An Introduction to the New Mexico Rental Agreement
Rental agreements are critical to establishing the essential terms of a lease and protecting the rights of both landlords and renters in New Mexico. Among the most important provisions generally included in a rental agreement are the names of the landlord and tenant(s), the frequency of rent payments, how much rent is due, the location of the rental unit, and the length of the tenancy. Rental agreements can be verbal or written but only written contracts are enforceable in New Mexico courts.
The distribution of responsibilities and rights outlined in a rental agreement can vary significantly to fit the needs each party. For example , the landlord might pay utilities and the tenant might pay for necessary home repairs of a certain value. Rental agreements also stipulate the conditions under which a lease may be terminated.
While verbal agreements are legally binding, written agreements are in all parties’ best interests. Written rental agreements clearly outline the obligations of both landlords and tenants, establishing a foundation to avoid misunderstandings about the terms of a lease.
New Mexico law defines a rental agreement as any written or oral agreement between the landlord and tenant where the tenant is obligated to occupy a dwelling unit and pay rent to the landlord.
The Legal Implications of Rental Agreements
Each rental agreement for residential property in New Mexico must comply with several statutory requirements. Pursuant to the Residential Landlord and Tenant Act the rental agreement is required to have the following, at minimum:
Since the Residential Landlord and Tenant Act governs just about every rental situation in New Mexico, regardless of whether it was the landlord or the tenant that prepared the rental agreement, the statute generally requires that landlords of all rental units provide each tenant a copy of all rights and obligations created by the Act as well as remedies and disclosures created by applicable law.
The Act specifically requires landlords to disclose whether any of the following are in the rental unit:
The Act also requires landlords to disclose whether the rental unit is within one mile of known contaminated groundwater as a result of a release of hazardous substances or petroleum or whether the property within one mile of the unit contains a landfill or hazardous waste treatment, storage, or disposal facility.
Each rental agreement should include additional disclosure that the rental unit has not been inspected for lead-based paint as required by federal statute.
Lastly, it is required of each rental agreement that all provisions of the rental agreement must be written in easy to read form and in the language primarily used in the transaction, or they will be considered void.
The Importance of Key Rental Agreement Clauses
New Mexico rental agreements contain several key clauses that are important for both the tenant and the landlord to review and understand. The most common clause requires the payment of rent. The rental agreement typically states the amount, when due, and approved methods of payment. Rent is paid either monthly, weekly, or per another set interval. Payment methods may include accepted forms of money transfer, electronic payment, and accepted physical forms of payment.
A second common clause pertains to the security deposit. The rental agreement will state the amount of the security deposit and the approved method of payment for the deposit. In addition to the clause concerning the security deposit, New Mexico law requires landlords who collect a security deposit to provide either a full written description or a written statement of all existing deficiencies in the condition of the premises within five (5) days of the tenant moving in. N.M.S.A. § 47-8-20(B)(1).
Another common clause outlines the landlord’s obligations to make repairs to the property. A rental arrangement is viewed to essentially create a contract that obligates the landlord to keep the premises habitable throughout the term of the tenancy. Specific contractual repairs may make this broad obligation narrower in scope, but, at the end of the day, the landlord is likely responsible for contractual repairs they agreed to perform. Per the New Mexico Uniform Owner-Resident Relations Act, this broad duty has been interpreted to mean a duty to maintain, after a notice of need of repair by the tenant is given, the following: Electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, elevators, and appurtenances. New Mexico Statutes Annotated (NMSA) § 47-8-17(A)(3).
At the conclusion of a rental period, the landlord must return or account for the security deposit within thirty (30) days of the termination of the term of the lease. N.M.S.A. § 47-8-20(A)(1). However, if the rental agreement requires the landlord to clean the premises or to paint or wallpaper the premises at the beginning of the rental period, then the landlord must account for the cost for these items if they are performed at the conclusion of the rental period. N.M.S.A. § 47-8-20(A)(2).
A rental agreement may expressly permit a withholding of amounts from the security deposit for specific purposes. The lease agreement should specify the thresholds that permit the withholding of security deposit funds. Additionally, if the rental agreement permits the landlord to withhold amounts from the security deposit for cleaning and repair costs, a move-out checklist is an accepted practice. Furthermore, a move-out checklist can protect a landlord from overreaching or adding costs to the checklist that are not fair wear and tear during the tenancy.
Tenant and Landlord’s Duties and Responsibilities
Under the New Mexico Rental Agreement, tenants and landlords have both rights and responsibilities. Once again, it’s important to look at the big picture: The New Mexico Rental Agreement is a protective document. It ensures that some standards of living quality are met, and that both NPPL and you understand what is expected of one another.
For starters, under New Mexico law, your landlord is responsible for the maintenance of the rental property. He or she must make necessary repairs to keep the property livable. Otherwise, a lawsuit can be filed against them for "breach of warranty of habitability." (This also goes for issues in common areas, such as a broken staircase outside your apartment.)
However, tenants are also responsible for maintaining the property. It is up to you to report maintenance issues to your landlord in a timely manner. You have a responsibility to inform your landlord if something in your apartment breaks. If the heat stopped working in January, for instance, it is up to you to tell your landlord so that the problem can be fixed. After you do complain, after a reasonable amount of time (often 14 days) without any response from your landlord, you may hire a handyman to make the repairs and deduct the cost from future rent.
Your landlord must respond to your complaints about broken appliances with reasonable speed. What does "reasonable" mean? It may vary depending on the situation. For example, if you have a leaking toilet, your landlord must provide you with a toilet that works very soon. If the only thing wrong with an appliance is its noise level, however, there is no need to replace it right away.
If either you or your landlord fail to follow through on the responsibilities outlined in the New Mexico Rental Agreement, then you could be on the hook for legal action. Renting an apartment means that you need to live up to your obligations under the lease, otherwise the lease may be terminated. However, in order for you to be evicted under the New Mexico Rental Agreement, the landlord must file a "forcible entry and detainer complaint," which is also known as an eviction proceeding.
The above obligations are outlined in the Housing Act of 1975, which went into effect in 1977. Since then, there have been over 40 changes to the document, which have created different protections for landlords and tenants.
These stipulations are just an overview of your rights and responsibilities as a tenant or landlord. Stay ahead of the curve when it comes to your New Mexico Rental Agreement by communicating with your landlord, and following all ordinances laid out by the agreement.
Common Pitfalls and Solutions
Both landlords and tenants are likely to make mistakes when entering into a new rental agreement. Some common mistakes that lead to landlord-tenant disputes and distress are:
1. Tenants failing to read the rental agreement before signing it.
It is very important for a tenant to review the Rental Agreement before signing it. There could be ambiguity in the Rental Agreement. If a tenant fails to read the Rental Agreement before signing, then he or she may be entering into something different than what is the tenant’s intention.
2. Landlords charging excessive deposits or charging deposits for items not legally permitted to be charged.
In order for a deposit to be paid (except as an advanced fee payment) , the landlord must now give the tenant a signed receipt itemizing each item in the list and showing the amounts of the individual items and a total amount for the deposit. It is unlawful for the landlord of a residential rental unit to charge an advanced fee, a lease-up fee, or a cleaning fee. Landlords can still charge a Pet fee for the tenant’s pet(s) and a deposit for the pet(s) to cover for any damage the pet(s) may cause to the premises.
3. Tenants not getting a receipt for monthly payments.
If a landlord has a place of business that rents residential properties, they must provide a written receipt for every payment to the tenant. Tenants can ask for a receipt at any time during the rental agreement. Tenants should keep the receipts as documentation that they have made their payments to the landlord.
Resolving Issues
Disputes between landlords and tenants can arise over a number of issues, including repairs, security deposits and other obligations under the New Mexico Rental Agreement Act. In some cases, a simple discussion or negotiation can resolve the problem. If that is not possible, either a tenant (the "person injured by the breach of the rental agreement") or the landlord (the "aggrieved party") can pursue mediation, or even take legal action.
In the event that either party wants to pursue mediation, they can make an oral or written request for a list of approved mediators from the New Mexico Dispute Resolution Center. A judge can waive this requirement if both the landlord and tenant agree to do so. The mediator then contacts both parties to get a listing of areas of the dispute and to schedule a session with both parties present.
The court must approve the use of mediation before either the landlord or tenant can proceed. If one of them refuses or fails to cooperate with the mediation process, the other party can go back to court to continue the lawsuit. During the mediation session, the mediator plays a neutral role and cannot give advice to either party. The mediator will encourage the parties to openly discuss their conflicts and use problem-solving strategies to come to an agreement.
Sexual assault or abuse complaints – which can include sexual harassment – can be addressed through mediation, including allegations that one party has committed an unlawful act or has created a hostile living climate by engaging in acts such as excessive drinking, drug use or profane language. However, the mediator cannot make a decision whether there has been sexual assault or sexual abuse for the purpose of eviction.
If mediation does not work, the aggrieved party can file a lawsuit against the defaulting party in the district court of the county in which the property is located. If the aggrieved party prevails, the court may award the following:
A landlord’s written lease or rental agreement may contain a dispute resolution or arbitration clause. Such a provision could require the tenant to vacate prior to pursuing a small claims action or court proceeding. However, that requirement is extinguished if the landlord or landlord’s agent violates the covenant of quiet enjoyment.
Helpful Resources
Resources for renters and landlords include both governmental offices and legal aid services. While the government does not actually draft rental agreements, following any state-specific guidelines will help both the renter and landlord understand the scope of the agreement. Such information can include how to terminate the agreement, what is required in the event of an emergency, as well as where the security deposit should be stored.
For example, the New Jersey Department of Consumer Affairs offers a model lease agreement free to the public. Such form, however, is geared towards New Jersey residents and therefore should be reviewed carefully, with respect to New Mexico law, prior to its use . Most online resources provide a free sample lease agreement, such as Rocket Lawyer’s standard residential agreement. For additional security, paid services such as LegalZoom offer documents with attorney reviews for an additional fee.
Legal aid may also be available for both parties. In addition to government websites, the New Mexico Bar Association provides a list of all legal aid resources in New Mexico. Legal aid, however, is often subject to financial requirements. Similarly, many lawyers offer sliding scale fees, which will often result in a free consult.