2023 New Mexico Statutes
Chapter 47 - Property Law
Article 8 - Owner-Resident Relations
Section 47-8-33 - Breach of agreement by resident and relief by owner.
A. Except as provided in the Uniform Owner-Resident Relations Act, if there is noncompliance with Section 47-8-22 NMSA 1978 materially affecting health and safety or upon the initial material noncompliance by the resident with the rental agreement or any separate agreement, the owner shall deliver a written notice to the resident specifying the acts and omissions constituting the breach, including the dates and specific facts describing the nature of the alleged breach, and stating that the rental agreement will terminate upon a date not less than seven days after receipt of the notice if the breach is not remedied in seven days.
B. Upon the second material noncompliance with the rental agreement or any separate agreement by the resident, within six months of the initial breach, the owner shall deliver a written notice to the resident specifying the acts and omissions constituting the breach, including the dates and specific facts describing the nature of the alleged breach, and stating that the rental agreement shall terminate upon a date not less than seven days after receipt of the notice. If the subsequent breach occurs more than six months after the initial breach, it shall constitute an initial breach for purposes of applying the provisions of this section.
C. The initial notice provided in this section shall state that the rental agreement will terminate upon the second material noncompliance with the rental agreement or any separate agreement by the resident, within six months of the initial breach. To be effective, any notice pursuant to this subsection shall be given within thirty days of the breach or knowledge thereof.
D. If rent is unpaid when due and the resident fails to pay rent within three days after written notice from the owner of nonpayment and his intention to terminate the rental agreement, the owner may terminate the rental agreement and the resident shall immediately deliver possession of the dwelling unit; provided that tender of the full amount due, in the manner stated in the notice, prior to the expiration of the three-day notice shall bar any action for nonpayment of rent.
E. In any court action for possession for nonpayment of rent or other charges where the resident disputes the amount owed because:
(1) the resident has abated rent pursuant to Section 47-8-27.2 or 47-8-4 NMSA 1978; or
(2) the owner has allocated rent paid by the resident as payment for damages to the premises, then, if the owner is the prevailing party, the court shall enter a writ of restitution conditioned upon the right of the resident to remedy within three days of entry of judgment. If the resident has satisfied the judgment within three days, the writ shall be dismissed. If the resident has not satisfied the judgment within three days, the owner may execute upon the writ without further order of the court.
F. Except as provided in the Uniform Owner-Resident Relations Act, the owner may recover damages and obtain injunctive or other relief for any noncompliance by the resident with the rental agreement or this section or Section 47-8-22 NMSA 1978.
G. In a judicial action to enforce a remedy for which prior written notice is required, relief may be granted based only upon the grounds set forth in the written notice served; provided, however, that this shall not bar a defendant from raising any and all defenses or counterclaims for which written notice is not otherwise required by the Uniform Owner-Resident Relations Act.
H. When the last day for remedying any breach pursuant to written notice required under the Uniform Owner-Resident Relations Act occurs on a weekend or federal holiday, the period to remedy shall be extended until the next day that is not a weekend or federal holiday.
I. If the resident knowingly commits or consents to another person in the dwelling unit or on the premises knowingly committing a substantial violation, the owner shall deliver a written notice to the resident specifying the time, place and nature of the act constituting the substantial violation and that the rental agreement will terminate upon a date not less than three days after receipt of the notice.
J. In any action for possession under Subsection I of this section, it shall be a defense that the resident is a victim of domestic violence. If the resident has filed for or secured a temporary domestic violence restraining order as a result of the incident that is the basis for the termination notice or as a result of a prior incident, the writ of restitution shall not issue. In all other cases where domestic violence is raised as a defense, the court shall have the discretion to evict the resident accused of the violation, while allowing the tenancy of the remainder of the residents to continue undisturbed.
K. In any action for possession under Subsection I of this section, it shall be a defense that the resident did not know of, and could not have reasonably known of or prevented, the commission of a substantial violation by any other person in the dwelling unit or on the premises.
L. In an action for possession under Subsection I of this section, it shall be a defense that the resident took reasonable and lawful actions in defense of himself, others or his property.
M. In any action for possession under Subsection I of this section, if the court finds that the action was frivolous or brought in bad faith, the petitioner shall be subject to a civil penalty equal to two times the amount of the monthly rent, plus damages and costs.
History: 1953 Comp., § 70-7-33, enacted by Laws 1975, ch. 38, § 33; 1977, ch. 130, § 1; 1995, ch. 195, § 14; 1999, ch. 91, § 5.
ANNOTATIONSThe 1999 amendment, effective June 18, 1999, substituted "the Uniform Owner-Resident Relations Act" for "this Act" in Subsection H; added present Subsection L, redesignating the subsequent subsection accordingly; and made minor stylistic changes.
The 1995 amendment, effective July 1, 1995, redesignated a former part of Subsection A as Subsection B, inserted "including the dates and specific facts describing the nature of the alleged breach" and "stating" in Subsections A and B, substituted "more than six months" for "six months" in Subsection B, added Subsection C, redesignated former Subsection B as Subsection D, added the last part in Subsection D beginning "provided that tender", added Subsection E, redesignated former Subsection C as Subsection F, deleted "If the resident's noncompliance is willful, the owner may recover reasonable attorney's fees and his court costs." from the end in Subsection F, added Subsections G to L, and made minor stylistic changes throughout the section.
Section 8 housing agreement. — Where the tenant rented a residential property from the landlord pursuant to the federal Section 8 housing program which paid the majority of the tenant's rent; in addition to rent, the lease required the tenant to pay a security deposit; the lease permitted the landlord to terminate the lease during the first year's term if the tenant committed a serious violation of the lease; the tenant failed to pay the full amount of the security deposit on the first day of the term; the tenant failed to pay rent for July and August on the first day of the month as required by the lease because the tenant did not receive public assistance checks for July and August until after the first day of the month; the tenant mailed rent payments for July and August when the tenant received the public assistance checks; the lease did not specify any date when the security deposit was due or whether partial payments could be made; the amount of the security deposit exceeded the amount of monthly rent contrary to the express terms of the lease; the failure to pay the security deposit on the first day of the term did not have a materially adverse effect on the landlord; and by October 2009, the tenant had fully paid the security deposit and was current on all monthly rent payments, tenant's late payments of rent and the security deposit did not constitute a serious violation of the lease. Serna v. Gutierrez, 2013-NMCA-026, 297 P.3d 1238.
Petition for restitution filed prematurely. — Where, in 2017, tenant and landlord entered into a lease agreement that specified that rent was $450 and was due the first day of each month and that landlord would assess a $50 fee to rent paid more than three days late, that tenant would pay a $400 security deposit, and that landlord would make all necessary repairs to the common areas of the building, and where, in 2018, landlord asked tenant to begin paying $10 a month for water, to which tenant agreed, and where, months later, tenant withheld $40 from his rent after reviewing his lease and discovering that there was no written obligation for him to pay for water, and where, the following day, landlord delivered a notice of nonpayment requiring tenant to pay $450 in rent plus a late fee of $50 for a total of $500, and where landlord filed a petition for restitution three days after the notice of nonpayment was delivered, and where tenant argued that landlord filed his petition for restitution prematurely because the three-day notice period had not elapsed at the time of filing, the landlord's petition should have been dismissed as untimely filed, because an owner cannot file a petition for restitution or otherwise terminate the rental agreement and seek possession of the premises until the day following the third day. Allowing an owner to file before the third day has elapsed would defeat the remedial purpose of Subsection D of this section. Cheng v. Rabey, 2023-NMCA-013.
Landlord and tenant orally modified the lease to include water payments. — Where, in 2017, tenant and landlord entered into a lease agreement that specified that rent was $450 and was due the first day of each month and that landlord would assess a $50 fee to rent paid more than three days late, that tenant would pay a $400 security deposit, and that landlord would make all necessary repairs to the common areas of the building, and where, in 2018, landlord asked tenant to begin paying $10 a month for water, to which tenant agreed, and where, months later, tenant withheld $40 from his rent after reviewing his lease and discovering that there was no written obligation for him to pay for water, and where, the following day, landlord delivered a notice of nonpayment requiring tenant to pay $450 in rent plus a late fee of $50 for a total of $500, and where landlord filed a petition for restitution three days after the notice of nonpayment was delivered, and where tenant argued that because the lease was silent as to who pays for water, landlord retained the obligation to pay for water, the district court did not err in denying tenant's requested offset for water, because the parties conduct clearly demonstrated an oral modification of the lease agreement requiring tenant to pay for water. In the absence of a prohibiting statute, a written agreement which specifies it may only be amended in writing may nevertheless be changed by the parties' words or conduct that signify an intention to change the prior agreement. Cheng v. Rabey, 2023-NMCA-013.
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. — 49 Am. Jur. 2d Landlord and Tenant § 228 et seq.
What constitutes willfulness or malice justifying landlord's collection of statutory multiple damages for tenant's wrongful retention of possession, 7 A.L.R.4th 589.
Right to exercise option to renew or extend lease as affected by tenant's breach of other covenants or conditions, 23 A.L.R.4th 908.
Children's day-care use as violation of restrictive covenant, 29 A.L.R.4th 730.
Express or implied restriction on lessee's use of residential property for business purposes, 46 A.L.R.4th 496.
Commercial leases: application of rule that lease may be canceled only for "material" breach, 54 A.L.R.4th 595.
Provision in lease as to purpose for which premises are to be used as excluding other uses, 86 A.L.R.4th 259.
51C C.J.S. Landlord and Tenant §§ 250(1) to 250(3).
