New Mexico Eviction Process
November 3, 2023
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Eviction In New Mexico
If you own and rent properties in the state of New Mexico, you are responsible for complying with New Mexico eviction laws. In this article, we break down each step of the legal eviction process in New Mexico.
New Mexico’s eviction laws can be found at NMSA § 47-8-33 to 47-8-52.
New Mexico Eviction
- Landlord serves a three- to seven-day eviction notice.
- Landlord files an eviction lawsuit with the court.
- Court serves tenant a summons.
- Tenant files an answer.
- Landlord and tenant attend court hearing and receive judgment.
- Tenant gets three to seven days to move out.
- Sheriff arrives to forcibly remove the tenant.
Eviction in New Mexico can begin when a tenant fails to pay rent, violates the lease, commits a noncompliance with New Mexico’s landlord tenant laws, or violates housing/building codes due to gross negligence.
Tenants can defend against eviction in New Mexico by:
- Filing for a temporary domestic violence restraining order.
- Claiming that they could not have reasonably known or prevented their guest or fellow resident from committing the violation.
- Claiming that their actions were reasonable and lawful actions of self-defense.
1. Landlord Serves a Three- to Seven-Day Eviction Notice
If any of the above lease violations occur, the landlord must first serve a New Mexico eviction notice and state that the tenant has the appropriate number of days to remedy or cure the violation. There are four possible eviction notices a landlord may send in New Mexico:
- Rent Demand Notice: 3 days to pay or quit (downloadable here). If rent is unpaid when due, the landlord must deliver this New Mexico eviction notice stating the amount of unpaid rent required to remedy the breach and the date on which the lease will terminate if it is not paid (not less than three days after receipt of the notice) (NMSA § 47-8-33(D)).
- Lease Violation Notice: 7 days to cure or quit (downloadable here). If a tenant violates a lease term or a state law materially affecting health and safety, the landlord must deliver this notice stating the breach and what is required to remedy it, as well as the date on which the lease will terminate if the tenant does not cure the breach (not less than seven days after receipt of the notice) (NMSA § 47-8-33(A)). This notice must be sent within 30 days of the initial violation, and it must include a warning that a second material noncompliance with the lease within six months will result in termination (NMSA § 47-8-33(C)).
- Repeat Lease Violation Notice: 7 days to quit. This notice gives no opportunity to “cure” the violation and applies if the tenant commits a repeat lease violation within six months of the initial breach (NMSA § 47-8-33(B)).
- Unconditional Notice to Quit: 3 days to quit (downloadable here). This notice gives no opportunity to “cure” the violation and applies if the tenant does any of the following on or within 300 feet of the premises, as per NMSA § 47-8-33:
- Possesses, uses, sells, distributes, or manufactures a controlled substance, other than misdemeanor possession and use
- Unlawfully uses a deadly weapon
- Causes serious physical harm to another person
- Sexually assaults another person
- Breaks into another person’s unit or car with intent of theft or assault
- Commits or attempts theft of property by use or threats of force
- Commits intentional or reckless damage to property in excess of $1,000
For all evictions, the landlord may recover actual damages and reasonable attorney’s fees.
2. Landlord Files an Eviction Lawsuit with the Court
The next step in the New Mexico eviction process is filing a complaint in court. If the tenant has not cured the breach by the end of the notice period (or if the violation is uncurable and the notice period expires), the landlord can then file a Petition by Owner for Restitution (the eviction lawsuit) with the clerk of the District or Magistrate Court of New Mexico (NMSA § 47-8-42). A copy of the petition form can be downloaded here.
The petition should include the following:
- The facts with details that serve as grounds for eviction
- A reasonably accurate description of the premises (i.e., address)
- Proof that the landlord complied with the eviction notice provisions listed above
The petition may also contain monetary or other claims related to the eviction (e.g., a claim for unpaid rent), but these claims will be tried separately (NMSA § 47-8-42).
3. Court Serves Tenant a Summons
After the petition has been filed, the court will issue a summons, formally called the Summons and Notice of Trial on Petition of Restitution (downloadable here). The summons includes:
- The cause of the complaint or reason for eviction
- The answer day
- A notice that if the tenant fails to appear in court, a default judgment will be entered against them
The summons will also state the date and time of the court hearing, which must occur between seven and ten days after the tenant receives the summons. However, if either the landlord or tenant shows good cause why the eviction hearing should occur later, it may be continued (delayed) for up to seven additional days (NMSA § 47-8-43).
The summons must be served with a copy of the petition to the tenant as per the typical New Mexico Rules of Civil Procedure. In the district court, the summons should be served in one of the following manners as per NMRA Rule 1-004:
- Personal delivery to the tenant or the tenant’s attorney
- Sending a copy by facsimile or e-mail when permitted by Rule 1-005.1 or 1-005.2
- Leaving it at the attorney’s office
- Leaving it at the tenant’s unit or usual place of abode with another resident of suitable age and discretion there
- Leaving it at a place designated by the court for serving papers on attorneys
- Mailing a copy to the tenant or tenant’s attorney’s last known address
4. Tenant Files an Answer
The tenant has an opportunity to appear in court and submit an answer on or before the court hearing. The Answer to Petition for Restitution (downloadable here) is the tenant’s opportunity to assert any legal or equitable defense, setoff, or counterclaim against the landlord and otherwise present any justifiable reasons why they shouldn’t be evicted (NMSA § 47-8-45).
5. Landlord and Tenant Attend Court Hearing and Receive Judgment
On the day of the eviction hearing, the landlord should bring copies of the lease agreement, the eviction notice with proof of service, the complaint, and any evidence of the lease violation. Both the landlord and tenant will present their cases and any evidence to the judge, who will afterwards issue a judgment.
If the judge rules in the landlord’s favor, the court will declare that the rental agreement is terminated. At the landlord’s request, the court will also issue a Writ of Restitution (downloadable here), directing the sheriff to restore possession of the property to the landlord. The writ may be issued shortly after the hearing or a few days after, but no specific waiting period is required before it can be issued.
Either party may appeal the judgment after it has been issued. If the tenant appeals, the execution of the writ of restitution will be temporarily stayed, so long as the tenant pays all rent that will become due through the next rental period into an escrow account within five days of filing the notice. The tenant will remain responsible for all rent until the appeal has been decided (NMSA § 47-8-47).
6. Tenant Gets Three to Seven Days to Move Out
Once the writ of restitution has been issued, the sheriff will post it at the tenant’s rental unit. Then, the sheriff has between three to seven days after the judgment was entered to enforce it, meaning that the tenant must move out within that three-to-seven-day period or else wait to be forcibly removed from the premises (NMSA § 47-8-46).
7. Sheriff Arrives to Forcibly Remove the Tenant
The final step of the eviction process in New Mexico is the tenant’s removal. If the tenant does not move out within the final notice period specified on the writ, the sheriff will return to forcibly remove them and restore possession of the property to the landlord. From start to finish, a New Mexico eviction can take anywhere from a few weeks to several months.
Evicting a Squatter in New Mexico
A squatter is a person who moves into a vacant or abandoned property without getting permission from the owner or paying rent. Squatters can usually be charged as criminal trespassers and be evicted like any other tenant. However, some squatters can receive the right to possession by meeting certain state-determined criteria. In New Mexico, squatters must have lived in the property, have color of title, and paid property taxes for ten continuous years to invoke New Mexico squatters rights and claim right of possession (NMSA § 37-1-22). Their possession must also be:
- Hostile/Adverse—The squatter must not have a valid lease with the owner
- Actual—The squatter must be actively residing on the property
- Open and Notorious—The squatter is openly and obviously living there.
- Exclusive—The squatter does not share possession of the property with anyone else.
- Continuous—The squatter must hold continuous and uninterrupted possession.
While relatively rare, if a squatter meets all these criteria, they have “color of title”: the right of legal ownership without having a written deed to the property. They can file an action for adverse possession in New Mexico to legally obtain the title to the property. However, in most cases, a squatter will not meet the criteria and can be removed. If you think a squatter is living in your vacant property in New Mexico, you should:
- Call local law enforcement.
- Determine whether the person is a trespasser or a squatter.
- If the person is a trespasser, they can be removed immediately by a police officer.
- If the person is a squatter, you must contact the sheriff’s office.
- Send the squatter an eviction notice as per New Mexico eviction law.
- If the squatter does not vacate the premises by the end of the notice period, file for eviction and follow the typical eviction process in New Mexico.
- Only the sheriff can physically remove a squatter from your property. You cannot do so, and neither can a police officer.
New Mexico Eviction Cost Estimates
This chart shows estimates of the approximate cost of an eviction in New Mexico, according to civil procedure in the state and iPropertyManagement. A highly accurate estimate of an eviction is impossible to provide, as cases and circumstances vary so widely. Remember to factor in other losses due to an eviction as well, such as lost rent, time, and stress.
|Action||Approximate Cost (District Court)||Approximate Court (Magistrate Court)|
|Service of court summons||$40||$40|
|Service of writ of possession||$40||$40|
|Notice of appeal filing fee||$505||$505|
|Average locksmith fees||$160||$160|
|Storage fees for abandoned property||Varies||Varies|
|Tenant turnover costs||Varies||Varies|
New Mexico Eviction Time Estimates
The chart below shows an estimate of the duration of each part of the New Mexico eviction process timeline. Keep in mind that the length of eviction cases varies widely depending on the complexity of the eviction, the court’s current caseload, and whether or not the tenant contests or appeals the lawsuit.
|Eviction notice period||3-7 days|
|Tenant response period||Between service of summons and hearing|
|Eviction hearing||7-10 days after service of summons|
|Maximum continuance||7 days|
|Issuance of writ of restitution||A few hours to a few days|
|Time to quit after writ is posted||3-7 days|
- Three (3)-Day Notice of Nonpayment of Rent
- Three (3)-Day Notice of Substantial Violation of Rental Agreement
- Seven (7)-Day Notice of Noncompliance with Rental Agreement (Other Than Failure to Pay Rent)
- Petition by Owner for Restitution
- Summons and Notice of Trial on Petition of Restitution
- Answer to Petition for Restitution
- Judgment for Restitution
- Writ of Restitution
- Writ of Execution in Forcible Entry or Detainer
- New Mexico Rules of Civil Procedure (District Court) – This document includes the specific rules and policies of civil procedure for the New Mexico District Court.
- New Mexico Rules of Civil Procedure (Magistrate Court) – This document includes the specific rules and policies of civil procedure for the New Mexico Magistrate Court.
- New Mexico District Court Eviction Forms – Pdfs of the various forms required for eviction in the New Mexico District Court.
- New Mexico Magistrate Court Eviction Forms – Pdfs of the various forms required for eviction in the New Mexico Magistrate Court.
The eviction process in any state can be long and complex, so hiring an eviction attorney is advised in most cases. It’s also important to note that municipalities and local governments often have stricter laws and requirements for landlords, so be sure to check local statutes as well as state ones. However, by reviewing the legal procedures and New Mexico laws on eviction, you can feel more confident pursuing an eviction in this state.
Innago does not provide legal advice. The content and materials provided in this article are for general informational purposes only and may not be the most up-to-date information.