Squatters Rights in New Mexico

Squatters Rights in New Mexico

Last Updated: January 28, 2022 by Elizabeth Souza

Squatting is when a person finds an abandoned or vacant property and moves in without discussing it with the property owner. It sounds like breaking and entering – except sometimes it is legal.

Quick Facts for New Mexico

  • How to Get Rid of Squatters: Legal “disability” (if applicable), otherwise judicial eviction
  • Required Time of Occupation: 10 years of continuous occupation
  • Color of Title: Required before squatter can make adverse possession claim
  • Property Taxes: Required to make adverse possession claim
Questions? To chat with a New Mexico attorney about adverse possession, Click here

Who is Considered a Squatter in New Mexico?

A squatter is someone who is occupying a foreclosed, abandoned, or unoccupied building (usually residential) or area of land without the lawful permission of the owner. This means that the person does not rent or own the property. Despite this, squatting in the United States is more common than you’d think.

Isn’t that Trespassing?

Squatting is not necessarily trespassing. Trespassing is a criminal offense, while squatting is usually a civil matter. However, squatting may be treated as a criminal offense if the landlord or owner has established that the squatter is not welcome.

Keep the following in mind:

  1. Squatters or trespassers may falsely claim a right to be on the property. For example, they may use false documents or invalid deeds to convince the owner or law enforcement that they have a right to be there. This is always illegal.
  2. Even though squatters do have rights, if they do not fulfill the requirements for adverse possession, they can be arrested as criminal trespassers.
  3. Squatters can be complete strangers or even neighbors who want to obtain title to land.
  4. Squatters cannot claim adverse possession on government land.

There are exceptions to this rule.

  • If a person beautifies an abandoned residential or industrial property, they could avoid prosecution for trespass. Beautification includes planting flowers, cleaning debris, and performing basic landscaping or maintenance.
  • If there is a legitimate emergency, someone who has gained access to the property without permission may be exempt from trespassing.
  • The property but not be in use for squatters to begin the process of an adverse possession claim.

What about Holdover Tenants?

Holdover tenants, also referred to as tenants at sufferance, are tenants who remain on a property after their lease has ended. They are fundamentally different from squatters and must be dealt with in a different way entirely.

In this situation, the tenant may continue to pay rent at the existing rate and terms. If the landlord chooses to accept this without worrying about the legality of the occupancy, the tenant then becomes a ‘tenant at will’. This means that they are on the property ‘at the will’ of the landlord and they can be evicted at any time without notice.

Read more about tenants at will here.

Otherwise, if a holdover tenant receives a notice to quit (or move out), they must leave or be subjected to a lawsuit for unlawful detainer. A holdover tenant will not be able to make an adverse possession claim if they have been told to leave. Thereafter, they are considered a criminal trespasser.

Understanding Adverse Possession in New Mexico

A squatter can claim rights to the property after a certain time of residing there. In New Mexico, it takes 10 years of continuous occupation for a squatter to make an adverse possession claim (NMSA § 37-1-22 (1978)). When a squatter claims adverse possession, they can gain legal ownership of the property. At this point, the squatter is no longer considered a criminal trespasser and haw lawful permission to remain on the property.

Questions? To chat with a New Mexico attorney about adverse possession, Click here

In the U.S., there are five distinct legal requirements that must be met by the squatter before they can make an adverse possession claim. The occupation must be:

  1. Hostile – without permission and against the right of the true owner.
  2. Actual – exercising control over the real property.
  3. Open & Notorious – using the property as the owner would and not hiding his/her occupancy.
  4. Exclusive – in the possession of the individual occupying the real property alone.
  5. Continuous – staying on the property for 10 years.
NOTE

If these five elements are not met along with paying taxes and obtaining color of title, the squatter does not have grounds for adverse possession. The squatter must also provide notice that they are claiming adverse possession, although the courts do not specify exactly what is required to provide “notice”, the notice should made by maintaining or enclosing the land, placing a sign on the property restricting others from using it, blocking access to entrances of the property, and/or making improvements to the property.

Let’s take a look at what each of these terms mean.

Hostile Claim

“Hostile” doesn’t necessarily mean violent or dangerous. In the legal sense, hostile has three definitions that states may choose to use.

  1. Simple Occupation. This rule is followed by most states today. Here, “hostile” is defined as the mere occupation of the land. The trespasser doesn’t have to know that the land belongs to someone else.
  2. Awareness of Trespassing. Using this rule, the trespasser must be aware that their use of the property amounts to trespassing. They have must that they have no legal right to be on the property.
  3. Good Faith Mistake. A few states follow this additional rule. This requires that the trespasser has made an innocent good faith mistake in occupying the property in the first place. They may be relying on an invalid or incorrect deed, but they believe that they belong there without any knowledge of the property’s legal status. They are using the property “in good faith”.

Actual Possession

Actual possession requires that the trespasser is physically present on the property and treats it as if they are an owner. There are a few ways to establish this, including documenting any beautification or maintenance that the squatter performs. Planting flowers or cleaning debris (as mentioned above) is an example of actual possession of the land.

Open & Notorious Possession

“Open & Notorious” means that it must be obvious to anyone that someone is squatting on the property. Even a landowner who makes a reasonable effort to investigate must be able to tell that a squatter is living on the property. The squatter must not be trying to hide that they are staying there.

Exclusive Possession

The trespasser must be the only one possessing the land. They cannot share possession with the owner, other tenants, other squatters, or strangers.

Continuous Possession

A squatter must reside on the property for an uninterrupted amount of time. That means that the trespasser cannot give up the use of the property, return to it later, and try to count the time that the property was abandoned as part of the “continuous” possession time period. As stated previously, 10 years of continuous possession are required for adverse possession in New Mexico.

Color of Title

New Mexico law requires that a squatter have color of title to make an adverse possession claim. You may have come across this term before in your research into squatter’s rights. Essentially ‘color of title’ means that the ownership of a property is not ‘regular’. Or one or more of the correct legal documents, memorials, or registrations are missing. This is required before a squatter can make an adverse possession claim in New Mexico.

A squatter can claim color of title after successfully completing an adverse possession claim.

Do Squatters Have to Pay Property Taxes in New Mexico?

In New Mexico, squatters must be able to prove that they have paid property taxes on the land or building they are occupying. If they have not paid taxes (or cannot obtain some verification that they have), they cannot make an adverse possession claim. In some other states, this isn’t a requirement, but New Mexico is somewhat stricter about this.

How to Get Rid of Squatters in New Mexico

There are no specific laws in New Mexico that govern the removal of squatters specifically. A landowner will still have to follow the judicial eviction process to remove squatters.

There is a disability provision, however. This means that if the landlord is disabled (either they are underage, imprisoned, or legally incompetent), they have additional time to reclaim their land and prevent an adverse possession claim. After their disability is lifted (either they come of age, are released from prison, or regain competency), they have an additional 2 years to reclaim their property.

In all other cases, a landowner must proceed with eviction by sending an eviction notice. There are different eviction notices available in New Mexico that would work to evict a squatter.

The 3-Day Notice to Pay rent allows the squatter time to pay an amount to remain on the property and become a regular tenant (N.M. Stat. Ann. § 47-8-33). If the squatter does not pay the rent by the end of notice period, the landowner may file an eviction suit.

If the squatter violates a health, building, safety or housing code then the landowner can issue a 7-Day Notice to comply if there is no correction to the issue the landowner may file an eviction suit with the court.

A 3-Day Notice to Quit can be issued for squatters who are involved with illegal activity. It doesn’t give the squatter a chance to correct the issue and an eviction can be filed once the notice period has ended.

The squatter may choose to fight the eviction to stay on the property for longer, but most of the time the ruling will be in favor of the landowner. Unless the squatter has significant evidence that they belong on the property or that the landowner is evicting them unethically, they seldom win.

If an eviction is granted, the court issues a Writ of Restitution that allows a sheriff to remove the squatter from the property if the squatter does not vacate within the notice period. A landowner must never try to force the squatter to leave before the Writ is issued. Measures, like turning off the utilities and changing the locks, can lead to a lawsuit for damages against the landowner.

If there is personal property left behind by the squatter, the landowner must hold onto it for 30 days and give the squatter notice. After those 30 days are up, the landowner can dispose of the property as they see fit.

Tips for Protecting Yourself from Squatters in New Mexico

  • Inspect the property regularly.
  • Secure the property (make sure all entrances are blocked, doors and windows are locked, etc.).
  • Put up “No Trespassing” signs on the property, especially if it is unoccupied.
  • Pay property taxes in a timely manner.
  • Serve written notice as soon as you realize squatters are present.
  • Offer to rent the property to squatters.
  • Call the sheriff (not the local police) to help remove squatters from the premises if they do not leave.
  • Hire a lawyer – you may need to proceed with a lawsuit to remove the squatters and having the right legal counsel can help.

It’s important to arm yourself with the right legal knowledge to prevent someone from making an adverse possession claim on your property. Make sure you refer to New Mexico Statutes 37-1-22 for more information.