Tenant Defenses to Evictions in New Mexico

In New Mexico, a tenant can be evicted for a variety of reasons, including not paying rent or violating the lease or rental agreement. However, a tenant may have a defense if faced with an eviction for not paying rent or violating the lease.

This article looks at the most common reasons tenants are evicted in New Mexico and some legal grounds or defenses tenants have to fight an eviction.

Grounds for Eviction in New Mexico

The two most common reasons tenants are evicted in New Mexico are for failing to pay rent or violating the lease agreement. In New Mexico, the Uniform Owner-Resident Relations Act sets out all the rules landlords and tenants must follow, including rules for evictions. Before a tenant can be evicted, a landlord must provide the tenant with a notice that details the reasons for the eviction and gives the tenant an opportunity to either pay rent or fix a lease violation. If the tenant does not fix the violation, the landlord can then file an eviction lawsuit with the court.

Nonpayment of Rent

One of the most common reasons for eviction is the tenant failing to pay rent. Before filing the eviction lawsuit, the landlord must first give the tenant a notice. The landlord can give the tenant notice as soon as rent is late. The notice must state that the tenant has three days to either pay the rent or the lease will terminate and the landlord will file an eviction lawsuit (see N.M. Stat. Ann. § 47-8-33(D)). If the tenant does not pay the rent within the three-day time period, the landlord can then proceed with the eviction.

Lease Violations

Another common reason for eviction is for a lease violation. The landlord must give the tenant a notice before filing the eviction lawsuit. The notice must detail the lease violation and state that the tenant has seven days to either fix the violation or the landlord will terminate the lease and begin eviction proceedings (see N.M. Stat. Ann. § 47-8-33(A)). If the tenant does not fix the lease violation within the seven-day time period, the landlord can then file an eviction lawsuit with the court.

Examples of lease violations include having unauthorized people living in the rental unit or having pets when none are allowed.

Eviction Process

After the landlord gives the tenant notice and the tenant fails to either pay rent or fix the lease violation, the landlord can file an eviction lawsuit with the appropriate district court or magistrate court (see N.M. Stat. Ann. § 47-8-10). The landlord must file a summons and complaint with the court, and then the tenant will receive a copy of the paperwork. The summons will have a time and date on it for a hearing before a judge. If the tenant wishes to challenge the eviction, the tenant must appear at the hearing and tell the judge any defenses the tenant may have to the eviction. The judge will listen to both the landlord and the tenant and then make a final decision regarding the eviction.

The tenant may find that challenging the eviction is not always the best option. If the tenant loses, the tenant might have to pay the landlord's court and attorney's fees. The tenant could also receive a negative credit rating and could be turned down for future housing. The best option for the tenant might be to try to talk to the landlord and negotiate a deal outside the court system. Many communities have free or low-cost mediation services that handle landlord-tenant disputes; local resources are available through the website mediate.com and the American Arbitration Association.

Eviction Defenses in New Mexico

Below are some of the most common defenses for tenants in New Mexico.

Landlord Evicts Tenant with a "Self-Help" Eviction

A landlord can only evict a tenant after receiving a court order from a judge allowing the eviction to occur. New Mexico law makes it illegal for a landlord to attempt to remove a tenant in any other way, such as shutting off the utilities or changing the locks at the rental unit. If the landlord attempts a "self-help" eviction, the tenant can sue the landlord for damages and seek possession of the rental unit again (see N.M. Stat. Ann. § 47-8-36).

Landlord Does Not Follow Proper Eviction Procedures

When evicting a tenant in New Mexico, it is very important that a landlord carefully follows all the rules laid out in the Uniform Owner-Resident Relations Act. If a landlord does not follow all the rules, the eviction may not be valid. For instance, a landlord must give a tenant a three-day notice after the tenant fails to pay rent. If the tenant does not pay rent during the three-day period, the landlord can then file the eviction lawsuit. However, if the landlord does not give the tenant a three-day notice and files the eviction lawsuit anyway, the tenant can use lack of notice as a defense to the eviction. The eviction lawsuit would stop, and the landlord would have to give the tenant a three-day notice, and then file a new eviction lawsuit if the tenant still failed to pay rent. Keep in mind that this type of defense will not stop a justified eviction. It merely delays it. Once the landlord fixes the deficient procedure, the eviction will proceed.

Landlord Evicts Tenant for Not Paying Rent

There are a couple potential defenses for a tenant who is being evicted for not paying rent.

Tenant Paid Rent in Full

A landlord must give a tenant a full three days to pay rent after giving the tenant notice. If the tenant pays rent within those three days, the landlord must not proceed with the eviction (see N.M. Stat. Ann. § 47-8-33(D)). The tenant should ask for a time-stamped receipt when paying rent during this three-day time period. This way, if the landlord files the eviction lawsuit anyway, the tenant can use the receipt as evidence that the tenant paid rent within the appropriate time.

Landlord Did Not Maintain the Rental Unit

A landlord is required under the law in New Mexico to keep a rental unit in good repair and safe condition. Specifically, this means the landlord must:

• comply with all housing codes that affect health and safety
• keep all common areas in safe condition
• maintain in good and safe working order electrical, plumbing, sanitary, heating, ventilating, air conditioning, and all other facilities and appliances
• provide trash receptacles and arrange for their removal
• supply running water, including hot water, at all times, and
• supply heat at all times.

See N.M. Stat. Ann. § 47-8-20.

If the rental unit needs maintenance in one of these areas, and the resident did not cause the damage to the rental unit, the tenant must give the landlord written notice specifying the necessary repair and at least seven days to make the repair. If the landlord does not make the repair within seven days, the tenant can choose one of the following remedies:

1. The tenant can terminate the rental agreement and move out of the rental unit. The landlord would be required to return to the tenant any prepaid rent and deposits (see N.M. Stat. Ann. § 47-8-27.1(A)(1)).
2. The tenant can choose to pay only one-third of the daily rent until the repair is made. This option is called rent abatement (see N.M. Stat. Ann. § 47-8-27.2(A)(1)).
3. If the rental unit is uninhabitable, the tenant can temporarily move out of the rental unit and choose not to pay rent at all until the repairs are made and the tenant can move back in (see N.M. Stat. Ann. § 47-8-27.2(A)(2)).

If the landlord tries to evict the tenant after the tenant either pays a reduced rent or pays no rent, the tenant can use evidence that the landlord did not provide necessary repairs as a defense against the eviction.

Landlord Evicts Tenant for a Lease Violation

If a tenant violates the lease agreement, the landlord is required to give the tenant a seven-day notice that allows the tenant to fix the lease violation before the landlord proceeds with the eviction lawsuit. If the tenant fixes the violation within the seven days, the landlord must not proceed with the eviction (see N.M. Stat. Ann. § 47-8-33(A)). The tenant can use evidence that the violation was corrected within the appropriate time frame as a defense to an eviction, if the landlord chooses to proceed with the eviction anyway.

Landlord Evicts Tenant Based on Discrimination

The federal Fair Housing Act makes it illegal for a landlord to discriminate against a tenant based on race, religion, gender, national origin, familial status (including children under the age of 18 and pregnant women), and disability. In addition, New Mexico has also enacted the Human Rights Act, which protects all the groups protected under the federal Fair Housing Act, plus color, ancestry, sexual orientation, gender identity, and spousal affiliation. If a landlord tries to evict a tenant based on any of these characteristics, the tenant can use the discrimination as a defense to the eviction. See the Nolo article Housing Discrimination Prohibited by State and Local Law for more on laws prohibiting discrimination against tenants.

Additional Resources for Tenants in New Mexico

For those who qualify based on income, New Mexico Legal Aid will provide legal help for a variety of issues, including housing issues. New Mexico Legal Aid also sponsors Law Help New Mexico, which provides free information for anyone needing information on housing laws. Tenants who live in federally assisted housing should also check out the tenant resource page at HUD.gov.

Finding Your Local Courthouse

Eviction lawsuits are filed in either the district court or magistrate court in New Mexico. The state is divided into thirteen districts. For a map of the districts and the location of the district and magistrate courts closest to you, check out this online map provided by the New Mexico judicial system.

When to Hire an Experienced Lawyer

If you have more specific legal questions about your eviction case or the landlord has already retained a lawyer, you should probably also contact a lawyer. A lawyer can handle the whole case or give you advice on how to proceed. A lawyer can also let you know how likely you are to win your case. You may especially want to hire an attorney if you are confident of your case and your lease or rental agreement entitles you to attorney fees if you win in court.

For advice on finding a good lawyer, see the Nolo article How to Find an Excellent Lawyer.

More Information on Evictions and Terminations

For more articles on the subject, see the Evictions and Terminations section of Nolo.com.

For more information on a wide variety of tenant rights, see Every Tenant's Legal Guide (Nolo).