Suing a Cotenant in New Mexico Metropolitan and Magistrate Court for Unpaid Rent
Learn the basics of filing a small claims lawsuit if your roommate isn't paying rent.
Having a dispute with a former roommate about rent money? You may be able to sue the other tenant for the unpaid rent in Metropolitan Court (in Bernalillo county) or Magistrate court (in the rest of New Mexico). Here’s how.
Cotenant Liability for Paying Rent
First some legal background: If you and your roommate both signed the same lease or rental agreement, you are cotenants. You are each liable to the landlord for the entire amount of the rent. So if your cotenant has moved out owing rent, or simply not paid a particular month, that doesn’t let you off the hook for his or her share. You’re responsible for paying the landlord the entire amount of the rent, even if others are named on the lease or rental agreement. If you don’t pay the rent, New Mexico landlords can legally end your tenancy after giving you three days in which to pay the rent or move. For details, see New Mexico Late Fees, Termination for Nonpayment of Rent and Other Rent Rules.
Showing Proof of Your Shared Rent Responsibility
You can sue your cotenant in small claims court in New Mexico for the unpaid rent—but to win your case, you will need to show that you had an agreement as to how much each of you would contribute to the total rent. Ideal evidence would be a written agreement between the two of you, specifying each tenant’s share of the monthly rent. Alternatively, if you paid the entire rent and got reimbursed by your roommate, you might show the judge your bank statements, which show regular deposits from the roommate, reflecting his or her payment of a consistent percentage of the total rent. Or, if the landlord accepted a check from each of you, you could present your cancelled checks (presumably, the roommate paid the balance). Finally, if your landlord will cooperate, ask for a statement detailing how much rent each cotenant consistently paid. If you and your ex-roommate had only an oral agreement, or the roommate gave you varying amounts of money each month, you’ll have a harder time making your case.
Suing Your Former Roommate in New Mexico Metropolitan or Magistrate Court
Filing a small claims lawsuit in New Mexico is inexpensive, usually less than $50 to file a case (fee waivers or deferrals are sometimes available for people with low incomes). You don’t need a lawyer—in fact, they’re not even allowed in some cases. Disputes usually go before a judge (there are no juries) within a month or two.
You can sue for the amount of the rent that the former cotenant owes you, up to the state limit. The maximum amount for which you can sue in New Mexico Metropolitan or Magistrate Court is $10,000. If there’s a lot more money involved, you will have to sue in a higher court, at a much greater expense.
See the New Mexico state court website for more details on small claims lawsuits, including the name of the court where you should file suit, the paperwork involved with suing the ex-tenant (typically called a complaint or claim), filing fees and other costs, and whether or not attorneys are allowed in small claims court disputes in New Mexico.
Can You Collect the Unpaid Rent Money?
Before you spend the time and money preparing for and filing a small claims court lawsuit in New Mexico, think carefully about whether or not you can collect the money if you win a judgment (the judge’s written decision). You won’t automatically receive the unpaid rent if the judge rules in your favor. If your former roommate (the defendant in this case) doesn’t voluntarily pay, you’ll have to collect the judgment yourself. This may not be worth the cost and effort if you can’t find your ex-cotenant (or he or she has moved out of state). It will also be difficult to collect if the former tenant has no money, job (or prospects of employment), or property to use as a collection source.
If you believe you have a good chance of winning in (and collecting a money judgment from) small claims court, you’ll want to formally request the unpaid rent and gather evidence for court.
Sending a Written Request for the Unpaid Rent
Rather than just call or text the ex-tenant, send a written letter (what’s known as a demand letter) asking for the rent money owed. Your letter should spell out the main facts, what exactly you want (the amount of unpaid rent money), and your intent to sue in small claims court if necessary.
Send the letter certified mail (return receipt requested), or use a delivery service that will give you a receipt. Keep a copy of your demand letter and the delivery receipt. You’ll need them if you end up in court.
If your former tenant has not responded to your demand letter (or has given an unsatisfactory response), you may file a lawsuit in small claims court in New Mexico immediately, or try mediation first. With mediation, the two of you meet with a neutral third person who helps you and arrive at a mutually agreeable solution. Mediation may be available from a community-based mediation program, or even right in the courthouse. To find a landlord-tenant mediator in New Mexico, check mediate.com.
Gather Evidence for Court
Tangible evidence is key to winning your case in small claims court. To win, you need to prove that you had an agreement with the former roommate to split the rent; that the agreement or contract (oral or written) was broken by the ex-cotenant; and, as a result, you have suffered a monetary loss.
Here are the types of evidence you should take to court:
- a clear statement of how much money you claim your former cotenant owes you for rent (and proof that you have paid the landlord this amount)
- a copy of your demand letter and other correspondence with your former roommate regarding the unpaid rent
- a copy of the lease or rental agreement signed by you and the former tenant
- any written cotenant agreement or emails regarding how you shared the rent
- evidence from your landlord as to rent paid by the ex-tenant, and
- any witnesses who were familiar with your rental arrangement who will testify on your behalf.
Going to Court
If your former roommate doesn’t show up in court up on the proper date (and at the correct time), the judge will normally decide in your favor, after verifying that you properly served the court papers and that no one requested a postponement. This doesn’t mean you can simply show up and expect to win. You’ll still need to briefly describe your case and present evidence.
Regardless of whether or not the defendant shows up, your testimony (and that of any witnesses) will typically takes less than 15 minutes, and the judge either announces a decision right in the courtroom or mails it within a few days.
If you don’t agree with the court ruling, you may be able to appeal it.
More Information on Small Claims Court and Security Deposits
Nolo’s Small Claims Court & Lawsuits section provides a wide variety of articles on small claims court, including an overview of New Mexico small claims rules and procedures. The small claims section of the Nolo site also includes general articles on what to do if you are sued in small claims court, how mediation works in small claims cases, how to file an appeal in a small claims court case, and more. For complete details on the subject, including how to collect a court judgment, see the Nolo book Everybody’s Guide to Small Claims Court.
For an overview of state landlord-tenant laws, including legal issues involving roommates and cotenants, see Nolo’s Every Tenant’s Legal Guide, a 50-state book covering everything from rent and repairs to security deposits and termination procedures.
New Mexico Guide to Tenant Rights
For an overview of New Mexico landlord-tenant law, including your rights to when it comes to rent, repairs, deposits, and more, see: http://nmhealth.org/publication/view/guide/278/.