New Mexico Rental Agreements Explained
Rental agreements in New Mexico are vital contracts that establish the terms and conditions between landlords and tenants. They are essentially a written form tracking what is agreed upon for leasing conditions, applicable laws, and the rights and responsibilities of both parties. Rental agreements can range from short term leases for annual rentals to long-term agreements extending for years. For annual leases, they are usually renewed every year for a term. Some rental agreements may allow for rent increases in the future, such as each year as long as a 30-day written notice is provided.
A rental agreement establishing a monthly rental period is usually month-to-month. These types of agreements are often applied when renting unfurnished units , as opposed to furnished short-term rentals. Despite the name, a rental agreement in New Mexico is not to be confused with a rental application, which does not bind the applicant to rent a unit and is for the purpose of determining that they qualify for the rental agreement.
All rental agreements in New Mexico that are in writing are subject to the New Mexico Uniform Owner-Resident Relations Act (Chapter 47, Article 8 NMSA 1978). This article provides for specific information required in all written leases. In addition, the Act provides what must be disclosed to tenants prior to entering into a rental agreement. When not in writing, or when a rental agreement is only partially in writing, the law will provide supplemental rules applying to the rental agreement.
Essential Elements of a New Mexico Rental Agreement
The essential elements of a New Mexico residential rental agreement generally include the parties involved (the landlord and the tenant), a rental amount, and a description of the property. Those are the minimum requirements; however, a rental agreement may also include information not required by law, such as the security deposit amount. While not required by law, a New Mexico rental agreement should also provide the duration of the agreement (i.e., whether it is a month-to-month rental or a term lease), as well as the terms and conditions that govern the tenancy. These terms and conditions are often governed by the New Mexico Uniform Owner-Resident Relations Act, NMSA 1978, Section 47-8-1 through 47-8-48 (2003 Repl. Pamp.), which governs the rights and obligations of landlords and tenants.
Nature and Scope of Tenant Entitlements
New Mexico law grants tenants a number of rights and responsibilities, which affect both landlords and property managers who oversee rental properties. The following sections outline some of the most common tenant concerns as they relate to rental agreements and the Landlord and Tenant Act. For further information and more specific questions, you should reach out to your property manager or legal counsel.
Security Deposits
• All security deposits must be returned to tenants within 15 days of the lease expiration, minus charges for damages found not in "normal wear and tear."
• Tenants must be given written notice of all amounts withheld along with receipts for repair costs incurred.
• After the appropriate deductions have been made, no security deposit may be more than $200.
• If a landlord is not complying with these provisions, tenants can file a motion with the District Court that oversees their residential rental agreement.
Habitability and Maintenance
• All residential rental properties must be habitable, and failure to maintain the property in this way may allow tenants to be free of liability under the lease for nearly all obligations, including rent.
• Tenants have a responsibility to report any defective conditions to the landlord, landlord’s agent, or property manager so that immediate action can be taken to rectify the situation.
Privacy
• Landlords shall give tenants at least 24 hours’ notice before an entry, and cannot give entry for more than once a week without permission from the tenant. Landlords do not need to give notice and seek permission to enter during emergencies.
• Entry is limited to reasonable times, and shall not impact a tenant’s right to use and enjoy the premises.
Eviction
• For unpaid rent due under the rental agreement, landlords must give at least seven days’ notice to tenants if the rent is unpaid. After 7 days, the landlord may file a "Forcible Entry and Detainer" within the state the rental property is situated.
• If a landlord does not comply with the Landlord and Tenant Act, and a tenant has just cause for concern, the tenant has a right to file an action for "Essential Services" within the District Court that oversees the tenant’s renting district.
Landlord Duties in the State of New Mexico
In the state of New Mexico, landlords and property managers are bound by specific statutes. As per Chapter 47 of the New Mexico Statutes, the duties of landlords are enumerated in Article 8 Sections 8-8-1 through 8-8-21. These regulations outline many of the landlord obligations that a rental agreement may or may not expressly reference.
Right of Entry
New Mexico landlords cannot enter the premises without notice to the tenant except if there is an emergency endangering life or limb, during tenant’s absence if the rent is past due, if it has been abandoned by the tenant or to make emergency repairs.
Security Deposit
The landlord may collect a security deposit from tenants, but must hold the money in a separate account, maintain it like a trust account, and cannot commingle the money with other personal deposits unless the accounting for the deposit is clear.
Comply with Housing Codes, Repairs
All New Mexico landlords are required to keep premises safe and livable, without defect. Additionally, the landlord must follow housing codes and restitution orders within a reasonable time frame. New Mexico also requires landlords to offer hot water, "adequate" heat, and sanitary facilities, which are not required in other states. Access to hot water, heat, bathrooms and kitchen facilities should be addressed in the lease.
Make Reasonable Repairs
The agreement can spell out if repairs need to be requested in writing or it can be oral. However, landlords must make condo/leasehold rule as soon as possible once notified. Both landlords and tenants have responsibility if damage is caused by willful, abusive, or negligent conduct. For example, if tenants start fires or don’t replace batteries, they cannot hold landlords liable for resulting damage. The repair time limits must be reasonable. In any event, landlords must offer adequate security, furnishing, plumbing, heat, running water, elevators (in multi-floor buildings) and trash removal.
Prevent Criminal Activity
Landlords must take reasonable steps to prevent criminal activity. This includes both preventing tenants from violent criminal acts and locking windows and doors. Failure to keep fittings, locks and windows safe is a landlord breach. Failure to comply with these and other applicable laws can result in fines or a lawsuit. Moreover, violating landlord obligations can legally jeopardize or void a lease, opening up landlords to defenses in evictions based on clause violations. Therefore, landlords should ensure properties are safe and habitable in order to avoid tenant runs to the court.
Managing Disputes through Your Rental Agreement
The landlord-tenant relationship is governed by contract law in New Mexico. Without an enforceable, written residential rental agreement, landlords and tenants are bound by statutory requirements, but in some situations the best way to quickly resolve a conflict is to use the most recent residential rental agreement signed by the parties as a negotiating point with a clear emphasis on coming to an acceptable, voluntary resolution over costly and lengthy litigation.
Common disputes that can arise include be breach of the lease agreement, security deposit disputes, or retaliatory actions by either party. For example, a dispute may involve the failure of either party to always pay rent or service charges on time, the tenant’s abuse of premises, or the landlord’s failure to make essential repairs such heat and hot running water during the winter. New Mexico law provides that if a landlord fails to provide possession of the premises when the lease or rental agreement is supposed to begin, then the renter can sue in court for possession of the premises. Retaliatory actions by either party are also prohibited by New Mexico law. Retaliatory actions may include terminating a rental agreement, refusing to renew the agreement, terminating services paid by the renter such as a swimming pool, parking area or laundry facilities, or threatening criminal prosecution for rent arrearage . Even if a reducing a tenant’s services is not alleged to be retaliatory, the tenant can file a court action to reduce the rental charge. If a tenant believes he is being harassed at work or elsewhere by the landlord or his agents, the tenant may sue for $100 in damages. In any event, the tenant must be allowed to freely enter the premises without being subjected to threats or harassment.
Mediation may be an option for either party at any time during a dispute over a rental agreement. Mediation centers located throughout the state offter services, including a short information session to discuss the process. At the conclusion of the initial session, contact information is exchanged and the center contacts the parties to schedule mediation. A neutral mediator guides the parties through the process to identify each party’s interests and options. If the parties reach an agreement during mediation, the agreement is reduced to writing and signed by the parties. The mediator does not decide the outcome and neither does a judge. If mediation fails to provide the results desired, a dispute may be taken to court. In New Mexico, these cases are litigated in the state district and magistrate courts, which provide a more informal approach by judges due to the nature of the disputes. Appeals from magistrate court disputes are heard by judges of the district court in that district.
How to Prepare a Practical Rental Agreement
When preparing a rental agreement, take the time to create a detailed document that addresses potential issues and offers clear instructions for tenant responsibilities. The following are some practical tips and best practices to help in drafting such an agreement:
1. Use a Template.
The best way to ensure that your lease or rental agreement covers the required topics is to use a good template. Most states have free templates available online. For instance, New Mexico State University has a template that can be downloaded here. However, this template is included to offer guidance only and is not intended as a substitute for legal advice.
2. Be Clear about Responsibilities and Expectations.
Make sure that tenants understand how to do things like pay rent (when is it due each month, how should it be paid, etc.) or notify you when repairs are needed (how should tenants contact you and how quickly should they expect a response). You should also communicate what happens if these procedures are not followed (for instance, if rent is not received on the 1st of the month, is a late fee applied and when?).
3. Cover Grounds for Early Termination and Eviction.
You should clearly state what is grounds for early termination of the rental agreement or what would lead to your right to evict a tenant. This could include late payments of rent, repeated failure to follow rules (such as quiet enjoyment), destruction of property, etc. Be careful to make it clear that the actions of guests or others you have a relationship with do not excuse or shield the tenant from a violation of their lease. Where possible, also include a method or time period for resolving these violations prior to lease termination (such as, a 30 day grace period to remedy the behavior).
4. Consult Legal Professionals.
No matter how many templates you look through, there are still aspects of leasing property that require the specialized expertise of a lawyer or other reliable source of legal advice. For instance, privacy rights of tenants, the process by which you can legally evict a tenant, the specific limits on rental costs, taxes, fees and costs, etc. are all best read through the lens of a legal advocate. If you have questions at any point, don’t hesitate to consult honest professionals – the costs of bad advice can be great.
New Mexico Resources for Landlords and Tenants
Government Agencies
The Administrative Office of the Courts website includes a list of district courthouses and other sources of legal information.
The New Mexico Human Services Department provides assistance programs for housing, homeless , and other community services.
The New Mexico Secretary of State’s website has information relevant to landlord and tenant laws.
Legal Aid Organizations
New Mexico Legal Aid provides civil legal services for New Mexicans who cannot afford to hire an attorney. They have offices statewide.
New Mexico Legal Aid’s Fair Housing Initiative provides free services to individuals who believe they have been discriminated against or harassed in housing.
Online Tools
The ABA Litigator’s Resource Page addresses general landlord/tenant issues.
The U.S. Department of Housing and Urban Development has relevant information on the Fair Housing Act and the Section 504 of the Rehabilitation Act of 1973.
The Bureau of Business and Economic Research of the University of New Mexico Anderson School of Management publishes a monthly Consumer Price Index Summary for the Albuquerque area.
The Statistical Atlas ranks the cities and counties of New Mexico for age, earnings, housing, and several other categories.