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Timeline. 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 (read more).
Introduction: There are several reasons why a tenant may face an eviction lawsuit in New Mexico. The Uniform Owner-Resident Relations Act sets out all rules and regulations for landlords and tenants to follow. Below are the individual steps of the eviction process in New Mexico.
Step 1: Notice is Posted
Landlords in New Mexico can begin the eviction process for several reasons, including:
- Nonpayment of Rent – Once rent is past due, written notice must be served giving the tenant the option to pay rent in order to avoid eviction.
- Violation of Lease Terms / Rental Agreement – If a tenant violates a provision of a written lease/rental agreement, the landlord must give the tenant the opportunity to correct the issue before moving forward with the eviction process.
- No Lease / End of Lease Term (Tenant at Will) – If there is no lease or the term of the lease has ended, the landlord does not need any additional reason to end the tenancy as long as proper notice is given.
- Material Health / Safety Violation – If the tenant violates a health, building, safety, or housing code, they must be given the opportunity to fix (“cure”) the issue before the eviction process proceeds further.
- Illegal Activity– If a tenant is engaged in illegal activity, the landlord must serve them with written notice before pursuing eviction proceedings.
- Retaliatory Evictions. It is illegal for a landlord to evict a tenant for complaining to the landlord or to the appropriate local or government agency regarding the property. It is also illegal for a landlord to evict a tenant for joining, supporting, or organizing a tenant organization or union.
- Evicting a Squatter If the individual occupying the property did not have the permission of the landlord when initially moving in, does not have a lease (or verbal agreement) and has no history of paying rent, then a landlord/tenant relationship may not be established. As a result, the normal eviction process may not apply (read more).
Each possible ground for eviction has its own rules for how the process starts.
Eviction Process for Nonpayment of Rent
A landlord is allowed to evict a tenant for failing to pay rent on time.
In New Mexico, rent is considered late the day after it’s due; grace periods (if any) are addressed in a rental agreement or lease.
Once rent is past due, the landlord must provide a 3-Day Notice to Pay if the landlord wants to file an eviction action with the court. This notice gives the tenant the option to pay the past due amount in full within three days in order to avoid eviction.
If the tenant does not pay the rent due by the end of the notice period and remains on the property, the landlord may proceed with the eviction process.
Eviction Process for Violation of Lease Terms / Rental Agreement
In these instances, the landlord is required to provide the tenant with a 7-Day Notice to Comply, giving the tenant seven days to correct the issue.
Typical lease violations under this category could include things like subletting a room, damaging the rental property, having too many people residing in the rental unit, and having a pet when there’s a no-pet policy.
However, if a tenant commits a second violation of the rental agreement or lease within six months of the first violation, New Mexico landlords are not required to give the tenant an opportunity to correct the violation prior to eviction.
Note that illegal activity and material health/safety violations are not included in this category.
If the tenant doesn’t correct the issue within the time period on the notice, the landlord may proceed with the eviction process.
Eviction Process for No Lease / End of Lease
In the state of New Mexico, if tenants “hold over,” or stay in the rental unit after the rental term has expired, then the landlord must give tenants notice before evicting them. This can include tenants without a written lease and week-to-week and month-to-month tenants.
Often this type of eviction applies to tenants who are at the end of their lease and the landlord doesn’t want to renew.
The amount of time required in the notice depends on the type of tenancy.
- Week-to-Week – If tenancy is from week-to-week, a landlord must provide the tenant with a 7-Day Notice to Quit.
- Month-to-Month – If rent is paid on a month-to-month basis, a landlord must provide the tenant with a 30-Day Notice to Quit.
- Year-to-Year – If a tenant did not extend the lease but resided at the rental unit after a term with the consent of the landlord, the landlord must provide the tenant with a six-month Notice to Quit.
If the tenant remains on the property after the notice period expires, the landlord may proceed with the eviction process.
Eviction Process for Material Health / Safety Violation
A tenant can be evicted in New Mexico if they violate a health, building, safety, or housing code. In these instances, the landlord is required to provide the tenant with a 7-Day Notice to Comply, giving the tenant seven days to correct the issue.
Examples of material health and safety violations could include letting trash pile up inside the rental unit, providing a harbor for rodents or bugs, or damaging the electrical wiring in the rental unit.
If the tenant corrects the issue but commits the same violation within a six-month timeframe, the landlord shall deliver a written 7-Day Notice to Quit.
If the tenant remains on the property after the notice period expires without correcting the violation, the landlord may proceed with the eviction process.
Eviction Process for Illegal Activity
Tenants of a rental unit who are involved in illegal activity must be given three days’ written notice before the landlord can proceed with an eviction action.
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.
Step 2: Petition is Filed and Served
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
Below is a summary of the aspects outside of the landlord’s control that dictate the amount of time it takes to evict a tenant in New Mexico. With that being said, these estimates can vary greatly, and some time periods may not include weekends or legal holidays.
- Initial Notice Period – Between 3 and 30 days, depending on the reason for eviction.
- Issuance/Service of Summons and Petition – 7-10 days prior to the hearing.
- Court Hearing and Ruling on the Eviction – 7-10 days after the summons is served on the tenant; more if continuance is requested/appeal filed.
- Issuance of Writ of Restitution – A few hours to a few days.
- Return of Possession – 3-7 days after a judgment for the landlord is issued.
Additional Information
Tenant’s Defenses for Eviction. In New Mexico a landlord may only evict a tenant if they receive a court order from a judge granting the eviction. Below are a few examples of valid defenses:
- A landlord may not remove or threaten a tenant from the rental unit.
- A landlord may not change the locks.
- A landlord may not turn off any services or utilities.
- A landlord may not remove a tenant’s personal property or any appliances from the rental unit.
- A landlord may not retaliate and file an eviction lawsuit against a tenant who brought a complaint to a government agency, became a member of a residents union or association, or made a written complaint asking the landlord to make repairs within six months.
Tenant’s Abandoned Personal Property. If a tenant leaves behind personal property after an eviction the landlord shall store the property for 30 days. The landlord must deliver via first class mail a written notice to the tenant that the items will be disposed of if the tenant has not claimed it within the timeframe.
If the lease agreement is terminated by a writ of restitution, the landlord has no obligation to store any personal property after three days after the execution of the writ of restitution.
Flowchart of New Mexico Eviction Process
For additional questions about the eviction process in New Mexico, please refer to the official state legislation, New Mexico Statutes §§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)
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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 §47-8-33 (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.
- 3 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.
- 4 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.
- 5 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…
- 6 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…
- 7 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.
- 8 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.
- 9 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…
- 10 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…
- 11 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.
- 12 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…
- 13 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…
- 14 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.
- 15 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.
