Uniform Owner – Resident Relations Act
Your New Mexico residential rental lease agreement is governed by the Uniform Owner/Resident Relations Act. You may still include terms and provisions in the rental agreement that are not part of the Act so long as they are not contrary to public policy or state laws.
Landlords have implied as well as explicit obligations to tenants regarding the condition of the premises as well as having to make certain disclosures. Tenants have to be aware of their obligations, notice requirements and procedures regarding return of deposits, making repairs, entry by the landlord and conduct. Residential owners and their agents are also required to provide a fit and habitable residence.
As landlord, you are not allowed to refuse to rent to anyone based on race, color, creed, gender, religion, national origin, familial status or disability. You may screen applicants based on income, credit, criminal history, references or history of evictions.
You also may not retaliate against a tenant by terminating the lease, raising the rent, threatening the tenant or taking any other action to evict the tenant if you were reported to a governmental authority regarding the premises within the past 6-months. Other actions that the tenant is allowed to make without fear of retaliation is participating in a tenants’ union, testifying against you in any court action or making a request for repairs.
Obligations of Landlord
You have basic obligations that include the following:
- Comply with all housing and building codes affecting the tenants’ health and safety
- Make all necessary repairs to keep the residence habitable
- Maintain common areas and keep them free of trash
- Supply running water and a reasonable amount of hot water at all times along with reasonable heat, but not if the building is not required by law to be equipped for that purpose or the dwelling unit is constructed so that heat or hot water is generated by an installation within the sole control of the tenant and supplied by a direct public utility connection
Obligations of the Tenant
Tenants have certain basic obligations as well:
- Keep and maintain the premises in a clean and sanitary condition
- Obey or comply with housing and building codes regarding safety and health
- Return the unit in the same condition as when first leased
- Properly dispose of all trash and rubbish
- Keep plumbing fixtures clean
- Use appliances, heating, air, electrical, plumbing and other systems in an appropriate manner
- Obey the law
- Pay the rent on time and abide by all terms of the rental agreement and rules of conduct
- Abide by any rules or regulations of the condo or cooperative housing association in which the tenant lives that is not inconsistent with the landlord’s obligations
- Do not intentionally damage the premises
- Do not disturb the quiet enjoyment of other tenants to their own units
Terms of the New Mexico Lease
The following terms and provisions include some required and some optional terms. All disclosures are required.
- Name of owner and property manager who is authorized to manage the property, address where rent is to be paid and request for repairs are to be directed; address and identity of person to whom legal documents and notices are to be served (required term)
- Names of the tenants and other occupants and if children are allowed—have all adult tenants sign the lease so that both are jointly and severally liable for the lease terms, including the rent
- Description of the premises
- Term of the lease—weekly, monthly, yearly or other
- Amount of rent, due date—state a grace period and amount of late fees that may not be more than 10% of the rent for that term with notice required to be given of the late fee no later than the last day of the following month after the late fee was incurred —you may ask for prepaid rent
- Returned check fees–$25
- Security deposit—no more than 1 month’s rent for leases less than one year, otherwise a reasonable amount for longer rental terms; deposit in an interest bearing account for deposits that are more than one month’s rent to be paid annually to the tenant that is equal to the passbook interest permitted to savings and loan associations by the federal home loan bank board; advise tenant that the funds will be returned within 30-days of tenant vacating the unit to a forwarding address or to the tenant’s last known address or you will submit a written, itemized statement with specific reasons for withholding deposit by mail with return receipt requested within this time—you are required to provide and have signed a record of the inventory and condition of the premises with check-in list when the tenant takes possession; recommend that you do a mutual inspection a short time after the tenant vacates with check-out list
- That the tenant or landlord will pay attorney’s fees to the prevailing party in a court action
- Obligations of landlord regarding repairs and maintenance and of services—Rules of conduct that fairly apply to and promote the convenience, safety or welfare of all tenants and preserve the landlord’s property and is in good faith and not designed to evade any responsibilities of the landlord—if adopted after the tenancy begins, the tenant must consent to the rule(s) in writing
- Responsibility for utilities
- Major appliances that are being provided
- No commercial, business or unlawful use of premises by tenant or conduct that constitutes a nuisance or is unlawful
- Pet clause—may limit type of pet, weight and require tenant to clean up pet waste in common areas; may charge a deposit
- Subletting clause
- Right of entry by landlord to make repairs, inspect and show to future tenants or purchasers or if the tenant has been causing a disturbance or is otherwise violating the lease or —24-hours’ notice required and during reasonable time or within 7 days after tenant request for repairs or when landlord is accompanied by public official or representative of a cable, electrical or phone company; indicate that you may enter immediately if it is an emergency or if tenant is absent for more than 7 consecutive days
- Notify landlord if absence from unit is 7 days or longer by the first day of the absence
- Notices regarding termination for nonpayment of rent, other lease violations—3-days for nonpayment of rent and 7-days for other material violations
- Notice for increasing rent—30-days in advance of the rent due date in a monthly lease (may not be for a discriminatory or retaliatory purpose)
- Disclosure of the presence of any lead-based paint or hazards on the property for rental property built before 1978—both landlord and tenant must sign an EPA-approved disclosure form and the tenant provided an EPA pamphlet entitled “Protect Your Family from Lead in Your Home.”
There are some provisions that you may not include in a rental agreement:
- Waiver of statutory remedies available to tenant
- Waiver of right to sue landlord for negligence or to recover damages
- Authorize a person to confess judgment on any claim arising out of the lease
- Allow landlord to evict tenant without a court order
- Allow the landlord to enter without notice at any time
- Charge more than the maximum allowable for security deposit
- Alter the notice and other procedures for return of the security deposit
- Allow the landlord to take the tenant’s personal belongings for nonpayment of rent
Security Deposits – Common Cause of Disputes
Other than nonpayment of rent, issues over the security deposit make up the bulk of most landlord/tenant disputes. You can charge a reasonable amount as a security deposit if the rental agreement is a year or more but not more than one month’s rent for leases that are less than one year. For deposits that are more than one month, you are required to place the deposits in an account that pays annually to the tenant interest equal to the passbook interest permitted to savings and loan associations by the federal home loan bank board.
The security deposit is used for damage that is more than just normal deterioration or wear and tear but may be used to pay for any outstanding rent or utilities that the tenant was responsible for paying when the unit was vacated.
When a deposit is accepted, you should provide a detailed move-in checklist to review with your tenants and sign so there is no dispute when the tenant vacates. When the tenant leaves, you have 30-days to return the deposit or serve or mail an itemized list of the damages and costs. You should also conduct a mutual inspection of the premises to review the damages. If you do not follow the legally prescribed procedure, you forfeit the right to keep any of the deposit and you could be liable for court costs and attorney’s fees for any damages proved by the tenant.
Rules for Termination of the Lease
A fixed term lease with an expiration date will end on that date without any further action or notice. You may want a renewal term or a provision whereby the tenant advises you 30-days before it ends of an intent to vacate. You can either have the lease continue as a month-to-month or have a new lease signed. If you want a rent increase, you need to give 30-days’ notice before the lease expires.
To terminate a month-to-month lease, the standard 30-days’ notice is required of both tenant and landlord. No reason is needed.
For nonpayment of rent, you must serve a 3-day notice to vacate with the provision that the tenant may remain if the rent is paid in full within the 3-days. For any other lease violation, give a 7-day notice specifying the lease term that was violated with the condition that the tenant remedy the breach within this time. Typical lease violations may include having unauthorized pets or occupants or disturbing other tenants with loud music or parties after a certain time. For the latter, you may want a written promise from the tenant that no further such violations will occur. But if the tenant violates the same lease term within the subsequent 6-months, then you may serve a 7-day unconditional notice to vacate or you will begin eviction proceedings.
Under the Servicemembers Relief Act, any tenant who is a member of the Armed Forces including any of the uniformed services can terminate a fixed term lease if the tenant receives deployment orders to move more than 35 miles from the premises for more than 90 days. The tenant must provide you with a copy of the orders. This also applies if the tenant is ordered to reside in government-supplied quarters. 30-days’ notice is required and the tenant is responsible for the remainder of that month’s rent, if any, but with no further obligations under the lease. The lease will terminate 30-days after the notice is given.
Law on Domestic Violence
While New Mexico does not have a statute allowing a victim of domestic violence to terminate a fixed term lease early, you are not allowed to evict a tenant who is a victim. The tenant must provide you with a copy of a protective order. You can evict a tenant who has been accused of domestic violence.
Withhold and Repair/Deduct and Repair
There is no statutory right for a tenant to deduct rent for repairs, but the tenant may withhold rent if you were given a 7-day notice to provide essential services such as heat, water or electricity and you failed to provide them. At the end of 7-days, the tenant has the right of an abatement of one-third the daily, pro-rated rent for the services not provided and 100% of the daily, pro-rated rent if the unit is not habitable.
Be aware of the various state laws and any local ordinances that affect your obligations as a landlord and what you may or may not include in your New Mexico residential lease agreement. If you have any questions or concerns about your lease, contact a New Mexico landlord/tenant attorney.