
(1) fraud;
(2) plugging, changing, adding or removing any lock or latching device;
(3) blocking any entrance into the dwelling unit;
(4) interfering with services or normal and necessary utilities to the unit pursuant to Section 47-8-32 NMSA 1978, including but not limited to electricity, gas, hot or cold water, plumbing, heat or telephone service, provided that this section shall not impose a duty upon the owner to make utility payments or otherwise prevent utility interruptions resulting from nonpayment of utility charges by the resident;
(5) removing the resident’s personal property from the dwelling unit or its premises;
(6) removing or incapacitating appliances or fixtures, except for making necessary and legitimate repairs; or
(7) any willful act rendering a dwelling unit or any personal property located in the dwelling unit or on the premises inaccessible or uninhabitable.
- 9 NM Stat § 47-8-39 (2021)
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A. An owner may not retaliate against a resident who is in compliance with the rental agreement and not otherwise in violation of any provision of the Uniform Owner-Resident Relations Act by increasing rent, decreasing services or by bringing or threatening to bring an action for possession because the resident has within the previous six months:
(1) complained to a government agency charged with responsibility for enforcement of a minimum building or housing code of a violation applicable to the premises materially affecting health and safety;
(2) organized or become a member of a residents’ union, association or similar organization;
(3) acted in good faith to exercise his rights provided under the Uniform Owner-Resident Relations Act, including when the resident makes a written request or complaint to the owner to make repairs to comply with the owner’s obligations under Section 47-8-20 NMSA 1978;
(4) made a fair housing complaint to a government agency charged with authority for enforcement of laws or regulations prohibiting discrimination in rental housing;
(5) prevailed in a lawsuit as either plaintiff or defendant or has a lawsuit pending against the owner relating to the residency;
(6) testified on behalf of another resident; or
(7) abated rent in accordance with the provisions of Section 47-8-27.1 or 47-8-27.2 NMSA 1978.
- 10 NM Rules of Civ Proc for Dist Ct Rule 1-004 (2020)
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D. (1) if the process to be served is a summons and complaint, petition or other paper, service may be made by any person who is over the age of eighteen (18) years and not a party to the action…
- 11 NM Stat §47-8-43 (2020)
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A…Trial of the action for possession shall be set as follows: (1) for any matter brought by the owner for possession, not less than seven or more than ten days after the service of summons…B. Upon finding of good cause, the court may continue the date of hearing on the action for possession for up to seven days from the date of the initial hearing.
- 12 NM Rules of Civ Proc for Dist Ct Rule 1-004 (2020)
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F. …shall be made…by delivering…(1) (a) to the individual personally; or…by leaving the process at the location where the individual has been found…or (b) by mail or commercial courier service as provided in Subparagraph (3) of Paragraph E of this rule.
- 13 NM Rules of Civ Proc for Dist Ct Rule 1-004 (2020)
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E. (3) Service may be made by mail or commercial courier service provided that the envelope is addressed to the named defendant and further provided that the defendant or a person authorized by appointment, by law or by this rule to accept service of process upon the defendant signs a receipt for the envelope or package…
- 14 NM Rules of Civ Proc for Dist Ct Rule 1-004 (2020)
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F(2) If…the defendant has not signed for or accepted service, service may be made by delivering…to some person residing at the usual place of abode of the defendant who is over the age of fifteen (15) years and mailing by first class mail to the … defendant’s last known mailing address…
- 15 NM Rules of Civ Proc for Dist Ct Rule 1-004 (2020)
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F (3) If service is not accomplished in accordance with Subparagraphs (1) and (2), then service of process may be made by delivering a copy of the process at the actual place of business or employment…to the person apparently in charge thereof and by mailing a copy…by first class mail to…the defendant’s last known mailing address and at the defendant’s actual place of business or employment.
- 16 NM Rules of Civ Proc for Magistrate Ct Rule 2-202 (2020)
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F. (1)…by delivering a copy…personally; or…by leaving same at the location where he has been found…If the defendant is absent,…by delivering a copy…to some person residing at the usual place of abode…who is over the age of fifteen…and if there is no such person…then…by posting…in the most public part of the defendant’s premises, and by mailing to the defendant at his last known mailing address…
- 17 NM Rules of Civ Proc for Magistrate Ct Rule 2-202 (2020)
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E. …by mailing a copy… (by first-class mail, postage prepaid) to the person to be served… If no acknowledgement of service…is received …within twenty (20) days after the date of mailing plus three (3) days …service of such summons and complaint shall be made by a person authorized by Paragraph D of this rule, in the manner prescribed by Paragraph F of this rule…
- 18 NM Stat §47-8-47 (2020)
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A. ….in cases in which the resident is the appellant, the execution of the writ of restitution shall not be stayed unless the resident, within five days of the filing of the notice of appeal, pays to the owner or into an escrow account…an amount equal to the rental amount that shall come due from the day following the judgment through the end of that rental period.
- 19 NM Stat §47-8-46 (2020)
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A. Upon petition for restitution filed by the owner if judgment is rendered against the defendant for restitution of the premises, the court shall declare the forfeiture of the rental agreement and shall, at the request of the plaintiff or his attorney, issue a writ of restitution directing the sheriff to restore possession of the premises to the plaintiff on a specified date not less than three nor more than seven days after entry of judgment.
- 20 N.M. Stat. § 47-8-13(C) - (E)
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C. A person receives a notice or notification: (1) when it comes to his attention; (2) where written notice to the owner is required, when it is mailed or otherwise delivered at the place of business of the owner through which the rental agreement was made or at any place held out by him as the place for receipt of the communication; or (3) if written notice to the resident is required, when it is delivered in hand to the resident or mailed to him at the place held out by him as the place for receipt of the communication, or in the absence of such designation, to his last known place of residence. D. Notwithstanding any other provisions of this section, notice to a resident for nonpayment of rent shall be effective only when hand delivered or mailed to the resident or posted on an exterior door of the dwelling unit. In all other cases where written notice to the resident is required, even if there is a notice by posting, there must also be a mailing of the notice by first class mail or hand delivery of the notice to the resident. The date of a posting shall be included in any notice posted, mailed or hand delivered, and shall constitute the effective date of the notice. A posted notice shall be affixed to a door by taping all sides or placed in a fixture or receptacle designed for notices or mail. E. Notice, knowledge or a notice or notification received by the resident or person is effective for a particular transaction from the time it is brought to the attention of the resident or person conducting that transaction, and in any event from the time it would have been brought to the resident’s or person’s attention if the resident or person had exercised reasonable diligence. Source Link
