Steps of the eviction process in New Mexico:
- Landlord serves tenant written notice.
- Landlord files complaint with court (if unresolved).
- Court holds hearing with summons & complaint.
- Writ of restitution is issued.
- Possession of property is returned to landlord.
Evicting a tenant in New Mexico can take around two to seven 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 lease terms or illegal activity. Even so, proper notice must first be given before ending the tenancy.
| Grounds | Notice Period | Curable? |
|---|---|---|
| Nonpayment of Rent | 3 Days | Yes |
| End of / No Lease | 30 Days | No |
| Lease Violation | 7 Days | Maybe |
| Illegal Activity | 3 Days | No |
Eviction for Nonpayment of Rent
In New Mexico, a landlord can evict a tenant for not paying rent on time. To do so, they must first give 3 days’ notice to pay rent or vacate the premises. If the tenant does neither after that time, the landlord can move forward and file an eviction lawsuit.
Unless the lease states otherwise, rent is due at the beginning of each pay period and is considered late in New Mexico the day immediately after its due date. So for example, if rent is due on the first of the month, it is considered late starting on the second of the month (if not paid in full). There is no right to a legal grace period (i.e., five days). Note, if the last day of the notice period occurs on a weekend or federal holiday, the period to fix the issue shall be extended until the next day that is not a weekend or federal holiday.
Once rent is considered late, the landlord can begin the eviction process by serving the tenant with proper notice.
Eviction for No Lease or End of Lease
In New Mexico, a landlord can evict a tenant without a lease or with a lease that has ended (known as a “holdover tenant” or “tenant at will”). To do so, they must first terminate the tenancy by giving proper notice to move out (30 days for tenants that pay month-to-month).
Once the tenancy ends, if the tenant remains on the property, the landlord can move forward and file an eviction lawsuit.
Eviction for Violation of Lease or Responsibilities
In New Mexico, a landlord can evict a tenant for violating the terms of their lease or not upholding their responsibilities. To do so, the landlord can give 7 days’ notice to fix the issue or move out. For all lease violations, a tenant has the opportunity to correct the issue to avoid eviction.
Tenant responsibilities include:
- Complying with all housing codes that affect health and safety.
- Keeping the premises clean and safe.
- Disposing of all ash, rubbish, garbage and other waste in a clean and safe manner.
- Keeping all plumbing fixtures clean.
- Using all facilities and appliances in a reasonable manner.
- Not deliberately or negligently destroying, defacing, damaging, or removing any part of the premises.
- Not disturbing the neighbor’s peaceful enjoyment.
Lease violations include:
- Subletting a room.
- Damaging the rental property.
- Having too many people residing in the rental unit.
- Having a pet when there’s a no-pet policy.
- Violating material health and safety codes (i.e., letting trash pile up or providing a harbor for rodents or bugs).
However, if a tenant commits a second violation of the lease agreement within six months of the first violation, New Mexico landlords must provide a 7 days’ notice to vacate. Landlords are not required to give the tenant an opportunity to correct the violation prior to eviction.
Eviction for Illegal Activity
In New Mexico, a landlord can evict a tenant for committing illegal activity or a substantial violation. To do so, the landlord must give 3 days’ notice to move out. The tenant does not have the opportunity to correct the issue to avoid eviction.
Illegal activity is considered a “substantial violation” of the lease or rental agreement, and includes:
- Sexual assault.
- Illegal use, possession, distribution, sale or manufacture of controlled substances.
- Unlawful use of a deadly weapon.
- Unlawful action that causes serious harm.
- Theft or attempted theft using force.
- Entry with intent to commit theft or assault.
- Intentional or reckless property damage of $1,000 or more.
If the tenant remains on the property after the notice period expires, the landlord may proceed with the eviction process.
Illegal Evictions in New Mexico
In New Mexico, any of the below 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
No matter the situation, 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 (except for necessary repairs).
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.
Step 1: Landlord Serves Notice to Tenant
A landlord can begin the eviction process in New Mexico by serving the tenant with written notice. The notice must be delivered by one of the following methods:
- Giving it to the tenant in person.
- Mailing the notice via first class mail.
- Posting a copy of the notice on an exterior door of the rental unit AND mailing a copy to the tenant (unless the eviction is for nonpayment of rent).
It is important for a landlord to always maintain a copy of the signed and served notice as proof of proper service of notice.
3-Day Notice to Pay Rent or Quit
If a tenant is late on paying rent (full or partial) in New Mexico, the landlord can serve them a 3-Day Notice to Pay or Quit. This notice gives the tenant 3 calendar days to pay the entire remaining balance or vacate the premises.
Note, if the last day of the notice period occurs on a weekend or federal holiday, the period to fix the issue shall be extended until the next day that is not a weekend or federal holiday.
30-Day Notice to Quit
For a tenant with no lease or a month-to-month lease in New Mexico, the landlord must serve them a 30-Day Notice to Quit to end the tenancy. This eviction notice allows the tenant 30 calendar 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 Cure or Vacate
In New Mexico, if a tenant commits a violation of the terms of their lease or legal responsibilities as a tenant, the landlord can serve them a 7-Day Notice to Cure or Vacate. This eviction notice gives the tenant 7 calendar days to fix the issue or move out.
Note, if the last day of the notice period occurs on a weekend or federal holiday, the period to fix the issue shall be extended until the next day that is not a weekend or federal holiday.
7-Day Notice to Quit
In New Mexico, if a tenant commits a second violation of the lease agreement within six months of the first violation, the landlord can serve them a 7-Day Notice to Quit. This eviction notice gives the tenant 7 calendar days to move out without the chance to fix the issue.
3-Day Notice to Quit
In New Mexico, if a tenant commits an illegal activity, the landlord can serve them a 3-Day Notice to Quit. This eviction notice gives the tenant 3 calendar 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; and
- 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.
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 seven 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; however, if a tenant files an appeal, the eviction will not be stayed (postponed) during the appeal unless the tenant pays rent to the landlord or a special escrow account within five days of filing the appeal.
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.
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.
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
For additional questions about the eviction process in New Mexico, please refer to the official state legislation, NM Stat.§ 47-8-1 to 47-8-52 and the Rules of Civil Procedure for District and Magistrate Courts, for more information.
Sources
- 1 NM Stat §47-8-33 (2020)
-
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)
-
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)
-
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
-
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)
-
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)
-
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)
-
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)
-
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)
-
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)
-
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)
-
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)
-
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)
-
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)
-
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)
-
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)
-
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)
-
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)
-
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)
-
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.
