The New Mexico eviction process follows similar steps compared to other states and they are as follows:
- Send a clear written notice
- Fill out the forms
- Serve the tenant
- Attend the trial
- Wait for judgment
New Mexico Legal Aid provides free legal help for landlords or tenants who are in need of help in understanding the legal terms found in the Landlord-Tenant Rights of New Mexico. Alternatively, a landlord can ask for legal advice from an attorney for more information on their rights and for help in understanding the rules for eviction.
1. Failure to pay rent or nonpayment of rent
The most common reason for eviction is failure to pay rent. A landlord can evict a tenant for failing to pay the rent on time.
Rent is considered late in New Mexico a day past its due. However, a grace period to extend the rent payment may be available if written in the lease/rental agreement.
Before starting an eviction process in New Mexico, the landlord must give the tenant a 3-Day Notice to Pay. This means a tenant has three days to pay rent.
If they are unable to pay rent by the end of the three days, the landlord may proceed with the eviction process.
2. Violation of the lease/rental agreement
A lease/rental agreement may vary from tenant to tenant. It contains the responsibilities of each party during the entire duration of the tenant's stay.
A tenant may face eviction for violating the terms of the lease. Before a landlord can start filing for an eviction action, a landlord must first provide a 7-Day Notice to Comply, which gives the tenant seven days to fix the issue, or else they may be evicted.
In New Mexico, if the tenant was able to fix their violation on time, but commits it again within 6 months, the landlord may proceed with filing for eviction without giving the tenant a second notice.
However, if the tenant is unable to fix their violation within the seven days given by the first notice, the landlord may proceed with filing for an eviction.
3. Material health or safety violation
New Mexico law takes into account the health, building, safety, and housing codes. If a tenant violates any of these codes, the landlord must first issue a 7-Day Notice to Comply, which gives the tenant seven days to fix their violation or else they may be evicted.
A material health/safety code violation affects the well-being of the entire rental property and may cause some health issues.
4. Conducting illegal activity
In the state of New Mexico, a tenant who has engaged in illegal activity within the property must be given a 3-Day Notice to Quit. Tenants usually have no choice but to leave the property or else they will have to deal with an eviction lawsuit.
The eviction laws of New Mexico consider illegal activity as a "substantial" violation of the lease. It includes, but is not limited to:
- Theft, violence assault
- Involvement in the creation, distribution, or consumption of a controlled substance
5. Non-renewal of lease after the end of the rental period
A New Mexico eviction process does not allow a landlord to evict a tenant without good cause. As long as the tenant does not violate any rules, they can stay until their rental period ends.
However, if a tenant overstays their lease term without applying for a renewal, they can be evicted. But first, the landlord must provide the correct notice.
It does not matter whether a tenant has a written lease, or is a month-to-month tenant. They all receive a specific notice depending on their tenancy which could either be a 7-Day Notice to Quit or a 30-Day Notice to Quit.
See N.M. Stat. Ann. § 47-8-37 for more information.
Filing a Complaint
After the landlord gives the tenant the appropriate eviction notice, they must file a legal complaint in the correct District Court or Magistrate court. Filing fees must also be paid, and they can rise as high as $132 in Bernalillo county.
1. Steps to file a complaint
- Proceed to the justice court the rental property belongs to
- Fill out the forms to file the complaint: The landlord may need to provide their district's zip code
- Pay the fees
It takes about 3-30 days from the date the eviction notice was given to the tenant before a complaint can be filed.
Serving the Tenant
The Summons and Complaint is a court order that informs the tenant of the eviction lawsuit filed against them. It contains information such as the date and time of the court trial.
New Mexico allows individuals who are uninvolved in the case who are at least 18 years old to serve the Summons and Complaint. They must be delivered at least 7-10 days before the eviction hearing.
1. How to give the tenant the documents
Any one of these methods can be used to serve the tenant. Should one method fail, then the server must move on to the next one.
- The Summons and Complaint are served to the tenant in person
- A copy of the Summons and Complaint is left where the tenant is found at present
- The documents are mailed to the tenant. This requires a signed return receipt
- A copy is left at the tenant's rental unit with someone residing with them who is at least 15 years old. When using this service, a copy should also be mailed to the tenant
- In the event all the methods above fail, the following steps must be taken:
- A copy is left with the tenant's employer
- The documents are mailed to the last known address
- A copy is mailed to the workplace of the tenant
2. After serving the Summons and Complaint
If the eviction hearing was filed in Magistrate Court, and the service used was mailing, the defendant has to provide a return receipt within 23 days from its mailing date. Otherwise, another method of service has to be used.
Either party can ask the court judge for a continuance that lasts no longer than 7 days to give each side time to look for legal aid, witnesses to testify, or evidence.
The court order must be served 7-10 days before the eviction hearing. A continuance of 7 days may be requested by either party.
Asking for Possession
1. Filing a Motion to Obtain Judgment and get a Judgment for Possession
Landlords have to provide a strong argument backed up by solid evidence against their tenants. Once the landlord wins the eviction lawsuit, the tenant can appeal the judgment.
However, if the eviction process began due to nonpayment of rent, the tenant has to leave the property unless they are able to pay rent in full or establish an escrow account within 5 days from the date they filed for an appeal.
2. Next procedure if the tenant disagreed and filed an answer
In New Mexico, the tenant is not required to file an answer with the court prior to the hearing. They only have to appear during the court hearing. However, they can do so if they choose.
Should the tenant be unable to attend the hearing, the judge could issue a default judgment in favor of the landlord. This means the tenant must move out of the rental property.
Evidence shown during a court hearing includes, but is not limited by the following:
- Copy of the deed and the lease/rental agreement
- Rent receipts
- Rent ledgers
- Bank statements
- Witness statements
- Photo and video documentation of the violations committed by the tenant
A hearing for evictions is scheduled 7-10 days after the tenant receives the Summons.
1. After the landlord wins the case and gets a Writ of Restitution
Provided the tenant does not appeal for reconsideration, the court judge will issue a Writ of Restitution after the court judge rules in the landlord's favor. The Writ dictates that a tenant must move out of the rental unit or else they will be forcibly evicted.
This could take either a few hours to a few days, but it can be issued immediately after the eviction hearing. The landlord must request for it to be issued.
2. Move out process
In the state of New Mexico, the law enforcement officer must remove the tenant from the rental unit 3-7 days after the judgment is passed in favor of the landlord.
The eviction laws of New Mexico state that any personal property left behind has to be kept by the landlord for at least 3 days before they can sell or dispose of the property.
See N.M. Stat. Ann. § 47-8-34.1(C) for more information.
The tenant is removed 3-7 days after the judgment is passed.
New Mexico Eviction Process Timeline
On average, it takes about 2 weeks to 7 weeks for a complete eviction process in the state of New Mexico.
A hearing for evictions is scheduled 7-10 days after the tenant receives the Summons regardless of the reason for eviction.
1. How to keep good records
If the tenant disagrees with the eviction request and they reply to the court, it’s important that you keep extremely good records of everything so you can provide proof to the judge and win your case. This part can make or break your entire eviction request in the event of a dispute.
You can stay organized by:
- Keeping a physical paper trail - This gets VERY hard to search through, takes up a lot of storage space, and could get lost, damaged, stolen, or burnt in a fire.
- Scanning documents - Scan every document into your computer. A great scanner is the Brother ADS-1700W for under $200 or the Fujitsu ScanSnap iX1500 for $400.
- Backups - Store and backup every file using Dropbox, Google Drive, OneDrive, or any other option that you can quickly search through if you need to.
- PMS - Use a property management software to save everything from lease agreements, signed documents, violations, emails, notes, invoices, payments, reminders, maintenance requests, pictures, videos, and anything you can imagine. This is used best when you also scan every document into your software.
2. Evidence to show for not paying rent
If the tenant doesn’t pay rent, and they dispute that claim, it’s important that you show the judge the following:
- Your lease agreement - Showing the terms of the agreement, when rent is due, and any penalties for late payment.
- All payments - Showing all previous payments, how they were normally made (check, credit card, ACH, etc…), and what date they were normally paid on.
- Any payment returns - If their check bounced, their bank account had insufficient funds, or they did a chargeback dispute on their credit card, show this to the Judge. Also, show any fees your bank may have charged you, and any penalties you are owed according to your lease agreement.
- All messages - If you sent your tenant automated or manual payment reminders by text, email, letter, or mail, it’s important to show this. While it’s usually not needed, it’s still good to show that they were aware of the situation and were given time to cure and make payment. This is why having things physically present is better than in emails.
3. Evidence to show for lease violations
If you are evicting the tenant for lease violations, for example, noise complaints, unauthorized pets, or property damages, it’s important to show proof from any of the following methods:
- Security Cameras - If you have a surveillance system that can show them committing the crime or lease violation, you can be confident that the court will decide in your favor.
- Video - If you didn’t catch them in the act, the next best thing is to record a video with your phone of any damages or the lease violation.
- Pictures - They say a picture is worth a thousand words. In this case, a picture could be worth thousands of dollars! Even if you take a video, it’s important to show the Judge any pictures too as it’s usually easier to see by email or printed.
- Lease Terms - It is vital to show that the tenant violated some part of the agreement. Don’t worry if you don’t have every single term spelled out in your rental agreement. If the violation is bad enough, it might not be needed to have it written. As a good practice though, start adding all of the potential reasons to evict a tenant into your agreement.
1. What is a self-help eviction?
Examples of illegal “self-help” evictions can vary but some common cases include changing the locks, taking the tenant’s belongings, removing the front door, or turning off the heat or electricity. Many states specify how much money a tenant can sue for if the landlord has tried to illegally evict the tenant through some sort of self-help measure. Some state laws also provide for tenant's court costs and attorneys' fees (if the tenant successfully sues the landlord) and/or give the tenant the right to stay in the rental unit.
2. Can I force a tenant to move out in New Mexico?
In almost every state in the US, a landlord must never try to force a tenant to move out of the rental unit. The tenant can only be removed from a rental unit after the landlord has successfully won an eviction lawsuit. Even then, the only person authorized to remove the tenant is a sheriff or constable, depending on the state. New Mexico law has made it illegal for a landlord to personally remove the tenant from the rental unit.
Can you kick someone out without an eviction notice in New Mexico?
No. A landlord could be sued for forceful eviction of a tenant. They are required to follow the proper eviction process.
In the state of New Mexico, tenants have can sue their landlords for a prorated share of the rent for each day of violation, actual damages, and twice the monthly rent.
Is New Mexico a landlord-friendly state?
It's somewhere in the middle in terms of being a landlord-friendly state. According to the New Mexico Landlord-Tenant Rights, landlords and tenants have their own responsibilities to uphold.
What other laws should I be aware of?
What are the potential penalties for a self-help eviction?
According to New Mexico Civil Code, you may be liable for Tenant’s Court Costs & Attorneys’ Fees. The statute also gives the tenant the right to stay.
A tenant can sue you for actual damages plus violations. Tenants may ask for an injunction prohibiting any further violation during the court action.
- eForms: New Mexico Eviction Notice Forms
- Justia US Law: 2014 New Mexico Statutes
- NOLO: Overview of Landlord-Tenant Laws & Responsibilities in New Mexico
- National Apartment Association: COVID-19 Information for New Mexico
- NOLO: Consequences of Illegal Evictions
- NOLO: The Eviction Process in New Mexico: Rules for Landlords and Property Managers