Can I rent to myself in New Mexico?

This may sound odd, but I have no better way to put it.

Per the condo declaration where I live, a lease must be for the entire unit and all rights to it. This presents a problem if I want to have my girlfriend/fiance move in with me but not be included on the mortgage and have access to the amenities pool, dry sauna, exercise room, etc without me being present.

By definition, we aren’t related by blood or marriage, which would seem to imply that they are a guest rather than a resident — and guests are required to be accompanied by a resident or owner to use the amenities.

A lease on the other hand can be between multiple unrelated people as long as there’s only one lease — i.e., John Doe and Jane Smith can live in the same residence as long as they rent the entire unit.

Asked on April 3, 2018 under Real Estate Law, New Mexico

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

You can't rent to yourself: the law looks to whether a transaction is in fact meaningful or "real" or not, and a lease to yourself is not a real transaction, since no money actually changes hands (thus, there is no consideration, or thing of value being exchanged, to create an enforceable contract or lease). 
You could--subject to any HOA rules, by laws, etc. governing leasing in this community--lease to your girlfriend or lease to an LLC you set up for this purpose (since an LLC, even if owned by you, is a separate legal entity). But to the extent the lease is from you to you, it is not valid.
Note that leasing to your girlfriend (or having her on lease, even if there is another person on it, too) may NOT be a good idea:
1) Suppose you and she break up: if she has a written lease for a set period of time (e.g. a one-year lease), you cannot remove her from the unit until her lease expires.
2) If she is on a lease, she could bring other people in as guests or subtenants, unless the lease specifically prohibits that.
3) If you and she get into a bad place emotionally (lots of arguing, yelling, etc.), since as a lessee, she would have a legal right to be there, she could try to get a protective order forcing *you* to stay out of your own unit. (When two owners or renters get into a domestic dispute, one can get the other barred in some circumstances; but if were a guest, she could not do that.)
There are other potential issues, too, but long-story short: making your girlfriend your tenant, cotenant, or subtenant gives her legal rights under landlord-tenant law that could come into conflict with your domestic situation.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.