HOUSE BILL 6

56th legislature - STATE OF NEW MEXICO - first session, 2023

INTRODUCED BY

Angelica Rubio and Andrea Romero and Patricia Roybal Caballero and Leo Jaramillo

 

 

 

 

AN ACT

RELATING TO HOUSING; CLARIFYING THE REQUIREMENT FOR A WRITTEN STATEMENT OF DEDUCTIONS IN CERTAIN CIRCUMSTANCES; INCREASING CERTAIN CIVIL PENALTIES; INCREASING THE TIME PERMITTED TO REMEDY NONPAYMENT OF RENT FOR A RENTAL AGREEMENT; INCREASING PERIODS OF TIME REQUIRED FOR NONPAYMENT NOTICES; REQUIRING THE ISSUANCE OF A JUDGMENT OF RESTITUTION PRIOR TO A WRIT OF RESTITUTION; CLARIFYING THAT ISSUANCE AND EXECUTION OF A WRIT OF RESTITUTION ARE STAYED DURING AN APPEAL; PROHIBITING AN OWNER FROM REFUSING TO RENEW OR SEEKING TO TERMINATE A RENTAL AGREEMENT DURING A DECLARED EMERGENCY OR DISASTER; DECLARING AN EMERGENCY.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 47-8-1 NMSA 1978 (being Laws 1975, Chapter 38, Section 1, as amended) is amended to read:

     "47-8-1. SHORT TITLE.--[Sections 47-8-1 through 47-8-51] Chapter 47, Article 8 NMSA 1978 may be cited as the "Uniform Owner-Resident Relations Act"."

     SECTION 2. Section 47-8-15 NMSA 1978 (being Laws 1975, Chapter 38, Section 15, as amended) is amended to read:

     "47-8-15. PAYMENT OF RENT.--

          A. The resident shall pay rent in accordance with the rental agreement. In the absence of an agreement, the resident shall pay as rent the fair rental value for the use of the premises and occupancy of the dwelling unit.

          B. Rent is payable without demand or notice at the time and place agreed upon by the parties. Unless otherwise agreed, rent is payable at the dwelling unit. Unless otherwise agreed, periodic rent is payable at the beginning of any term of one month or less and otherwise in equal monthly installments at the beginning of each monthly period. The date of one month to the same date of the following month shall constitute a term of one month.

          C. Unless the rental agreement fixes a definite term, the residency is week-to-week in the case of a person who pays weekly rent and in all other cases month-to-month.

          D. If the rental agreement provides for the charging of a late fee and if the resident does not pay rent in accordance with the rental agreement, the owner may charge the resident a late fee in an amount not to exceed ten percent of the total rent payment for each rental period that the resident is in default. If the resident's rent is subsidized by a government agency, the maximum late fee shall be ten percent of the portion of the rent that the resident pays for the dwelling unit and shall not include the portion paid by the government agency. To assess a late fee, the owner shall provide notice of the late fee charged no later than the last day of the next rental period immediately following the period in which the default occurred.

          E. An owner may not assess a fee from the resident for occupancy of the dwelling unit by a reasonable number of guests for a reasonable length of time. This shall not preclude charges for use of premises or facilities other than the dwelling unit by guests.

          F. An owner may increase the rent payable by the resident in a month-to-month residency by providing written notice to the resident of the proposed increase at least thirty days prior to the periodic rental date specified in the rental agreement or, in the case of a fixed term residency, at least thirty days prior to the end of the term. In the case of a periodic residency of less than one month, written notice shall be provided at least one rental period in advance of the first rental payment to be increased.

          G. Unless agreed upon in writing by the owner and the resident, a resident's payment of rent may not be allocated to any deposits or damages.

          H. For each cash, check or money order payment made by a resident or on a resident's behalf, an owner shall provide the resident a written or electronic receipt that shall include the amount of the payment, the date of payment and the resident's name."

     SECTION 3. Section 47-8-18 NMSA 1978 (being Laws 1975, Chapter 38, Section 18, as amended) is amended to read:

     "47-8-18. DEPOSITS.--

          A. An owner is permitted to demand from the resident a reasonable deposit to be applied by the owner to recover damages, if any, caused to the premises by the resident during [his] the term of residency. [(1)] Under the terms of an annual rental agreement, if the owner demands or receives of the resident [such] a deposit in an amount greater than one month's rent, the owner shall be required to pay to the resident annually an interest equal to the passbook interest permitted to savings and loan associations in this state by the federal home loan bank board on such deposit. [(2)] Under the terms of a rental agreement of a duration less than one year, an owner shall not demand or receive from the resident [such] a deposit in an amount in excess of one month's rent.

          B. It is not the intention of this section to include the last month's prepaid rent, which may be required by the rental agreement as a deposit as defined in Subsection [D] E of Section 47-8-3 NMSA 1978. Any deposit as defined in [Paragraph (1) of] Subsection A of this section shall not be construed as prepaid rent.

          C. Upon termination of the residency, property or money held by the owner as deposits may be applied by the owner to the payment of rent and the amount of damages [which] that the owner has suffered by reason of the resident's noncompliance with the rental agreement or Section 47-8-22 NMSA 1978. No deposit shall be retained to cover normal wear

and tear. In the event actual cause exists for retaining any portion of the deposit for nonpayment of rent, late fees, utilities, repairs, cleaning or other legitimate damages or charges, the owner shall provide the resident with an itemized written list of the deductions from the deposit and the balance of the deposit, if any, within thirty days of the date of termination of the rental agreement or resident departure, whichever is later. The owner is deemed to have complied with this section by mailing, emailing or hand delivering the statement and any payment required to the last known address of the resident. [Nothing in this section shall preclude the owner from retaining portions of the deposit for nonpayment of rent or utilities, repair work or other legitimate damages] If the statement and any payment are mailed but returned as undeliverable or if the last known address is the vacated dwelling unit, the owner shall mail, email or hand deliver at least one additional notice if an alternative address has been provided to the owner by the resident or the resident's representative.

          D. If the owner fails to provide the resident with a written statement of deductions from the deposit and the balance shown by the statement to be due, within thirty days of the termination of the tenancy, the owner:

                (1) shall forfeit the right to withhold any portion of the deposit for any charge, including rent other than the minimum periodic payment due under the lease for a dwelling accrued through the date of termination or resident departure, whichever is later, late fees, utilities, repairs, cleaning or other damages or charges;

                (2) shall forfeit the right to assert [any] a counterclaim in [any] an action brought to recover that deposit;

                (3) shall be liable to the resident for court costs and reasonable [attorneys'] attorney fees; and

                (4) shall forfeit the right to assert an independent action against the resident for [damages to the rental property] any charge, including rent other than the minimum periodic payment due under the lease for a dwelling accrued through the date of termination or resident departure, whichever is later, late fees and other penalties, utilities, repairs, cleaning or other damages or charges. Notwithstanding any other provision of law, nothing in this section shall prevent the owner from retaining a portion of the deposit or bringing a separate action for the minimum periodic payment due under the lease for a dwelling actually due prior to the resident vacating the premises.

          E. An owner who [in bad faith] retains a deposit, or any portion thereof, knowing that retention to be in violation of this section is liable to the resident for a civil penalty in the amount of [two hundred fifty dollars ($250) payable to the resident] twice the amount improperly withheld."

     SECTION 4. Section 47-8-33 NMSA 1978 (being Laws 1975, Chapter 38, Section 33, as amended) is amended to read:

     "47-8-33. BREACH OF AGREEMENT BY RESIDENT AND RELIEF BY OWNER.--

          A. Except as provided in the Uniform Owner-Resident Relations Act, 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] a 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] a 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] eleven calendar days after written notice from the owner of nonpayment, [and his] the owner may terminate the rental agreement pursuant to this subsection. The notice shall state the owner's 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] voluntarily deliver possession, contest the termination in court or seek redress in response. The tender of the full amount due, in the manner stated in the notice, prior to the expiration of the [three-day] eleven-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:

                (1) the resident has abated rent pursuant to Section 47-8-27.2 or 47-8-4 NMSA 1978; or

                (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] judgment conditioned upon the right of the resident to remedy by depositing the judgment amount with the court within [three] twenty-one days of entry of judgment. If the resident has satisfied the judgment, including all rent, costs, fees and interest accrued as set with the court, within [three] twenty-one days, the [writ] judgment shall be vacated and the petition as to that issue 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] as set by the court, the court shall issue the writ of restitution without further order.

          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] pursuant to 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] in which 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] pursuant to 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] any action for possession [under] pursuant to Subsection I of