7 Day Notice of Termination for Second Material Breach within Six Months of Initial Material Breach - Residential
New Mexico - Termination of Leases
Breach of agreement by resident and relief by owner.
A. Except as provided in the Uniform Owner-Resident Relations
Act [47-8-1 to 47-8-51 NMSA 1978], if there is noncompliance with Section
47-8-22 NMSA 1978 materially affecting health and safety or upon the initial
material noncompliance by the resident with the rental agreement or any
separate agreement, the owner shall deliver a written notice to the resident
specifying the acts and omissions constituting the breach, including the
dates and specific facts describing the nature of the alleged breach, and
stating that the rental agreement will terminate upon a date not less than
seven days after receipt of the notice if the breach is not remedied in
seven days.
B. Upon the second material noncompliance with the rental
agreement or any separate agreement by the resident, within six months
of the initial breach, the owner shall deliver a written notice to the
resident specifying the acts and omissions constituting the breach, including
the dates and specific facts describing the nature of the alleged breach,
and stating that the rental agreement shall terminate upon a date not less
than seven days after receipt of the notice. If the subsequent breach occurs
more than six months after the initial breach, it shall constitute an initial
breach for purposes of applying the provisions of this section.
C. The initial notice provided in this section shall state
that the rental agreement will terminate upon the second material noncompliance
with the rental agreement or any separate agreement by the resident, within
six months of the initial breach. To be effective, any notice pursuant
to this subsection shall be given within thirty days of the breach or knowledge
thereof.
D. If rent is unpaid when due and the resident fails to pay
rent within three days after written notice from the owner of nonpayment
and his intention to terminate the rental agreement, the owner may terminate
the rental agreement and the resident shall immediately deliver possession
of the dwelling unit; provided that tender of the full amount due, in the
manner stated in the notice, prior to the expiration of the three-day notice
shall bar any action for nonpayment of rent.
E. In any court action for possession for nonpayment of rent
or other charges where the resident disputes the amount owed because:
(2) the owner has allocated rent paid by the resident as payment
for damages to the premises, then, if the owner is the prevailing party,
the court shall enter a writ of restitution conditioned upon the right
of the resident to remedy within three days of entry of judgment. If the
resident has satisfied the judgment within three days, the writ shall be
dismissed. If the resident has not satisfied the judgment within three
days, the owner may execute upon the writ without further order of the
court.
F. Except as provided in the Uniform Owner-Resident Relations
Act, the owner may recover damages and obtain injunctive or other relief
for any noncompliance by the resident with the rental agreement or this
section or Section 47-8-22 NMSA 1978.
G. In a judicial action to enforce a remedy for which prior
written notice is required, relief may be granted based only upon the grounds
set forth in the written notice served; provided, however, that this shall
not bar a defendant from raising any and all defenses or counterclaims
for which written notice is not otherwise required by the Uniform Owner-Resident
Relations Act.
H. When the last day for remedying any breach pursuant to
written notice required under the Uniform Owner-Resident Relations
Act occurs on a weekend or federal holiday, the period to remedy
shall be extended until the next day that is not a weekend or federal holiday.
I. If the resident knowingly commits or consents to another
person in the dwelling unit or on the premises knowingly committing a substantial
violation, the owner shall deliver a written notice to the resident specifying
the time, place and nature of the act constituting the substantial violation
and that the rental agreement will terminate upon a date not less than
three days after receipt of the notice.
J. In any action for possession under Subsection I of this
section, it shall be a defense that the resident is a victim of domestic
violence. If the resident has filed for or secured a temporary domestic
violence restraining order as a result of the incident that is the basis
for the termination notice or as a result of a prior incident, the writ
of restitution shall not issue. In all other cases where domestic violence
is raised as a defense, the court shall have the discretion to evict the
resident accused of the violation, while allowing the tenancy of the remainder
of the residents to continue undisturbed.
K. In any action for possession under Subsection I of this
section, it shall be a defense that the resident did not know of, and could
not have reasonably known of or prevented, the commission of a substantial
violation by any other person in the dwelling unit or on the premises.
L. In an action for possession under Subsection I of this
section, it shall be a defense that the resident took reasonable and lawful
actions in defense of himself, others or his property.
M. In any action for possession under Subsection I of this
section, if the court finds that the action was frivolous or brought in
bad faith, the petitioner shall be subject to a civil penalty equal to
two times the amount of the monthly rent, plus damages and costs.
Title 47, Art. 8, §47-8-33.
Notice of termination and damages.
A. The owner or the resident may terminate a week-to-week
residency by a written notice given to the other at least seven days prior
to the termination date specified in the notice.
B. The owner or the resident may terminate a month-to-month
residency by a written notice given to the other at least thirty days prior
to the periodic rental date specified in the notice.
C. If the resident remains in possession without the owner's
consent after expiration of the term of the rental agreement or its termination,
the owner may bring an action for possession and if the resident's holdover
is willful and not in good faith the owner, in addition, may recover the
damages sustained by him and reasonable attorney's fees. If the owner consents
to the resident's continued occupancy, Subsection C of Section 15 [47-8-15
NMSA 1978] of the Uniform Owner-Resident Relations Act applies. Title
47, Art. 8, §47-8-37.
Service of notice.
A. A person has notice of a fact if:
(3) from all facts and circumstances known to him at the time in
question he has reason to know that it exists.
B. A person notifies or gives a notice or notification to
another by taking steps reasonably calculated to inform the other in ordinary
course, whether or not the other actually comes to know of it.
C. A person receives a notice or notification:
(2) where written notice to the owner is required, when it is mailed
or otherwise delivered at the place of business of the owner through which
the rental agreement was made or at any place held out by him as the place
for receipt of the communication; or
(3) if written notice to the resident is required, when it is delivered
in hand to the resident or mailed to him at the place held out by him as
the place for receipt of the communication, or in the absence of such designation,
to his last known place of residence.
D. Notwithstanding any other provisions of this section, notice
to a resident for nonpayment of rent shall be effective only when hand
delivered or mailed to the resident or posted on an exterior door of the
dwelling unit. In all other cases where written notice to the resident
is required, even if there is a notice by posting, there must also be a
mailing of the notice by first class mail or hand delivery of the notice
to the resident. The date of a posting shall be included in any notice
posted, mailed or hand delivered, and shall constitute the effective date
of the notice. A posted notice shall be affixed to a door by taping
all sides or placed in a fixture or receptacle designed for notices or
mail.
E. Notice, knowledge or a notice or notification received
by the resident or person is effective for a particular transaction from
the time it is brought to the attention of the resident or person conducting
that transaction, and in any event from the time it would have been brought
to the resident's or person's attention if the resident or person had exercised
reasonable diligence.
F. Where service of notice is required under the Uniform Owner-Resident
Relations Act [47-8-1 to 47-8-51 NMSA 1978], and the item is mailed but
returned as undeliverable, or where the last known address is the vacated
dwelling unit, the owner shall serve at least one additional notice if
an alternative address has been provided to the owner by the resident.
Title 47, Art. 8, §47-8-13.
