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Do-It-Yourself Evictions: Think Twice Before You Give A Renter The Boot
by Annette West, CCIM, MBA, CPA

After hearing from several out of state investors that New Mexico landlord tenant law was very friendly, I thought it would be interesting to compare our landlord laws to AZ and CA. The chart summarizes the result of my research. Please note that before you act on this information, you should contact your real estate attorney or the websites referenced below for the latest updates and changes in the law. This is not intended to be legal advice.

While doing this research, I learned a new phrase: "Constructive or Self-Help Evictions".

It appears that some landlords think that they can change the locks or turn off utilities if a tenant does not pay the rent. Shortcuts such as changing locks, turning off the water, intimidation or physically removing the tenant's belongings from the unit are illegal in almost every state. Some states fine landlords extra penalties for taking shortcuts, including California.

According to Findlaw for the Public's website, (http://realestate.findlaw.com/landlord/tenant-eviction/tenant-eviction-illegal-selfhelp.html) without a court order, you may not:

• Turn off the utilities, such as water, gas or electricity.

• Lock them out of the property.

• Remove any doors, windows, gates or other part of the property that provides safety or is guaranteed as part of the lease

• Take or remove tenant belongings.

• Threaten harm to the tenant or his property.

• Disturb tenant peace and enjoyment of the property by making noise or otherwise interfering with the use of the place.

• Call the police and complain, unless a valid problem exists.

• Harass tenants or their guests, including spying, calling or sending inappropriate correspondence.

Bad behavior by the tenant does not justify bad behavior by the landlord. If the tenant is late on the rent, has damaged your property or broken other rules you do not have a legally valid defense for self-help eviction.

For complete details on the eviction process, including copies of forms, fees involved, etc. go to http://www.lcnm.biz/  and select Info for Landlords. Also, go to http://www.nmaa.org/  and select Landlord Help for very useful tips. [More resources are available at http://www.l2l2l.com/NewsAndResources.aspx.]

In short, if your tenant has not paid rent, New Mexico law states that you will need to serve them a Three Day Notice of Non-Payment of Rent. If they do not pay you within those three days, (the third day must be a business day) then you need to file a Petition for Restitution with the Magistrate Court.

After you file the Petition, serve the tenant paperwork stating the court date (usually 10 to 14 days after the papers are filed.) and then appear in court (be sure to bring your file and all documentation). The judge will usually award in your favor a Writ of Restitution and will give the resident between 3 (if no children in the unit) and 7 days to move out.

If the tenant does not move out, the Sheriff will help you evict them. Note that you need only hold for three (3) days any items the tenant has left unless the tenant moved on their own, whereupon you need to store any items left behind for thirty (30) days. After those 30 days keep a record of how you disposed of the items.

The bottom line: with proper tenant screening, you should never have to evict a tenant.[Editor's Note: And the good news is Landlord2Landlord.com can help you check the backgrounds, including criminal, credit & eviction history, of prospective renters --  quickly, easily and inexpensively! Visit our website for more details.]

If you need to evict a tenant, be sure to do it legally. Otherwise the legal fees defending your behavior in court will cost far more than the court and your time.

Annette West, CCIM, MBA, CPA, is a Las Cruces Commercial REALTOR® and can be reached at AWest@AnnetteWest.com, http://www.annettewest.com/ or at 505-644-1634. She is a contributing writer for Landlord2Landlord.