New Mexico Rental Agreements Explained
NM rental agreements are generally contracts that landlords must follow. A rental agreement in New Mexico is a legal contract between a tenant and a landlord. That contract should be written, usually as a lease, or be in the form of an oral rental agreement terms spoken by the landlord and tenant, which include the following:
Rent amount.
How often rent is paid (e.g., weekly, biweekly, or monthly).
Term of the tenancy, if any (i.e., for one month, for one year, etc.).
When and how often tenants expect to be given notice of rent increases by the landlord, which is required by law unless the property is only rented on a week-to-week basis.
How payment is made by tenants to landlords, for example, whether only checks are accepted.
Any additional costs charged to tenants by the landlord, such as a late fee each day rent is past due.
When the payment must be made each month.
What happens if tenants are late with rent or do not pay .
Who takes care of routine maintenance. Unless otherwise specified in the rental agreement, landowners are responsible for maintaining the rental property without additional charge.
Who pays for utilities. Unless specifically included in the rental agreement, tenants are responsible for all utilities. The renters are responsible for any electricity, gas, water, sewage, trash, phone, internet, and cable charges.
Pet policies, if any. If a rental agreement does not include a pet policy, the terms of lease purporting to limit pet ownership is likely illegal. Unless it is for a service animal, landlords cannot impose a blanket prohibition against pets unless it is based on the specific pet.
Provisions in additional attachments should be signed by both the landlord and tenant(s) as they are an enforceable part of the agreement.
Avoid any rental agreements that contain provisions that violate the law.
Essential Provisions of NM Rental Agreements
Like all legal contracts, New Mexico has its share of common rental agreement clauses. Just the same, you’ll find that certain clauses will continue to dominate the rental contract landscape. To that end, here’s an outline of what’s commonly agreed upon when it comes to renting a home or apartment in New Mexico.
Duration of tenancy: duration and renewal terms.
Rent Amount: base rent due at what time of the month and where it must be paid.
Late Rent Penalties (if any): how much, when it becomes, immediately, 3 days, 5 days, additional costs, etc.
Costs and responsibilities for repairs and maintenance and other property issues:
Termination (move out) procedure and rent owed.
Pets: do you allow them, do they become the responsibility of the tenant regardless, or do you charge an added fee for their inclusion?
Utilities: are they all covered, are you responsible for water/sewer, gas, etc?
Do you allow smoking or not?
How do you handle rent increases and when do they usually take effect?
Security Deposit Terms:
Required amount, due with application or with first month’s rent?
Where is it held?
Are interest owed to tenant?
When can you keep the deposit and how long must you return it?
Rights and Obligations of Tenants
Section 2: Tenant Rights and Responsibilities
As per a rental agreement in New Mexico, a tenant has the right to live on the premises as long as they pay rent and fulfill their responsibilities to the landlord. If a tenant falls behind on rent and threatens to violate the agreement, the landlord can give them a complaint for eviction. A tenant does have the right to challenge any notice of termination issued by the landlord in New Mexico.
They also have the right to receive a written copy of the residential rental agreement. If the tenant requests a copy, it must be provided by the landlord by the time the tenant enters into the agreement. Unless the residential rental agreement states otherwise, the tenant is responsible for paying the following utilities and other services:
If a provision in the residential rental agreement actually reduces the rights or remedies of a landlord, then the provision is unenforceable. Other tenants’ failure to fulfill their duties does not relieve a tenant from performance.
The tenant must pay rent as per the residential rental agreement, even if the tenant has an action against the landlord. For example, even if a tenant is owed money under the New Mexico Unfair Practices Act, which may include violating the Unfair Dealership Law or the Franchise Investment Act, they still have to pay rent.
If a tenant has the responsibility for paying any part of the residential rental agreement, they need to do so even if they haven’t been notified of the rent due. A copy of the residential rental agreement should be given to the landlord at the location for paying rent, or it needs to be sent to the landlord with at least 15 days of notice of rent being due. If they don’t get notice of rent, then the tenant is not responsible for paying the rent. A neighbor can let the tenant know of rent being due, and that is considered proper notice.
A landlord cannot use any physical force, threats of physical force, or self-help to cause a tenant to vacate the property. A landlord cannot "turn off" any of the utilities for the tenant. By doing this, the landlord is breaking the rental agreement and the law. The tenant is also permitted to change the lock on an apartment without telling the landlord, as long as they give a key to the landlord that gives him or her "reasonable access to the dwelling unit." The tenant is not, however, allowed to change the lock on the primary dwelling to a mobile home.
Duties of the Landlord in New Mexico
In the "Complete Guide to NM Rental Agreements: What You Need to Know" for NM landlord tenant laws, it is important to understand what you as a legal NM landlord must do to meet your obligations to your NM tenants. Some of the major obligations include:
- Maintaining Habitable Premises – meaning doing various things such as; making sure your NM rental unit back door closes and opens properly with no significant gaps, making sure any heating or cooling system is in good working order so the NM tenant can maintain reasonable room temperatures in their new rental property, and keeping common areas clean and properly maintained.
- Complying with all building codes, health codes, rules and statutes that materially affect the health and safety of the people living in the rental unit.
- Completing all repairs and doing all things in a reasonable amount of time, this includes things like fixing broken toilets, heaters, air conditioners, and other basic appliances if they break due to normal use. If the tenant did something to purposely break an appliance like break a window or smear poop on the wall or actionable criminal activity – the landlord may not have to complete the repairs. However, the effects of the law are on a case-by-case basis and the NM landlord must be able to show that the tenant was at fault for breaking the appliance and that the NM landlord is not at fault for the appliance breaking .
- Making Non-Emergency Repairs – meaning that if a NM tenant has a broken water fountain and requests you to come fix it, the landlord has six (6) days to respond to the tenant’s request. If the landlord fails to fix the problem or properly respond to the tenant’s complaint and it causes a health or safety hazard, then the NM tenant can file a lawsuit to recover for damages to the rental property.
- Preventing Tenant Interference with Other Tenant’s use and enjoyment of the rental property. For example, if a NM tenant is blasting loud music and other NM tenants in the apartment complex have been complaining about the noise – the landlord often has a duty to intervene/fix the problem. An alternative is if a neighbor NM tenant is making too much noise during the night and some NM tenants in the apartment complex have been complaining about the noise – the landlord often has a duty to intervene/fix the problem.
- doing various other things to keep the tenant happy and keep the tenant from filing a lawsuit against the NM landlord – i.e., maintaining routes to and from a rental property, giving tenants their privacy, providing heat, hot water, and efficient locking doors, and a few others.
Drafting a New Mexico Rental Agreement
As a suggested best practice, landlords should prepare a rental agreement and have a prospective – or existing – tenant execute it, prior to the tenant moving into the rental unit. The New Mexico Rental Property Law permits a landlord to have a rental agreement in place for both a fixed term and a month-to-month rental period.
The first step in preparing a rental agreement is to review the residential rental property laws that control a rental agreement. These laws are located in the NM Statutes Section 47-8-1 through 47-8-52 and can be read at the following link New Mexico Rental Property Law. The laws impose conditions on a rental agreement, such as the security deposit, which is discussed more below. If a rental agreement contains any provisions that conflict with the law, those provisions voided and the law controls. For example, if the rental agreement says: "The landlord and tenant agree that the tenant is responsible for the payment of the utilities for the rental property." But the law requires the landlord to pay the utilities, the law controls even if the rental agreement says otherwise.
The second step is to complete the spaces in the form rental agreement.; Simply going online and printing a rental agreement from an Internet site is not good enough. As mentioned in the example above, the provisions in the rental agreement must be in conformance with the law. Each rental property may have specific circumstances that could be addressed only by using a customized rental agreement that is consistent with the law. There are no one-size-fits-all rental agreements when dealing with rental property within the New Mexico real estate market.
Make sure all names are correct. Review and revise the rental agreement, if necessary. Make a copy of the rental agreement for each party. Sign the rental agreement and have the tenant sign the rental agreement. Either individual can sign the original rental agreement, but the parties shall each have a signed copy of the rental agreement for their records.
Dispute Resolution in NM Rental Agreements
Regardless of who you are renting from or renting your property, disputes are likely to arise. When choosing a rental agreement, it is important that you know how your disputes will be handled.
Here are some common disputes and their resolutions – legally, or otherwise.
Tenant / Owner/ Lessor Disputes
Broken Lease Agreements: One or more parties do not comply with the lease agreement. Quickly, this becomes a small claims issue and dispute, or worse yet, a breach of contract case in a New Mexico violation of lease term. The disillusioned owner of a rental may also decide to sell out on the lease agreement except for items agreed to by the tenant. Disputes can arise over security deposits and condition of property as well. This type of dispute may require legal filings in District Court or even mediation between the disputing parties. It is always best to have an attorney involved in these disputes, as it is easy to overlook statute in these cases.
Evictions: New Mexico landlords are legally bound before evicting a tenant. There are numerous laws governing this area and it is easy to misstep or mess up an eviction. It would be in your best interest to have an attorney involved in the process, or to at least seek information about proper NM procedure before attempting an eviction .
Return of Security Deposits: Security and damage deposits are hotbed issues. The list can go on and on and is the most common dispute occurring with rental agreements. Security deposit disputes can be one of two things – return of, or unaccounted deductions. To deduct from these funds, an owner must provide the reasons corroborated by documented photographs and/or receipts. A failure to follow the law can result in penalties and return of deposits.
Owner Responsibilities and Unit Habitability: It is important to complete a walkthrough of the premises you are renting with your property manager, owner, or tenant before signing a lease agreement. Failure to complete an accurate walk-through can lead to disputes over the condition of the property. This is especially true if both parties fail to sign off on the same checklist. Again, as the tenant, safety is paramount and important. Take pictures to protect yourself.
Owner / Property Manager Responsibilities: Under a lease agreement, owners are not responsible for natural disasters, criminal activity, or damages caused by your negligence. Only damages caused by normal wear and tear are attributable to the owner. It is important to know the distinctions. When signing a lease agreement, be sure you are aware of what is expected of both you and the property owner.