2018 New Mexico Statutes
Chapter 35 - Magistrate and Municipal Courts
Article 10 - Magistrate Court; Forcible Entry or Unlawful Detainer
Section 35-10-1 - Forcible entry or detainer; grounds.

A. A civil action for forcible entry or unlawful detainer of real property is commenced by the filing of a civil complaint alleging that one or more of the following facts exists:

(1) the defendant entered and occupied the lands and tenements of another against the will or consent of the owner and refused to vacate the premises after notice by the owner or his agent or attorney;

(2) the defendant holds over after the termination, or contrary to the terms of, his lease or tenancy;

(3) the defendant fails to pay rent at the time stipulated for payment;

(4) the defendant continues in possession after a sale by foreclosure of mortgage or on execution unless the defendant claims by a title paramount to the mortgage under which the sale was made or by title derived from the purchaser at the sale; or

(5) the defendant is a tenant from month to month or a tenant at will and continues in possession of the premises after thirty days' written notice by the owner or his agent or attorney to vacate.

B. The district court of the county in which the real property is located has concurrent original jurisdiction in civil actions for forcible entry or unlawful detainer when the rent contracted for amounts to fifty dollars ($50.00) or more a month or when the reasonable rental value of the premises is fifty dollars ($50.00) or more a month.

History: 1953 Comp., § 36-12-1, enacted by Laws 1968, ch. 62, § 122.

Repeals. — Laws 1968, ch. 62, § 171, repealed former 36-12-1, 1953 Comp., relating to jurisdiction in criminal cases, effective January 1, 1969.

Cross references. — For jurisdictional amount of magistrate court, see 35-3-3 NMSA 1978.

Action for unlawful detainer is purely statutory and is restricted in its operation to the situations specified in the statute. Ott v. Keller, 1976-NMCA-124, 90 N.M. 1, 558 P.2d 613.

Unlawful detainer is a summary proceeding; an equitable owner under a real estate contract cannot be ousted from possession by a summary proceeding, and the question of title to land cannot be determined in an unlawful detainer action. Ott v. Keller, 1976-NMCA-124, 90 N.M. 1, 558 P.2d 613.

Effect of action. — An action for forcible entry or unlawful detainer settles nothing between the parties, does not determine title to the property or the absolute right to possession, and only places the parties in their original positions prior to the forcible entry or unlawful detainer. Ott v. Keller, 1976-NMCA-124, 90 N.M. 1, 558 P.2d 613.

Sufficiency of complaint. — Substantial compliance with statutory form of complaint in a forcible entry and detainer action was sufficient. Heron v. Kelly, 1944-NMSC-007, 48 N.M. 123, 146 P.2d 851; Puckett v. Walz, 1937-NMSC-055, 41 N.M. 612, 72 P.2d 623; Springer v. Wasson, 1917-NMSC-065, 23 N.M. 277, 167 P. 712 (decided under former law).

Sufficiency of proof. — It is unnecessary to prove a forcible entry, proof of unlawful detainer being sufficient. Springer v. Wasson, 1919-NMSC-038, 25 N.M. 379, 183 P. 398 (decided under former law).

Sufficiency of description of land. — In forcible entry and detainer suit, the description should be so definite and certain that the premises may be readily identified, but reasonable and not absolute certainty is all that is required. Patten v. Balch, 1910-NMSC-008, 15 N.M. 276, 106 P. 388; Sanchez v. Luna, 1857-NMSC-012, 1 N.M. 238 (decided under former law).

Affidavit of jurisdictional amount. — Before a suit in forcible entry and detainer or unlawful detainer can be instituted in the district court, an affidavit must be made showing that the reasonable rental value of the premises is $50.00 or more per month. Kuykendall v. Ulibarri, 1952-NMSC-007, 56 N.M. 43, 239 P.2d 731 (decided under former law).

Complaint as whole to be examined. — Where jurisdiction of the district court depends upon the amount in controversy, the complaint as a whole is to be examined to determine whether the requisite jurisdiction exists. Kuykendall v. Ulibarri, 1952-NMSC-007, 56 N.M. 43, 239 P.2d 731 (decided under former law).

Action by peaceable possessor. — Where one is in quiet and peaceable possession of land belonging to the United States and is ousted by an intruder, he may maintain an action of forcible entry and detainer, even though his possession and occupation was without authority of law. Murrah v. Acrey, 1914-NMSC-051, 19 N.M. 228, 142 P. 143 (decided under former law).

Interference with a tenant's right of ingress and egress is actionable. Wal-Go Assocs. v. Leon, 1981-NMSC-022, 95 N.M. 565, 624 P.2d 507.

When suit precluded by 35-10-3 NMSA 1978. — Where defendants purchased ranch four years prior and remained in possession and plaintiff does not claim any possession prior to that, has never been in possession either as owner, tenant or in any other capacity, but bases title on a disputed contract between the parties, the plaintiff's title is so directly and inextricably involved in the action for unlawful detainer that suit is precluded by 35-10-3C NMSA 1978. Reinhart v. Lindholm, 1972-NMSC-087, 84 N.M. 546, 505 P.2d 1222.

Enforcement of right of way not permitted either. — Action of forcible entry and detainer did not lie to enforce a right of way. Roberts v. Trujillo, 1884-NMSC-005, 3 N.M. (Gild.) 87, 1 P. 855 (decided under former law).

Jurisdiction on Apache reservation. — Despite the fact that the Apache reservation land upon which plaintiff's house is located was fee patent land, presumably granted under the Indian Allotment Act, and that the Mescalero tribal law makes no provision for a wrongful entry and detainer action, nevertheless the state may not assume jurisdiction without congressional or tribal authorization. Chino v. Chino, 1977-NMSC-020, 90 N.M. 203, 561 P.2d 476.

Jurisdiction not ousted by raising of title. — If title to real estate was raised only indirectly, it would not oust the jurisdiction of the justice of the peace (now magistrate). Wood Garage v. Jasper, 1937-NMSC-019, 41 N.M. 289, 67 P.2d 1000 (decided under former law).

Effect of default on real estate sales contract. — A real estate sales contract is not a lease or tenancy since it does not involve a landlord-tenant relationship during the existence of the contract, and the contract cannot, after default, transform a vendor-vendee relationship into one of landlord-tenant despite provisions which attempt to do so; thus, an unlawful detainer action does not arise out of a vendor-vendee relationship, the vendee in possession was not a tenant in any sense of the word, his default did not make him a tenant, and consequently, the trial court lacked jurisdiction over the subject matter. Ott v. Keller, 1976-NMCA-124, 90 N.M. 1, 558 P.2d 613.

Proceeding inequitable. — A summary unlawful detainer proceeding was inequitable to defendant-vendees, whose counterclaim and demand for a jury were disregarded by the trial court when it terminated defendants' contract, evicted the defendants from their residence, forfeited all sums paid (approximately 25% of the purchase price) and ordered defendants to pay plaintiffs' attorney's fees and costs. Ott v. Keller, 1976-NMCA-124, 90 N.M. 1, 558 P.2d 613.

When right of possession arises at foreclosure sale. — The right of possession in a purchaser at a foreclosure sale arises upon the issuance to him of a commissioner's deed. Minor v. Riebold, 1974-NMSC-033, 86 N.M. 279, 523 P.2d 14.

Effect of foreclosure decree sale on mortgagor possession. — A mortgagor of real estate is not entitled to retain possession of property after confirmation of sale under decree of foreclosure. Gunby v. Doughton, 1924-NMSC-063, 30 N.M. 144, 228 P. 603 (decided under former law).

Waiver of notice to vacate. — In an action of unlawful detainer, notice to vacate may be waived by the defendant. Board of Educ. v. Astler, 1914-NMSC-081, 21 N.M. 1, 151 P. 462 (decided under former law).

Law reviews. — For survey, "The Uniform Owner-Resident Relations Act," see 6 N.M. L. Rev. 293 (1976).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 35 Am. Jur. 2d Forcible Entry and Detainer §§ 1 to 27.

Surrender and acceptance of term as affecting right to recover rent or on obligation given for rent, 18 A.L.R. 957, 58 A.L.R. 906.

Criminal offense of forcible detainer where entry was peaceable, 49 A.L.R. 597.

Dispossession without legal process by one entitled to possession of real property as ground of action, other than for recovery of possession or damage to his person, by person dispossessed, 101 A.L.R. 476.

Forcible entry and detainer or unlawful detainer as applicable in case of "lease" of minerals or oil and gas, 107 A.L.R. 661.

Deed or lease of real property as affecting rights and remedies available against tenant at will or by sufferance, 151 A.L.R. 370.

Remedy of tenant against stranger wrongfully interfering with his possession, 12 A.L.R.2d 1192.

Implied duty of lessee to remove his property, debris, buildings, improvements and the like, from leased premises at expiration of lease, 23 A.L.R.2d 655.

Validity and construction of lease provision requiring lessee to pay liquidated sum for failure to vacate premises or surrender possession at expiration of lease, 23 A.L.R.2d 1318.

Relief against forfeiture of lease for nonpayment of rent, 31 A.L.R.2d 321.

Right of landowner who has conveyed property to third person to maintain forcible detainer or similar summary possessory action, 47 A.L.R.2d 1170.

Right of landlord legally entitled to possession to dispossess tenant without legal process, 6 A.L.R.3d 177.

36A C.J.S. Forcible Entry and Detainer §§ 1 to 22.