flowchart
Steps of the eviction process in New Mexico:
Timeline. 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 (read more).
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/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 3 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
A tenant can be evicted in New Mexico if they do not uphold their responsibilities under the terms of a written lease/rental agreement.
In these instances, the landlord is required to provide the tenant with a 7-Day Notice to Comply, giving the tenant 7 days to correct the issue.
Typical lease violations under this category could include things like 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/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.
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 7 days to correct the issue.
Examples of material health/safety violations could include letting trash pile up inside the rental unit, providing a harbor for rodents or bugs, or even things like damaging the electrical wiring in the rental unit.
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 3 days’ written notice before the landlord can proceed with an eviction action.
Illegal activity is considered a “substantial violation” of the lease/rental agreement, and includes :
- Illegal use/possession/sale/distribution/manufacture of controlled substances
- Unlawful use of a deadly weapon
- Sexual assault
- Unlawful action that causes serious harm
- Entry with intent to commit theft/assault
- Theft/attempted theft using force
- Intentional/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 anyone over the age of 18 who is not part of the case 7-10 days prior 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. In addition, in Magistrate court, 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.
7-10 days. 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; 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 5 days of filing the appeal.
7-10 days. 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.
A few hours to a few days. The landlord must request the writ of execution, but it can be issued the same day as the hearing.
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.
3-7 days. 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
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.
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.
