NM eviction process

I have a tenant that I have served a 3 day notice to. I posted on his door and I sent a copy certified mail, but he is in jail and I’m sure he won’t be able to comply within the allotted time frame. I just want him out. What do I do now?

Asked on June 13, 2009 under Real Estate Law, New Mexico

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Now you need to review what you have in your laws on eviction.  Try these links, they may prove useful to you.  If all else fails, try www.attorneypages.com. You may simply need to go to court with the understanding that you need to show he is in jail and is not paying rent, etc.

http://www.nmbar.org/Public/publicpubs/landlordtenantrelations.html

 

47-8-24. Right of entry.

A.     The resident shall, in accordance with provisions of the rental agreement and notice provisions as provided in this section, consent to the owner to enter into the dwelling unit in order to inspect the premises, make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, prospective residents, workmen or contractors; provided that:   

(1)     unless otherwise agreed upon by the owner and resident, the owner may enter the resident's dwelling unit pursuant to this subsection only after giving the resident twenty-four hours written notification of his intent to enter, the purpose for entry and the date and reasonable estimate of the time frame of the entry;   

(2)     this subsection is not applicable to entry by the owner to perform repairs or services within seven days of a request by the resident or when the owner is accompanied by a public official conducting an inspection or a cable television, electric, gas or telephone company representative; and   

(3)     where the resident gives reasonable prior notice and alternate times or dates for entry and it is practicable or will not result in economic detriment to the owner, then the owner shall attempt to reasonably accommodate the alternate time of entry.   

B.     The owner may enter the dwelling unit without consent of the resident in case of an emergency.   

C.     The owner shall not abuse the right of access.   

D.     The owner has no other right of access except by court order, as permitted by this section if the resident has abandoned or surrendered the premises or if the resident has been absent from the premises more than seven days, as permitted in Section 47-8-34NMSA 1978.   

E.     If the resident refuses to allow lawful access, the owner may obtain injunctive relief to compel access or terminate the rental agreement.  In either case, the owner may recover damages.   

F.     If the owner makes an unlawful entry, or a lawful entry in an unreasonable manner, or makes repeated demands for entry that are otherwise lawful but that have the effect of unreasonably interfering with the resident's quiet enjoyment of the dwelling unit, the resident may obtain injunctive relief to prevent the recurrence of the conduct or terminate the rental agreement.  In either case, the resident may recover damages.   

 

47-8-22. Obligations of resident.

The resident shall:   

A.     comply with obligations imposed upon residents by applicable minimum standards of housing codes materially affecting health or safety;   

B.     keep that part of the premises that he occupies and uses as clean and safe as the condition of the premises permit, and, upon termination of the residency, place the dwelling unit in as clean condition, excepting ordinary wear and tear, as when residency commenced;   

C.     dispose from his dwelling unit all ashes, rubbish, garbage and other waste in a clean and safe manner;   

D.     keep all plumbing fixtures in the dwelling unit or used by the resident as clean as their condition permits;   

E.     use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilation, air conditioning and other facilities and appliances including elevators, if any, in the premises;   

F.     not deliberately or negligently destroy, deface, damage, impair or remove any part of the premises or knowingly permit any person to do so;   

G.     conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors' peaceful enjoyment of the premises;   

H.     abide by all bylaws, covenants, rules or regulations of any applicable condominium regime, cooperative housing agreement or neighborhood association not inconsistent with owner's rights or duties; and   

I.     not knowingly commit or consent to any other person knowingly committing a substantial violation.   

 

47-8-44. Absence from court of defendant.

If the defendant shall not appear in response to the summons, and it shall have been properly served, the court shall try the cause as though he were present.   

47-8-34.1. Disposition of property left on the premises.

A.     Where the rental agreement terminates by abandonment pursuant to Section 47-8-34 NMSA 1978:   

(1)     the owner shall store all personal property of the resident left on the premises for not less than thirty days;   

(2)     the owner shall serve the resident with written notice stating the owner's intent to dispose of the personal property on a date not less than thirty days from the date of the notice. The notice shall also contain a telephone number and address where the resident can reasonably contact the owner to retrieve the property prior to the disposition date in the notice;   

(3)     the notice of intent to dispose of personal property shall be personally delivered to the resident or be sent by first class mail, postage prepaid, to the resident at his last known address.  If the notice is returned as undeliverable, or where the resident's last known address is the vacated dwelling unit, the owner shall also serve at least one notice to such other address as has been provided to the owner by the resident, including the address of the resident's place of employment, or of a family member or emergency contact for which the owner has a record;   

(4)     the resident may contact the owner to retrieve the property at any time prior to the date specified in the notice for disposition of the property;   

(5)     the owner shall provide reasonable access and adequate opportunities for the resident to retrieve all of the property stored prior to any disposition; and   

(6)     if the resident does not claim or make attempt to retrieve the stored personal property prior to the date specified in the notice of disposition of the property, the owner may dispose of the stored personal property.   

B.     Where the rental agreement terminates by the resident's voluntary surrender of the premises, the owner shall store any personal property on the premises for a minimum of fourteen days from the date of surrender of the premises.  The owner shall provide reasonable access to the resident for the purpose of the resident obtaining possession of the personal property stored. If after fourteen days from surrender of the premises, the resident has not retrieved all the stored personal property, the owner may dispose of the stored personal property.   

C.     Where the rental agreement terminates by a writ of restitution, the owner shall have no obligation to store any personal property left on the premises after three days following execution of writ of restitution, unless otherwise agreed by the owner and resident.  The owner may thereafter dispose of the personal property in any manner without further notice or liability.   

D.     Where the property has a market value of less than one hundred dollars ($100), the owner has the right to dispose of the property in any manner.   

E.     Where the property has a market value of more than one hundred dollars ($100), the owner may:   

(1)     sell the personal property under any provisions herein, and the proceeds of the sale, if in excess of money due and owing to the owner, shall be mailed to the resident at his last known address along with an itemized statement of the amounts received and amounts allocated to other costs, within fifteen days of the sale; or   

(2)     retain the property for his own use or the use of others, in which case the owner shall credit the account of the resident for the fair market value of the property against any money due and owing to the owner, and any value in excess of money due and owing shall be mailed to the resident at his last known address along with an itemized statement of the value allocated to the property and the amount allocated to costs within fifteen days of the retention of the property.   

F.     If the last known address is the dwelling unit, the owner shall also mail at least one copy of the accounting and notice of the sums for distribution, to the other address, if provided to the owner by the resident, such as, place of employment, family members, or emergency contact on record with the owner.   

G.     An owner may charge the resident reasonable storage fees for any time that the owner provided storage for the resident's personal property and the prevailing rate of moving fees.  The owner may require payment of storage and moving costs prior to the release of the property.   

H.     The owner may not hold the property for any other debts claimed due or owning or for judgments for which an application for writ of execution has not previously been filed. The owner may not retain exempt property where an application for a writ of execution has been granted.   

 

47-8-34. Notice of extended absence.

A.     If the rental agreement requires the resident to give notice to the owner of an anticipated extended absence in excess of seven days as required in Subsection A of Section 3 [ 47-8-3NMSA 1978] of the Uniform Owner-Resident Relations Act and the resident willfully fails to do so, the owner may recover damages from the resident.   

B.     During any absence of the resident in excess of seven days, the owner may enter the dwelling unit at times reasonably necessary.   

C.     If the resident abandons the dwelling unit as defined in Subsection A of Section 3 of the Uniform Owner-Resident Relations Act, the owner shall be entitled to take immediate possession of the dwelling unit. The owner shall, in such cases, be responsible for the removing and storing of the personal property for such periods as are provided by law. Upon abandonment, the owner may make reasonable efforts to rent the dwelling unit and premises at a fair rental. If the owner rents the dwelling unit for a term beginning prior to the expiration of the rental agreement, it is deemed to be terminated as of the date the new tenancy begins.   


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