Like all evictions, the New Mexico eviction process begins with a written notice served on the tenant. No landlord can evict a tenant without following the required judicial steps. Unlawful eviction attempts include changing the locks, threatening the tenant, denying the tenant access, shutting off utilities or purposely failing to fix a dangerous or unhealthy condition despite a written notice from the tenant to repair the condition.
To start the New Mexico eviction process, the landlord must serve any of these written notices on the tenant:
The shortest notice is for failure to pay rent on time or if the tenant has committed a serious or substantial criminal offense such as selling, possessing or manufacturing illegal narcotics on the premises. The notice must specify the amount owed and that the tenant can remain if the rent is paid within the 3-day period.
For other lease violations or to advise the tenant that he or she is not adhering to certain legal obligations, the 7-day notice is given. The notice must specify the lease provision being violated and that it can be remedied within 7 days. If two of these 7-day notices are given within 6-months, the landlord need not allow the tenant to remedy or cure the violation and the landlord can proceed with filing a petition to oust the tenant.
These notices are given if the lease agreement has terminated, if there is no written lease agreement or if the lease has become a month-to-month and the landlord wishes to evict the tenant for any reason.
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Petition by Owner for Restitution
If the tenant refuses to vacate or does not pay the rent due or cure the lease violation after receiving the New Mexico Eviction Notice, the landlord must then file a Petition by Owner for Restitution, also known as a Complaint in Unlawful Detainer. The landlord must file the following with the court clerk’s office:
- Petition by Owner for Restitution
- Copy of the lease or rental agreement
- Pay the filing fee
A service packet is given to the landlord, which contains the date and time of trial and the judge who will hear the case. The trial is usually held 7-10 days after the Petition is filed.
The packet must be served on the tenant by either a process server, sheriff, or anyone 18 years or older who is not a party to the action or an employee of the landlord. If the tenant cannot be personally served or given to a subtenant at least 15 years of age, the server can post the packet on the unit’s door but must also mail it to the tenant.
Answer and Counterclaims
The tenant can file an Answer until the court date and can also file a counterclaim against the landlord. A counterclaim can include the fact that a 7-day written notice was given to the landlord to repair a serious condition that was refused or denied.
If the tenant claims the rent was not paid or only partially paid because of an unrepaired hazardous condition, the tenant must present the written notice given to the landlord along with proof of service and evidence of the dangerous or unhealthy condition. The claim can include monetary damages because of the condition. A tenant could choose to vacate the premises without legal consequences, reduce the rate by 1/3 of the daily pro rata rate until repairs are performed, or file a Petition by Resident for Relief.
Trial and Defenses
Trials are held before a judge only. The landlord must prove by a preponderance of the evidence that rent is due and owing or that some material violation of the lease occurred and that eviction is warranted. A tenant can present any of the following arguments in defense:
- No lease violation has occurred.
- No notice was given or it was insufficient.
- The landlord failed to do repairs despite written notice.
- The unit has become unfit to live in and the landlord was notified.
- The landlord attempted self-evict measures such as changing locks, intimidating the tenant or otherwise denying access.
- The reason for the eviction is discriminatory or in retaliation for filing a claim or complaint.
Order and Writ of Restitution
The last step in the New Mexico Eviction Process: Should the landlord win, the court will issue a judgment for restitution and order the tenant to vacate within 3 to 7-days. If the tenant remains, a Writ of Restitution can be obtained and given to the sheriff to take to the property and remove the tenant.
If the tenant prevails, the action is dismissed. The court can also rule on the tenant’s counterclaims, if any, and award damages if proved.
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