Court of Appeals rules that landlords must wait three full days before bringing eviction cases to court

By: - December 7, 2022 4:00 am
An apartment for rent in Albuquerque

An apartment for rent in Albuquerque (Photo by Marisa Demarco/Source NM)

The New Mexico Court of Appeals ruled recently that lower courts erred when they allowed the eviction of a Las Cruces tenant in 2018, a ruling advocates say will help renters across the state resolve issues with landlords before they go before a judge.

New Mexico Legal Aid represented the tenant in local court and in his appeal. A landlord alleged the tenant was behind $500 in rent, according to legal filings, and filed for eviction. He issued the tenant a Three Day Notice of Nonpayment of Rent on a Saturday in early August of 2018, then filed for eviction on a Tuesday.

The appeals court ruled that landlords must wait a full three days, not including the day of service, before they can file an eviction claim in court. The case should have been dismissed because the landlord didn’t wait until Wednesday to file the paperwork, the appellate court ruled.

Despite not giving the tenant the full three days to come up with the money, a magistrate court ruled in the landlord’s favor anyway, according to Legal Aid, and issued an eviction order for Aug. 24, 2018. 

Advocates say the Appeals Court ruling is a way to give tenants as much time as legally allowable to come up with rent or a way to correct issues before they go to court, where judges can act quickly to order someone’s eviction. 

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“Eviction cases tend to move very fast once they’re filed,” said Riley Masse, managing attorney for New Mexico Legal Aid. “So it’s critical that courts not chip away at the little time tenants have to resolve issues before a case is filed.”

The Appeals Court issued its ruling Oct. 31, and the appeal window closed this week.

The ruling also applies to cases where a tenant receives a seven-day notice of eviction. Those are issued in cases where a tenant is accused of violating the lease for reasons other than lack of rent, said Tom Prettyman, a New Mexico Legal Aid lawyer who represented the tenant in 2018. 

Lawmakers have tried for several years to change the amount of time tenants have to get rent money together after being served a notice of nonpayment. At the moment, a tenant has only three days to come up with rent after being notified that they are late to avoid grounds for eviction in court. That’s one of the shortest periods in the country, bill sponsors have said. 

A bill that was proposed but failed during this year’s legislative session would have expanded that time to 11 days. The reforms were also geared generally toward giving tenants more time in court and before court to find the money or resolve landlord disputes and stay housed. 


This brief was updated on Dec. 7 at 2 p.m. to correctly reflect the date of the Court of Appeals ruling.


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Patrick Lohmann
Patrick Lohmann

Patrick Lohmann has been a reporter since 2007, when he wrote stories for $15 apiece at a now-defunct tabloid in Gallup, his hometown. Since then, he's worked at UNM's Daily Lobo, the Albuquerque Journal and the Syracuse Post-Standard.