2024 New Mexico Statutes
Chapter 47 - Property Law
Article 8 - Owner-Resident Relations
Section 47-8-36 - Unlawful removal and diminution of services prohibited.
A. Except in case of abandonment, surrender or as otherwise permitted in the Uniform Owner-Resident Relations Act, an owner or any person acting on behalf of the owner shall not knowingly exclude the resident, remove, threaten or attempt to remove or dispossess a resident from the dwelling unit without a court order by:
(1) fraud;
(2) plugging, changing, adding or removing any lock or latching device;
(3) blocking any entrance into the dwelling unit;
(4) interfering with services or normal and necessary utilities to the unit pursuant to Section 47-8-32 NMSA 1978, including but not limited to electricity, gas, hot or cold water, plumbing, heat or telephone service, provided that this section shall not impose a duty upon the owner to make utility payments or otherwise prevent utility interruptions resulting from nonpayment of utility charges by the resident;
(5) removing the resident's personal property from the dwelling unit or its premises;
(6) removing or incapacitating appliances or fixtures, except for making necessary and legitimate repairs; or
(7) any willful act rendering a dwelling unit or any personal property located in the dwelling unit or on the premises inaccessible or uninhabitable.
B. The provisions of Subsection A of this section shall not apply if an owner temporarily interferes with possession while making legitimate repairs or inspections as provided for in the Uniform Owner-Resident Relations Act.
C. If an owner commits any of the acts stated in Subsection A of this section, the resident may:
(1) abate one hundred percent of the rent for each day in which the resident is denied possession of the premises for any portion of the day or each day where the owner caused termination or diminishment of any service for any portion of the day;
(2) be entitled to civil penalties as provided in Subsection B of Section 47-8-48 NMSA 1978;
(3) seek restitution of the premises pursuant to Sections 47-8-41 and Section 47-8-42 NMSA 1978 or terminate the rental agreement; and
(4) be entitled to damages.
History: 1953 Comp., § 70-7-36, enacted by Laws 1975, ch. 38, § 36; 1995, ch. 195, § 16.
ANNOTATIONSCompiler's notes. — Section 47-8-32 NMSA 1978, referred to in Paragraph A(4), was repealed in 1995.
The 1995 amendment, effective July 1, 1995, rewrote this section to such an extent that a detailed comparison would be impracticable.
Judgment of restitution of possession of premises does not constitute a court order to end water services. — Where plaintiffs brought a petition for restitution of possession of premises against resident based on unpaid rent and property damage, and where the magistrate court entered a judgment for restitution in favor of plaintiffs and issued a corresponding writ of restitution, ordering the sheriff to remove resident within seven days of entry of the judgment, and where, prior to the execution of the writ of restitution, plaintiffs had resident's water shut off for unpaid water charges, and where, on appeal to the district court, resident filed a counterclaim for unlawful diminution of services and seeking abatement of rent for the days resident was without water service, the district court erred in denying resident's claim for unlawful diminution of services, because 47-8-36(A) NMSA 1978, prohibits an owner from acting to recover possession of a dwelling unit that a resident has not surrendered or abandoned, such as directing a utility to shut off water to the premises, unless a "court order" authorizes the owner to take such action, and the plain language of Subsection A of this section indicates that the legislature did not intend that a judgment for restitution, for which a writ of restitution has been issued, constitutes a "court order". Roser v. Hufstedler, 2023-NMCA-040.
Duty exemption clause did not permit owners to direct utility to shut off water services. — Where Plaintiffs brought a petition for restitution of possession of premises against Resident based on unpaid rent and property damage, and where the magistrate court entered a judgment for restitution in favor of plaintiffs and issued a corresponding writ of restitution, ordering the sheriff to remove resident within seven days of entry of the judgment, and where, prior to the execution of the writ of restitution, plaintiffs had resident's water shut off for unpaid water charges, and where, on appeal to the district court, resident filed a counterclaim for unlawful diminution of services and seeking abatement of rent for the days resident was without water service, the district court erred in concluding that, because the utility was holding plaintiffs responsible for resident's unpaid water bill, the duty exemption clause, set forth in 47-8-36(A)(4) NMSA 1978, permitted plaintiffs to direct the utility to shut off the dwelling unit's water services, because, in this case, the utility had not acted to interrupt utility services before plaintiffs directed the utility to do so. The duty exemption clause does not apply. Roser v. Hufstedler, 2023-NMCA-040.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 49 Am. Jur. 2d Landlord and Tenant § 637 et seq.
Landlord and tenant: violation of statute or ordinance requiring landlord to furnish specified facilities or services as ground of liability for injury resulting from tenant's attempt to deal with deficiency, 63 A.L.R.4th 883.
51C C.J.S. Landlord and Tenant §§ 297, 298.
