Breaking a lease in New Mexico

The Owner-Resident Relations Act lets a tenant end a rental agreement early in a few cases: your serious repair breach after a seven-day notice, your failure to deliver possession at the start, unlawful or harassing entry, a lockout or cut service, and fire or casualty that substantially impairs the home. It has no section letting a tenant end a lease for domestic violence or military service; federal military law was not read for this page (NMSA 1978 § 47-8-27.1(A)(1); NMSA 1978 § 47-8-26(B); NMSA 1978 § 47-8-24(F); NMSA 1978 § 47-8-36(C); NMSA 1978 § 47-8-31).

• If a tenant abandons the home, you may take possession and try to rent it at a fair rent. A new tenancy that starts before the old agreement expires ends the old one. The party harmed must still mitigate its damages (NMSA 1978 § 47-8-34(C); NMSA 1978 § 47-8-6(A)).
• When the agreement ends for the tenant's breach, you may claim rent and, separately, damages (NMSA 1978 § 47-8-35).
• If you do not deliver possession, rent abates in full and the tenant may end the agreement by written notice; returning all prepaid rent, deposits and fees within seven days, after reasonable efforts to get possession, avoids damages (NMSA 1978 § 47-8-26(B), (C)).

If you do not meet your repair duties, the tenant gives you written notice. For a material breach of the rental agreement, or a breach of the Act that materially affects health and safety, the tenant may end the rental agreement on a date at least seven days after you receive the notice unless you reasonably try to fix it within seven days. Or the tenant may abate rent: one third of the daily rent from the notice until the repair if you do not fix the condition within seven days, or all of it for each day the home is uninhabitable and the tenant does not live there. The Act gives no right to repair and deduct (NMSA 1978 § 47-8-27.1; NMSA 1978 § 47-8-27.2).

• The tenant uses only one of these remedies for the same violation in the same rental period, and cannot abate rent for a missing amenity (NMSA 1978 § 47-8-27.1(D); NMSA 1978 § 47-8-27.2(B), (E)).
• The rights do not arise if the tenant, a family member or a guest caused the condition. If the problem is beyond your control, the tenant gets only termination or abatement, not damages or an injunction (NMSA 1978 § 47-8-27.1(B)).
• If the last day to remedy falls on a weekend or federal holiday, it moves to the next day that is not (NMSA 1978 § 47-8-27.1(E)).
• The tenant may also sue for damages or an injunction for a material breach, and may counterclaim in a suit for rent or possession while paying the agreed rent (NMSA 1978 § 47-8-27.1(C); NMSA 1978 § 47-8-30).
• After fire or other casualty that substantially impairs the home, the tenant may move out and give written notice within seven days to end the agreement, or stay in the usable part at reduced rent (NMSA 1978 § 47-8-31).

New Mexico has no statute that sets a general rule on subletting a home. The lease controls, so state in it whether the tenant needs your written consent (NMSA 1978, ch. 47, art. 8 (Uniform Owner-Resident Relations Act)).

Either you or the tenant may end a month-to-month residency with written notice given at least 30 days before the periodic rental date named in the notice. A week-to-week residency ends with written notice at least seven days before the termination date. Without a definite term, a residency is week-to-week when rent is paid weekly and month-to-month otherwise (NMSA 1978 § 47-8-37(A), (B); NMSA 1978 § 47-8-15(C)).

• If the tenant stays after the agreement ends without your consent, you may sue for possession, and for damages and reasonable attorney's fees if the holdover is willful and not in good faith. If you consent to the tenant staying, the residency becomes periodic (NMSA 1978 § 47-8-37(C); NMSA 1978 § 47-8-15(C)).

When the residency ends you may apply the deposit to unpaid rent and to damages from the tenant's breach of the rental agreement or of the tenant's duties, but no deposit may be kept for normal wear and tear. If you keep any part, give the tenant an itemized written list of deductions and the balance, if any, within 30 days after the rental agreement ends or the tenant leaves, whichever is later. Mailing the list and any payment to the tenant's last known address is enough (NMSA 1978 § 47-8-18(C)).

• Miss the 30 days and you lose the right to keep any part of the deposit and to counterclaim in a suit over it, owe the tenant's court costs and reasonable attorneys' fees, and lose the right to sue the tenant separately for damage to the home (NMSA 1978 § 47-8-18(D)).
• Keeping a deposit in bad faith adds a $250 civil penalty payable to the tenant (NMSA 1978 § 47-8-18(E)).
• Normal wear and tear is deterioration from ordinary intended use, without negligence, carelessness, accident, abuse or intentional damage. Uncleanliness is not normal wear and tear (NMSA 1978 § 47-8-3(K)).
• You may keep amounts for unpaid rent or utilities, repair work or other legitimate damages (NMSA 1978 § 47-8-18(C)).
• If mail comes back undeliverable, or the last known address is the home the tenant left, serve at least one more notice at any other address the tenant gave you (NMSA 1978 § 47-8-13(F)).