By Ingrid Carlin and Charles McElwee
Members often call the Access to Justice attorneys in New Mexico frantically seeking help because their Landlord has failed to deal with conditions posing a risk to their health and safety. Most times these situations require an urgent response. By the time the tenant calls us for help they say that they’ve already reported the problem to the landlord multiple times and that the landlord has not responded to their requests for major repairs.
I always ask the tenants whether they have mailed and given their Landlord what the NM ORRA (NM Owner Resident Relations Act) calls the “Resident’s seven day notice of abatement or termination of rental agreement form 4-902A”. Nine times out of 10 the tenant tells us they did not know when they had a problem with their Landlord they were required to send a written 7 day notice in the proper form to comply with NMSA 47-8-27.1 (“Breach of agreement by owner and relief by resident.”)
This law states in part: “A. Upon the failure of the owner to perform his obligations as required by Section 47-8-20 NMSA 1978, the resident shall give written notice to the owner specifying the breach and:
(1) if there is a material noncompliance by the owner with the rental agreement or a noncompliance with the Uniform Owner-Resident Relations Act materially affecting health and safety, the resident shall deliver a written notice to the owner specifying the acts and omissions constituting the breach. The notice shall state that the rental agreement will terminate upon a date not less than seven days after receipt of the notice if a reasonable attempt to remedy the breach is not made in seven days, and the rental agreement shall terminate as provided in the notice. If the owner makes a reasonable attempt to adequately remedy the breach prior to the date specified in the notice, the rental agreement shall not terminate. If the rental agreement is terminated by the resident and possession restored to the owner, the owner shall return the balance, if any, of prepaid rent and deposit to which the resident is entitled pursuant to the rental agreement or Section 47-8-18 NMSA 1978; or (2) the resident may be entitled to abatement of the rent as provided in Section 47-8-27.2 NMSA 1978.”
If your landlord does not perform the obligations of a Landlord imposed by New Mexico Law or the rental agreement, in a way that materially affects health and safety then to legally preserve your rights as a tenant and present the proper case to a Judge when the time comes you should send the 7 day notice form the first time the problem needs attention. and keep a copy for yourself. You have a better case to present and to defend against an eviction action if you follow the steps required by the law. That should help you avoid the feeling of getting the ‘runaround’. Here is a link. https://metro.nmcourts.gov/wp-content/uploads/sites/47/2023/11/4-902A-Residents-7day-Notice-of-Abatement-Termination-CV-107.pdf
Finally, please remember if you choose to withhold part or all of your rent as allowed by law after you’ve sent the 7 day notice and the Landlord continues to ignore your request the risk cannot be avoided that the landlord may take the position that you are violating the rental agreement. The Landlord may attempt to evict you for not paying the full amount of rent .In that event you may have to go to court to find out whether the judge will agree you properly exercised your rights. You should be prepared to show the Judge why you abated rent and that will include your copy of proof of the 7 day notice you sent to the Landlord regarding the conditions that needed attention.
Please remember that the facts for each tenant and landlord situation are distinct, so we encourage you to call us for advice about your specific circumstances.