New Mexico Eviction Process

New Mexico Eviction Process

Last Updated: September 5, 2022 by Elizabeth Souza

Steps of the eviction process in New Mexico:

  1. Landlord serves tenant written notice.
  2. Landlord files complaint with court (if unresolved).
  3. Court holds hearing with summons & complaint.
  4. Writ of restitution is issued.
  5. 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.

Questions? To chat with a New Mexico eviction attorney, click here

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.

warning

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.

Eviction notice posted on iPropertyManagement.com

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.

Eviction Complaint Filed on iPropertyManagement.com

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:

  1. Giving a copy to the tenant in person;
  2. Leaving a copy where the tenant is currently found;
  3. Mailing a copy to the defendant and requiring a signed receipt;
  4. 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
  5. 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.

Clock   on iPropertyManagement.com7-10 days. The summons and petition must be served 7-10 days prior to the hearing.

Eviction Court Hearing on iPropertyManagement.com

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.

Clock   on iPropertyManagement.com7-10 days. A hearing cannot be set earlier than seven days, or later than 10 days, after the summons is served on the tenant.

Eviction Writ of Restitution on iPropertyManagement.com

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.

Clock   on iPropertyManagement.com 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.

Eviction property possession returned on iPropertyManagement.com

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.

Clock   on iPropertyManagement.com3-7 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

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
Questions? To chat with a New Mexico eviction attorney, click here

Flowchart of New Mexico Eviction Process

New Mexico Eviction Process Flowchart on iPropertyManagement.com

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.

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