NEW MEXICO REGULATION &
LICENSING DEPARTMENT
New Mexico Real
Estate License Law
and Real Estate
Commission Rules
2017-2018 WEB-EDITION
Issued by: The New Mexico Real Estate Commission
Wayne Ciddio, Executive Secretary
1/1/2017
This is the official web-edition of the NM Real Estate
Commission License Law and Commission Rules. Changes to the
rules are made by the Commission following rule hearings held
in accordance with NM State Statutes and Open Meeting
requirements.
New Mexico
Real Estate License Law
and Real Estate
Commission Rules
2016-2017 W e b - Edition
Contains Rule Changes Effective Jan 1, 2017
Also Contains:
The Uniform Owner-Resident Relations Act
QUESTIONS ABOUT THIS PUBLICATION?
For CUSTOMER SERVICE ASSISTANCE concerning replacement
pages, this publication is developed as an electronic publication to be
posted on the New Mexico State Regulation and Licensing
Department/ New Mexico Real Estate Commission Webpage at:
New Mexico Real Estate Commission (click to access)
and designed for direct download by the public and by real estate
licensees. It is developed by the New Mexico Real Estate Commission
with the assistance of the Regulation and Licensing Department.
For EDITORIAL content questions concerning this publication,
please email: wayne.ciddio@state.nm.us, Executive
Secretary
New Mexico Administrative Code © 2016 by the State of New
Mexico. All rights reserved. New Mexico Regulation and Licensing
Department
New Mexico Real Estate Commission
5500 San Antonio Drive NE, Suite B
Albuquerque, New Mexico 87109
(505) 222-9820
i
New Mexico Regulation and Licensing Department
B O ARDS A N D CO M M ISS I O N S DIVI S I O N
NEW ME XI CO REAL ESTATE COM MISSI ON
5500 San Antonio Dr. Suite B ▪ A lbuquer qu e, N ew M exi co 871 09
Offi ce ( 50 5) 222 -9820 ▪ Fax (50 5) 2 22 -9886 Fax (5 05) 222- 9886
1-800-801 -7505
www.rld.state.nm.us/realestatecommission
Commissioners
Gretchen Koether, President
Bobby Shaw Realty
5610 N. Grimes
Hobbs, New Mexico 88242
(575) 392-2023
gretchenkoether@yahoo.com
Kurstin Johnson, Vice President
Vista Encantada Realty
10415 Lagrima de Oro Road NE
Albuquerque, NM 87111
(505) 884-0020
kurstin@vistaencantada.com
Clifford Stroud, Secretary
Dunagan Associates,
212 W. Stevens Street
Carlsbad, New Mexico 88220
(575) 885-2138
Cstroud@zianet.com
Greg L. Foltz, Member
Coldwell Banker Commercial-Las Colinas
4801 Lang Avenue NE, Suite 100
Albuquerque, New Mexico 87109
(505) 897-7227
GFoltz@lcrealty.com
Kirk Clifton, Public Member
609 Lenox
Las Cruces, New Mexico 88005
kirkclifton@gmail.com
Staff
Directory
Wayne Ciddio, Executive Secretary
(505) 222-9829
Roxanne Romo, Licensing Manager
(505) 222-9826
Lyn Carter, Chief Investigator
(505) 222-9881
Gillian Hubka, Investigator
(505) 222-9884
Perry Bryant, Investigator
(505) 222-9882
Tom Baca, Education Administrator
(505) 222-9825
Brittany Dominguez, Financial Specialist
(505) 222-9822
Germelyn Vivar, Administrative Secretary
(505) 222-9823
Eliza Casados, Receptionist
(505) 222-9820
iii
iv
Table of Contents
Staff Directory ............................................................................................................................................................. i
NEW MEXICO REAL ESTATE LICENSE LAW
....................................................................................... 13
ARTICLE 29
............................................................................................................................................................ 13
61-29-1. Prohibition. ....................................................................................................... 14
61-29-1.1. Recompiled.
................................................................................................... 14
61-29-2. Definitions and exceptions. ....................................................................... 14
61-29-3. Criminal offender’s character evaluation. ........................................... 17
61-29-4. Creation of commission; powers and duties. ..................................... 18
61-29-4.1. Additional powers of commission; continuing
education
programs; minimum requirements. ......................................................................... 18
61-29-4.2. Additional powers of the commission; professional liability
insurance; minimum coverage. .................................................................................. 10
61-29-4.3. Regulation and licensing department; administratively
attached. ............................................................................................................................... 20
61-29-4.4. Additional powers of commission; fingerprinting and
criminal history background checks. ...................................................................... 20
61-29-5. Organization of commission. ..................................................................... 21
61-29-5.1. Recompiled.
................................................................................................... 22
61-29-6. Meeting of the commission. ....................................................................... 22
61-29-7. Reimbursement and expenses. ................................................................ 22
61-29-8. License fees; disposition. ........................................................................... 23
61-29-9. Qualifications for license. ........................................................................... 24
61-29-10. Application for license and examination. ......................................... 18
61-29-10.1. Brokerage relationships; creation. ................................................... 27
61-29-10.2. Licensee’s duties; disclosure. .............................................................. 28
61-29-10.3. Brokerage nonagency relationships.
(Re
pealed.) ....................... 28
61-29-11. Issuance, renewal and surrender of licenses. ................................ 29
61-29-12. Refusal, suspension or revocation of license for
causes
enumerated......................................................................................................................... 31
61-29-13. Provision for hearing before suspension or revocation of
license.
.................................................................................................................................. 33
61-29-14. Repealed. ......................................................................................................... 34
61-29-15. Maintenance of list of licensees. ........................................................... 34
61-29-16. Suit by qualifying or associate broker. ............................................... 34
61-29-16.1. Nonresident brokers; consent to service; referral fees. .......... 36
61-29-17. Penalty; injunctive relief. ......................................................................... 37
61-29-17.1. Recompiled.
................................................................................................ 38
61-29-17.2. Unlicensed activity; civil penalty; administrative costs. ....... 38
61-29-18. Interpretation of act. ................................................................................. 38
61-29-19. Termination of agency life; delayed repeal. (Repealed.) ........... 39
61-29-19.1. Real estate education and training fund created; purpose;
appropriation. .................................................................................................................... 39
61-29-20. Short title. ....................................................................................................... 40
61-29-22. Additional fees. ............................................................................................. 41
61-29-23. Judgment against qualifying or associate broker; petition;
requirements; recovery limitations. ....................................................................... 41
History: Laws 1980, ch. 82, § 5; 1987, ch. 90, § 8. ............................................... 43
61-29-25. Commission finding. ................................................................................... 43
See 12-1-8 NMSA 1978 .................................................................................................. 44
61-29-26. Insufficient funds. ........................................................................................ 44
61-29-27. Subrogation. ................................................................................................... 44
61-29-28. Waiver.
............................................................................................................... 45
61-29-29. Disciplinary action not limited. ............................................................ 45
Real Estate Commission Rules
.......................................................................................... 46
Title 16. OCCUPATIONAL AND PROFESSIONAL
LICENSING
......................... 46
Chapter 61. Real Estate Brokers
..........................................................................46
PART I. GENERAL PROVISIONS
........................................................................................................ 46
16.61.1.8.
Offices. ............................................................................................................... 51
16.61.1.9
Telephonic meeting attendance.
............................................................ 51
PART 2:
LICENSE AND OTHER FEES
............................................................................ 52
16.61.2.8
Fees.
.................................................................................................................... 52
16.61.2.9
Fees non-refundable..................................................................................... 53
PART 3:
REAL ESTATE BROKER’S LICENSE: EXAMINATION AND LICENSING
APPLICATION REQUIREMENTS
...................................................................................... 53
16.61.3.8.
Types of licenses.
......................................................................................... 53
16.61.3.9.
Examination and licensing requirements. ........................................ 53
PART 4:
SALESPERSON’S LICENSE: EXAMINATION AND
LICENSING
APPLICATION REQUIREMENTS
[REPEALED 01-01-06]
.......................................... 56
16.61.5.8.
Group errors and omissions insurance policy. ................................ 56
16.61.5.9.
Terms of coverage. ....................................................................................... 57
16.61.5.10.
Equivalent errors and omissions insurance policies. .................. 58
16.61.5.11.
Broker compliance. ................................................................................... 59
16.61.5.12.
Insurance requirements suspended. ................................................ 59
16.61.5.13.
Penalties for violation.
............................................................................ 59
PART 6:
DESIGNATION OF A QUALIFYING BROKER TO
QUALIFY A REAL
ESTATE BROKERAGE
.......................................................................................................... 59
16.61.6.8.
Requirements. ................................................................................................ 59
PART 7:
FINGERPRINTING AND ARREST RECORD CHECKS
.................................. 60
16.61.7.8.
Requirements. ................................................................................................ 60
PART 8
LICENSE TRANSFER
............................................................................................ 61
16.61.8.8.
Requirements. ................................................................................................ 61
PART 9:
LICENSE INACTIVATION AND REACTIVATION
............................................ 61
16.61.9.8.
Requirements. ................................................................................................ 61
PART 10
[RESERVED]
........................................................................................................ 62
PART 11:
LICENSE EXPIRATION AND RENEWAL
....................................................... 62
16.61.11.8.
Requirements. ............................................................................................. 62
PART 12:
LICENSE SUSPENSION AND REVOCATION
............................................... 63
16.61.12.8.
Disciplinary actions.
................................................................................. 63
16.61.12.9.
License s urrender. .................................................................................... 63
PART 13:
CONTINUING EDUCATION REQUIREMENTS
............................................ 64
16.61.13.8.
Requirements .............................................................................................. 64
16.61.13.9.
Verification of completion of course work. ..................................... 65
PART 14:
EDUCATION AND TRAINING FUND
............................................................ 65
16.61.14.8.
Providers. ...................................................................................................... 65
16.61.14.9.
Amounts and terms of contracts for education or research. . 66
16.61.14.10.
Proposals.
................................................................................................... 66
16.61.14.11.
Commission action on proposals. ..................................................... 67
16.61.14.12.
Reports. ........................................................................................................ 67
16.61.14.13.
Use of commission name. .................................................................... 67
16.61.14.14
Product of service — Copyright. ........................................................ 68
16.61.14.15.
Changes. ....................................................................................................... 68
16.61.14.16.
Participants.
.............................................................................................. 68
16.61.14.17.
Expenditures.
............................................................................................ 68
16.61.14.18.
Revenues.
..................................................................................................... 68
16.61.14.19.
iolations.
...................................................................................................... 69
PART 15:
APPROVAL OF REAL ESTATE COURSES, SPONSORS,
AND
INSTRUCTORS
...................................................................................................................... 69
16.61.15.8.
Education Advisory Committee
......................................................... 69
16.61.15.10.
Approval of sponsors and sponsor responsibilities. ............... 71
16.61.15.11.
Approval of courses. ............................................................................... 72
16.61.15.12.
Approval of instructors. ........................................................................ 74
PART 16:
QUALIFYING BROKER: AFFILIATION AND
RESPONSIBILITIES
............ 76
16.61.16.8.
Affiliation. ...................................................................................................... 76
16.61.16.9.
Responsibilities.
........................................................................................ 76
PART 17:
ASSOCIATE BROKER: AFFILIATION AND
RESPONSIBILITIES
............... 78
16.61.17.8.
Affiliation. ...................................................................................................... 78
16.61.17.9.
Responsibilities.
........................................................................................ 78
PART 18:
SALESPERSONS: AFFILIATION AND RESPONSIBILITIES
...................... 79
16.61.19.8.
Broker duties; disclosure. ...................................................................... 79
16.61.19.9.
Brokerage relationships. ......................................................................... 81
16.61.19.10.
Dual agency relationship. .................................................................... 81
PART 20: [R
ESERVED]
....................................................................................................... 82
PART 21:
UNLICENSED ASSISTANTS
........................................................................... 82
16.61.21.8.
Permitted activities.
................................................................................. 82
16.61.21.9.
Prohibited activities.
............................................................................... 83
16.61.21.10.
Disability. ..................................................................................................... 84
16.61.21.11.
Penalties.
.................................................................................................... 84
PART 22
[RESERVED]
........................................................................................................ 84
PART 23:
TRUST ACCOUNTS
........................................................................................... 84
16.61.23.8.
Description, designation and reconciliation.
................................ 84
16.61.23.9.
Types of trust accounts. .......................................................................... 85
16.61.23.10.
Record accessibility, retention and inspection.
........................... 86
16.61.23.11.
Deposits, disbursements and commingling. ............................... 86
PART 24 PROPERTY MANAGEMENT
............................................................................. 89
16.61.24.8.
Property management advisory committee. ................................. 89
16.61.24.9.
Declaration of intent. ............................................................................... 89
16.61.24.10.
Compliance with applicable law. ...................................................... 89
16.61.24.11
Property management trust account. ............................................. 89
16.61.24.12.
Reports and documents to owners. ................................................ 90
16.61.24.13.
Management agreements. .................................................................... 90
16.61.24.14.
Tenancy agreements. ............................................................................. 91
16.61.24.15.
Record accessibility, retention and inspection.
........................... 91
16.61.24.16.
Short term and vacation rentals. ...................................................... 91
PART 25:
TIME SHARE REGISTRATION
........................................................................ 92
16.61.25.8.
Application for registration. ................................................................. 93
16.61.25.9.
Disclosure statements.
............................................................................. 94
16.61.25.10.
Description of interest in time share property;
recordation. . 95
16.61.25.11.
Questionnaire and application. ......................................................... 95
16.61.25.12.
License requirements. .......................................................................... 95
16.61.25.13.
Developers. ................................................................................................. 95
16.61.25.14.
Trust accounts. ......................................................................................... 96
PART 26:
LAND TITLE TRUST FUND ACT
................................................................... 96
16.61.26.8.
Trust accounts, escrow, special, pooled interest-bearing, & disposition
of earned interest on certain accounts. .................................................................. 97
16.61.27.1
Foreign Brokers
....................................................................................................... 97
16.61.29.8.
Registration and use of trade name. ................................................. 99
PART 31: SIGNAGE
.......................................................................................................... 100
16.61.31.8.
Requirements. .......................................................................................... 100
PART 32 Real Estate Advertisements
....................................................................... 100
16.61.32.8.
Advertisements. ....................................................................................... 100
PART 33:
DOCUMENT EXECUTION AND DELIVERY
............................................... 101
16.61.33.8.
Execution of documents. ..................................................................... 101
16.61.33.9.
Delivery of documents. ........................................................................ 101
PART 35:
CHILD SUPPORT ENFORCEMENT
........................................................... 102
16.61.35.8.
Disciplinary action.
................................................................................ 102
16.61.35.9.
Certified list. .............................................................................................. 102
16.61.35.10.
Initial action.
.......................................................................................... 103
16.61.35.11.
Notice of contemplated action. ...................................................... 103
16.61.35.12.
Evidence and proof. ............................................................................. 104
16.61.35.13.
Order.
.......................................................................................................... 104
16.61.35.14.
Procedures. ............................................................................................. 104
PART 36:
COMPLAINTS AND INVESTIGATIONS
...................................................... 104
16.61.36.8.
Complaints.
................................................................................................. 104
16.61.36.9.
Investigations. .......................................................................................... 105
ARTICLE 8-
Owner-Resident Relations
.....................................................................
................................................................................................................................................... 107
47-8-1. Short title. ......................................................................................................... 107
47-8-2. Purpose. ............................................................................................................. 108
47-8-3. Definitions. ....................................................................................................... 108
47-8-5. General act. ....................................................................................................... 112
47-8-6. Recovery of damages. .................................................................................. 112
47-8-7. Provision for agreement. ........................................................................... 112
47-8-8. Rights, obligations and remedies. .......................................................... 112
47-8-9. Exemptions. ...................................................................................................... 113
47-8-10. Judicial jurisdiction. .................................................................................. 113
History: 1953 Comp., § 70-7-10, enacted by Laws 1975, ch. 38, § 10. ..... 114
47-8-11. Obligation of good faith. ........................................................................... 114
47-8-15. Payment of rent. .......................................................................................... 116
47-8-16. Waiver of rights prohibited. .................................................................... 117
47-8-17. Unlawful agreement provision. ............................................................ 117
47-8-18. Deposits. ......................................................................................................... 117
47-8-19. Owner disclosure. ....................................................................................... 119
47-8-20. Obligations of owner. ................................................................................. 120
47-8-21. Relief of owner liability. ........................................................................... 122
47-8-22. Obligations of resident. ............................................................................ 123
47-8-23. Application of rules or regulations. .................................................... 124
Cross reference. — Definitions, 47-8-3 NMSA 1978. Obligations of
owner, 47-8-20 NMSA 1978...................................................................................... 124
47-8-24. Right of entry. ............................................................................................... 124
47-8-25. Use of dwelling unit limited.
.................................................................. 125
47-8-27.1. Breach of agreement by owner and relief by
resident. ... 126
47-8-27.2. Abatement.
.................................................................................................. 128
47-8-29. Repealed. ........................................................................................................ 129
47-8-30. Action for counterclaim for resident. ................................................. 129
47-8-31. Resident rights following fire or casualty. ....................................... 129
47-8-32. Repealed. ........................................................................................................ 130
47-8-33. Breach of agreement by resident and relief by
owner. ....... 130
47-8-34. Notice of extended absence.
.................................................................. 132
47-8-34.1. Disposition of property left on the premises.
............................. 133
47-8-34.2. Personal property and security deposit of deceased
resident; contact person. ........................................................................................... 135
47-8-35. Claim for rent and damages. ................................................................... 136
47-8-36. Unlawful removal and diminution of services prohibited. ......... 136
47-8-36.1. Landlord lien. ............................................................................................. 137
47-8-37. Notice of termination and damages. .................................................. 138
47-8-38. Injunctive relief. .......................................................................................... 138
47-8-39. Owner retaliation prohibited. ............................................................... 139
47-8-40. Action for possession by owner............................................................ 140
47-8-41. Action for possession by owner or resident.
.................................. 141
47-8-42. Petition for restitution. ............................................................................ 141
47-8-43. Issuance of summons. ............................................................................... 142
47-8-44. Absence from court of defendant. ........................................................ 142
47-8-45. Legal or equitable defense. ..................................................................... 142
47-8-46. Writ of restitution. ...................................................................................... 143
47-8-47. Appeal stays execution............................................................................. 144
47-8-48. Prevailing party rights in law suit; civil penalties.
........................ 145
13
NEW MEXICO REAL ESTATE LICENSE LAW
CHAPTER 61
Professional and Occupational Licenses
ARTICLE 29
Real Estate Brokers and Salesmen
Sec.
61-29-1. Prohibition.
61-29-1.1. Recompiled.
61-29-2. Definitions and exceptions.
61-29-3. Criminal offender’s character
evalu
ation.
61-29-4. Creation of commission; powers and
duties.
61-29-4.1. Additional powers of commission;
continuing education programs; minimum
requirements.
61-29-4.2. Additional powers of the
commis
sion; professional liability insurance;
minimum coverage.
61-29-4.3. Regulation and licensing
department; administratively attached.
61-29-4.4. Additional powers of commission;
fingerprinting and criminal history background
checks.
61-29-5. Organization of commission.
61-29-5.1. Recompiled.
61-29-6. Meeting of the commission.
61-29-7. Reimbursement and expenses.
61-29-8. License fees; disposition.
61-29-9. Qualifications for license.
61-29-10. Application for license and
exami
nation.
61-29-10.1. Brokerage relationships; creation.
61-29-10.2. Licensee’s duties; disclosure.
61-29-10.3. Recompiled
61-29-11. Issuance, renewal and surrender of
licenses.
61-29-12. Refusal, suspension or revocation of
license for causes enumerated.
61-29-13. Provision for hearing before suspen
sion
or revocation of license.
61-29-14.[Repealed.]
61-29-15. Maintenance of list of licensees.
61-29-16. Suit by qualifying or associate bro
ker.
61-29-16.1. Nonresident brokers; consent to
service; referral fees.
61-29-17. Penalty; injunctive relief.
61-29-17.1. Recompiled.
61-29-17.2. Unlicensed activity; civil penalty;
administrative costs.
61-29-18. Interpretation of act.
61-29-19. Termination of agency life; delayed
repeal. (Repealed.)
61-29-19.1. Real estate education and training
fund created; purpose; appropriation.
61-29-20. Short title.
61-29-21. Fund created.
61-29-22. Additional fees.
61-29-23. Judgment against qualifying or
associate broker; petition; requirements; recovery
limitations.
61-29-24. Commission; review; compromise.
61-29-25. Commission finding.
61-29-26. Insufficient funds.
61-29-27. Subrogation.
61-29-28. Waiver.
61-29-29. Disciplinary action not limited.
14
61-29-1. Prohibition.
It is unlawful for a person to engage in the business or act in the capacity of
real estate
associate broker or qualifying broker within New Mexico without a
license issued by the
commission. A person who engages in the business or acts
in the capacity of an associate
broker or a qualifying broker in New Mexico,
except as otherwise provided in Section
61-29-2 NMSA 1978, with or without a New Mexico real estate broker’s license, has
thereby submitted to the
jurisdiction of the state and to the administrative jurisdiction
of the commission and is subject to all penalties and remedies available for a violation of
any
provision of Chapter 61, Article 29 NMSA 1978.
History: 1953 Comp., § 67-24-19, enacted
by Laws 1959, ch. 226, § 1; 1965, ch.304, § 1;
2001, ch. 163, § 1; 2005, ch. 35,
§ 1; 2013, ch.
167, § 1.
STATUTORY NOTES
Cross reference.
— Registration required of time
share projects; real estate salesperson license
required, 47-11-2.1 NMSA 1978.
The 2005 amendment, effective January 1, 2006, substituted
‘‘an associate broker or a qualifying broker’’ for ‘‘a broker or
real estate salesperson’’ in two places.
The 2013 amendment, effective June 14, 2013, substituted
‘‘real estate’’ for ‘‘advertise or display in any manner or
otherwise assume to engage in the business of, or act as an’’
in the first sentence; substituted ‘‘New Mexico real estate
broker’s license’’ for ‘‘New Mexico license’’ in the second
sentence; and made related and stylistic changes.
Editor’s notes. — Laws 2011, ch. 30, § 8,approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 1978
JUDICIAL DECISIONS
Generally.
Real estate broker’s or salesperson’s license is required for a
variety of activities, including buying selling, exchanging,
renting, leasing, auctioning, or dealing with options in real
estate. Garcia v. N.M. Real Estate Comm’n, 108 N.M. 591,
775 P.2d 1308 (Ct. App. 1989), cert. denied, 108 N.M. 624,
776 P.2d 846 (1989).
61-29-1.1. Recompiled.
STATUTORY NOTES
Editor’s notes. — This section, relating to registration of
time share projects and licensing of salespersons, was
recompiled as 47-11-NMSA 1978.
61-29-2. Definitions and exceptions.
A.
As used in Chapter 61, Article 29 NMSA 1978:
14
(1)
‘‘agency relationship’’ means the fiduciary relationship created
solely by
an express written agency agreement between a person and a
brokerage, authorizing
the brokerage to act as an agent for the person according to the scope of authority
granted in that express written agreement
for real estate services subject to the
jurisdiction of the commission;
(2)
‘‘agent’’ means the brokerage authorized, solely by means of an
express written agreement, to act as a fiduciary for a person and to provide real
estate
services that are subject to the jurisdiction of the commission; in the
case of an
associate broker, ‘‘agent’’ means the person who has been authorized
to act by that
associate broker’s qualifying broker;
(3)
‘‘associate broker’’ means a person who, for compensation or other
valuable consideration, is associated with or engaged under contract by a
qualifying broker to carry on the qualifying broker’s business as a whole or partial
vocation, and:
(a)
lists, sells or offers to sell real estate; buys or offers to buy real
estate; or
negotiates the purchase, sale or exchange of real estate or options on
real
estate;
(b)
is engaged in managing property for others;
(c)
leases, rents or auctions or offers to lease, rent or
auction real
estate;
(d)
advertises or makes any representation as being engaged in the
business of
buying, selling, exchanging, renting, leasing, auctioning or dealing with
options on real estate for others as a whole or partial vocation; or
(e)
engages in the business of charging an advance fee or contract- ing for
collection of a fee in connection with a contract under which the
qualifying broker undertakes primarily to promote the sale of real
estate
through its listing in a publication issued primarily for that purpose
or for the
purpose of referral of information concerning real estate to
other qualifying brokers or associate brokers;
(4)
‘‘brokerage’’ means a licensed qualifying broker and the licensed real
estate
business represented by the qualifying broker and its affiliated licensees;
(5)
‘‘brokerage relationship’’ means the legal or contractual relationship
between a person and a brokerage in a real estate transaction subject to the
jurisdiction of the commission;
(6)
‘‘client’’ means a person who has entered into an express written
agreement with a brokerage for real estate services subject to the jurisdiction of the
commission;
(7)
‘‘commission’’ means the New Mexico real estate commission;
(8)
‘‘customer’’ means a person who uses real estate services without
entering into an express written agreement with a brokerage subject to the
jurisdiction of the commission;
(9)
‘‘license’’ means a qualifying broker’s license or an associate broker’s
license
issued by the commission;
(10)
‘‘licensee’’ means a person holding a valid qualifying broker’s
license or an associate broker’s license subject to the jurisdiction of the
commission;
(11)
‘‘qualifying broker’’ means a licensed real estate broker who has
qualified a proprietorship, corporation, partnership or association to do busi- ness
as a real estate brokerage in the state of New Mexico, who discharges the
15
responsibilities specific to a qualifying broker as defined by the commission
and
who for compensation or other consideration from another:
(a)
lists, sells or offers to sell real estate; buys or offers to buy
real
estate; or negotiates the purchase, sale or exchange of real estate or options
on
real estate;
(b)
is engaged in managing property for others;
(c)
leases, rents or auctions or offers to lease, rent or
auction
real
estate;
(d)
advertises or makes any representation as being engaged in
the
business of buying, selling, exchanging, renting, leasing, auctioning or
dealing with options on real estate for others as a whole or partial vocation; or
(e)
engages in the business of charging an advance fee or
contracting for collection of a fee in connection with a contract under
which the qualifying broker undertakes primarily to promote the sale of
real estate
through its listing in a publication issued primarily for that purpose
or for the
purpose of referral of information concerning real estate to other
qualifying brokers or associate brokers;
(12)
‘‘real estate’’ means land, improvements, leaseholds and other
interests in real property that are less than a fee simple ownership interest,
whether tangible or intangible; and
(13)
‘‘transaction broker’’ means a qualifying broker, associate broker or
brokerage that provides real estate services without entering into an agency
relationship.
B.
single act of a person in performing or attempting to perform an
activity
described in Paragraph (11) of Subsection A of this section makes the
person a
qualifying broker. A single act of a person in performing or attempting
to perform an
activity described in Paragraph (3) of Subsection A of this section makes the person an
associate broker.
C.
The provisions of Chapter 61, Article 29 NMSA 1978 do not apply to:
(1)
a person who as owner performs any of the activities included in this
section with reference to property owned by the person, except when the sale
or
offering for sale of the property constitutes a subdivision containing one
hundred
or more parcels;
(2)
the employees of the owner or the employees of a qualifying broker
acting
on behalf of the owner, with respect to the property owned, if the acts are
performed
in the regular course of or incident to the management of the
property and the
investments;
(3)
isolated or sporadic transactions not exceeding two transactions
annually in which a person acts as attorney-in-fact under a duly executed power
of attorney delivered by an owner authorizing the person to finally
consummate
and to perform under any contract the sale, leasing or exchange of real estate on
behalf of the owner; and the owner or attorney-in-fact has not
used a power of
attorney for the purpose of evading the provisions of Chapter
61, Article 29 NMSA
1978;
(4)
transactions in which a person acts as attorney-in-fact under a duly
executed power of attorney delivered by an owner related to the attorney-in-
fact
16
within the fourth degree of consanguinity or closer, authorizing the person to finally
consummate and to perform under any contract for the sale, leasing
or exchange of
real estate on behalf of the owner;
(5)
the services rendered by an attorney at law in the performance of
the
attorney’s duties as an attorney at law;
(6)
a person acting in the capacity of a receiver, trustee in bankruptcy,
administrator or executor, a person selling real estate pursuant to an order of
any
court or a trustee acting under a trust agreement, deed of trust or will or
the
regular salaried employee of a trustee;
(7)
the activities of a salaried employee of a governmental agency acting
within
the scope of employment; or
(8)
persons who deal exclusively in mineral leases or the sale or
purchase of mineral rights or royalties in any case in which the fee to the land or the
surface rights are in no way involved in the transaction.
History: 1978 Comp., § 61-29-2, enacted by Laws 1999,
ch. 127, § 1; 2003, ch. 36,§ 1; 2005, ch. 35, § 2; 2011,
ch. 85, § 1; 2013, ch. 167, § 2.
STATUTORY NOTES
Cross reference. — Tax credit; certain conveyances of
real property, 7-2A-8.9 NMSA 1978. Prohibition, 61-29-1
NMSA 1978.
The 2005 amendment, effective January 1, 2006, rewrote
Paragraph A(1) which formerly defined both agency
relationship and broker- age relationship; added Paragraphs
A(2), (3), (6) and (14); re-designated former Paragraphs
A(2) and A(3) as present Paragraphs A(4) and A(5); re-
designated former Paragraphs A(4) through A(10) as
present Paragraphs A(7) through A(13); substituted
‘‘qualifying broker’’ for ‘‘real estate broker’’ throughout
the section; in present Paragraph A(10), substituted ‘‘an
associate broker’s license’’ for ‘‘a real estate salesperson’s
license’’; and changed the internal references in Paragraph
A(13) and Subsection B.
The 2011 amendment, effective July 1, 2011, added
(A)(4)(b); re-designated former (A)(4)(b) through (A)(4)(d)
to (A)(4)(c) through (A)(4)(e); substituted ‘‘makes any
representation’’ for ‘‘holds himself out’’ in (A)(4)(d); in
(C)(1), deleted ‘‘or lessor’’ preceding ‘‘per- forms,’’ deleted
‘‘or leased’’ following ‘‘owned’’ and added ‘‘except when
the sale or offering for sale of the property constitutes a
subdivision containing one hundred or more parcels’’; added
the (C)(2) designation; in (C)(2), deleted ‘‘or lessor’’
following ‘‘the owner’’ twice, ‘‘or leased’’ following
‘‘property owned,’’ and ‘‘or the lease or offering for lease’’
following ‘‘offering sale’’; re-designated former (C)(2)
through (C)(7) to (C)(3) through (C)(8).
The 2013 amendment, effective June 14, 2013, deleted ‘‘to
participate in an activity described in Paragraph (4) of this
subsection or’’ following ‘‘a qualifying broker’’ in the
introductory language of (A)(3); deleted the former
introductory language of (A)(4), which read: ‘‘ ‘broker’ or
‘qualifying broker’ means a person who for compensation or
other consideration from another’’; re-designated former
(A)(4)(a) through (A)(4)(e), (A)(5) through (A)(11), and
(A)(14) as (A)(3)(a) through (A)(3)(e), (A)(4) through
(A)(10), and (A)(13); in (A)(3)(e), deleted ‘‘broker or’’
following ‘‘under which the’’ and substituted ‘‘other’’ for
‘‘brokers’’ following ‘‘real estate to’’; substituted ‘‘person’’
for ‘‘buyer, seller, landlord or tenant’’ in (A)(6) and (A)(8);
added (A)(11); deleted former (A)(13); substituted
‘‘Paragraph (11)’’ for ‘‘Paragraph (4)’’ in the first sentence
of (B); deleted ‘‘except when the sale or offering for sale of
the property constitutes a subdivision containing one
hundred or more parcels’’ at the end of (C)(2); and made a
related change.
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978. See 12-1-8 NMSA 1978.
JUDICIAL DECISIONS
Broker. Investments.
Jurisdiction.
Lessor/owner. Suspension.
Broker.
17
Where a real estate broker purchased real estate, contacted a
brokerage corporation to find a buyer for the contract, and
then de- faulted on the contract, the broker was not acting as
a real estate broker; therefore, suspension of his license by
the real estate com- mission was improper. Vihstadt v. Real
Estate Comm’n, 106 N.M. 641, 748 P.2d 14 (1988).
Investments.
A real estate license is not legally required in order arrange
investments in real estate con- tracts. Garcia v. N.M. Real
Estate Comm’n, 108 N.M. 591, 775 P.2d 1308 (Ct. App.
1989), cert. denied, 108 N.M. 624, 776 P.2d 846 (1989).
Jurisdiction.
New Mexico Real Estate Commission had jurisdiction over a
complaint alleging that a real estate broker violated 61-29-12
NMSA 1978 in connection with the sale of a real estate
contract because the broker was a real estate broker as
defined in 61-29-2A NMSA 1978, he represented himself as
such and acted in that capacity, the contract itself indicated
that the broker was being employed in a broker’s capacity,
and he received a commission for the transaction. Elliott v.
New Mexico Real Estate Comm’n, 103 N.M. 273, 705 P.2d
679 (1985).
Lessor/owner.
Former lessee and owner of a building located on leased
premises could not maintain an action to recover
compensation or a commission from the landowner after he
negotiated a new lease between the landowner and a
company that purchased the building because he was not a
licensed real estate broker at the time he negotiated the lease.
The former lessee was not exempted from the provisions of
the Real Estate Brokers and Salesmen Act as either a lessor
or an owner in the regular course of management of the
property. Bosque Farms Home Ctr. v. Tabet Lumber Co., 107
N.M. 115, 753 P.2d 894 (1988).
Suspension.
New Mexico Real Estate Commission’s suspension of a real
estate broker’s license in connection with the sale of a real
estate contract was not unlawful, arbitrary, or capricious
because it was supported by substantial evidence that the
broker by commingled funds failed to place funds entrusted
to him in a trust account, and failing to remit money in his
possession belonging to others within a reasonable time.
Elliott v. New Mexico Real Estate Comm’n, 103N.M.273,
705 P.2d 679 (1985).
License.
A person may hold more than one real estate broker’s license
at the same time, and the part-time broker provisions of Rule
3 of the New Mexico real estate commission’s rules and
regulations are legally correct. 1980 Op. Atty. Gen. No. 80-
22, 1980 N.M. AG LEXIS 19
61-29-3. Criminal offender’s character evaluation.
The provisions of the Criminal Offender Employment Act [28-2-1 NMSA
1978] shall
govern any consideration of criminal records required or permitted
by Sections 61-29-1
through 61-29-18 NMSA 1978.
History: 1953 Comp., § 67-24-20.1, en
acted
by Laws 1974, ch. 78, § 29.
STATUTORY NOTES
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 1978.
OPINIONS OF ATTORNEY GENERAL
Applicability.
If the real estate commission is contemplating denial,
suspension or revocation of a license because of a conviction
of a felony or offense involving moral turpitude by the
licensee, the Criminal Offender Employment Act, 28-2-1
NMSA 1978, et seq., must be followed. 1982 Op. Atty. Gen.
No. 82-2, 1982 N.M. AG LEXIS 23.
18
61-29-4. Creation of commission; powers and duties.
There is created the ‘‘New Mexico real estate commission’’. The commission
shall be
appointed by the governor and shall consist of five members who shall
have been
residents of the state for three consecutive years immediately prior
to their
appointment, four of whom shall have been associate brokers or qualifying brokers
licensed in New Mexico and one of whom shall be a member of the public who has never
been licensed as an associate broker or a qualifying broker; provided that not more than
one member shall be from any one county within the state. The members of the
commission shall serve for a period of five
years or until their successors are appointed
and qualified. The governor may remove a member for cause. In the event of
vacancies, the governor shall
appoint members to complete unexpired terms. The
commission shall possess all the powers and perform all the duties prescribed by
Chapter 61, Article 29
NMSA 1978 and as otherwise provided by law, and it is expressly
vested with
power and authority to make and enforce rules to carry out the provisions
of
that article. Prior to a final action on a proposed change or amendment to the
rules of
the commission, the commission may publish notice of the proposed
action in its
official publication, distribute the publication to each active
licensee and give the
time and place for a public hearing on the proposed
changes. The hearing shall be
held at least thirty days prior to a proposed final
action. Changes or amendments to the
rules shall be filed in accordance with
the procedures of the State Rules Act [14-4-1
NMSA 1978] and shall become
effective thirty days after notification to all active
licensees of the filing of the
changes or amendments.
History: 1953 Comp., § 67-24-21, enacted by Laws
1959, ch. 226, § 3; 1978, ch. 203, § 1; 1983, ch. 261, § 1;
1987, ch. 90, § 2; 1990, ch. 75, § 25; 2003, ch. 22, § 1;
2003, ch. 408, § 30; 2005, ch. 35, § 3.
STATUTORY NOTES
Cross reference. — Additional powers of the commission;
professional liability insurance; minimum coverage, 61-29-
4.2 NMSA 1978. License fees; disposition, 61-29-8 NMSA
1978.
The 2005 amendment, effective January 1, 2006, substituted
‘‘associate brokers or qualifying brokers’’ for ‘‘real estate
brokers’’ and ‘‘an associate broker or a qualifying broker’’
for ‘‘a real estate broker or salesperson’’ in the second
sentence; deleted the fourth sentence which formerly read:
‘‘Members to fill vacancies shall be appointed for an
unexpired term’ ’inserted the present sixth sentence and
deleted ‘‘and regulations’’ following ‘‘rules’’ in the seventh
and eighth sentences.
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 1978.
61-29-4.1. Additional powers of commission; continuing
education programs; minimum requirements.
The commission shall adopt rules providing for continuing education courses in selling,
leasing or managing residential, commercial and industrial property
as well as courses
in basic real estate law and practice and other courses prescribed by the commission.
The regulations shall require that every licensee except licensees who were already
exempted from continuing education requirements prior to July 1, 2011, as a
condition of license renewal,
successfully complete a minimum of thirty classroom
hours of instruction
every three years in courses approved by the commission. The
rules may prescribe areas of specialty or expertise and may require that part of the
10
classroom instruction be devoted to courses in the area of a licensee’s specialty or
expertise.
History: 1978 Comp., § 61-29-4.1, enacted by Laws 1985,
ch. 89, § 1; 1993, ch. 253, § 1; 2005, ch. 35, § 4; 2011, ch.
85, § 2; 2013, ch. 167, § 3.
STATUTORY NOTES
Cross reference. — Additional powers of the commission;
professional liability insurance; minimum coverage, 61-29-
4.2 NMSA 1978.
The 2005 amendment, effective January 1, 2006, rewrote
the first sentence which formerly read: ‘‘In addition to the
powers and duties granted the commission under the
provisions of Section 61-29-4 NMSA 1978, the commission
shall adopt regulations providing for continuing educational
programs that offer courses in selling, leasing or managing
residential, commercial and industrial property as well as
courses reviewing basic real estate law and practice’’; and
rewrote the third sentence which formerly read: ‘‘The
regulations shall prescribe areas of specialty or expertise and
may require that a certain part of the thirty hours of
classroom instruction be devoted to courses in the area of a
licensee’s specialty or expertise’’.
The 2011 amendment, effective July 1, 11, substituted
‘‘were already exempted from continuing education
requirements prior to the effective date of this 2011 act’’ for
‘‘are sixty-five years of age or older and who have a
minimum of twenty years’ continuously licensed experience
in the selling, leasing or managing of real property’’; deleted
‘‘shall’’ preceding ‘‘renewal’’ in the second sentence; and
made stylistic changes.
The 2013 amendment, effective June 14, 2013, in the
second sentence, substituted ‘‘July 1, 2011’’ for ‘‘the
effective date of this 2011 act’’ and added ‘‘a minimum of.’’
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978. See 12-1-8 NMSA 1978.
61-29-4.2. Additional powers of the commission; profes-
sional liability insurance; minimum coverage.
A.
In addition to the powers and duties granted to the commission pursuant
to the provisions of Sections 61-29-4 and 61-29-4.1 NMSA 1978, the commis-
sion may adopt rules that require professional liability insurance coverage and
may establish the minimum terms and conditions of coverage, including limits
of coverage and permitted exceptions. If adopted by the commission, the rules
shall require every applicant for an active license and licensee who applies for
renewal of an active license to provide the commission with satisfactory
evidence that the applicant or licensee has professional liability insurance
coverage that meets the minimum terms and conditions required by commis-
sion rule.
B.
The commission is authorized to solicit sealed, competitive proposals
from insurance carriers to provide a group professional liability insurance
policy that complies with the terms and conditions established by commission
rule. The commission may approve one or more policies that comply with the
commission rules; provided that the maximum annual premium shall not
20
exceed five hundred dollars ($500) for a licensee, that the minimum coverage
shall not be less than one hundred thousand dollars ($100,000) for an
individual claim and not less than a five-hundred-thousand-dollar ($500,000)
aggregate limit per policy and that the deductible shall not be greater than one
thousand dollars ($1,000).
C.
Rules adopted by the commission shall permit an active licensee to
satisfy any requirement for professional liability insurance coverage by pur-
chasing an individual policy.
D.
Rules adopted by the commission shall provide that there shall not be a
requirement for a licensee to have professional liability insurance coverage
during a period when a group policy, as provided in Subsection B of this
section, is not in effect.
History: 1978 Comp., § 61-29-4.2, en-acted
by Laws 2001, ch. 216, § 1; 2005, ch.
35, § 5; 2008, ch. 18, § 1; 2013, ch. 167, § 4.
STATUTORY NOTES
The 2005 amendment, effective January 1, 2006, deleted
‘‘maximum cost of premium’’ from the section heading and
substituted ‘‘two hundred dollars ($200)’’ for ‘‘one hundred
fifty dollars ($150)’’ in Subsection B.
The 2008 amendment, effective July 1, 2008, substituted
‘‘three hundred dollars ($300)’’ for ‘‘two hundred dollars
($200)’’ in Subsection B.
The 2013 amendment, effective June 14, 2013, substituted
‘‘five hundred dollars ($500)’’ for ‘‘three hundred dollars
($300)’’ in the second sentence of (B).
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 1978.
61-29-4.3. Regulation and licensing department; adminis-
tratively attached.
The commission is administratively attached to the regulation and licensing department.
History: Laws 2001, ch. 163, § 12.
STATUTORY NOTES
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 1978.
61-29-4.4. Additional powers of commission; fingerprint-
ing and criminal history background checks.
A.
All applicants for licensure as provided for in Chapter 61, Article 29 NMSA
1978 shall:
21
(1)
be required to provide fingerprints on two fingerprint cards for
submission to the federal bureau of investigation to conduct a national
criminal
history background check and to the department of public safety to conduct a
state criminal history check;
(2)
pay the cost of obtaining the fingerprints and criminal history
background checks; and
(3)
have the right to inspect or challenge the validity of the records
resulting from the background check if the applicant is denied licensure as
established by commission rule.
B.
Electronic live scans may be used for conducting criminal history
background checks.
C.
Criminal history records obtained by the commission pursuant to the
provisions of this section are confidential. The commission is authorized to use
criminal
history records obtained from the federal bureau of investigation and the department of
public safety to conduct background checks on applicants for
certification as provided for
in Chapter 61, Article 29 NMSA 1978.
D.
Criminal history records obtained by the commission pursuant to the
provisions of this section shall not be used for any purpose other than
conducting
background checks. Criminal history records obtained pursuant to the provisions of this
section and the information contained in those records shall not be released or
disclosed to any other person or agency, except
pursuant to a court order or with the
written consent of the person who is the
subject of the records.
E.
A person who releases or discloses the criminal history records or
information contained in those records in violation of the provisions of this
section is
guilty of a misdemeanor and shall be sentenced pursuant to the
provisions of Section
31-19-1 NMSA 1978.
History: Laws 2005, ch. 35, § 6; 2011, ch.
85, § 3.
STATUTORY NOTES
The 2011 amendment, effective July 1, 2011, in the section
heading, added ‘‘finger- printing and’’ and ‘‘history’’; and
rewrote the section, which formerly read: ‘‘the commission
may require license applicants, as a condition of licensure, to
submit to criminal background checks’’.
Effective dates. — Laws 2005, ch. 35, § 21A makes this
section effective January 1, 2006.
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978. See 12-1-8 NMSA 1978.
61-29-5. Organization of commission.
The commission shall organize by electing a president, vice president and
secretary
from its members. A majority of the commission shall constitute a
quorum and may
exercise all powers and duties devolving upon it and do all
things necessary to carry
into effect the provisions of Chapter 61, Article 29
NMSA 1978. The secretary of the
commission shall keep a record of its
proceedings; a register of persons licensed as
associate brokers and qualifying brokers, showing the name and place of business of
each and the date and
number of each person’s license; and a record of all licenses
22
issued, denied, suspended or revoked. This record shall be open to public inspection
at all
reasonable times.
History: 1953 Comp., § 67-24-22, enacted
by Laws 1959, ch. 226, § 4; 2001, ch.
163, § 2;
2005, ch. 35, § 7.
STATUTORY NOTES
The 2005 amendment, effective January 1, 2006, in the third
sentence, substituted ‘‘associate brokers and qualifying
brokers’’ for ‘‘real estate brokers and as real estate sales-
persons’’ near the middle of the sentence and ‘‘denied’’ for
‘‘refused, removed’’ near the end.
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 1978
61-29-5.1. Recompiled.
STATUTORY NOTES
Editor’s notes. — This section, relating to a register of time
share projects and applicants for certificates of registration,
was recompiled as 47-11-11.1 NMSA 1978.
61-29-6. Meeting of the commission.
The commission shall meet at least once each quarter-year at such time and
place as may
be designated by the commission president, and special meetings
may be held upon five
days’ written notice to each of the commission members by the commission president.
History: 1953 Comp., § 67-24-23, enacted by Laws 1959,
ch. 226, § 5; 2005, ch. 35, § 8.
STATUTORY NOTES
The 2005 amendment, effective January 1, 2006, inserted
‘‘commission’’ preceding ‘‘president’’ near the middle and
substituted ‘‘commission president’’ for ‘‘president of the
commission’’ at the end.
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19
NMSA 1978 which would have extended the sunset
provisions of Chapter 61, Article 29 NMSA 1978 from July
1, 2012 to July 1, 2018. However, Laws 2011, ch. 85, § 11,
approved April 6, 2011 and effective July 1, 2011, repealed
61-29-19 NMSA 1978 making the amendment by Laws
2011, ch. 30 not effective. See 12-1-8 NMSA 1978.
61-29-7. Reimbursement and expenses.
Each member of the commission shall receive per diem and mileage as
provided in
the Per Diem and Mileage Act [10-8-1 NMSA 1978] and shall
receive no other
compensation, perquisite or allowance.
History: 1953 Comp., § 67-24-24, enacted by
Laws 1959, ch. 226, § 6; 1963, ch.43, 28; 1965,
ch. 304, § 3; 2003, ch. 22,
§ 2; 2003, ch. 408, §
31.
23
STATUTORY NOTES
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8NMSA 1978.
61-29-8. License fees; disposition.
A.
The following fees shall be established and charged by the commission
and
paid into the real estate commission fund:
(1)
for each examination, a fee established by the commission based on
competitive bids for examination services submitted to the commission in
response to a commission request for proposals, not to exceed ninety-five
dollars ($95.00);
(2)
for each qualifying broker’s license issued, a fee not to exceed two
hundred seventy dollars ($270) and for each renewal thereof, a fee not to
exceed two hundred seventy dollars ($270);
(3)
for each associate broker’s license issued, a fee not to exceed two
hundred seventy dollars ($270) and for each renewal thereof, a fee not to
exceed two hundred seventy dollars ($270);
(4)
subject to the provisions of Paragraph (10) of this subsection, for
each
change of place of business or change of employer or contractual associate, a transfer
fee not to exceed twenty dollars ($20.00);
(5)
for each duplicate license, where the license is lost or destroyed and
affidavit is made thereof, a fee not to exceed twenty dollars ($20.00);
(6)
for each license history, a fee not to exceed twenty-five dollars
($25.00);
(7)
for copying of documents by the commission, a fee not to exceed one
dollar ($1.00) per copy;
(8)
for each license law and rules booklet, a fee not to exceed ten dollars
($10.00) per booklet;
(9)
for each hard copy or electronic list of licensed associate brokers and
qualifying brokers, a fee not to exceed actual costs up to fifty dollars ($50.00);
(10)
for each license reissued for an associate broker because of change of
address of the qualifying broker’s office or death of the qualifying broker
when a
successor qualifying broker is replacing the decedent and the associate broker
remains in the office or because of a change of name of the office or the
entity of
the qualifying broker, a fee in an amount not to exceed twenty dollars
($20.00) to
be paid by the qualifying broker or successor qualifying broker as
the case may
be; but if there are eleven or more affected associate brokers in
the qualifying
broker’s office, the total fee paid to effect reissuance of all of
those licenses shall
not exceed two hundred dollars ($200);
(11)
for each application to the commission to become an approved
sponsor of prelicensing and continuing education courses, a fee not to exceed
five
hundred dollars ($500) and for each renewal thereof, a fee not to exceed
five
hundred dollars ($500);
(12)
for each application to the commission to become an approved
instructor of prelicensing and continuing education courses, a fee not to exceed
seventy dollars ($70.00) per course; and
24
(13)
for each application to the commission to renew certification as a
commission-approved instructor, a fee not to exceed one hundred dollars
($100).
B.
All fees set by the commission shall be set by rule and only after all
requirements have been met as prescribed by Chapter 61, Article 29 NMSA
1978. Any
changes or amendments to the rules shall be filed in accordance with
the State Rules Act
[14-4-1 NMSA 1978].
C.
The commission shall deposit all money received by it from fees in
accordance with the provisions of Chapter 61, Article 29 NMSA 1978 with the
state
treasurer, who shall keep that money in a separate fund to be known as
the ‘‘real estate
commission fund’’, and money so deposited in that fund is
appropriated to the
commission for the purpose of carrying out the provisions of Section 61-29-4 NMSA
1978 or to maintain the real estate recovery fund as
required by the Real Estate Recovery
Fund Act [61-29-20 NMSA 19780] and
shall be paid out of the fund upon the vouchers of
the executive secretary of the
commission or the executive secretary’s designee; provided
that the total fees
and charges collected and paid into the state treasury and any
money so
deposited shall be expended only for the purposes authorized by Chapter 61,
Article 29 NMSA 1978.
History: 1953 Comp., § 67-24-25, enacted by Laws 1959,
ch. 226, § 7; 1977, ch. 295, § 1; 1983, ch. 261, § 2; 1987, ch.
90, § 3; 1990, ch. 75, § 26; 1992, ch. 21, § 1; 1995, ch.
143, § 1; 2001, ch. 163, § 3; 2003, ch. 22, § 3; 2005, ch. 35,
§ 9; 2011, ch. 85, § 4.
STATUTORY NOTES
Cross reference. — Issuance, renewal and surrender of
licenses, 61-29-11 NMSA 1978.
The 2005 amendment, effective January 1, 2006, substituted
‘‘associate broker’’ for ‘‘real estate salesperson’’ throughout
the section and substituted ‘‘qualifying broker’’ for ‘‘licensed
broker’’ throughout the section; in Subsection C, substituted
‘‘appropriated to the commission for the purpose of carrying
out the provisions of Section 61-29-4 NMSA 1978’’ for
‘‘appropriated for the purpose of carrying out the provisions
of Chapter 61, Article 29 NMSA 1978’’ near the middle and
deleted Subsection D.
The 2011 amendment, effective July 1, 2011, in (A)(1),
added ‘‘established by the com-mission based on competitive
bids for examination services submitted to the commission in
response to a commission request for proposals’’; substituted
‘‘actual costs up to fifty dollars ($50.00)’’ for ‘‘twenty
dollars ($20.00)’’ in (A)(9); added ‘‘the executive
secretary’s’’ in (C); and made a stylistic change.
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978. See 12-1-8 NMSA 1978.
61-29-9. Qualifications for license.
A.
Licenses shall be granted only to persons who meet the requirements for
licensure prescribed by law and are deemed by the commission to be of good
repute
and competent to transact the business of a qualifying broker or an
associate broker
in a manner that safeguards the interests of the public.
B.
An applicant for a qualifying broker’s license or an associate broker’s
license shall be a legal resident of the United States and have reached the age of
25
majority. Each applicant for a qualifying broker’s license or an associate broker’s
license shall have passed the real estate broker’s examination
approved by the
commission and shall:
(1)
furnish the commission with certificates of completion of ninety
hours of
classroom instruction consisting of commission-approved thirty-hour
courses in
real estate principles and practice, real estate law and broker basics; or
(2)
in the case of an out-of-state applicant, furnish the commission with
a
certified license history from the real estate licensing jurisdiction in the state
or
states in which the applicant is currently or has been previously licensed as
a real
estate broker, or certificates of completion of those courses issued by the
course
sponsor or provider, certifying that the applicant has or had a license in
that state
and has completed the equivalent of sixty classroom hours of
prelicensing
education approved by that licensing jurisdiction in real estate
principles and
practice and real estate law. Upon receipt of such documentation, the commission
may waive sixty hours of the ninety hours of prelicensing education required to
take the New Mexico real estate broker’s examination
and may waive the
national portion of the examination. The applicant shall
complete the
commission-approved thirty-hour broker basics class to be
eligible to take the
state portion of the New Mexico real estate broker’s
examination.
C.
An applicant for a qualifying broker’s license shall have passed the New
Mexico real estate broker’s examination and had an active associate broker’s
license or
equivalent real estate license for at least two of the last five years
immediately
preceding application for a qualifying broker’s license and shall
furnish the commission
with a certificate of completion of the commission-
approved thirty-hour brokerage
office administration course.
D.
The commission shall require the information it deems necessary from
every applicant to determine that applicant’s honesty, trustworthiness and
competency.
History: 1953 Comp., § 67-24-26,enacted by Laws 1959,
ch. 226, § 8; 1965, ch. 304, § 4; 1973, ch. 40, § 1; 1977, ch.
295, § 2; 1979, ch. 94, § 1; 1983, ch. 261, § 3; 1999, ch.
272, § 35; 2001, ch. 163, § 4; 2003, ch. 22, § 4; 2003, ch.
329, § 1; 2005, ch. 35, § 10; 2011, ch. 85, § 5; 2013, ch. 167,
§ 5.
STATUTORY NOTES
The 2005 amendment, effective January 1, 2006,
inserted ‘‘meet the requirements for licensure prescribed
by law and’’ near the be- ginning of Subsection A;
substituted ‘‘qualifying broker or an associate broker’’ in
Subsection A and B; deleted Paragraph B(1) and re-
designated former Paragraphs B(2) and B(3) as present
Paragraphs B(1) and B(2) respectively; in present
Paragraph B(1), substituted ‘‘ninety classroom hours’’ for
‘‘one hundred eighty classroom hours’’ and added ‘‘thirty
hours of which shall have been a broker basics course’’ at
the end; deleted former Paragraphs B(4), B(5) and
Subsection C; added present Subsection C and D and re-
designated former Subsection D as Subsection E
The 2011 amendment, effective July 1, 2011, deleted the
former second and third sentences in (E), which read:
‘‘Corporations, partnerships or associations may hold a
qualifying broker’s license issued in the name of the
corporation, partnership or association; pro- vided that at
least one member of the partnership or association, or one
officer or employee of a corporation, who actively engages in
the real estate business first secures a qualifying broker’s
license. The license shall be issued in the name of the
corporation, partnership or association, naming the partner,
associate officer or employee as qualifying broker for the
corporation, partnership or association.’’
The 2013 amendment, effective June 14, 2013, rewrote (B)
and (C); deleted former (D), which read: ‘‘A licensee holding
a current real estate salesperson’s license on the effective date
of this 2005 act shall automatically qualify for an associate
broker’s license without any additional requirements.
However, to be eligible to apply for a qualifying broker’s li-
cense, a real estate salesperson obtaining an associate
broker’s license pursuant to this sub-section shall, in addition
to meeting all other requirements for a qualifying broker’s
license, pass a real estate broker’s examination approved by
the commission’’; and re-designated former (E) as (D).
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19
NMSA 1978 which should have extended the sunset
provisions of Chapter 61, Article 29 NMSA 1978 from July
1, 2012 to July 1, 2018. However, Laws 2011, ch. 85, § 11,
approved April 6, 2011 and effective July 1, 2011, repealed
61-29-19 NMSA 1978.
JUDICIAL DECISIONS
Knowledge.
Misrepresentation.
Knowledge.
Where income-producing property purchased through a
real estate broker was condemned, it was incumbent upon
the broker to have a general knowledge of the building
code and the zoning ordinances which dealt with the
particular property being offered for sale or which was
being purchased. Amato v. Rathbun Realty, 98 N.M. 231,
647 P.2d 433 (Ct. App. 1982).
Misrepresentation.
Where a real estate broker’s registration forms failed to admit
that he had default judgments against him for unpaid student
loans and an automobile loan, but the New Mexico Real
Estate Commission made no specific findings or conclusions
that resolved whether the broker intended to deceive and to
induce the Commission to act in reliance upon a
misrepresentation of fact known by him to have been untrue,
it was not clearly shown that the license revocation decision
was based upon false representations relevant and material to
facts bearing upon the good repute and competence of a
licensee in the public interest. Padilla v. Real Estate Comm’n,
106 N.M. 96, 739 P.2d 965 (1987).
OPINIONS OF ATTORNEY GENERAL
Multiple licensure.
A person may hold more than one real estate broker’s license
at the same time, and the part-time broker provisions of Rule
3 of the New Mexico real estate commission’s rules and
regulations are legally correct. 1980 Op. Atty. Gen. No. 80-
22, 1980 N.M. AG LEXIS 19.
61-29-10. Application for license and examination.
A.
All applications for licenses to act as qualifying brokers and associate
brokers shall be made in writing to the commission and shall contain such data
and
information as may be required upon a form to be prescribed and
furnished by the
commission. The application shall be accompanied by:
(1)
the recommendation of two reputable citizens who own real estate
in
the county in which the applicant resides, which recommendation shall
certify that the applicant is of good moral character, honest and
trustworthy; and
(2)
the triennial license fee prescribed by the commission.
B.
In addition to proof of honesty, trustworthiness and good reputation, an
applicant shall pass a written examination approved by the commission. The
examination shall be given at the time and places within the state as the
commission shall prescribe; however, the examination shall be given not less than two
times during each calendar year. The examination shall include business ethics,
writing, composition, arithmetic, elementary principles of land
economics and appraisals,
a general knowledge of the statutes of this state
relating to deeds, mortgages,
contracts of sale, agency and brokerage and the
provisions of Chapter 61, Article 29
NMSA 1978.
27
C.
An applicant is not permitted to engage in the real estate business until
the
applicant has passed the approved examination, complied with the other
requirements
of Chapter 61, Article 29 NMSA 1978, and until a license has
been issued to the
applicant.
D.
Notice of passing or failing to pass the examination shall be given to an
applicant not later than three weeks following the date of the examination.
E.
The commission may establish educational programs and procure qual- ified
personnel, facilities and materials for the instruction of persons desiring
to become
qualifying brokers or associate brokers or desiring to improve their
proficiency as
qualifying brokers or associate brokers. The commission may inspect and accredit
educational programs and courses of study and may establish standards of
accreditation for educational programs conducted in
this state. The expenses incurred
by the commission in activities authorized
pursuant to this subsection shall not exceed
the total revenues received and
accumulated by the commission.
History: 1953 Comp., § 67-24-27, enacted by Laws 1959,
ch. 226, § 9; 1965, ch. 304, § 5; 1979, ch. 94, § 2; 1981, ch.
22, § 1; 2001, ch. 163, § 5; 2005, ch. 35, § 11.
STATUTORY NOTES
The 2005 amendment, effective January 1, 2006, substituted
‘‘qualifying brokers and associate brokers’’ for ‘‘real estate
brokers and real estate salespersons’’ throughout the section.
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19
NMSA 1978 which would have extended the sunset
provisions of Chapter 61, Article 29 NMSA 1978 from July
1, 2012 to July 1, 2018. However, Laws 2011, ch. 85, § 11,
approved April 6, 2011 and effective July 1, 2011, repealed
61-29-19 NMSA 1978 making the amendment by Laws
2011, ch. 30 not effective. See 12-1-8 NMSA 1978.
61-29-10.1. Brokerage relationships; creation.
A.
For all regulated real estate transactions first executed on or after
January 1,
2000, no agency relationship between a buyer, seller, landlord or tenant and a
brokerage shall exist unless the buyer, seller, landlord or tenant
and the brokerage
agree, in writing, to the agency relationship. No type of
agency relationship may be
assumed by a buyer, seller, landlord, tenant or licensee, or created orally or by
implication.
B.
A brokerage may provide real estate services to a client pursuant to an
express written agreement that does not create an agency relationship and no
agency
duties will be imposed on the brokerage.
C.
A brokerage may provide real estate services to a customer without
entering into an express written agreement and without creating an agency
relationship and no agency duties will be imposed on the brokerage.
D.
The commission shall promulgate rules governing the rights of clients or
customers and the rights, responsibilities and duties of a brokerage in those
brokerage
relationships that are subject to the jurisdiction of the commission.
History: Laws 1999, ch. 127, § 2; 2003,
ch. 36, § 2.
28
STATUTORY NOTES
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 1978.
61-29-10.2. Licensee’s duties; disclosure.
A.
Prior to the time a licensee generates or presents any written document
that
has the potential to become an express written agreement, the licensee
shall give to
a prospective buyer, seller, landlord or tenant a list of the
licensee’s duties that are
in accordance with requirements established by the
commission.
B.
Licensees shall perform all duties that are established for licensees by
the
commission.
History: Laws 1999, ch. 127, § 3; 2003,
ch. 36, § 3; 2005, ch. 35, § 12.
STATUTORY NOTES
The 2005 amendment, effective January 1, 2006, rewrote
Subsection A which formerly read: ‘‘A licensee shall give to
a prospective buyer, seller, landlord or tenant, at the time
when the parties enter into an express written agreement, a
list of the licensee’s duties that are in accordance with
requirements established by the commission’’.
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 1978.
61-29-10.3. Brokerage nonagency relationships.
(Re
pealed.)
STATUTORY NOTES
Repeals. — Pursuant to Laws 2003 ch. 36 § 4, this section
was repealed effective January 1, 2004.
29
61-29-11. Issuance, renewal and surrender of licenses.
A.
The commission shall issue to each qualified applicant a license in the
form
and size prescribed by the commission.
B.
The license shall show the name and address of the licensee. An associate
broker’s license shall show the name of the qualifying broker by whom the
associate
broker is engaged. The commission shall deliver or mail the license of the associate
broker to the qualifying broker by whom the associate broker
is engaged, and the
qualifying broker shall display the license at the brokerage from which the associate
broker will be conducting real estate business on
behalf of the brokerage. The license
of the associate broker shall remain in the
custody and control of the qualifying broker as
long as the associate broker is
engaged by that qualifying broker.
C.
Any qualifying broker’s or associate broker’s license suspended or re-
voked by an order, stipulated agreement or settlement agreement approved by
the
commission shall be surrendered to the commission by the broker upon the
delivery of
the order to the broker by the commission, or on the effective date of the order. All real-
estate-related activity conducted under such license shall cease for the duration of the
license suspension or revocation, and any
associate broker licenses hanging with a
qualifying broker whose license is
suspended or revoked shall be automatically placed
on inactive status until a
new qualifying broker or a qualifying broker in charge is
designated.
D.
Every license shall be renewed every three years on or before the last day of
the month following the licensee’s month of birth. Upon written request for
renewal by
the licensee, the commission shall certify renewal of a license if
there is no reason or
condition that might warrant the refusal of the renewal
of a license. The licensee shall
provide proof of compliance with continuing education requirements and pay the
renewal fee. If a licensee has not made
application for renewal of license, furnished
proof of compliance with continuing education requirements and paid the renewal fee
by the license renewal
date, the license shall expire. The commission may require a
person whose
license has expired to apply for a license as if the person had not
been previously licensed under Chapter 61, Article 29 NMSA 1978 and further
require that the person be reexamined. The commission shall require a person whose
license has expired to pay when the person applies for a license, in
addition to any
other fee, a late fee. If during a period of one year from the date
the license expires the
person or the person’s spouse is either absent from this
state on active duty military
service or the person is suffering from an illness
or injury of such severity that the person
is physically or mentally incapable of
making application for a license, payment of the
late fee and reexamination
shall not be required by the commission if, within three
months of the person’s
permanent return to this state or sufficient recovery from illness
or injury to allow the person to make an application, the person makes application to
the
commission for a license. A copy of that person’s or that person’s spouse’s
military orders or a certificate from the applicant’s physician shall accompany
the
application. A person excused by reason of active duty military service,
illness or
injury as provided for in this subsection may make application for a
license without
imposition of the late fee. All fees collected pursuant to this
subsection shall be
disposed of in accordance with the provisions of Section
61-29-8 NMSA 1978. The
revocation of a qualifying broker’s license automatically suspends every associate
broker’s license granted to any person by virtue
of association with the qualifying
30
broker whose license has been revoked,
pending a change of qualifying broker. Upon
the naming of a new qualifying broker, the suspended license shall be reactivated
without charge if granted
during the three-year renewal cycle.
E.
A qualifying broker shall conduct brokerage business under the trade-
name and from the brokerage address registered with the commission. Every brokerage
shall have a qualifying broker in charge. The license of the
qualifying broker and each
associate broker associated with that qualifying broker shall be prominently displayed
in each brokerage office. The address of
the office shall be designated in the qualifying
broker’s license, and a license issued shall not authorize the licensee to transact real
estate business at any
other address. In case of removal from the designated address,
the licensee shall make application to the commission before the removal or within
ten
days thereafter, designating the new location of the licensee’s office and paying the
required fee, whereupon the commission shall issue a license for the new location if the
new location complies with the terms of Chapter 61, Article 29
NMSA 1978. A
qualifying broker shall maintain a sign at the brokerage office
of such size and content as
the commission prescribes.
F.
When an associate broker is discharged or terminates association or
employment with the qualifying broker with whom the associate broker is
associated, the qualifying broker shall deliver or mail the associate broker’s
license to
the commission within forty-eight hours. The commission shall hold
the license on
inactive status. It is unlawful for an associate broker to perform
any of the acts authorized
by Chapter 61, Article 29 NMSA 1978 either directly
or indirectly under authority of an
inactive license after the associate broker’s
association with a qualifying broker has
been terminated and the associate
broker’s license has been returned to the commission
until the appropriate fee
has been paid and the license has been reissued and
reactivated by the
commission.
History: 1953 Comp., § 67-24-28, enacted by Laws 1959,
ch. 226, § 10; 1965, ch. 304, § 6; 1977, ch. 295, § 3; 1979,
ch. 94, § 3; 1980, ch. 82, § 11; 1981, ch. 22, § 2; 1983, ch.
261, § 4; 1985, ch. 89, § 2; 1987, ch. 90, § 4; 1993, ch. 253,
§ 2; 1995, ch. 143, § 2; 2001, ch. 163, § 7; 2003, ch. 22,
§ 5; 2005, ch. 35, § 13; 2013, ch. 167, § 6.
STATUTORY NOTES
Cross reference. — Telephone solicitation sales; automated
telephone dialing systems for sales restricted; disclosure and
other requirements established for authorized telephone
solicitation sales; prohibited telephone solicitation, 57-12-22
NMSA 1978
The 2005 amendment, effective January 1, 2006, rewrote
Subsection B which formerly read: ‘‘The license shall show
the name and address of the licensee. A real estate
salesperson’s license shall show the name of the broker by
whom he is engaged. The license of the real estate
salesperson shall be delivered or mailed to the broker by
whom the real estate salesperson is engaged and shall be kept
in the custody and control of that broker’’; and substituted
‘‘associate broker’’ for ‘‘real estate salesperson’’ and inserted
‘‘qualifying’’ preceding ‘‘broker’’ throughout the section;
and in Subsection D, rewrote the first sentence which
formerly read: ‘‘Each resident licensed broker shall maintain
within this state a fixed office that conforms with local
regulations. Every office operated by a licensed broker shall
have a licensed broker in charge who is a natural person’’.
The 2013 amendment, effective June 14, 2013, added (C)
and re-designated former (C) through (E) as (D) through (F).
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
31
1978 making the amendment by Laws 2011, ch. 30 not effective. See 12-1-8 NMSA 1978.
61-29-12. Refusal, suspension or revocation of license for
causes enumerated.
A.
The commission may refuse to issue a license or may suspend, revoke,
limit
or condition a license if the applicant or licensee has by false or
fraudulent
representations obtained a license or, in performing or attempting
to perform any of the
actions specified in Chapter 61, Article 29 NMSA 1978,
an applicant or licensee has:
(1)
made a substantial misrepresentation;
(2)
pursued a continued and flagrant course of misrepresentation; made
false
promises through agents, salespersons, advertising or otherwise; or used
any trade
name or insignia of membership in any real estate organization of
which the
licensee is not a member;
(3)
paid or received a rebate, profit, compensation or commission to or from
any unlicensed person, except the licensee’s principal or other party to the
transaction, and then only with that principal’s written consent;
(4)
represented or attempted to represent a qualifying broker other
than
a qualifying broker with whom the licensee is associated without the
express
knowledge and consent of that qualifying broker;
(5)
failed, within a reasonable time, to account for or to remit any
money coming into the licensee’s possession that belongs to others, commingled
funds of others with the licensee’s own or failed to keep funds of others in
an
escrow or trustee account or failed to furnish legible copies of all listing and
sales
contracts to all parties executing them;
(6)
been convicted in any court of competent jurisdiction of a felony or any
offense involving moral turpitude;
(7)
employed or compensated, directly or indirectly, a person for per-
forming any of the acts regulated by Chapter 61, Article 29 NMSA 1978 who is
not
a licensed qualifying broker or an associate broker; provided, however, that
a
qualifying broker may pay a commission to a qualifying broker of another
state
as provided in Section 61-29-16.1 NMSA 1978;
(8)
failed, if a qualifying broker, to place as soon after receipt as
is
practicably possible, after securing signatures of all parties to the transaction, any
deposit money or other money received by the qualifying broker in a real estate
transaction in a custodial, trust or escrow account, maintained by the
qualifying
broker in a bank or savings and loan institution or title company
authorized to
do business in this state, in which the funds shall be kept until the transaction is
consummated or otherwise terminated, at which time a full
accounting of the
funds shall be made by the qualifying broker. Records
relative to the deposit,
maintenance and withdrawal of the funds shall contain
information as may be
prescribed by the rules of the commission. Nothing in
this paragraph prohibits a
qualifying broker from depositing non-trust funds in
an amount not to exceed the
required minimum balance in each trust account
so as to meet the minimum
balance requirements of the bank necessary to
maintain the account and avoid
charges. The minimum balance deposit shall not be considered commingling and
shall not be subject to levy, attachment or
garnishment. This paragraph does not
prohibit a qualifying broker from
depositing any deposit money or other money
32
received by the qualifying broker
in a real estate transaction with another
cooperating broker who shall in turn
comply with this paragraph;
(9)
failed, if an associate broker, to place as soon after receipt as is
practicably possible in the custody of the associate broker’s qualifying broker,
after securing signatures of all parties to the transaction, any deposit money or
other money entrusted to the associate broker by any person dealing with the
associate broker as the representative of the qualifying broker;
(10)
violated a provision of Chapter 61, Article 29 NMSA 1978 or a rule
promulgated by the commission;
(11)
committed an act, whether of the same or different character from
that
specified in this subsection, that is related to dealings as a qualifying
broker
or an associate broker and that constitutes or demonstrates bad faith,
incompetency, untrustworthiness, impropriety, fraud, dishonesty, negligence
or
any unlawful act; or
(12)
been the subject of disciplinary action as a licensee while licensed to
practice real estate in another jurisdiction, territory or possession of the
United
States or another country.
B.
An unlawful act or violation of Chapter 61, Article 29 NMSA 1978 by an
associate broker, employee, partner or associate of a qualifying broker shall not
be cause for the
revocation of a license of the qualifying broker unless it
appears to the satisfaction of the
commission that the qualifying broker had
guilty knowledge of the unlawful act or violation.
History: 1953 Comp., § 67-24-29, enacted by Laws 1959,
ch. 226, § 11; 1965, ch. 304, § 7; 1981, ch. 22, § 3; 1983, ch.
261, § 5; 1984, ch. 56, § 1; 1987, ch. 90, § 5; 1991, ch. 13, §
1; 2001, ch. 163, § 8; 2005, ch. 35, § 14; 2011, ch. 85, § 6.
STATUTORY NOTES
Cross reference. — Purchaser’s right to cancel; escrow;
violation, 47-11-5 NMSA 1978. Trust accounts; escrow
accounts; special accounts; pooled interest-bearing accounts;
disposition of earned interest on certain accounts, 58-18B-5
NMSA 1978. Disciplinary action not limited, 61-29-29
NMSA 1978.
The 2005 amendment, effective January 1, 2006, inserted
‘‘qualifying’’ preceding ‘‘broker’’ and substituted
‘‘qualifying broker’’ for ‘‘licensed broker’’ and ‘‘associate
broker’’ for ‘‘salesperson’’ throughout the section.
The 2011 amendment, effective July 1, 2011, substituted
‘‘as provided in Section 61-29-16.1 NMSA 1978’’ for
‘‘provided further that the nonresident broker shall not
conduct in this state any of the negotiations for which a fee,
compensation or commission is paid except in cooperation
with a licensed qualifying broker of this state’’ in (A)(7).
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978.
JUDICIAL DECISIONS
Judicial review.
Jurisdiction.
Notice.
Revocation.
Suspension.
Judicial review.
New Mexico Real Estate Commission’s suspension of a real
estate broker’s license was subject to judicial review, and
could be reversed only if it was unconstitutional, in excess of
the Commission’s authority or jurisdiction, procedurally or
legally defective, unsupported by substantial evidence on the
record as a whole, or arbitrary or capricious. Elliott v. New
Mexico Real Estate Comm’n, 103 N.M. 273, 705 P.2d 679
(1985).
33
Jurisdiction.
Where a broker purchased real estate, contacted a brokerage
corporation to find a buyer for the contract, and then
defaulted on the contract, the broker was not acting as a real
estate broker, and thus, the Real Estate Com- mission of the
State of New Mexico lacked jurisdiction to suspend the
broker’s license. Vihstadt v. Real Estate Comm’n, 106 N.M.
641, 748 P.2d 14 (1988). New Mexico Real Estate
Commission had jurisdiction over a complaint against a real
estate broker in connection with the sale of a real estate
contract because the broker represented himself as such and
acted in that capacity, the contract itself indicated that the
broker was being employed in a broker’s capacity, and he
received a commission for the transaction. Elliott v. New
Mexico Real Estate Comm’n, 103 N.M. 273, 705 P.2d 79
1985).
Notice.
Notice to a broker of a hearing to determine whether probable
cause existed to suspend or revoke his real estate license was
sufficient to apprise him of the charges against him where it
quoted the relevant statute and specifies that his
misrepresentations to a prospective house buyer violated
those provisions because such conduct was incompetent,
untrustworthy, and improper. Further, the broker had ample
opportunity before the hearing to object to the notice or to
request that a more definite statement be issued. Wolfley v.
Real Estate Comm’n, 100 N.M. 187, 668 P.2d 303 (1983).
Revocation.
Where a real estate broker’s registration forms failed to admit
that he had default judgments against him for unpaid student
loans and an automobile loan, but the New Mexico Real
Estate Commission made no specific findings or conclusions
that resolved whether the broker intended to deceive and to
induce the Commission to act in reliance upon a mis-
representation of fact known by him to have been untrue, the
license revocation action was remanded to the Commission
with express directions to enter proper findings of fact and
conclusions of law. Padilla v. Real Estate Comm’n, 106 N.M.
96, 739 P.2d 965 (1987). Where the state real estate
commission is- sued an order revoking a real estate broker’s
license, although the commission had jurisdiction over the
transactions in question it erred in not holding a hearing de
novo required by statute. Poorbaugh v. N.M. Real Estate
Comm’n, 91 N.M. 622, 578 P.2d 323 (1978).
Suspension.
New Mexico Real Estate Commission’s suspension of a real
estate broker’s license for statutory violations in connection
with the sale of a real estate contract was not prohibited
because the broker entered into the agreement with the sellers
as a broker, the fiduciary relationship was that of broker and
client, the power of attorney was given to the broker later to
enable him to complete the transaction with- out the sellers’
presence, and the attorney-in-fact exception did not apply.
Elliott v. New Mexico Real Estate Comm’n, 103 N.M. 273,
705 P.2d 679 (1985). Substantial evidence supported a
finding that a broker’s actions in the sale of a house were
untrustworthy, incompetent, and improper, and warranted the
suspension of the broker’s real estate license for four months,
where he mis-represented both the size of the lot and the age
and condition of the roof. Based on the special relationship
the broker has as the former owner of the property and the
listing agent, the broker knew or should have known the size
of the lot, and his possession of an inspection report
indicating that the roof was about 18 years old did not justify
his claim that the roof was new because it had been
resurfaced with plastic spray. Wolfley v. Real Estate
Comm’n, 100 N.M. 187, 668 P.2d 303 (1983).
OPINIONS OF ATTORNEY GENERAL
Moral turpitude.
If the real estate commission is contemplating denial,
suspension or revocation of a license because of a conviction
of a felony or offense involving moral turpitude by the
licensee, the Criminal Offender Employment Act, 28-2-1
NMSA 1978, et seq., must be followed. 1982 Op. Atty. Gen.
No. 82-2, 1982 N.M. AG LEXIS 23.
61-29-13. Provision for hearing before suspension or revo-
cation
of license.
The commission shall, before suspending or revoking any license, set the
matter down
for a hearing pursuant to the provisions of the Uniform Licensing
Act [61-1-1 NMSA
1978].
History: 1953 Comp., § 67-24-30, en-
acted by Laws 1959, ch. 226, § 12; 1979,
ch. 94, § 4.
34
STATUTORY NOTES
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 1978.
JUDICIAL DECISIONS
Hearing.
Where the state real estate commission is- sued an order
revoking a real estate broker’s license, the commission had
jurisdiction over the transactions in question but had not held
a hearing de novo required by statute. Poorbaugh v. N.M.
Real Estate Comm’n, 91 N.M. 622, 578 P.2d 323 (1978).
61-29-14. Repealed.
STATUTORY NOTES
Repeals. — Laws 2003, ch. 22, § 7 repeals this section, as
last affected by Laws 1959, ch. 226, § 13, relating to the
creation of a real estate commission and nonresident broker
and salesmen.
61-29-15. Maintenance of list of licensees.
The commission shall maintain a list of the names and addresses of all
licensees
licensed by it under the provisions of Chapter 61, Article 29 NMSA
1978, and of all
persons whose license has been suspended or revoked within
that year, together with
such other information relative to the enforcement of
the provisions of Chapter 61,
Article 29 NMSA 1978 as it may deem of interest
to the public. The commission shall
also maintain a statement of all funds
received and a statement of all disbursements
and copies of the statements
shall be mailed by the commission to any person in this
state upon request.
History: 1953 Comp., § 67-24-32, enacted by Laws 1959, ch. 226, § 14; 2001, ch. 163, § 10.
STATUTORY NOTES
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 12 to July 1,
2018. However, Laws 2011,ch. 85, § 11, approved April 6,
2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 1978.
61-29-16. Suit by qualifying or associate broker.
No action for the collection of a commission or compensation earned by any
person as a
qualifying broker or an associate broker required to be licensed under the provisions of
Chapter 61, Article 29 NMSA 1978 shall be maintained
in the courts of the state unless
such person was a duly licensed qualifying broker or associate broker at the time the
alleged cause of action arose. In any
event, suit against a member of the public as
distinguished from any person licensed under Chapter 61, Article 29 NMSA 1978 shall
be maintained only in
the name of the qualifying broker.
History: 1953 Comp., § 67-24-33, enacted
by Laws 1959, ch. 226, § 15; 2005,
ch. 35, §
16.
35
STATUTORY NOTES
The 2005 amendment, effective January 1, 2006, inserted
‘‘qualifying or associate’’ and deleted ‘‘or salesman’’ in the
section heading; substituted ‘‘qualifying broker or associate
broker’’ for ‘‘real estate broker or salesman’’ and ‘‘Chapter
61, Article 29 NMSA 1978’’ for ‘‘this act’’ throughout the
section.
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 1978
JUDICIAL DECISIONS
Corporations.
Exemptions.
Foreign licensure.
Time of licensure.
Unlicensed persons.
Corporations.
Realty corporations were not entitled to a real estate
commission pursuant to a written agreement to sell
property because the corporations failed to prove that they
were licensed real estate brokers. Star Realty Co. v. Sellers,
73 N.M. 207, 387 P.2d 319 (1963).
Exemptions.
Former lessee and owner of a building located on leased
premises could not maintain an action to recover
compensation or a commission from the landowner after he
negotiated a new lease between the landowner and a
company that purchased the building because he was not a
licensed real estate broker at the time he negotiated the
lease. The former lessee was not exempted from the
provisions of the Real Estate Brokers and Salesmen Act as
either a lessor or an owner because he was not a party to
the lease and did not negotiate it in the regular course of
management of the property. Bosque Farms Home Ctr. v.
Tabet Lumber Co., 107 N.M. 115, 753 P.2d 894 (1988).
Foreign licensure.
A competent broker, licensed in another state, who becomes
licensed in New Mexico before his cause of action arises,
should be permitted to recover his commission. Lakeview
Invs. v. Alamogordo Lake Vill., Inc., 86 N.M. 151, 520 P.2d
1096 (1974).
Time of licensure.
Complaint for commissions due should not have been
dismissed for failure to state a cause of action where the real
estate broker became licensed after the commission contract
was entered into, but before the sales for which com-
missions were allegedly due; the breach occurred after
broker’s licensing and that was when the cause of action
arose. Lakeview Invs. Alamogordo Lake Vill., Inc., 86 N.M.
151, 520 P.2d 1096 (1974).
Unlicensed persons.
Where an unlicensed person brought parties together for the
purposes of buying and selling real estate he was not entitled
to a commission. Watts v. Andrews, 98 N.M. 404, 649 P.2d
472 (1982). Unlicensed realtor, who could not recover
against his employer for commissions under this section,
could likewise not maintain an action against a bank for
which he worked as a contractor. Bank of New Mexico v.
Freedom Homes, 94 N.M. 532, 612 P.2d 1343 (Ct. App.
1980).
Unlicensed Persons.
This section barred plaintiff, a Texas real estate agent, from
recovering a real estate commission on the sale of a ranch
because the Texas agent was acting as a broker without a
valid New Mexico broker’s license or a written foreign
broker’s agreement. PC Carter Co. v. Miller, 149 N.M. 660,
253 P.3d 950 (Ct. App. 2011).
36
61-29-16.1. Nonresident brokers; consent to service; referral
fees.
61-29-16.1. Foreign brokers; consent to service; referral fees.
A. A foreign broker may act in the capacity of a qualifying or associate broker with
respect to commercial real estate located in New Mexico; provided that prior to
performing any of the real estate activities of a qualifying or associate broker, the foreign
broker enters into a transaction-specific written agreement with a New Mexico
qualifying broker that includes, at a minimum:
(1) a description of the parties, the commercial real estate and any additional
information necessary to identify the specific transaction governed by the
agreement;
(2) the terms of compensation between the foreign broker and the New Mexico
qualifying broker;
(3) the effective date and definitive termination date of the agreement; and
(4) a statement that the foreign broker agrees to:
(a) cooperate fully with the New Mexico qualifying broker and all associate
brokers designated by the New Mexico qualifying broker;
(b) except for the foreign broker's interaction with the foreign broker's client,
conduct all contact with parties, including the general public and other brokers,
in association with the New Mexico qualifying broker or associate broker
designated by the New Mexico qualifying broker;
(c) conduct all marketing and solicitations for business in the name of the
New Mexico qualifying broker;
(d) timely furnish to the New Mexico qualifying broker copies of all
documents related to the transaction that are required by the laws of New
Mexico to be retained by its licensees, including without limitation, agency
disclosure, offers, counteroffers, purchase and sale contracts, leases and closing
statements;
(e) comply with and be bound by and subject to New Mexico law and the
regulations of the commission; and
(f) submit to the jurisdiction of the courts of New Mexico with respect to the
transaction and any and all claims related thereto by service of process upon the
secretary of state of New Mexico and upon the appropriate official of the state,
province or nation of the foreign broker's real estate licensure.
B. When a New Mexico associate broker or qualifying broker makes a referral to or
receives a referral from a foreign broker for the purpose of receiving a fee, commission
or any other consideration, the qualifying broker of the New Mexico brokerage and the
foreign broker shall execute a written, transaction-specific referral agreement at the time
of the referral.
History: Laws 2005, ch. 35, § 15; 2011, ch.
85, § 7; 2013, ch. 167, § 7. 2014, ch. 27, § 2.
37
STATUTORY NOTES
Cross reference
. — Refusal, suspension or
revocation of license for causes enumerated,
61-
29-12 NMSA 1978.
The 2011 amendment,
effective July 1, 2011, in the
section heading, added ‘‘Foreign brokers’’ and
deleted ‘‘consent to service’’ following
‘‘licensees’’; added (A); added the (B)
designation;
in (B), deleted ‘‘A nonresident’’
from the beginning
of the paragraph; added
‘‘with a license application
address that is not
within the state of New
Mexico,’’ deleted ‘‘non-
resident’’ preceding
‘‘associate broker,’’ substituted ‘‘associate broker or
qualifying broker’’
for ‘‘nonresident licensee’’ in the
second and
last sentences, deleted the former
second sentence, which read: ‘‘The instrument
containing
the consent shall be acknowledged and,
if executed on behalf of a corporation or
association,
shall be accompanied by a certified
copy of the
resolution of the proper officers or
managing
board authorizing the executing officer
to execute the instrument’’; and made a stylistic
change.
The 2013 amendment,
effective June 14,
2013,
rewrote the section heading, which formerly read:
‘‘Foreign brokers; nonresident licensees’’ and
rewrote the section.
The 2014 amendment -
See: NM Stat § 61-29-
16.1 (2014)
Effective dates.
— History: Laws 2005, ch. 35,
15; 2011, ch. 85, 7; 2013, ch. 167, 7;
2014, ch. 27,
2
.
Editor’s notes.
— Laws 2011, ch. 30, § 8,
approved April 2, 2011 and effective June 16,
2011, amended 61-29-19 NMSA 1978 which
would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July
1,
2012 to July 1, 2018. However, Laws 2011,
ch. 85,
§ 11, approved April 6, 2011 and effective July 1,
2011, repealed 61-29-19 NMSA
1978. See 12-1-8
NMSA 1978.
61-29-17. Penalty; injunctive relief.
A.
Any person who engages in the business or acts in the capacity of an
associate broker or a qualifying broker within New Mexico without a license issued by
the commission is guilty of a fourth degree felony. Any person who
violates any other
provision of Chapter 61, Article 29 NMSA 1978 is guilty of
a misdemeanor and shall be
punished by a fine of not more than five hundred
dollars ($500) or imprisonment for not
more than six months, or both.
B.
In the event any person has engaged or proposes to engage in any act or
practice violative of a provision of Chapter 61, Article 29 NMSA 1978, the
attorney
general or the district attorney of the judicial district in which the
person resides or
the judicial district in which the violation has occurred or will
occur may, upon application
of the commission, maintain an action in the name
of the state to prosecute the violation
or to enjoin the proposed act or practice.
C.
In any action brought under Subsection B of this section, if the court finds
that
a person is engaged or has willfully engaged in any act or practice violative of a
provision of Sections 61-29-1 through 61-29-18 NMSA 1978, the
attorney general or the
district attorney of the judicial district in which the
person resides or the judicial
district in which the violation has occurred or is
occurring may, upon petition to the
court, recover on behalf of the state a civil
penalty not exceeding five thousand dollars
($5,000) per violation and attorney
fees and costs.
STATUTORY NOTES
The 2011 amendment, effective July 1, 2011, in (A),
substituted ‘‘fourth degree felony and shall be punished by a
fine of not more than five thousand dollars ($5,000) or by
imprisonment for a definite term of eighteen months’’ for
‘‘misdemeanor and shall be punished by a fine of not more
than five hundred dollars ($500) or by imprisonment for not
more than six months’’ in the first sentence and deleted the
former second sentence, which read: ‘‘Any corporation or
38
business association which violates any provision of Chapter
61, Article 29 NMSA 1978 shall be punished by a fine of not
more than one thousand dollars ($1,000)’’; deleted ‘‘business
association or corporation’’ following ‘‘any person’’ in (B);
deleted ‘‘of New Mexico’’ following ‘‘state’’ in (C); and
made a stylistic change. The 2013 amendment, effective June
14, 2013, in (A), added the first sentence and in the second
sentence, added ‘‘other,’’ substituted ‘‘misdemeanor’’ for
‘‘fourth degree felony,’’ substituted ‘‘five hundred dollars
($500)’’ for ‘‘five thousand dollars ($5,000),’’ and
substituted ‘‘not more than six months’’ for ‘‘a definite term
of eighteen months’’; substituted ‘‘may’’ for ‘‘shall’’ in (B)
and (C); and made a stylistic change.
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16,2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 1953 Comp., § 67-24-34, enacted by laws 1965, ch.
304, § 8; 1993, ch. 192, § 2; 2011, ch. 85, § 8; 2013, ch.
167
61-29-17.1. Recompiled.
STATUTORY NOTES
Editor’s notes. — This section, relating to disciplinary
action by the New Mexico real estate commission concerning
time share projects, was recompiled as 47-11-11.2 NMSA
1978.
61-29-17.2. Unlicensed activity; civil penalty; administrative
costs.
The commission may impose a civil penalty on any person who is found,
through a
court or administrative proceeding, to have acted in violation of
Chapter 61, Article
29 NMSA 1978 in an amount not to exceed one thousand
dollars ($1,000) for each
violation or, if the commission can so determine, in the
amount of the total commissions
received by the person for the unlicensed activity. The commission may assess
administrative costs for any investigation
and administrative or other proceedings against
any such person. Any money
collected by the commission under the provisions of
this section shall be
deposited into the real estate recovery fund.
History: Laws 2001, ch. 163, § 11; 2011,
ch. 85, § 9.
STATUTORY NOTES
The 2011 amendment, effective July 1, 2011, added
‘‘administrative costs’’ in the section heading; in the first
sentence, added ‘‘on any person who is found, through a
court or administrative proceeding, to have acted in violation
of Chapter 61, Article 29 NMSA 1978’’ and ‘‘if the
commission can so determine, in the amount of the total
commissions received by the person for the unlicensed
activity’’; in the second sentence, added ‘‘The commission
may’’ at the beginning, deleted ‘‘who is found, through a
court or administrative proceeding, to have acted without a li-
cense in violation of Chapter 61, Article 29 NMSA 1978’’
following ‘‘person’’; added the third sentence; and made
related and stylistic changes.
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978.
61-29-18. Interpretation of act.
Nothing contained in Chapter 61, Article 29 NMSA 1978 shall affect the
power of
cities and villages to tax, license and regulate qualifying brokers or associate brokers.
The requirements hereof shall be in addition to the requirements of an existing or
39
future ordinance of any city or village so taxing,
licensing or regulating qualifying
brokers or associate brokers.
History: 1953 Comp., § 67-24-35, enacted by Laws 1959,
ch. 226, § 18; 2005, ch. 35, § 17.
STATUTORY NOTES
The 2005 amendment, effective January 1, 2006, substituted
‘‘in Chapter 61, Article 29 NMSA 1978’’ for ‘‘in this act’’
and substituted ‘‘qualifying brokers or associate brokers’’ for
‘‘real estate brokers’’.
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19
NMSA 1978 which would have extended the sunset
provisions of Chapter 61, Article 29 NMSA 1978 from July
1, 2012 to July 1, 2018. However, Laws 2011, ch. 85, § 11,
approved April 6, 2011 and effective July 1, 2011, repealed
61-29-19 NMSA 1978 making the amendment by Laws
2011, ch. 30 not effective. See 12-1-8 NMSA 1978
.
61-29-19. Termination of agency life; delayed repeal. (Re-
pealed.)
Repealed by Laws 2011, ch. 85, § 11, effective July 1, 2011.
History: 1953 Comp., § 67-24-36, enacted by Laws 1978,
ch. 203, § 2; 1981, ch.241, § 33; 1983, ch. 261, § 7; 1987,
ch. 333, § 12; 1993, ch. 83, § 7; 1993, ch. 253, § 3; 2000, ch.
4, § 17; 2005, ch. 208, § 21; 2011, ch. 30, § 8.
STATUTORY NOTES
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed this section. See
12-1-8 NMSA 1978.
61-29-19.1. Real estate education and training fund created;
purpose; appropriation.
A.
The ‘‘real estate education and training fund’’ is created in the state
treasury. The fund shall consist of an initial transfer of the balance in the real
estate
recovery fund as provided in Subsection C of this section; legislative appropriations to
the fund; fees charged by the commission for approval of real
estate education sponsors,
courses and instructors; gifts, grants, donations and
bequests to the fund; and income
from investment of the fund. Money in the
fund shall not revert to any other fund at
the end of a fiscal year.
B.
The fund shall be administered by the commission, and money in the
fund
is subject to appropriation by the legislature to the commission to improve
real estate
education and to train real estate instructors. The commission shall
promulgate rules
specifying the manner in which the fund shall be administered.
C.
Notwithstanding the provisions of Sections 61-29-21 and 61-29-22 NMSA
1
978, on July 1, 2005, the balance in excess of two hundred fifty thousand
dollars
($250,000) in the real estate recovery fund shall be transferred to the
real estate
education and training fund.
History: Laws 2005, ch. 35, § 20.
40
STATUTORY NOTES
Effective dates. — Laws 2005, ch. 35, § 21A makes this
section effective January 1, 2006.
Editor’s notes. — Laws 2011, ch. 30, § 8,approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 1978.
61-29-20. Short title.
Sections 1 through 10 [61-29-20 to 61-29-29 NMSA 1978] of this act may be cited as the
‘‘Real Estate Recovery Fund Act.’’
History: Laws 1980, ch. 82, § 1.
STATUTORY NOTES
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 197861-29-21. Fund created.
There is created in the state treasury a fund which shall be known as the
‘‘real estate
recovery fund’’ to be administered by the real estate commission in
accordance with the
provisions of the Real Estate Recovery Fund Act [61-29-20
NMSA 1978]. All money
received by the real estate commission pursuant to the
Real Estate Recovery Fund Act
shall be credited to the real estate recovery
fund. The state treasurer may invest money
in the real estate recovery fund in
United States bonds or treasury certificates under
such rules and regulations
as may be prescribed by the state board of finance,
provided that no investments shall be made which will impair the necessary
liquidity required to
satisfy judgment payments awarded pursuant to the Real Estate
Recovery
Fund Act. All interest earned from such investments shall be credited to the
fund to pay any future judgments only.
History: Laws 1980, ch. 82, § 2.
STATUTORY NOTES
Cross reference. — Real estate education and training
fund created; purpose; appropriation, 61-29-19.1 NMSA
1978.
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 1978.
41
61-29-22. Additional fees.
A.
The commission shall collect an annual fee not in excess of ten dollars
($10.00) from each real estate licensee prior to the issuance of the next license.
B.
The commission shall collect from each successful applicant for an
original
real estate license, in addition to the original license fee, a fee not in
excess of ten
dollars ($10.00).
C.
The additional fees provided by this section shall be credited to the real
estate recovery fund. The amount of the real estate recovery fund shall be
maintained at one hundred fifty thousand dollars ($150,000). If the real estate
recovery
fund falls below this amount, the commission shall have authority to adjust the annual
amount of additional fees to be charged licensees or to draw
on the real estate
commission fund in order to maintain the fund level as
required in this section. If on
July 1 of any year, the balance in the fund exceeds
four hundred thousand dollars
($400,000), the amount over four hundred
thousand dollars ($400,000) shall be
transferred to the real estate commission
fund to be used for the purposes of carrying out
the provisions of Chapter 61,
Article 29 NMSA 1978.
History: Laws 1980, ch. 82,§ 3; 1987, ch. 90, § 6; 1993,
ch. 253, § 4; 2003, ch. 22, § 6; 2011, ch. 85, § 10.
STATUTORY NOTES
Cross reference. — Real estate education and training fund
created; purpose; appropriation, 61-29-19.1 NMSA 1978.
The 2011 amendment, effective July 1, 2011, substituted
‘‘one hundred fifty thousand dollars ($150,000)’’ for ‘‘two
hundred fifty thousand dollars ($250,000)’’ in (C); and made
a stylistic change.
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978
61-29-23. Judgment against qualifying or associate bro-
ker; petition; requirements; recovery limita-
tions.
A.
When any aggrieved person claims a pecuniary loss caused by a state-
licensed qualifying broker or associate broker based upon fraud, knowing or willful
misrepresentation or wrongful conversion of funds entrusted to the
qualifying broker
or associate broker, which loss arose out of any transaction
for which a qualifying
broker’s or an associate broker’s license is required and
arose out of or during the
course of a transaction involving the sale, lease, exchange or other disposition of real
estate, where the cause of action arose on
or after July 1, 1980, that person may, within
one year after obtaining a final judgment based upon fraud, knowing or willful
misrepresentation or wrongful
conversion of funds entrusted to the qualifying broker or
associate broker and
the termination of all proceedings, including appeals in
connection with the
judgment, file a verified petition with the commission for payment
42
from the
real estate recovery fund for the actual damages included in the judgment and
unpaid, but not more than ten thousand dollars ($10,000) per judgment
regardless of the
number of persons aggrieved or parcels of real estate involved
in the transaction. The
aggregate amount recoverable by all claimants for
losses caused by any one licensee
shall not exceed thirty thousand dollars
($30,000).
B.
A copy of the petition shall be served upon the commission in the manner
provided by law for service of a civil summons.
C.
The commission shall conduct a hearing on the petition after service of
the
petition upon the commission. At the hearing, the petitioner shall be
required to
show that the petitioner:
(1)
is not the spouse of the judgment debtor, the personal representative
of
the spouse or related to the third degree of consanguinity or affinity to the
licensee
whose conduct is alleged to have caused the loss;
(2)
has complied with all the requirements of the Real Estate Recovery
Fund
Act [61-29-20 NMSA 1978];
(3)
has obtained a judgment of the kind described in Subsection A of this
section, the amount awarded and the amount owing at the date of the petition;
(4)
has had execution issued upon the judgment and that the officer
executing the writ has made a return showing that the judgment debtor has no property
within the state subject to execution. If execution is levied against the
property of the
judgment debtor, the petitioner shall show that the amount
realized on the sale was
insufficient to satisfy the judgment and shall set forth
the amount realized from the
sale and the balance remaining due on the
judgment after application of the amount
realized;
(5)
has made reasonable searches and inquiries to ascertain whether
the
judgment debtor is possessed of real or personal property or other assets
liable to be
sold or applied in satisfaction of the judgment, including partner-
ship assets, licensee’s
estate or any bond or insurance, and that the petitioner
has exercised reasonable
diligence to secure payment of the judgment from the
assets of the judgment debtor; and
(6)
has a judgment that is not:
(a)
covered by any bond, insurance, surety agreement or indemnity
agreement;
(b)
a loss incurred by a partner, joint venture, employer, employee
or
associate of the licensee whose conduct is alleged to have caused the loss; or a corporate
officer or director of a corporation in which the judgment debtor is
also an officer,
director or employee; or
(c)
a loss incurred by any business or other entity in which the
licensee whose conduct is alleged to have caused the loss has any interest at
the time of
the conduct alleged to have caused the loss.
History: Laws 1980, ch. 82, § 4; 1987, ch. 90, § 7; 2005, ch.
35, § 18.
43
STATUTORY NOTES
Cross reference. — Commission; review; compromise, 61-
29-24 NMSA 1978. Commission finding, 61-29-25 NMSA
1978.
The 2005 amendment, effective January 1, 2006, substituted
‘‘qualifying or associate broker’’ for ‘‘or salesperson’’ in the
section heading; and substituted ‘‘qualifying broker or
associate broker’’ for ‘‘real estate broker or salesperson’’
throughout the section.
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 1978.
JUDICIAL DECISIONS
Purpose of fund.
Under the Real Estate Recovery Fund Act, the Commission
administers a fund for the benefit of persons who are unable
to satisfy judgments obtained against a licensed real estate
broker or salesperson based upon particular acts of
wrongdoing. Recovery is limited to unsatisfied judgments
based upon any transaction for which a real estate broker’s or
salesperson’s license is required by law. Garcia v. N.M. Real
Estate Commission, 108 N.M. 591, 775 P.2d 1308 (Ct. App.
1989), cert. denied, 108 N.M. 624, 776 P.2d 846 (1989)
STATUTORY NOTES
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April
2, 2011 and effective June 16, 2011, amended 61-29-19
NMSA 1978 which would have extended the sunset
provisions of Chapter 61, Article 29 NMSA 1978 from
July 1, 2012 to July 1, 2018. However, Laws 2011, ch. 85,
§ 11, approved April 6, 2011 and effective July 1, 2011,
repealed 61-29-19 NMSA 1978 making the amendment by
Laws 2011, ch. 30 not effective. See 12-1-8 NMSA 1978.
61-29-24.
Commission; review; compromise
.
Upon receipt of a petition as required by Section 61-29-23 NMSA 1978, the
commission
shall conduct a hearing in substantially the same manner as set
forth in the Uniform
Licensing Act [61-1-1 NMSA 1978], including Sections 61-1-9 through 61-1-11 NMSA
1978. Review of the commission’s decision shall be in the manner provided by Section
61-1-20 NMSA 1978. The commission
may compromise a claim based upon the
application of a petitioner.
History: Laws 1980, ch. 82, § 5; 1987, ch. 90, § 8.
61-29-25. Commission finding.
If the commission makes a specific finding of the items enumerated in
Section 61-
29-23 NMSA 1978 and determines that a claim should be levied
against the real
estate recovery fund, the commission shall enter an order
requiring payment from the
fund of that portion of the petitioner’s claim that
is payable from the fund pursuant to
the provisions of and in accordance with
the limitations contained in Section 61-29-23
NMSA 1978.
44
History: Laws 1980, ch. 82, § 6; 1987, ch.
90, § 9.
STATUTORY NOTES
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April
2, 2011 and effective June 16, 2011, amended 61-29-19
NMSA 1978 which would have extended the sunset
provisions of Chapter 61, Article 29 NMSA 1978 from
July 1, 2012 to July 1, 2018. However, Laws 2011, ch. 85,
§ 11, approved April 6, 2011 and effective July 1, 2011,
repealed 61-29-19 NMSA 1978 making the amendment by
Laws 2011, ch. 30 not effective. See 12-1-8 NMSA 1978
61-29-26. Insufficient funds.
If at any time the money deposited in the real estate recovery fund is
insufficient
to satisfy any authorized claim for payment from the fund, the real
estate commission
shall, when sufficient money has been deposited in the fund, satisfy such unpaid claims in
the order that they were originally filed, together
with accumulated interest at the rate of
eight percent per year.
History: Laws 1980, ch. 82, § 7.
STATUTORY NOTES
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 1978.
61-29-27. Subrogation.
When the commission makes any payment from the real estate recovery
fund to a
judgment creditor, the commission shall be subrogated to all rights of
the judgment creditor
for the amounts paid out of the fund and any amount
and interest so recovered by the
commission shall be deposited in the fund. The commission may, pursuant to the
provisions of the Uniform Licensing Act
[61-1-1 NMSA 1978], revoke, suspend or
refuse to renew the license of any
qualifying broker or associate broker for whom
payment from the fund has
been made in accordance with the provisions of the Real Estate
Recovery Fund
Act [61-29-20 NMSA 1978]. Further, the commission may refuse to issue
or renew the license of any person for whom payment from the real estate
recovery
fund has been made, until that person reimburses the fund for all
payments made on
that person’s behalf.
History: Laws 1980, ch. 82, § 8; 1987, ch. 90, § 10; 2005,
ch. 35, § 19.
.
STATUTORY NOTES
The 2005 amendment, effective January 1, 2006, substituted
‘‘qualifying broker or associate broker’’ for ‘‘real estate
broker or salesperson’’ near the middle of the second
sentence.
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19
NMSA 1978 which would have extended the sunset
provisions of Chapter 61, Article 29 NMSA 1978 from July
1, 2012 to July 1, 2018. However, Laws 2011, ch. 85, § 11,
approved April 6, 2011 and effective July 1, 2011, repealed
61-29-19 NMSA 1978 making the amendment by Laws
2011, ch. 30 not effective. See 12-1-8 NMSA 1978
45
61-29-28. Waiver.
The failure of any person to comply with all of the provisions of the Real Estate
Recovery Fund Act [61-29-20 NMSA 1978] shall constitute a waiver of
any rights
pursuant to that act.
History: Laws 1980, ch. 82, § 9.
STATUTORY NOTES
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April 2,
2011 and effective June 16, 2011, amended 61-29-19 NMSA
1978 which would have extended the sunset provisions of
Chapter 61, Article 29 NMSA 1978 from July 1, 2012 to July
1, 2018. However, Laws 2011, ch. 85, § 11, approved April
6, 2011 and effective July 1, 2011, repealed 61-29-19 NMSA
1978 making the amendment by Laws 2011, ch. 30 not
effective. See 12-1-8 NMSA 1978.
61-29-29. Disciplinary action not limited.
Nothing contained in the Real Estate Recovery Fund Act [61-29-20 NMSA
1978] shall
limit the authority of the real estate commission to take disciplinary action against a
licensee for a violation of any of the provisions of Section
61-29-12 NMSA 1978 or of
the rules and regulations of the real estate
commission, nor shall the repayment in full of
all obligations to the real estate
recovery fund by any licensee nullify or modify the
effect of any other disciplinary proceeding brought pursuant to the provisions of Section
61-29-12
NMSA 1978 or the rules and regulations promulgated by the commission.
History: Laws 1980, ch. 82, § 10.
STATUTORY NOTES
Editor’s notes. — Laws 2011, ch. 30, § 8, approved April
2, 2011 and effective June 16, 2011, amended 61-29-19
NMSA 1978 which would have extended the sunset
provisions of Chapter 61, Article 29 NMSA 1978 from
July 1, 2012 to July 1, 2018. However, Laws 2011, ch. 85,
§ 11, approved April 6, 2011 and effective July 1, 2011,
repealed 61-29-19 NMSA 1978 making the amendment by
Laws 2011, ch. 30 not effective. See 12-1-8 NMSA 1978.
46
Real Estate Commission Rules
New Mexico Administrative Code
The regulations contained in this publication were provided to the publisher by the New Mexico
Real Estate Commission and may differ from those which appear in the NM LAW ON DISC.
NMREC Web link to Laws and Rules Tab
Title 16. OCCUPATIONAL AND PROFESSIONAL
LICENSING
Chapter 61. Real Estate Brokers
PART I. GENERAL PROVISIONS
NMREC Web link to Members and Meetings Tab
16.61.1.7.
Definitions.
A. Acceptable financial institution: is a federally insured bank, savings and loan or
title company
authorized to do business in the state of New Mexico.
B. Agency: the fiduciary relationship created solely by the express written agency
agreement between
a person and a brokerage, authorizing the brokerage to act as
agent for the person according to the scope of authority
granted in that express
written agreement for real estate services subject to the jurisdiction of the
commission.
C. Agent: the brokerage authorized solely, by means of an express written
agreement, to act as a
fiduciary for a person and to provide real estate services that
are subject to the jurisdiction of the commission; in the
case of an associate broker,
"agent" means the person who has been authorized to act by that associate broker's
qualifying broker. In the case of residential property management, the property
manager is an agent of the owner(s)
of the property for the purpose of performing
the obligations of the owner(s) under the property management
agreement.
D. Approved education course: a commission approved course offered by a
commission approved
sponsor in real estate law and practice; real estate financing
including mortgages and other financing techniques;
material specific to the
regulatory, technical and ethical practice of real estate; and all state and federal laws
including but not limited to fair housing, the Americans with Disabilities Act
(ADA), and lead-based paint
d
isclosure.
47
E. Approved training course: A commission approved course offering in personal
and property
protection for the broker and clients; offerings in using the computer,
the internet, business calculators, and other
technologies to enhance the broker’s
service to the public; offerings concerning professional development, customer
relations skills, sales promotion including salesmanship, negotiation, marketing
techniques, servicing the client, or
similar courses.
F. Associate broker: a person holding a New Mexico associate broker's license
who is affiliated with
a New Mexico qualifying broker.
G. Broker: any person holding a current New Mexico associate broker's or
qualifying broker's real
estate license. Brokerage: a person, corporation, partnership
or association qualified by a New Mexico licensed
qualifying broker to conduct real
estate brokerage activity in New Mexico. Brokerage relationship: the relationship
between a customer or client and a brokerage for the
provision of services in
connection with a real estate transaction.
H. Brokerage trust account: an account at an acceptable financial institution
established by the
qualifying broker for the purpose of holding money belonging to
others received during a real estate sales transaction.
I. Broker duties: Certain duties owed by brokers to their customers, clients, other
parties to the transaction, and/or
to other brokers.
J. Broker in charge: a New Mexico licensed real estate broker qualified to be a
qualifying broker
who has been designated in writing by the qualifying broker to
assume responsibility for the brokerage during a period of time when supervision by
the qualifying broker is not possible.
K. Client: a person who has entered into an express written agreement with a
brokerage for real estate
services subject to the jurisdiction of the commission.
L. Commercial real estate: real estate that is zoned for business or commercial use
by a city or county;
or designated by a city or county to allow five (5) or more multi-
family units; provided that all units are located
on a single parcel of land with a
single legal description.
M. Core course: the four (4) hour commission-approved continuing education
course that all brokers are required to complete annually as a condition of license
renewal.
N. Core elective course: a four (4) hour commission-approved continuing
education course in
residential transactions, commercial transactions, property
management transactions, or vacant land/ranch
transactions required once during each
three (3) year cycle.
O. Credit hours(s): credits toward education requirements as assigned by the real
estate commission
or each commission-approved course.
P. Custodial trust account: an account at an acceptable financial institution
established by the
qualifying broker for the purpose of holding money of an owner.
The account shall be established in the owner’s
name with the qualifying broker as
trustee. This account may be interest bearing.
48
Q. Customer: a person who uses real estate services without entering into an
express written
agreement with a brokerage subject to the jurisdiction of the
commission.
R. Designated agent: a broker who is designated in writing by their qualifying
broker to represent a
client of the brokerage as their exclusive agent in a real estate
transaction.
S. Designated agency: a policy chosen by the qualifying broker of a brokerage that
discloses to a client of the brokerage that the broker representing them as an agent by
means of an express written agency agreement is their only representative in the
brokerage. The designated agency disclosure is made at the time that the client and the
brokerage enter into an express written agency agreement, or at such time that the
qualifying broker of a brokerage determines the need to designate one broker of the
brokerage as agent of the buyer and another as agent of the seller in the same transaction.
T. Distance education: distance learning is education and training that takes place
outside of the
traditional classroom setting and in which other instructional media
are used because the instructor, teaching
materials, and student are separated by
either distance or time.
U. Dual agency: an express written agreement that modifies existing exclusive
agency agreements to
provide that the brokerage agrees to act as a facilitator in a
real estate transaction rather than as an exclusive agent
for either party to the
transaction. Dual agent: the brokerage in a dual agency relationship working as a
facilitator in a single
transaction for both a buyer client and a seller client who have
modified existing exclusive agency agreements with
the brokerage.
V. Employee: for the purposes of Section 61-29-2 C (1) of the real estate license
law, a person
employed by an owner of real property, or a person employed by the
brokerage acting on behalf of the owner of real
property. In determining whether a
person is an employee, as opposed to an independent contractor, the commission
shall consider the following questions:
a. does the employer withhold income tax from the person’s wages,
salary, or commission;
b. does the employer pay a portion of the person’s FICA tax;
c. is the person covered by workers’ compensation insurance; and,
d. does the employer make unemployment insurance contributions
on behalf of the person?
W. Errors and omissions insurance: a type of professional liability insurance that
provides
i
nsurance coverage to holders of active New Mexico real estate brokers
licenses for errors and omissions made
during the course of real estate transactions,
subject to the coverage’s, limitations, and exclusions of the specific insurance policy
or policies in place.
X. Exclusive agency: an express written agreement between a person and a
brokerage wherein the
brokerage agrees to exclusively represent as an agent the
interests of the person in a real estate transaction. Such
agreements include buyer
agency, seller agency, designated agency, subagency, and
residential property
management.
49
Y. Expired license: an associate broker’s or qualifying broker’s license that has not
been renewed as
of the last day of the month following the broker’s birth month at
the end of the broker’s three-year licensing cycle.
Z. Express written agreement: any written agreement signed by all parties
pertaining to a real estate
transaction or the provision of real estate services.
AA. Facilitator: the role of a brokerage in either a dual agency relationship or a
transaction brokerage
relationship in which the exclusive relationships between a
seller or landlord client or buyer or tenant client are
modified so that the brokerage
impartially facilitates the transaction.
BB. Foreign broker: a real estate broker who does not hold a real estate license
issued by the New
Mexico real estate commission, but who holds a current and valid
real estate broker’s license issued by another state
in the United States, a territory of
the United States, a province of Canada, or any other sovereign nation.
CC. Honesty and Reasonable Care and Ethical and Professional Conduct: Conduct
that a reasonable
person would understand to meet standards of professionalism and
ethical conduct within a profession, including but
not limited to good faith,
competence, trustworthiness, diligence, and lawful behavior.
DD. Inactive broker: a New Mexico licensed real estate broker not currently
affiliated with a New
Mexico real estate brokerage and therefore ineligible to
participate in any brokerage activity or collect fees or
commissions in connection
with such activity except as provided in Subsection C of 16.61.9.8 NMAC.
EE. In house transaction: a transaction that occurs under the supervision of one
qualifying broker in
the same brokerage.
FF. Land title trust account: a pooled interest-bearing account subject to the land
title trust fund act.
GG. Military service member: a person, or the spouse of a person, who is serving in
the armed forces
of the United States or in an active reserve component of the armed
forces of the United States, including the
National Guard.
HH. Owner or Property Owner: a person who is recognized and held responsible by
law as the owner
of real property, including real property held by any legally
recognized entity in which the owner has an interest of
ten (10) percent or more.
II. Party to the transaction: a client or customer or any other person who utilizes
real estate related
services subject to the jurisdiction of the commission, not
including a person who acquires an interest as security for
an obligation.
JJ. Person: any natural person, corporation, business trust, estate, trust, partnership,
association, joint
venture, governmental entity or other legal entity.
KK. Post-licensing course: the commission-approved new broker business practices
course required
within the first year of licensure of brokers first licensed in New
Mexico as associate brokers on or after January 1,
2009.
LL. Principal: any person who authorizes or employs another to do certain acts on
behalf of that
person.
50
MM. Property ledger: a record of deposits and disbursements within a trust account
that is associated with the same property or owner.
NN. Property management: real estate services as specified by a management
agreement which include, but are not limited to, the marketing, showing, renting and
leasing of real property; the collection and
disbursement of funds on behalf of
owners; the supervision of employees and vendors; the coordination of
maintenance
and repairs; the management of tenant relations; or the preparation of leases or rental
agreements,
financial reports and other documents. In the course of listing and
marketing properties for sale, inspections of the
property, repairs and maintenance
incident to the sale and authorized by the owner shall not be considered property
management.
OO. Property management trust account: an account at an acceptable financial
institution established
by the qualifying broker for the purpose of holding money
belonging to others received during the management of
real property for others.
PP. Property manager: a broker who, for a fee, salary, commission or other valuable
consideration, is
engaged in managing property for others. A residential property
manager is, by virtue of a written agency
agreement, an agent of the owner(s) of the
property for the purpose of performing the obligations of the owner(s)
under the
Uniform Owner-Resident Relations Act and/or under the rental or lease agreement.
QQ. Qualifying broker: a broker who has qualified a proprietorship, corporation,
partnership or
association to do business as a real estate brokerage in the state of
New Mexico, and who discharges the
responsibilities of a qualifying broker as set
forth in 16.61.16.9 NMAC.
RR. Recent veteran: a person who has received an honorable discharge or separation
from military
service within the two years immediately preceding the date the
person applied for a real estate broker’s license.
SS. Reconciliation: the process by which the property ledgers within a trust account
are balanced
with the trust account and the trust account is balanced with the bank
statement.
TT. Referral: the communication by one broker or brokerage to another broker or
brokerage of the
identity of a potential buyer/tenant or seller/lessor of real property
available for sale, lease, rent or exchange.
UU. Responsible person: the qualifying broker or associate broker for whom an
unlicensed assistant
works. If an unlicensed assistant works for more than one
broker, each broker for whom the unlicensed assistant
works is a responsible person.
Each responsible person will be subject to the provisions of Section 61-29-12 A (7)
NMSA 1978.
VV. Scope of authority: the range of authority granted by the principal to act on
behalf of that
principal.
WW. Short-term/vacation rental: with the exception of hotels and motels, the rental
of real property for
a period of 29 days or less.
51
XX. Special trust account: an account at an acceptable financial institution
established by the qualifying broker for the purpose of holding money of a named
party named party to a transaction. This account may be interest-bearing.
YY. Sponsor: an organization or entity approved by the real estate commission to
offer courses
approved by the real estate commission.
ZZ. Subagent: an agent of the agent, authorized to act for the agent in performing
functions
undertaken by the agent for his principal.
AAA. Transaction: any real estate activity subject to the jurisdiction of the
commission.
BBB. Transaction broker: a qualifying broker, associate broker or brokerage that
provides real estate
services without entering into an agency relationship. The
transaction broker relationship is a non-fiduciary
relationship.
CCC. Trust account: an account at an acceptable financial institution established by
the qualifying
broker for the purpose of holding money of others received by the
qualifying broker in a transaction which includes
a brokerage trust account, property
management trust account, custodial trust account or special trust account.
DDD. Unlicensed assistant: a person who does not hold an active New Mexico
broker’s license and
works under the supervision of a responsible person to perform
duties for the brokerage as provided in 16.61.21
NMAC.
EEE. Virtual Office. A real estate brokerage office that provides communication and
address services
without providing dedicated office space.
[16.61.1.7 NMAC - Rp, 16.61.1.7 NMAC, 1-1-2012; A, 1/1/2017]
16.61.1.8.
Offices.
The offices of the New Mexico real estate commission will be located in
Albuquerque, New Mexico.
[16.61.1.8 NMAC - Rp, 16.61.1.8 NMAC, 1-1-2012]
16.61.1.9.
Telephonic meeting attendance.
Commission members may participate in a meeting of the commission by
means of a conference telephone or similar communications equipment and
participation by telephone may only occur when it is difficult or impossible for
commission members to attend a meeting of the commission, i.e. when
circumstances beyond the member’s control would make attendance in person
extremely burdensome.
[16.61.1.9 NMAC - Rp, 16.61.1.9 NMAC, 1-1-2012]
52
PART 2:
LICENSE AND OTHER FEES
NMREC Web Link to Fees Tab
16.61.2.7.
Definitions.
Refer to Definitions 16.61.1.7 NMAC.
[16.61.2.7 NMAC - Rp, 16 NMAC 61.2.7, 1-1-2002]
16.61.2.8.
Fees.
A.
For each examination, a fee not to exceed ninety-five dollars ($95.00).
B.
For each broker’s license issued, and for each renewal thereof, a fee
not
to exceed two hundred seventy dollars ($270.00).
C.
For each license transferred, a fee not to exceed twenty dollars
($20.00).
If there are eleven or more affected licenses in the brokerage, the
total transfer
fee paid shall not exceed two hundred dollars ($200.00).
D.
For each duplicate license, where the license is lost or destroyed
and
affidavit is made thereof, a fee not to exceed twenty dollars ($20.00).
E.
For each license history, a fee not to exceed twenty-five dollars
($25.00).
F.
For copying of documents by the commission a fee not to exceed one
dollar
($1.00) per copy.
G.
For each state of New Mexico real estate license law and rules manual
a
fee not to exceed ten dollars ($10.00).
H.
For each hard copy or electronic list of licensed real estate brokers, a
fee
not to exceed fifty dollars ($50.00).
I.
For each initial broker’s license, and for the renewal thereof, a fee not
to exceed ten dollars ($10.00) shall be credited to the real estate recovery
fund pursuant to NMSA 1978 Section 61-29-22 if in the commission’s
judgment the
assessment of such fee is necessary to maintain the fund at
its statutory
minimum level.
J.
or each application to the commission to become an approved sponsor of
real estate pre-licensing and continuing education courses, a fee not to exceed
five hundred dollars ($500.00) and for each renewal thereof a fee not to exceed
five hundred dollars ($500.00).
K.
For each application to the commission to become an approved instructor
of real estate pre-licensing and continuing education courses, a fee not to
exceed seventy dollars ($70.00) per course.
L.
For each application to the commission to renew certification as a
commission approved instructor of real estate pre-licensing and continuing
education courses, a fee not to exceed one hundred dollars ($100.00).
53
[16.61.2.8 NMAC - Rp, 16 NMAC 61.2.8, 1-1-2002; A, 01-01-2004; A,
1-1-2006; A, 1-1-2012]
16.61.2.9.
Fees non-refundable
Fees paid to the commission pursuant to 16.61.2.8 NMAC of the commission
rules are non-refundable.
[16.61.2.9 NMAC - Rp, 16 NMAC 61.2.9, 1-1-2002; A, 01-01-2004; A,
1-1-2006]
PART 3:
REAL ESTATE BROKER’S LICENSE: EXAMINATION AND
LICENSING APPLICATION REQUIREMENTS
NMREC Web link to Requirements Tab
16.61.3.7.
Definitions.
Refer to 16.61.1.7 NMAC.
[16.61.3.7 NMAC - Rp, 16.61.3.7 NMAC, 1-1-2012]
16.61.3.8.
Types of licenses.
The New Mexico real estate commission issues two types of real estate
broker’s licenses; an associate broker’s license and a qualifying
broker’s
license. Both types of licenses are issued only to individuals. The
requirements
for obtaining both types of licenses are described below.
[16.61.3.8 NMAC - N, 1-1-2012]
16.61.3.9.
Examination and licensing requirements.
A. Associate broker’s license: prior to applying for an associate broker’s license, an
applicant must pass the real estate broker’s examination prescribed by the commission.
B. Examination application.
(1) Applications to take the broker’s examination are made directly to the
commission’s examination contractor on a form prescribed by the commission
and provided by the contractor in a candidate information bulletin. Along with
the application form, an applicant must submit certificates of completion of
commission-approved 30 hour pre-licensing courses in real estate principles and
practice, real estate law, and broker basics. These pre-licensing courses must
have been completed within the three years prior to application to take the
broker’s examination. Exam candidates who are licensed as associate brokers
and are taking the broker’s examination to upgrade to qualifying broker are
exempt from the three-year time limit and must only provide documentation of
course completion.
(2) Exam candidates currently licensed as real estate salespersons or brokers in
other states or jurisdictions will be exempt from completing the real estate
54
principles and practice and real estate law courses in New Mexico and from
taking the national portion of the broker’s examination if they can provide a
certified license history from their resident licensing jurisdiction documenting
that they have completed these courses or their equivalent. A New Mexico
associate broker upgrading to qualifying broker will also be exempt from taking
the national portion of the broker’s exam.
(3) Except in a case of a license applicant from a state or jurisdiction with which
the New Mexico real estate commission has a written license recognition
agreement, an exam applicant cannot be exempted from completing the
commission-approved 30 hour broker basics course.
(4) License applicants currently licensed by state or jurisdiction with which the
commission has a written license recognition agreement are not required to take
any of the prescribed pre-licensing courses or take either portion of the broker’s
examination to be eligible to apply for a New Mexico broker’s license.
(5) Exam applicants exempted from taking the real estate principles and practice
and real estate law courses by virtue of having a current real estate broker’s
license in another state shall attach to their examination application a letter of
pre-licensing education waiver from the commission and a certificate of
completion of the 30 hour broker basics course.
(6) All other applicants for the examination shall attach to their license
examination application certificates documenting completion of one 30 hour pre-
licensing course each in real estate principles and practice, real estate law, and
broker basics.
(7) At the time of making application to take the examination, applicants shall
pay to the commission’s examination contractor a non-refundable fee not to
exceed $95.
(8) Applicants are required to pass both the state and national portions of the
examination with a minimum score of 75 no later than 90 calendar days after the
first time they took the examination. Applicants failing to pass both portions of
the examination within this time frame will be required to re-take and pass both
portions of the examination before being eligible to apply for a broker’s license.
C. License application.
(1) Upon passing both portions of the New Mexico real estate broker’s
examination, an individual has six months to apply for an associate broker’s
license on the application prescribed by the commission.
(2) An individual who fails to apply for an associate broker’s license within six
months of having passed both portions of the broker’s examination shall be
required to re-take both portions of the examinations six month deadline.
(3) An applicant for an associate broker’s license shall be a legal resident of the
United States and have reached the age of majority in New Mexico or in the
state in which the applicant resides.
55
(4) Along with the license application form prescribed by the commission, the
applicant must submit a written score report provided by the examination
contractor documenting that he/she has passed both portions of the examination
with a minimum score of 75, documentation of having been fingerprinted for
purposes of matching with state and national arrest record databases, a certificate
of insurance documenting that the applicant has a current errors and omissions
insurance policy that meets the requirements for such insurance as described in
16.61.5 NMAC of the commission rules, and a non-refundable license
application fee not to exceed $270.
D. Qualifying broker’s license examination: there is no separate qualifying broker’s
examination.
E. License application.
(1) Before being issued a qualifying broker’s license, an applicant must
document that their associate broker’s or equivalent license has been on active
status with a real estate brokerage for two of the last five years immediately
preceding their application to become a qualifying broker, and must provide a
certificate of completion of the commission-approved 30 hour brokerage office
administration course. Applicants with current licenses who can document that
they were New Mexico qualifying broker’s on or before December 31, 2005 are
not subject to those requirements and may regain qualifying broker status by
filling a trade name registration form and paying the trade name registration fee
to the commission.
(2) Brokers who were salespersons on January 1, 2006 when the license law
was amended to eliminate the salesperson category and were converted to
associate broker status, shall in addition to meeting the requirements in the
preceding section, document that they have met the requirements for and passed
the associate broker’s examination prior to being issued a qualifying broker’s
license.
(3) An application for a New Mexico qualifying broker’s license shall be made
on the form prescribed by the commission and shall be accompanied with
documentation of having been fingerprinted for purposes of matching with state
and national arrest record databases, a certificate documenting that the applicant
has a current errors and omissions insurance policy that meets the requirements
for such insurance as described in 16.61.5 NMAC of the commission rules, and
a non-refundable license application fee not to exceed $270.
F. Military service members.
(1) The commission shall, as soon as practicable after a military service member, the
spouse of a military service member or a recent veteran files an application for an
associate broker’s or qualifying broker’s license, process the application and issue a
license to a qualified applicant who submits satisfactory documentation that the
applicant holds a real estate license issued by another licensing jurisdiction, including a
branch of the armed forces of the United States, that is current and in good standing,
56
and that has licensing requirements that are substantially equivalent to New Mexico
requirements.
(2) A license issued pursuant to this part is not a provisional license and confers the
same rights, privileges, and responsibilities as any other license issued by the
commission.
(3) A license issued pursuant to this part shall not be renewed unless the licensee
satisfies the commission’s requirements for license renewal.
[16.61.3.9 NMAC - Rp, 16.61.3.8 NMAC, 1-1-2012; A, 1-1-2017]
PART 4:
SALESPERSON’S LICENSE: EXAMINATION AND
LICENSING APPLICATION REQUIREMENTS [REPEALED 01-01-06]
PART 5:
ERRORS AND OMISSIONS INSURANCE
16.61.5.7.
Definitions.
Refer to 16.61.1.7 NMAC.
[16.61.5.7 NMAC - N, 1-1-2002]
16.61.5.8.
Group errors and omissions insurance policy.
Effective January 1, 2002 every active New Mexico real estate broker shall
have in effect a policy of errors and omissions insurance. The commission
shall
enter into a contract with a qualified insurance carrier or its agent or
broker to
make available to all New Mexico real estate brokers and broker
applicants a
group policy of insurance under the following terms and
conditions:
A.
the insurance carrier is licensed and authorized by the New
Mexico
department of insurance to write policies of errors and omissions
insurance in
New Mexico;
B.
the insurance carrier maintains an A.M. Best rating of
‘‘B’’
or better;
C.
the insurance carrier will collect premiums, maintain records and
report
names of those insured and a record of claims to the commission on
a timely basis and at no expense to the state;
D.
the insurance carrier has been selected through a competitive
bidding process;
E.
the contract and policy are in conformance with Part 5 and all
relevant
New Mexico statutory requirements.
[16.61.5.8 NMAC - N, 1-1-2002; A, 1-1-2006]
57
16.61.5.9.
Terms of coverage.
The group policy shall provide, at a minimum, the following terms of coverage:
A. coverage of all acts for which a real estate license is required, except those illegal,
fraudulent or other acts which are normally excluded from such coverage;
B. an annual premium not to exceed the amount set by statute 61-29-4.2B NMSA 1978;
C. that the coverage cannot be cancelled by the insurance carrier except for non-
payment of the premium or in the event a broker becomes inactive or has their license
revoked or an applicant is denied a license;
D. pro-ration of premiums for coverage which is purchased during the course of the
calendar year but with no provision for refunds of unused premiums;
E. not less than $100,000 coverage for each licensed individual and entity per covered
claim regardless of the number of brokers or entities to which a settlement or claim may
apply;
F. an aggregate limit of $500,000 per licensed individual or entity;
G. a deductible amount for each claim of not more than $1,000 per claim and no
deductible for legal expenses and defense;
H. payment of claims by the provider shall be on a first dollar basis and the provider
shall look to the insured for payment of any deductible;
I. the obligation of the insurance carrier to defend all covered claims with payment of
defense costs outside of policy limits;
J. coverage of a broker’s use of lock boxes which may include a sublimit of not less
than $5,000 per claim for property damage or loss of use of property arising from a lock
box claim;
K. the ability of a broker, upon payment of an additional premium, to obtain higher or
excess coverage or to purchase additional coverage from the insurance provider as may
be determined by the provider;
L. that coverage is individual and license specific and will cover the associate broker
regardless of changes in qualifying broker;
M. An automatic 90-day extended reporting period with the ability of the broker, upon
payment of an additional premium, to obtain an optional extended reporting period of
one, two, or three years.
N. a conformity endorsement allowing a New Mexico resident broker to meet errors
and omissions insurance requirements for an active license in another group mandated
state without the need to purchase separate coverage in that state.
[16.61.5.9 NMAC - N, 1-1-2002; A, 1-1-2006; A, 12-31-2008; A, 1-1-2017]
58
16.61.5.10.
Equivalent errors and omissions insurance
policies.
New Mexico real estate associate broker or qualifying broker applicants may obtain
errors and omissions coverage equivalent to the group plan from any insurance carrier
subject to the following terms and conditions.
A. The insurance carrier is licensed and authorized by the New Mexico department of
insurance to write policies of errors and omissions insurance in this state and is in
conformance with all New Mexico statutes.
B. The insurance provider maintains an A.M. Best rating of “B” or better.
C. The policy, at a minimum, complies with all relevant conditions set forth in this rule
and the insurance carrier so certifies in a certificate issued to the insured real estate
broker or broker applicant in a form acceptable to the commission and agrees to
immediately notify the commission of any cancellation or lapse in coverage. The
commission will make no independent determination of whether equivalent policies
meet the requirements of Part 5.
D. Coverage includes all acts for which a real estate license is required, except those
illegal, fraudulent or other acts which are normally excluded from such coverage.
E. Coverage cannot be cancelled by the insurance provider except for nonpayment of
premium or in the event a broker becomes inactive or the license is revoked, or in the
event an applicant is denied a license.
F. Coverage is for not less than $100,000 for each licensed individual and entity per
covered claim and not less than a $500,000 aggregate limit per licensed individual or
entity.
G. A deductible amount for each claim of not more than $1,000.
H. Payment of claims by the provider shall be on a first dollar basis and the provider
shall look to the insured for payment of any deductible.
I. The obligation of the insurance carrier to defend all covered claims with defense costs
outside of policy limits.
J. Coverage of a broker’s use of lock boxes which may include a sublimit of not less
than $5,000 per claim for property damage or loss of use of property arising from a lock
box claim.
K. Real estate brokers or broker applicants who obtain equivalent coverage and wish to
be on active status must present to the commission the certificate referred to in
16.61.5.10 NMAC:
(1) when renewing an active license, no later than at the time of renewal; or
(2) upon any request for reinstatement or activation of a license; or
(3) upon application for an active license.
59
L. An automatic 90-day extended reporting period with the ability of the broker, upon
payment of an additional premium, to obtain an optional extended reporting period of
one, two, or three years.
[16.61.5.10 NMAC - N, 1-1-2002; A, 1-1-2017]
16.61.5.11.
Broker compliance.
Applicants for licensure, transfer, and renewal shall certify compliance with
this rule by submitting along with the license, transfer, or renewal application
a copy of a certificate from their insurance company certifying current
coverage. The commission will not issue an active license to a first time
applicant who fails to provide proof of current coverage, and the license of any
active New Mexico broker who fails to provide a certificate certifying current
errors and omissions coverage will not be renewed or transferred until such
certificate is received in the commission office.
[16.61.5.11 NMAC - N, 1-1-2002; A, 1-1-2006]
16.61.5.12.
Insurance requirements suspended.
The requirements of 16.61.5.8 NMAC shall be suspended if the commission
through a competitive bidding and contract award process is not able to enter
into a contract with a qualified insurance carrier to make available to all
applicants for or holders of active New Mexico real estate broker’s licenses a
group policy of insurance under the terms and conditions described in Part 5.
[16.61.5.12 NMAC - N, 1-1-2002; A, 1-1-2006]
16.61.5.13.
Penalties for violation.
Brokers who fail to obtain and maintain an errors and omissions insurance
policy as specified herein are guilty of violating NMSA 1978 Section 61-29-4.2
of the Real Estate License Law and are subject to license suspension and
revocation as provided in Section 61-29-12 A (10).
[16.61.5.13 NMAC - N, 1-1-2006]
PART 6:
DESIGNATION OF A QUALIFYING BROKER TO
QUALIFY A REAL
ESTATE BROKERAGE
16.61.6.7.
Definitions.
Refer to 16.61.1.7 NMAC.
[16.61.6.7 NMAC - Rp, 16.61.6.7 NMAC, 1-1-2012]
16.61.6.8.
Requirements.
A. A corporation, partnership, association, proprietorship, limited liability company, or
any other business entity engaged in real estate brokerage in New Mexico, except as
otherwise provided in 61-29-2 (C) NMSA 1978, must employ or enter into an
60
independent contractor agreement with a qualifying broker(s) to qualify such entity to
engage in real estate brokerage in the state.
B. Upon compliance with all requirements set out in the real estate license law and the
real estate commission rules for licensure as a New Mexico qualifying broker, the
commission shall issue a New Mexico qualifying broker’s license to the applicant.
Such license shall bear the name of the qualifying broker, the trade name of the
brokerage that the qualifying broker has qualified to conduct real estate brokerage
business and under which the brokerage will be conducting business and the address as
registered with the commission from which the brokerage will be conducting business.
C. In the event a qualifying broker is unable for any reason to perform their qualifying
broker duties, a corporate officer, family member or other responsible persons shall
designate a broker in charge to conduct the brokerage business and supervise brokers
affiliated with the brokerage until such time as an individual files a trade name
registration form or additional license application form with the commission
designating that individual as the qualifying broker.
[16.61.6.8 NMAC - Rp, 16.61.6.8 NMAC; A, 1-1-2017]
PART 7:
FINGERPRINTING AND ARREST RECORD CHECKS
16.61.7.7.
Definitions.
Refer to 16.61.1.7 NMAC
[16.61.7.7 NMAC - Rp, 16.61.7.7 NMAC, 1-1-2012]
16.61.7.8.
Requirements.
A. All persons applying for or renewing a New Mexico real estate broker’s license or
upgrading an associate broker’s license to a qualifying broker’s license must be
fingerprinted as a condition of licensure or license renewal.
B. Applicant fingerprints and processing fees are submitted electronically to the New
Mexico department of public safety from approved live scan vendor sites for the
purpose of matching applicant fingerprints with fingerprints in state and national arrest
record databases. Applicants must register on the vendor web site prior to being
fingerprinted. The vendor web site address and a list of approved live scan sites are
available on the real estate commission web site at www.rld.state.nm.us.
C. To verify compliance with the fingerprinting requirement, applicants for licensure or
license renewal shall submit to the commission along with their license or renewal
application a copy of the commission-approved fingerprint certification form completed
by the vendor. To ensure that the commission is receiving the most current information
available, fingerprinting shall be done no earlier than 21 days prior to submitting
documents to apply for or renew a license.
[16.61.7.8 NMAC - Rp, 16.61.7.8 NMAC, 1-1-2012; A, 1-1-2017]
61
PART 8
LICENSE TRANSFER
16.61.8.7.
Definitions.
Refer to Definitions 16.61.1.7 NMAC.
[1-1-2000; 16.61.8.7 NMAC - Rn, 16 NMAC 61.8.7, 1-1-2002]
16.61.8.8.
Requirements.
An associate broker may request that their license be transferred to a new
qualifying broker. The transfer is effective on the date that the transfer fee,
transfer form, and the current license are received and stamped at the
commission office. When an associate broker request that their license be
transferred the qualifying broker or the broker in charge, shall within 48
hours
return the license to the commission. If a license transfer form is not
accompanied by a certificate certifying that the associate broker or qualifying
broker has current errors and omissions insurance coverage, the license will
not be transferred until the certificate is received in the commission office.
A.
When a qualifying broker returns his or her own license to the
commission for transfer they shall within 48 hours either mail or
deliver to the
commission all licenses issued under that license. If the
brokerage is to continue operation, an application from a new qualifying
broker, along with
transfer forms and appropriate fees for each license, shall
also be included.
B.
RESERVED
[8-15-97; 1-1-2000; 16.61.8.8 NMAC - Rn, 16 NMAC 61.8.8, 1-1-2002; A,
1-1-2006; A 1-1-2012]
PART 9:
LICENSE INACTIVATION AND REACTIVATION
16.61.9.7.
Definitions.
Refer to 16.61.1.7 NMAC.
[8-15-97; 16.61.9.7 NMAC - Rn, 16 NMAC 61.9.7, 1-1-2002; A, 1-1-2012]
16.61.9.8.
Requirements.
A.
When a broker requests that their license be placed on inactive status,
the qualifying broker or broker in charge shall within 48 hours return the
license to the commission. The license shall be inactivated and all real estate
activity on the part of the broker shall cease.
B.
When a qualifying broker returns their license to the commission for
inactivation, they shall within 48 hours either mail or deliver to the
commission all licenses issued under that license. If the brokerage is to
continue operation, an application for a new qualifying broker, along
with transfer
applications and appropriate fees for each license, shall also be
included.
62
C.
Inactivation of a license shall take place at the time a license is received
and stamped at the commission office. In the event that a license is lost, or
otherwise unavailable for delivery by the qualifying broker to the commission
office, inactivation of the license will take place at the time the commission
receives and stamps a written notification from the qualifying broker that the
associate broker is no longer affiliated with the brokerage. The qualifying
broker may pay a commission to an associate broker whose license is on
inactive
status if the transaction was under contract while the broker was on
active status. Payment of the commission is subject to the terms and conditions
of the independent contractor agreement between the associate broker and the
qualifying broker.
D.
The voluntary inactivation of a license will not prevent the commission
from taking disciplinary action against that license as provided in Section
61-29-1 through 61-29-29, NMSA, 1978.
E.
Brokers whose licenses are inactive are required to fulfill the following
requirements of licensure.
(1)
The payment of triennial renewal fees.
(2)
Documentation of having been fingerprinted for purposes of matching
with state and national arrest record databases.
(3)
Completion of continuing education requirements.
(4)
During the course of advertising personally owned property for sale,
lease, or auction, disclosure that they are a licensed broker.
F.
Brokers whose licenses are on inactive status are not required to have an
errors and omissions insurance policy in effect while on inactive status.
Inactive brokers are required to produce a certificate of current errors and
omissions insurance as a condition of license activation.
G.
If a license has been placed in inactive status and is not renewed at the
time of next renewal, that license shall expire.
[8-15-97; 16.61.9.8 NMAC - Rn & A, 16 NMAC 61.9.8, 1-1-2002; A, 12-31-08;
A, 1-1-2012]
PART 10
[RESERVED]
PART 11:
LICENSE EXPIRATION AND RENEWAL
16.61.11.7.
Definitions.
Refer to 16.61.1.7 NMAC.
[1-1-2000; 16.61.11.7 NMAC - Rn, 16 NMAC 61.11.7, 1-1-2002]
16.61.11.8.
Requirements.
Every real estate license expires every three years on the last day of the month following
the broker's birth month, unless it is renewed on or before that date. Renewal of a license
is the sole responsibility of each broker. A broker whose license has expired may
reinstate their license without reexamination up to one year after expiration by paying a
63
reinstatement fee three times the regular license renewal fee. In addition to paying a
reinstatement fee, the broker will be required as a condition of reinstatement to provide
documentation of the completion of 36 hours of commission-approved continuing
education courses. Application for renewal shall be on the renewal form prescribed by
the commission.
The commission shall email to the licensee email address in
the commission data base, all necessary web links and any additional forms
for on-line renewal. Brokers are responsible for providing the commission
with a current email address and for notifying the commission within 10 days
of a change.
The qualifying broker may pay a commission to a broker whose license is expired or to
the estate of a deceased broker if the transaction was under contract while the broker’s
license was current.
[8-15-97; A, 1-1-2000; 16.61.11.8 NMAC - Rn & A, 16 NMAC 61.11.8, 1-1-2002; A,
01-01-2004; A, 1-1-2006; A, 12-31-2008; A, 1-1-2012; A, 1-1-2017]
PART 12:
LICENSE SUSPENSION AND REVOCATION
16.61.12.7.
Definitions.
Refer to Definitions 16.61.1.7 NMAC.
[16.61.12.7 NMAC - Rp, 16 NMAC 61.12.7, 1-1-2002]
16.61.12.8.
Disciplinary actions.
Violation of any provision of the real estate license law or commission rules
may be cause for disciplinary action against any person who engages in the
business or acts in the capacity of a real estate broker in New Mexico with or
without a New Mexico real estate license, up to and including license sus-
pension or revocation if the person is licensed in New Mexico, and other
penalties as provided by law, commission rules, or policies, in the case of an
unlicensed person. A person found by the commission to be engaging in
unlicensed real estate activity has thereby submitted to the jurisdiction of the
state and to the administrative jurisdiction of the commission and is subject to
all penalties and remedies available for a violation of any provision of the real
estate license law Chapter 61, Article 29 NMSA 1978 and the commission
rules, Title 16 Chapter 61 NMAC. Nothing herein contained shall be deemed
to be a restriction on any other penalty or provision provided by law.
[16.61.12.8 NMAC-Rp, 16 NMAC 61.12.8, 1-1-2002; A, 1-1-2006; A,
12-31-
2008]
16.61.12.9.
License s urrender.
A.
Any qualifying broker’s or associate broker’s license suspended or
revoked by an order, stipulated agreement or settlement agreement approved
by
the commission shall be surrendered to the commission by the broker upon
the
delivery of the order to the broker by the commission, or on the effective
date
of the order.
64
B.
All real-estate-related activity conducted under such license shall cease
for the duration of the license suspension or revocation, and the license of any
associate broker affiliated with a qualifying broker whose license is suspended
or revoked shall be automatically placed on inactive status until a new
qualifying broker or broker in charge is designated.
[16.61.12.9 NMAC - Rp, 16 NMAC 61.12.9, 1-1-2002; A, 1-1-2006; A,
1-1-
2014]
PART 13:
CONTINUING EDUCATION REQUIREMENTS
NMREC Web link to Continuing Education Tab
16.61.13.7.
Definitions.
Refer to 16.61.1.7 NMAC.
[1-1-2000; 16.61.13.7 NMAC - Rn, 16 NMAC 61.13.7, 1-1-2002]
16.61.13.8.
Requirements
Except for brokers who are exempt from continuing education by virtue of having
attained 65 years of age and a minimum of 20 years of continuous licensure prior to
July 1, 2011;
A. All active and inactive associate brokers and qualifying brokers shall
successfully complete a minimum of 36 credit hours of continuing education in
courses approved by the commission during each licensing cycle.
B. Required courses include the four hour New Mexico real estate commission
(NMREC) core course to be completed annually; a four hour commission-approved
core elective course to be completed once during each three year licensing; and four
hours of commission-approved ethics courses to be completed during each three
year licensing cycle.
C. Of the remaining 16 credit hours, no more than 10 credit hours may be earned
toward the continuing education requirement from commission-approved training
category courses. All 16 remaining credit hours may be earned toward the
continuing education requirement from commission-approved education category
courses.
D. The NMREC core course requirements shall apply to those associate brokers and
qualifying brokers who have not completed the eight hour mandatory course in their
current licensing cycle by December 31, 2016. If a broker has so completed the
eight hour mandatory course, the NMREC core course requirement will not apply
until their next licensing cycle. Brokers who have completed the eight hour
mandatory course in their current licensing cycle and who wish to take the NMREC
core course will receive four additional hours of education category credit in their
current licensing cycle.
E. The NMREC core course will have a unique course name and course number
each year, including the year in which it was presented. The commission shall
65
ensure that the content is unique for each year’s course to ensure that brokers are not
receiving identical information in more than one course.
F. Commission-approved pre-licensing courses may count for up to 10 credit hours
toward continuing education credit for license renewal. The commission approved
30 hour post-licensing course may also count for up to 10 education category credit
hours toward continuing education.
G. No commission-approved continuing education course in either the education or
the training category will be granted more than 10 credit hours of continuing
education credit.
H. Continuing education credit hours cannot be carried forward to the next licensing
cycle.
I. The same continuing education course cannot be repeated for credit in a three-
year renewal cycle.
J. Brokers may receive up to a maximum of four approved education course credit
hours during each licensing cycle for attending commission meetings, rule hearings,
disciplinary hearings, or meetings of the education advisory committee (EAC).
K. Approved instructors may use up to 10 credit hours during each three-year
licensing cycle toward fulfillment of their own continuing education requirements
for teaching commission approved courses. Teaching documentation must be
provided by the course sponsor.
L. Classes required by the commission for disciplinary reasons cannot be counted
towards the continuing education requirements for license renewal.
[1-1-2000; 16.61.13.8 NMAC - Rn & A, 16 NMAC 61.13.8, 1-1-2002; A, 1-1-
2006; A, 1-1-2007; A, 12-31-2008; A, 1-1-2012; A, 1-1-2017]
16.61.13.9.
Verification of completion of course work.
At the time of license renewal, associate brokers and qualifying brokers shall
submit to the real estate commission verification of completion of
continuing education course work.
[1-1-2000; 16.61.13.9 NMAC - Rn, 16 NMAC 61.13.9, 1-1-2002; A, 1-1-2006;
A, 12-31-2008; A, 1-1-2012]
PART 14:
EDUCATION AND TRAINING FUND
16.61.14.7.
Definitions.
Refer to 16.61.1.7 NMAC.
[16.61.14.7 NMAC - N, 01/01/07]
16.61.14.8.
Providers.
66
The New Mexico real estate commission may enter into contracts with public
or private institutions or individuals to establish, continue, or expand
educational programs or research programs which will benefit real estate
brokers
and the public in its potential dealings with real estate brokers.
Priority will be
given to those programs that enhance educational
opportunities for New Mexico-licensed real estate associate brokers and
qualifying brokers, and
further the real estate commission’s mission of
protecting the public and
increasing the professional competence of real
estate brokers.
[16.61.14.8 NMAC - N, 01/01/07]
16.61.14.9.
Amounts and terms of contracts for
education or
research.
The amount to be paid and the duration of any contract shall be as provided
for in each contract. Any amendment to a contract to increase the payment or
extend the time of performance shall be at the discretion of the commission. No
provision of any contract shall be construed as obligating the commission to
make any payment beyond the fiscal year in which the commission enters into
the contract, unless otherwise provided for in the contract.
[16.61.14.9 NMAC - N, 01/01/07]
16.61.14.10.
Proposals.
Proposals to enter into contracts for education or research with the
commission will be required to contain the following:
A.
a statement of the educational objective of the proposed program or
research;
B.
a statement of how the program will benefit associate brokers or
qualifying brokers or the public who may deal with them;
C.
if applicable, a detailed course outline, the number of educational hours
in the program, length of course, schedule of instruction, location, and
anticipated number of participants;
D.
if applicable, the purpose, scope, length, and place of research work;
E.
a detailed cost analysis of the entire course or project including, but not
limited to such items as source(s) of other funding for the program, cost of
advertising, administration, instructors, materials, and physical facilities, and
fees proposed to be charged to participants;
F.
if applicable, a list of instructors who may be used and their credentials;
G.
any academic, real estate, or other professional credit proposed to be
awarded, subject to the approval of the commission;
67
H.
such other information as the commission may require at the time of
submission of the proposal or after reviewing the proposal.
[16.61.14.10 NMAC - N, 01/01/07]
16.61.14.11.
Commission action on
proposals.
A.
The commission shall act on all proposals within sixty (60) days of receipt
of a written original or amended proposal and shall notify the applicant in
writing of:
(1)
the terms of acceptance of the proposal;
(2)
the reason or reasons for rejection of the proposal;
(3)
any further information needed to accept or reject the proposal;
B.
Decisions of acceptance and rejection by the commission shall be final.
[16.61.14.11 NMAC - N, 01/01/07]
16.61.14.12.
Reports.
Within thirty (30) days of the end of the term of the contract, or at such other
time as the commission may require, the provider under contract shall provide
to the commission a report of the expenditure of funds under the contract, and
a written report explaining how the program benefited New Mexico real estate
brokers and consumers.
Whenever a contract for education or research
requires that the
provider conduct courses, seminars, or other educational
venues,
the provider shall issue to each participant who successfully completes
the
program a certificate of course completion that includes the participant’s
name, the course name, the number of approved credit hours, and whether the
course is in the education or training category of approved commission courses.
Within fourteen (14) days of the end of the program, the provider shall send to
the commission a list of all real estate brokers who successfully completed the
program. The commission may direct its employees or representatives to
monitor any contracted program at any time and the providers shall be
required to supply to such representatives requested reasonable data upon
reasonable notice.
[16.61.14.12 NMAC - N, 01/01/07]
16.61.14.13.
Use of commission name.
Any advertising of a program or project funded by the education and training
fund must indicate that the New Mexico real estate commission underwrites a
portion or all of the cost of the program. Any publication or any other
educational materials produced as a result of a contract must include
indication that the New Mexico real estate commission underwrites a portion
or all
of the cost of producing the material.
68
All participants in any program
underwritten totally or in part by the New
Mexico real estate commission must
be clearly and affirmatively made aware
of the participation of the New Mexico
real estate commission and how they
may forward comments on the program
to the commission. No other use
of the name of the commission shall be
permitted without the
commission’s prior approval.
[16.61.14.13 NMAC - N, 01/01/07]
16.61.14.14.
Product of service — Copyright.
All materials developed or acquired by a Contractor providing educational
and research services funded in whole or in part by the Education and Training
Fund shall become the property of the New Mexico real estate commission and
shall be delivered to the Commission no later than the termination date of the
contract. Nothing produced, in whole or in part, by the Contractor shall be the
subject of an application for copyright other claim of ownership by or on behalf
of the Contractor.
[16.61.14.14 NMAC - N, 01/01/07]
16.61.14.15.
Changes.
No substantive changes, including schedule of programs, may be made in a
program under a contract for education and research without the prior
approval of the commission. The commission at a regularly scheduled meeting
may make emergency changes on a temporary basis with the prior approval of
the administrator of the commission subject to review and final approval. All
requests for changes and authorizations of changes must be made in writing
before they may be implemented.
[16.61.14.15 NMAC - N, 01/01/07]
16.61.14.16.
Participants.
Any courses offered to New Mexico licensed associate brokers and qualifying
brokers which the commission has underwritten in part or in total must be
made available to all persons regardless of race, color, religion, sex, handicap,
familial status, national origin, age, or membership in any organization.
[16.61.14.16 NMAC - N, 01/01/07]
16.61.14.17.
Expenditures.
Any funds not expended in the implementation of a contract for education or
research shall revert to the Education and Training Fund.
[16.61.14.17
NMAC - N, 01/01/07; A, 12-31-2008]
16.61.14.18.
Revenues.
The Real Estate Education and Training Fund shall consist of an initial
transfer of the balance in the Real Estate Recovery Fund in excess of the
$150,000 statutory minimum balance; legislative appropriations to the fund;
fees charged by the commission for approval of real estate education sponsors,
69
courses, and instructors; gifts, grants, donations, and bequests to the fund; and
income from investment of the fund. Money in the fund shall not revert to any
other fund at the end of a fiscal year.
[16.61.14.18 NMAC - N, 01/01/07; A, 1-
1-2014]
16.61.14.19.
V
iolations.
Any violation of the provisions of this part, any falsification or
misrepresentation in a proposal for a contract for education and research, or
violation of
any written agreement entered into with the commission under
this part may result in a termination of the contract and the requirement that
all funds paid
by the commission be returned. Any provider under a contract
for education and research found to have not properly accounted for or
improperly expended all funds shall repay said funds plus interest at 6
percent per annum to the
commission and said recipient shall be ineligible to
enter into any contract for
education and research with the commission until
said recipient first repays
the fund plus interest. Should the commission
allege any violation under this
rule, it shall provide the respondent with a
formal hearing under the
provisions of the Uniform Licensing Act.
[16.61.14.19 NMAC - N, 01/01/07; A, 12-31-2008]
PART 15:
APPROVAL OF REAL ESTATE COURSES, SPONSORS,
AND
INSTRUCTORS
16.61.15.7.
Definitions.
Refer to 16.61.1.7 NMAC.
[16.61.15.7 NMAC - Rp, 16.61.15.7 NMAC, 1-1-2012]
16.61.15.8.
Education Advisory Committee
The commission shall appoint an education advisory committee (EAC), hereinafter
referred to as the committee , with the goal of upgrading and improving the real estate
education program in order to carry out the commission’s mission of protecting the
public and increasing the professional competence of real estate brokers. The
committee shall advise the commission on all matters related to broker education.
A. The committee shall meet monthly or as required for the purpose of evaluating
applications for real estate course sponsors, courses, and instructors and shall make
recommendations to the commission as to its findings.
(1) The committee shall use specific criteria to evaluate a course, an instructor
or course sponsor for approval. These specific criteria shall consider both the
instructor’s depth of knowledge of the subject and the instructor’s ability to
convey that knowledge.
(2) The committee shall clearly state in writing to the applicant the reasons for
which a course, an instructor or course sponsor are not approved.
(3) A sponsor or instructor applicant not recommended for approval by the
committee may ask the commission to review the committee’s unfavorable
recommendation.
70
B. The committee shall consist of up to nine voting members and no fewer than three
non-voting instructor/advisory members. The chair and vice chair shall be appointed
from among the voting members. Upon the effective date of this rule, approximately
half of the members shall be appointed to two-year terms, and half to three-year terms.
Thereafter, all members shall be appointed to three-year terms. Members shall serve a
maximum of two three-year terms, but may reapply for membership one year after the
expiration of their second term. The commission shall appoint members to fill
vacancies until the end of the term of the vacant position.
[16.61.15.8 NMAC - Rp, 16.61.15.8 NMAC; A, 1-1-2017]
16.61.15.9 Approval of Education Programs
A. Courses offered for New Mexico real estate commission approved credit must be
offered by sponsors approved by the New Mexico real estate commission.
B. Applications for sponsor, instructor and course approvals shall be accompanied by
the fee(s) specified in 16.61.2.8 NMAC of the commission rules.
(1) An approved education category course shall consist of a course offered by a
commission approved sponsor in real estate law and practice; real estate
financing including mortgages and other financing techniques; material specific
to the regulatory, and ethical practice of real estate; and real estate related local,
state and federal laws including but not limited to fair housing, the Americans
with Disabilities Act (ADA), and lead-based paint disclosure.
(2) Approved training category courses include personal and property protection
for the broker and clients; using the computer, the internet, business calculators
and other technologies to enhance the broker’s service to the public; concerning
professional development, customer relations skills, sales promotion including
salesmanship, negotiation, marketing techniques, servicing the client, or similar
courses.
(3) With the exception of courses taken in states with which New Mexico has a
written license recognition agreement, non-acceptable continuing education
classes shall include courses taken in fulfillment of another state’s continuing
education requirements. Other non-acceptable courses include mechanical
office and business skills such as typing; speed reading; memory improvement;
language report writing; offerings concerning physical well-being or personal
development such as personal motivation; stress management; time
management; dress-for-success; or similar courses.
C. The committee shall review instructor candidates:
(1) to determine the candidate’s knowledge of the subject matter;
(2) to determine the candidate’s ability to communicate his/her knowledge to
students;
(3) to determine if the candidate uses appropriate teaching delivery skills;
(4) to determine if the candidate is honest, truthful, reputable, and competent.
[16.61.15.9 NMAC - Rp, 16.61.15.9 NMAC, 1-1-2012; A, 1-1-2017]
71
16.61.15.10.
Approval of sponsors and sponsor
responsibilities.
A.
All sponsors wishing to offer commission-approved courses for credit
must be approved by the commission before the course being offered for credit.
B.
Educational institutions, proprietary schools, professional organizations
or businesses wishing to become commission approved sponsors must submit
a
completed sponsor application form with supporting documentation as
required
by the commission.
C.
The commission will maintain a list of approved sponsors.
D.
An approved sponsor shall comply with the following requirements:
(1)
conduct all courses in accordance with commission rules and
education policies, and in accordance with approved course
content;
(2)
permit all New Mexico real estate brokers to attend all classes
offered by the sponsor for which continuing education credit is
awarded;
(3)
document electronically to the real estate commission that the
student
has completed the course;
(a)
certify no candidate as successfully completing the broker
basics or brokerage office administration course unless the
student has attended at least
90% of the classroom instruction
and has passed a written examination at the
conclusion of the
course;
(b)
Certify no broker as successfully completing a commission
approved course unless the broker has attended 50 minutes of
each hour, or successfully
completed a distance education
course approved by the New Mexico real estate
commission.
In the case of a course that is offered in both live and
distance
education formats, the sponsor shall have
discretion as to completion and
certification;
(4)
maintain current, complete, and accurate student records; these
records shall include, but not be limited to, a record of payments
made, a record of attendance, and a record of course work
completed; records shall be
maintained for a period of three
years;
(5)
permit the commission or its representative access to classes
being
conducted, and make available to the commission, upon
request, all information pertaining to the activities of the sponsor;
(6)
advertise at all times in a manner free from misrepresentation,
deception or fraud; all course advertising must include the name of
the
commission-approved sponsor, and must specify whether the
course is in the
education or training category;
72
(7)
in the event a sponsor determines that it intends to cease
sponsoring real estate classes it shall inform the commission in
writing not less than 30
days before cessation;
(8)
advise the commission within 30 days of changes in ownership,
directorship, financial status, location or other pertinent
information, and
reapply for sponsorship in the event of change of
majority ownership;
(9)
at the end of each course, the sponsor shall collect from each
student
an evaluation that evaluates adherence to course content,
the effectiveness of
the instructor, and other prescribed criteria;
the evaluation forms shall be
maintained by the sponsor for not
less than one year and shall be made
available to the
commission upon request;
(10)
renew sponsorship approval every three years by submitting a
sponsor renewal form and renewal fee to the commission;
(11)
shall meet the requirements of the Americans with Disabilities
Act
and all other local, state and federal laws.
E.
Failure to comply with this rule may result in the loss of sponsor approval.
The commission may investigate any claim of violation of this rule
pursuant
to 16.61.36.8 NMAC of the commission rules.
[16.61.15.10 NMAC - Rp, 16.61-15.10 NMAC, 1-1-2012]
16.61.15.11.
Approval of courses.
A. Any pre-licensing or continuing education course must have been approved by the
commission before the course being offered for credit. Courses must incorporate New
Mexico law and regulations when relevant. A course application form must be
completed and submitted to the commission before consideration of a course for
approval by the committee.
(1) Before course approval, the instructor teaching the course shall make a
presentation before the committee according to presentation criteria established
by the committee.
(2) The committee shall assign the number of credit hours to each course and
determine whether the course is in the education or training category.
(3) Commission approved pre-licensing courses may count for up to ten credit
hours toward continuing education requirements for license renewal.
B. The committee may waive a course presentation appearance by a nationally
recognized professional real estate organization that provides professional designations
if the organization can document to the committee’s satisfaction that the course
instructor received training in the course subject matter in addition to attending a train
the trainer class.
C. The commission must approve any continuing education course offered for one-time
credit before the course being offered.
(1) A commission approved application form for one-time credit approval must
be completed and submitted to the committee before consideration of the course
for credit.
73
(2) Approved sponsors are limited to four course submittals for one-time credit
during each calendar year.
(3) The sponsor, or its representative, requesting one-time course credit, shall
make a presentation before the committee according to presentation criteria
established by the committee.
D. The course shall conform to the generally accepted principles of education as
prescribed by the real estate educators association (REEA) and shall comply with
commission approved course content requirements. The minimum length of a course
shall be one hour.
E. The commission will maintain a list of courses that have been approved for credit.
F. If the course represents an update to a previously approved course, and new material
becomes available, the instructor shall be responsible for updating the course and
presenting the most current information. Significant changes to course outlines should
be provided by the instructor to the commission’s education administrator as they occur.
If a course outline has not been updated within the last three years the committee may,
at its discretion, recommend to the commission that the course be removed from the list
of approved courses.
G. Distance education: For purposes of this part, distance learning is education and
training that takes place outside of the traditional classroom setting and in which non-
traditional instructional media are used because the teacher and student are separated by
distance or time. Distance education sponsors seeking continuing education credit for
their courses will be required to designate a New Mexico approved instructor to make a
presentation to the committee and shall submit for committee review and approval:
(1) course syllabus which clearly states the course objectives and the specific
learning objectives for desired student competencies;
(2) instructions for accessing, using and testing the online materials for
committee auditing purposes including everything necessary for evaluating
course content materials, duration, accuracy and timeliness;
(3) reference materials appropriate to the course;
(4) when a series of courses is offered in a curriculum, evidence of sequential
development and logical progression;
(5) description of the method, such as examination and quizzes, by which
student progress and mastery of the subject matter are measured, and for
determining what is required for a student to successfully complete the course;
(6) description of the method by which student identity is verified, such as user
name and password;
(7) the names, telephone numbers and email addresses of individuals,
web-sites or other resources that students can contact for technical
assistance;
(8) the name and contact information of the New Mexico instructor
approved to teach the course who will be available to answer subject
matter questions during regularly posted hours;
(9) a description of the methodology used by the sponsor in determining
the classroom hour equivalency of each distance education course.
[16.61.15.11 NMAC - Rp, 16.61.15.11 NMAC, 1-1-2012; A, 1-1-2017]
74
16.61.15.12.
Approval of instructors.
A. Commission approved course instructors. Instructors must be approved by the
commission before teaching courses. The following requirements apply to all
commission approved courses.
(1) Be honest, truthful, reputable and competent.
(2) Submit a commission-approved application before presenting the
course to the committee.
(3) Complete a commission approved instructor training course within
one year of being initially approved as an instructor and every three years
thereafter. Instructors who fail to submit documentation of completion of
the instructor-training course will not be re-certified.
(4) Provide copies of student handouts during their course presentation.
(5) Make a minimum 15 minute presentation to the committee exhibiting
their teaching skills and knowledge of the subject matter, and be prepared
to answer questions. Presentations must conform to the generally
accepted principles of education (GAPE) as established by the real estate
educators’ association (REEA).
B. Pre-licensing course instructors. Pre-licensing courses include: real estate law, real
estate principles and practices, broker basics and brokerage office administration. In
addition to Subsection A. above, these instructor candidates must:
(1) pass the New Mexico broker’s examination with a minimum score of 84
within the previous three years from the date of application;
(2) audit the course they wish to teach before being approved as an instructor for
that course; documentation of having audited the course must be submitted with
the candidate’s application;
(3) broker basics: be approved to teach real estate law and real estate principles
and practice;
(4) brokerage office administration: be approved to teach real estate law and real
estate principles and practice and broker basics; in addition, candidates must also
have two years’ experience as a qualifying broker in New Mexico or another
licensing jurisdiction.
C. Core course instructors. In addition to Subsection A. above, core course instructor
candidates must:
(1) complete a core course training and be approved by the committee; and
(2) ensure the NMREC core course materials they present include the most
recent updates provided by the New Mexico real estate commission.
D. Qualifying broker refresher course instructors. In addition to Subsection A. above,
qualifying broker refresher course instructor candidates must comply with one of the
following:
(1) be a currently approved instructor for real estate law and real estate
principles and practice and broker basics and be a qualifying broker or would
qualify to be one; or
(2) be approved to teach the core or mandatory course, and be a qualifying
broker.
75
E. New broker business practices post-licensing course instructors. In addition to
Subsection A. above, new broker business practices course instructors must:
(1) have two years’ experience as an active qualifying broker with supervisory
responsibilities or two years actively licensed as an associate broker and served
in the capacity as a trainer for the brokerage, or two years actively licensed as an
associate broker and be approved as a continuing education instructor;
(2) attend, when offered, a commission approved train-the-trainer on how to
instruct the post-licensing course and attend, when offered, a periodic update of
the course offered by the commission or the commission contractor; and
(3) make a minimum 60 minute presentation to the committee and answer
questions.
F. Committee approval process. The committee will make its recommendation to the
commission to grant or deny instructor approval. If the application is denied, a written
evaluation to the candidate will provide specific reasons for denial and
recommendations for improvement. An instructor candidate not recommended for
approval by the committee may ask the commission to review the committee’s
unfavorable recommendation.
G. Post-approval requirements. After approval all instructors must comply with the
following:
(1) pay applicable fee(s);
(2) conduct all classes in accordance with commission rules and educational
policies;
(3) ensure all instruction is free from all misrepresentation, solicitations of
products and recruitment;
(4) conform to commission-approved course content requirements; and
(5) allow access to any class to any duly appointed representative of the
commission.
H. Instructor approval expiration and re-certification.
(1) Expiration. Instructor approvals expire on the same three-year cycle as the
instructor’s broker’s license. If an instructor is not a real estate broker, then the
expiration will be three years from the date of initial approval.
(2) Re-certification. Instructors seeking re-certification shall:
(a) submit the commission-approved form;
(b) submit documentation of having completed a commission-approved
instructor training course;
(c) an instructor who has not taught a course in the preceding three year
instructor renewal cycle will not be recertified to teach that course; an
instructor may submit at the time of renewal, a written request to the
committee to be re-certified to teach that course; the written request must
specify how the instructor has remained current on the course material,
and must include the course outline and course material.
I. Failure to comply with this part may result in the loss of instructor approval. The
commission may investigate any claim of instructor impropriety pursuant to 16.61.36.8
NMAC of the commission rules.
76
[16.61.15.12 NMAC - Rp, 16.61.15.12 NMAC, A 1-1-2017]
PART 16:
QUALIFYING BROKER: AFFILIATION AND
RESPONSIBILITIES
16.61.16.7.
Definitions.
Refer to 16.61.1.7 NMAC.
[16.61.16.7 NMAC - Rp, 16.61.16.7 NMAC, 1-1-2012]
16.61.16.8.
Affiliation.
A qualifying broker is responsible for all real estate activities within the
brokerage. A qualifying broker may serve concurrently as a qualifying broker
for more than one brokerage. A qualifying broker may by written agreement
engage the services of associate brokers and qualifying brokers, provided that
the terms of such agreements are consistent with the responsibilities of
associate brokers and qualifying brokers as set forth in parts 16.61.16.9 NMAC
and 16.61.17.9 NMAC. A qualifying broker may serve as qualifying broker and
associate broker for different brokerages simultaneously provided that there
are written agreements executed specifying the responsibilities and scope of
authority that the broker has for each brokerage.
[16.61.16.8 NMAC - Rp, 16.61.16.8 NMAC, 1-1-2012]
16.61.16.9.
Responsibilities.
A qualifying broker shall, in addition to all other requirements imposed by law, comply
with the following:
A. conduct the real estate brokerage business under the trade name and from the
brokerage address or addresses registered with the commission;
B. prominently display in the brokerage office, the qualifying broker's own license and
the licenses of all other affiliated associate brokers conducting real estate brokerage
business from the brokerage office; in the event of a virtual office, this requirement is
met by displaying a legible photo or scanned image of the licenses on the brokerage’s
web site through a link labeled “real estate licenses”.
C. have in the brokerage office and available to all affiliated associate brokers and
qualifying brokers a current copy of the state of the New Mexico real estate license law
and rules manual;
D. notify the commission in writing within ten days of a change of the brokerage office
address or telephone number;
E. supervise all real estate related activities performed by the brokerage on behalf of
others including but not limited to advertising of real estate or real estate services
conducted on behalf of others by associate brokers qualifying brokers, and employees
and trust account management by brokerage owners whether or not the brokerage
owners are licensed real estate brokers.
77
F. execute and maintain current written employment or independent contractor
agreements with all persons affiliated with the brokerage, including brokers and
brokerage owners whether or not the brokerage owners are licensed real estate brokers.
G. maintain full and complete records wherein the qualifying broker and affiliated
associate broker(s) are engaged on behalf of others, or on their own behalf, in real estate
related matters processed through the brokerage; the required records shall be available
to the commission or any duly authorized commission representative at the place of
business of the qualifying broker or at the commission office; all such records whether
in paper or electronic format shall be retained for a period not less than six years; in the
case of a property manager, all records shall be retained for the full term of any
agreement and for six years from the termination of the management agreement;
H. deposit all money received on behalf of others in the proper trust account as soon
after receipt as is practicably possible after securing signatures of all parties to the
transaction documents;
I. receive and disburse all commissions, referral fees, and other considerations to any
broker affiliated with the qualifying broker, or broker who had been affiliated with the
qualifying broker at the time the transaction went under contract; the qualifying broker
may also disburse or authorize the disbursement of such commissions and fees to any
entity entitled by law to receive same, including the estate of a deceased broker, the
deceased broker’s surviving spouse, or any legally recognized entity wholly owned by
an associate broker and their spouse. Such partnership, corporation, or Limited
Liability Company shall not be required to have a qualifying broker for purposes of this
sub-part;
J. assure that when the brokerage cooperates with or makes a referral to, or receives a
referral from any broker, there be a transaction specific written co-brokerage or referral
agreement signed by the qualifying broker;
K. designate a broker in charge in the event actual supervision by the qualifying broker
is not possible, and inform the commission of such designation in writing. During this
period of time, the broker in charge shall assume all of the responsibilities of the
qualifying broker for the brokerage;
L. return the associate broker's license to the commission within 48 hours of termination
or discharge;
M. ensure that each qualifying broker and associate broker affiliated with the brokerage
obtain and maintain a current errors and omissions insurance policy as provided in
Section 61-29-4.2 NMSA 1978 of the Real Estate License Law and 16.61.5 NMAC of
the commission rules;
N. successfully complete as a condition of license renewal or as a condition of
reinstatement of qualifying broker status the commission-approved qualifying broker
refresher course;
O. ensure that associate brokers affiliated with their brokerage complete the
commission-approved new broker business practices course or the CCIM 101 course
within their first year of licensure.
78
P. ensure that the qualifying broker’s name and contact information, including license
number, is clearly and conspicuously displayed on any written document generated by
the brokerage or presented to a prospective customer or client, and that has the potential
to become an express written agreement.
[16.61.16.9 NMAC - Rp, 16.61.16.9 NMAC, 1-1-2012; A, 1-1-2017]
PART 17:
ASSOCIATE BROKER: AFFILIATION AND RESPONSIBILITIES
16.61.17.7.
Definitions.
Refer to 16.61.1.7 NMAC.
[1-1-2000; 16.61.17.7 NMAC - Rn, 16 NMAC 61.17.7, 1-1-2002]
16.61.17.8.
Affiliation.
An associate broker must be affiliated with a qualifying broker in order to
engage in real estate brokerage business. An associate broker may have only
one associate broker’s license and be affiliated with only one qualifying broker
at a time.
[1-1-2000; 16.61.17.8 NMAC - Rn, 16 NMAC 61.17.8, 1-1-2002; A,
1-1-2006; A, 1-1-2012]
16.61.17.9.
Responsibilities.
An active associate broker shall:
A. complete within their first year of licensure, the commission-approved new broker
business practices course or the CCIM 101 course. Associate brokers who have been on
inactive status since their initial licensure shall complete the new broker business
practices course or the CCIM 101 course prior to activation of their license;
B. be affiliated with only one qualifying broker at a time;
C. not engage in any real estate activity for any other qualifying broker other than the
qualifying broker with whom the broker is affiliated;
D. not engage in any real estate activities for others for which a real estate license is
required outside the knowledge and supervision of their qualifying broker;
E. not engage in any real estate activities on their own behalf outside the knowledge
of the qualifying broker with whom the broker is affiliated;
F. not engage in any real estate activity under a trade name(s) other than the trade
name(s) of the qualifying broker with whom the broker is affiliated;
G. not receive any commissions or fees for real estate activities from anyone other
than the qualifying broker with whom the broker was affiliated with at the time the
transaction went under contract, or persons authorized in writing by the qualifying broker
to disburse such commissions or fees;
79
H. when advertising real estate or real estate services for others, include in the
advertising the trade name and telephone number as registered with the commission of
the qualifying broker with whom the broker is affiliated;
I. remit all funds received from others related to real estate transactions to the
qualifying broker or their designee as soon as possible after receipt of those funds, and
after securing signatures of all parties to the transaction;
J. deliver in a timely manner to their qualifying broker all records required to be
maintained by their qualifying broker under 16.61.16 NMAC; and
K. maintain a current errors and omissions insurance policy as provided in Section
61-29-4.2 NMSA 1978 of the Real Estate License Law and 16.61.5.8 NMAC of the
commission rules, and provide documentation of such policy to their qualifying broker.
[1-1-2000, A, 2-14-2000; 16.61.17.9 NMAC - Rn, 16 NMAC 61.17.9, 1-1-2002; A, 1-1-
2006; A, 12-31-2008; A, 1-1-2012; A, 1-1-2014; A, 1-1-2017]
PART 18:
SALESPERSONS: AFFILIATION AND RESPONSIBILITIES
[REPEALED 01-01-06]
PART 19:
BROKER DUTIES AND BROKERAGE RELATIONSHIPS
16.61.19.7.
Definitions.
Refer to 16.61.1.7 NMAC.
[16.61.19.7 NMAC - Rp, 16.61.19.7 NMAC, 1-1-2004]
16.61.19.8.
Broker duties; disclosure.
Before the time a broker generates or presents any written document that
has the potential to become an express written agreement, the broker shall
disclose in writing to their prospective customer or client, and obtain a written
acknowledgement from their prospective customer or client, showing the
delivery of the disclosure of the following broker duties:
A.
honesty and reasonable care as set forth in the provisions of this section;
B.
compliance with local, state, and federal fair housing and anti-
discrimination laws, the New Mexico real estate license law and
the real estate
commission rules, and other applicable local, state,
and federal laws and
regulations;
C.
performance of any and all written agreements made with the
customer or client;
D.
assistance to the broker’s customer or client in completing the
transaction, unless otherwise agreed to in writing by the customer or
client, including:
80
(1)
presentation of all offers or counter-offers in a timely manner;
and
(2)
assistance in complying with the terms and conditions of the
contract
and with the closing of the transaction; if the broker in
the transaction is not
providing the service, advice or assistance
described in Paragraphs (1) and (2)
of Subsection D of
16.61.19.8 NMAC, the customer or client must agree in
writing that the broker is not expected to provide such
service, advice or assistance, and the broker shall disclose the
existence of such agreement in
writing to the other brokers
involved in the transaction;
E.
acknowledgement by the broker that there may be matters related to the
transaction that are outside the associate broker’s or qualifying broker’s
knowledge or expertise and that the associate broker or qualifying broker
will
suggest that the customer or client seek expert advice on these
matters;
F.
prompt accounting for all money or property received by the broker;
G.
written disclosure to their client or customer and to other brokers
involved
in the transaction of any potential conflict of interest that the broker
has in
the transaction including but not limited to:
(1)
any written brokerage relationship the broker has with any other
parties to the transaction or;
(2)
any material interest or relationship of a business, personal, or family
nature that the broker has in the transaction;
(3)
other brokerage relationship options available in New Mexico;
H.
written disclosure of any adverse material facts actually known by the
associate broker or qualifying broker about the property or the transaction,
or about the financial ability of the parties to the transaction to
complete the
transaction; adverse material facts requiring disclosure do
not include any
information covered by federal fair housing laws or the
New Mexico Human
Rights Act;
I.
maintenance of any confidential information learned in the course of any
prior agency relationship unless the disclosure is with the former
client’s
consent or is required by law;
J.
unless otherwise authorized in writing, an associate broker or qualifying
broker shall not disclose to their customer or client during the transaction
that
their seller client or customer has previously indicated they will
accept a sales
price less than the asking or listed price of a property; that
their buyer client or customer has previously indicated they will pay a
price greater than the
price submitted in a written offer; the motivation of
their client or customer for
selling or buying property; that their seller
client or customer or their buyer
client or customer will agree to financing
terms other than those offered; or any
other information requested in
81
writing by the associate broker’s or the
qualifying broker’s customer or
client to remain confidential, unless disclosure is required by law.
[16.61.19.8 NMAC - Rp, 16.61.19.8 NMAC, 1-1-2004; A, 1-30-2004; A,
3-27-2004; A, 1-1-2006; A, 1-1-2006, A, 1-1-2007; A, 12-31-2008; A, 1-1-2012;
A,
1-1-2014]
16.61.19.9.
Brokerage relationships.
Brokerages working with consumers either as customers or clients may do so
through a variety of brokerage relationships. These relationships include but
are not limited to a transaction broker relationship, an exclusive agency
relationship or a dual agency relationship. For all regulated real estate
transactions, a customer or client may enter into an express written agreement
to become a client of a brokerage without creating an agency relationship, and
no agency duties will be imposed.
A.
Transaction broker: a qualifying broker, associate broker or brokerage
that provides real estate services without entering into an agency relationship.
The transaction broker relationship is a non-fiduciary relationship.
B.
Exclusive agency: an express written agreement between a person and a
brokerage wherein the brokerage agrees to exclusively represent as an agent
the interests of the person in a real estate transaction. Such agreements
include buyer agency, seller agency, designated agency, and subagency agree-
ments.
C.
Dual agency: an express written agreement that modifies existing
exclusive agency agreements to provide that the brokerage agrees to act as a
facilitator in a real estate transaction rather than as an exclusive agent for
either party to the transaction.
[16.61.19.9 NMAC - Rp, 16.61.19.9 NMAC, 1-1-2004; A, 12-31-2008; A.
1-1-2012]
16.61.19.10.
Dual agency relationship.
A.
Dual agency occurs when:
(1)
an associate broker or qualifying broker is agent for both a seller client
and a buyer client in the same transaction;
(2)
an associate broker is agent for either a seller client or a buyer client,
and the agent’s qualifying broker is agent for the other client in the
transaction; and,
(3)
in a transaction where a buyer client and a seller client are each
served by different associate brokers in an agency relationship supervised by
the same qualifying broker, and the qualifying broker does not choose the
designated agency option, both the associate brokers and the qualifying broker
are dual agents in the transaction.
82
B.
In all situations, a dual agent shall act in the capacity of a facilitator
rather than as an exclusive agent of either party to the transaction.
C.
Prior to writing or presenting offers, a dual agent shall obtain written
authority from the buyer client and the seller client in the form of a separate
dual agency agreement.
D.
Information obtained by an associate broker or qualifying broker prior to
the time that written authority for dual agency was granted shall not be
disclosed to the other party unless required by law or rules or permitted by the
client who originally disclosed the confidential information.
[16.61.19.10 NMAC - Rp, 16.61.19.11 NMAC, 1-1-2004; A, 1-1-2006]
PART 20: [R
ESERVED]
PART 21:
UNLICENSED ASSISTANTS
16.61.21.7.
Definitions.
Refer to 16.61.1.7.
[8-15-97, 12-15-99; 16.61.21.7 NMAC - Rn, 16 NMAC 61.21.7, 1-1-2002]
16.61.21.8.
Permitted activities.
An unlicensed assistant is permitted to engage in the following activities:
A.
obtaining information pursuant to written instructions from the respon-
sible person from public records, a multiple listing service, listing exchange or
from third party sources including, but not limited to, surveyors, banks,
appraisers and title companies;
B.
hosting and/or distributing literature at an open house under the
following conditions:
(1)
an unlicensed assistant does not discuss, negotiate or solicit
offers for
the property or provide any information other than printed
material prepared
and approved by the responsible person;
(2)
the responsible person is present at the open house
where the
unlicensed assistant is located;
(3)
all inquiries are referred to the responsible person or other
associate brokers or qualifying brokers;
C.
disseminating and distributing information prepared and approved by
the responsible person;
D.
picking up and delivering paperwork to associate brokers or qualifying
brokers other than the responsible person;
E.
picking up and delivering paperwork to sellers or purchasers after a
contract has been executed if the paperwork has already been reviewed and
83
approved by the responsible person, without answering any questions or
providing any opinions or advice to the recipient of the paperwork. All
substantive questions must be referred to the responsible person;
F.
writing advertisements, flyers, brochures, and other promotional mate-
rials for the approval of the responsible person, and placing classified adver-
tisements approved by the responsible person;
G.
placing or removing signs on real property as directed by the responsible
person;
H.
ordering repairs as directed by the responsible person;
I.
receiving and depositing funds, maintaining books and records,
while under the supervision of the responsible person;
J.
typing or word processing documents, including purchase and
listing
agreements, prepared by the responsible person.
[Rn, 16.61.21.8.9, 1-1-2000, A, 1-1-2000; 16.61.21.8 NMAC - Rn, 16 NMAC
61.21.8, 1-1-2002; A, 1-1-2006]
16.61.21.9.
Prohibited activities.
An unlicensed assistant is not permitted to engage in the following activities
in connection with the purchase, sale or exchange of real property:
A.
preparing legal documents such as listing and sales contracts;
B.
interpreting documents, offering opinions or advice;
C.
disseminating and distributing information, unless the information is
in
writing and is prepared and approved by the responsible person;
D.
obtaining personal or property information from a client or customer
of
the responsible person except when acting as a coordinator directed by
the
responsible person by gathering and following up on information
and the
status of matters pertaining to the transaction after a contract has
been executed;
E.
picking up from or delivering to customers or clients financial
documents prepared by title companies, lenders or other third persons for
the purpose of
obtaining signatures;
F.
attending a closing without the responsible person present;
G.
representing himself or herself as being an associate broker or a
qualifying broker or as being engaged in the business of buying,
selling, exchanging, renting, leasing, managing, auctioning or dealing with
options on
any real estate or the improvements thereon for others;
84
H.
telephone solicitation of any kind designed to procure transactions
requiring licensure under Section 61-29-1 et. Seq. NMSA 1978, including,
but
not limited to, procuring buyers, sellers, listings or appointments for
listing
presentations.
[8-15-97; 16.61.21.9 NMAC - Rn & A, 16 NMAC 61.21.9, 1-1-2002; A,
1-
1-2006]
16.61.21.10.
Disability.
Notwithstanding the foregoing, if an associate broker or qualifying broker is
a
person with a disability as defined in the Americans with Disabilities Act or
regulations promulgated hereunder, an unlicensed assistant may provide such
additional services normally requiring a license to or on behalf of the associate
broker or qualifying broker as would constitute a reasonable accommodation so
long as the unlicensed assistant is under the direct control of the associate
broker or qualifying broker, the associate broker or qualifying broker is as close
as is practical to the activity, and the unlicensed assistant is not represented
as being or having the authority to act as an associate broker or qualifying
broker. The associate broker or qualifying broker shall notify the commission
of the identity of all unlicensed assistants who perform services normally
requiring a license for the associate broker or qualifying broker pursuant to
this rule prior to performance of these services.
[8-15-97, A, 1-1-2000; 16.61.21.10 NMAC - Rn, 16 NMAC 61.21.10, 1-1-2002;
A, 1-1-2006]
16.61.21.11.
Penalties.
Unlicensed assistants are subject to the penalties of Section 61-29-17 and
61-29-17.2 NMSA 1978.
[8-15-97, A, 1-1-2000; 16.61.21.11 NMAC - Rn & A, 16 NMAC 61.21.11,
1-1-2002]
PART 22
[RESERVED]
PART 23:
TRUST ACCOUNTS
16.61.23.7.
Definitions.
Refer to 16.61.1.7 NMAC.
[16.61.23.7 NMAC - Rp, 16.61.23.7 NMAC, 1-1-2012]
16.61.23.8.
Description, designation and reconciliation.
A. Funds of others. A qualifying broker who receives money belonging to others
related to a real estate transaction shall deposit same only in a trust account in an
acceptable financial institution, title company or with a qualifying broker also involved
in the transaction.
85
B. Designation. All trust accounts shall be designated on the institution’s records as
“trust account” and include the trade name of the brokerage as registered with the
commission.
C. Electronic transactions. Online payments, direct deposits and other electronic
transactions are permitted as long as each transaction can be tracked on the bank
statement and on the property ledger.
D. Reconciliation. As defined in Subsection VV. of 16.61.1.7 NMAC of the
commission rules, trust account reconciliation must be performed monthly and verified
by the qualifying broker.
E. Property ledgers. Each trust account transaction shall be assigned to a managed
property (e.g. single family home, apartment complex or commercial property).
F. Number of trust accounts. A brokerage may have more than one trust account.
[16.61.23.8 NMAC - Rp, 16.61.23.8 NMAC, 1-1-2012; A, 1-11-2017]
16.61.23.9.
Types of trust accounts.
A qualifying broker shall have only the following types of accounts and they
shall be used only for the purposes stated.
A.
Brokerage trust account. This account shall be used for money
belonging
to others related to a real estate sales transaction. Property
management
funds may not be placed in this trust account. In lieu of a
brokerage trust
account, a broker may deposit funds with a title company
authorized to do
business in the state of New Mexico. If a title company
is used in lieu of a
brokerage trust account, then receipt and deposit
records shall be kept as
outlined in this section.
B.
Property management trust account. This account shall be used for
money belonging to others received by a qualifying broker related to
managing
properties for others. All management commissions and fees may
be deposited, withdrawn and tracked through the property management
trust account as
long as those commissions and fees are specified in the
management agreement.
C.
Special trust account. In the event the principals agree in writing that an
interest bearing special trust account is to be established, a written
agreement
shall be prepared stating as a minimum the following:
(1)
the qualifying broker shall be named as sole trustee;
(2)
name of the acceptable financial institution wherein the funds
are to be deposited;
(3)
the amount of interest to be paid on the funds and to
whom the
interest shall accrue;
(4)
the final disposition of principal and interest upon closing,
termination or default by either party to the transaction; and
(5)
the signatures of all parties to the transaction and the
qualifying
broker as trustee.
86
D.
Custodial account. Funds designated to be deposited in a custodial
account shall first be placed in a brokerage trust account or a property
management trust account of the qualifying broker and then may be
transferred to the custodial account of the owner. Custodial accounts
shall not
contain any funds other than those belonging to the owner of
the custodial account. Custodial accounts may be interest bearing;
however, the interest shall be paid only to the owner or his designee. The
qualifying broker shall
have on file a written agreement signed by all
principals as to the establishment and operational details of each custodial
account.
[16.61.23.9 NMAC - Rp, 16.61.23.8 & 9 NMAC, 1-1-2012]
16.61.23.10.
Record accessibility, retention and
inspection.
Every qualifying broker shall keep bank and office records of all funds
related to all trust accounts, as set forth below.
A.
Accessibility. Records shall be maintained at or accessible from the
brokerage office as registered with the commission.
B.
Retention. All trust account records shall be retained for six years after
the completion of a transaction.
C.
Property management. All property management trust account records
shall be retained for the full term of any agreement and for six years from the
termination of the management agreement.
D.
Inspection. All financial documents shall be subject to inspection by the
commission or its duly authorized representative at the designated location of
such records or at the offices of the commission. The records shall include, at
a minimum, clear indication of all funds received and disbursed on behalf of
others in all real estate transactions wherein the qualifying broker is involved.
E.
The qualifying broker is responsible for the maintenance and safekeep-
ing of all trust account records.
[16.61.23.10 NMAC - Rp, 16.61.23.9 NMAC, 1-1-2012]
16.61.23.11.
Deposits, disbursements and commingling.
A.
Deposits. All trust account deposits shall conform to the following
requirements.
(1) Timeliness. All funds of others pertaining to a real estate transaction
shall be deposited into the proper trust account per written agreement of the parties
to the transaction.
(2) Receipt records. A detailed record of all funds received shall be
maintained by the qualifying broker and shall clearly indicate the following:
87
(a) date received;
(b) date deposited;
(c) from whom received;
(d) amount of deposit;
(e) property address or legal description including unit number (if
unit number is applicable); and
(f) category or purpose of receipt (e.g., earnest money, rent,
security deposit, funds from owner, etc.).
(3) Wrongful deposits. The following actions involving any trust account
shall be improper and shall constitute commingling:
(a)
depositing a broker’s own funds into a trust account
without
disclosure to the owner of a managed property;
(b)
depositing funds in a trust account that are not directly
related to a
real estate transaction or a managed
property; and
(c)
depositing funds of others in an account that is not a
properly designated trust account.
B.
Disbursements. All trust account disbursements shall conform to the
following requirements.
(1)
Timeliness. All funds of others pertaining to a real estate
transaction
shall be disbursed as soon as reasonably possible after
the conclusion of a
transaction
(2)
Disbursement records. A detailed record of all funds disbursed
shall be
maintained by the qualifying broker and shall clearly indicate
the following:
(a)
check number or unique transaction identification
number;
(b)
date of disbursement;
(c)
payee;
(d)
category or purpose of disbursement;
(e)
amount of disbursement;
(f)
property address or legal description including unit
number (if unit
number is applicable).
(3)
Fees due broker. Fees as determined by written agreement
may be
disbursed as soon as the basis for calculation can be
determined and funds are
available.
(4)
Wrongful disbursements. The following actions involving
any trust
account shall be improper and shall constitute
commingling:
(a)
disbursing trust funds for personal use of the
qualifying broker or the broker’s designee;
(b)
disbursing commission or commission splits from any
trust account to any entity other than the qualifying
broker.
88
(c)
disbursing New Mexico gross receipts tax or other
non-property related business expenses directly from a
trust account;
(d)
disbursing funds before the completion of the related
transaction,
except upon court order; this provision does
not prevent a broker from
transferring funds from one
properly designated trust account to another
properly
designated trust account within the same brokerage;
(e)
disbursing funds in excess of the trust account balance
or in excess
of a specific property or client ledger balance;
and
(f)
trust account overages can only be disbursed in
accordance with the
Unclaimed Property Act with written
notification to the commission.
C.
Commingling. Commingling of trust account funds is not permitted.
Commingling shall include, but is not limited to, the following actions:
(1)
wrongful deposits as described in this section;
(2)
wrongful disbursements as described in this section;
(3)
allowing a property or client ledger within a trust account to be
in
deficit;
(4)
placing funds derived from the management of the qualifying
broker’s
personally owned properties, or properties owned by any
legally recognized
entity in which the qualifying broker has a ten (10)
percent or more interest in
a trust account containing funds of others;
(5)
failing to withdraw from the trust account within a reasonable
time,
funds to which the qualifying broker is entitled;
(6)
allowing money designated to one property or transaction to be
used
for the benefit of another property or transaction.
D.
Exceptions to commingling.
(1)
Non-trust funds may be placed in a trust account in an amount not
to
exceed the required minimum balance requirements of a financial
institution necessary to maintain the account and avoid charges.
(2)
Non-trust funds may be placed in a trust account in order to pay
fees
for credit card transactions and bank fees.
(3)
Depositing a broker’s own funds in a trust account with full
disclosure to the owner of a managed property and with specific, prior
written approval of the commission followed immediately by written
documentation to the
owner and to the commission of the deposit
transaction.
(4)
If a written sharing agreement specifies, funds of one property may
be
used for the benefit of another property owned by the same person
or entity.
(5)
Funds received from an owner for the benefit of all their
managed
properties may be credited to an owner’s ledger.
[16.61.23.11 NMAC - Rp, 16.61.23.10 NMAC, 1-1-2012; A. 1-1-2014]
89
PART 24 PROPERTY MANAGEMENT
16.61.24.7.
Definitions.
Refer to Definitions 16.61.1.7 NMAC.
[16.61.24.7 NMAC - Rp, 16.61.24.7 NMAC, 1-1-2012]
16.61.24.8.
Property management advisory committee.
The commission may appoint a property management advisory committee
(PMAC) with the goal of enhancing the professional competence of property
managers and reducing violations and complaints about property management
services.
[16.61.24.8 NMAC - N, 1-1-2012]
16.61.24.9.
Declaration of intent.
At the time of initial licensure or renewal, brokers and associate brokers
shall declare on the license application form their intent to offer property
management services for others.
[16.61.24.9 NMAC - N, 1-1-2012; A, 1-1-
2014]
16.61.24.10.
Compliance with applicable law
.
Brokers shall comply with applicable local, state and federal laws and
ordinances concerning managing and leasing property for others, including but
not limited to the New Mexico Uniform Owner Resident Relations Act, section
47-8-1 through 47-8-52 NMSA 1978.
[16.61.24.10 NMAC - N, 1-1-2012]
16.61.24.11.
Property management trust account.
In addition to the rules set forth in 16.61.23 NMAC, the following also apply to
property management trust accounts.
A.
This account shall only contain funds derived from the management of
property for others and shall be clearly identified as a property management
trust account.
B.
All funds received by the qualifying broker shall be deposited into the
property management trust account prior to any disbursements. Once
deposited, the qualifying broker may then disburse funds as specified in the
management agreement.
C.
Deposits from tenants shall be placed in a property management trust
account. Deposits may be held in a property management trust account or may
be disbursed to the owner as specified in the property management agreement
and agreed to by the tenant.
D.
Commingling of funds is not permitted. No funds may be deposited in a
property management trust account that are not received in connection with a
managed property except as provided for in 16.61.23 NMAC (Exceptions to
commingling).
90
E.
Property ledgers. When the property management trust account contains
funds from the rental or lease of more than one property, separate accounting
records shall be maintained on each property.
[16.61.24.11 NMAC - Rp,
16.61.24.8 NMAC, 1-1-2012; A, 1-1-2014]
16.61.24.12.
Reports and documents to owners.
A.
Owner statements. The qualifying broker shall provide the owner with a
report of receipts and disbursements monthly or as required by the
manage
ment agreement, showing the following:
(1)
previous balance;
(2)
funds deposited by category;
(3)
funds disbursed by category; and
(4)
ending balance.
B.
Additional reports may be provided as set forth in the property
management agreement.
C.
Documents. Fully executed copies of the management agreement shall be
provided to the owner after obtaining all signatures.
Except as otherwise
provided herein, s
igned leases or other
documents related to the management
agreement shall be provided to the
owner upon request, except for
documents that the property manager is
prohibited by law or contract from
disclosing, including but not limited to criminal background checks and
credit reports.
D.
Final statement after termination. Final accounting of trust account
funds shall be provided to the owner within 60 days of the effective date of
termination of a management agreement.
[16.61.24.12 NMAC - Rp,
16.61.24.12 NMAC, 1-1-2012; A, 1-1-2014]
16.61.24.13.
Management agreements.
A. There shall be a signed written management agreement between the brokerage and
the owner for each property managed. The agreement shall be executed prior to acting
on behalf of the owner and shall specify the brokerage relationship.
B. The agreement shall define the duties and responsibilities of the brokerage and the
owner including, but not limited to, the following:
(1) duties to be provided by the brokerage;
(2) disclosure of all fees to be charged to owner;
(3) disclosure of all fees to be charged to tenant that are retained by the
brokerage; and
(4) a question asking the owner to disclose the status of any foreclosure
or other financial situation that could affect the tenant’s occupancy.
C. If the property manager is prohibited by law or contract from providing the owner
with a given document, such as a tenant’s criminal background check or credit report,
the property management agreement shall include the following:
91
(1) a written disclosure to the owners that the property manager is
prohibited by law or contract from providing such documents to the
owner; or
(2) the owner’s written consent that such documents will not be provided.
[16.61.24.13 NMAC - Rp, 16.61.24.13 NMAC, 1-1-2012; A, 1-1-2017]
16.61.24.14.
Tenancy agreements.
There shall be a signed written tenancy agreement for each property or
rental
unit. Tenancy agreements shall include, but not be limited to, the
following:
a)
name of tenant;
b)
property address or legal description including unit number (if unit
number is applicable);
c)
rent amount;
d)
security deposit and other deposit amounts;
e)
when and where rent is to be paid;
f)
date possession began;
g)
date possession ends;
h)
all fees charged tenant; and
i)
how payments are to be applied to outstanding charges.
[16.61.24.14 NMAC - Rp, 16.61.24.14 NMAC, 1-1-2012]
16.61.24.15.
Record accessibility, retention and
inspection.
The property management brokerage shall maintain office records of all
properties managed for others.
(1)
Accessibility. Records shall be maintained at or accessible from the
brokerage office at the location as registered with the commission.
(2)
Retention. All property management records shall be retained for the full
term of any agreement and for six years from the termination of the
management agreement.
(3)
Inspection. All records are subject to inspection by the commission or its
duly appointed representative at or accessible from the brokerage office or
at
the offices of the commission.
(4)
The qualifying broker is responsible for the maintenance and safe-
keeping
of all property management records.
[16.61.24.15 NMAC - Rp, 16.61.24.15 NMAC, 1-1-2012]
16.61.24.16.
Short term and vacation rentals.
In addition to the provisions set forth above, the following special provisions
apply only with respect to the management of short term and vacation rentals.
(1)
Management agreement to authorize collection of New Mexico gross
receipts tax and lodger’s tax from tenant. Broker to report and pay
gross receipts tax and lodger’s tax due on all receipts derived from
92
reservations in
accordance with New Mexico law.
(2)
Tenancy agreement shall also include the following:
a)
arrival and departure dates;
b)
check-in and check-out times;
c)
nightly rental rate;
d)
rental deposit;
e)
security deposit;
f)
disclosure of all fees charged to tenant (e.g. cleaning, hot tub,
phone, cable internet, resort, etc.);
g)
accommodation rules (e.g. occupancy, parking, smoking, pets,
noise, etc.); and
h)
cancellation policy.
(3)
Reports to owners. In the monthly statement to the owner, the qualifying
broker shall also list rental income, credit card fees, maintenance charges
and amount paid in commission to the brokerage office.
(4)
Tenant security deposits. Funds collected as a tenant security deposit
shall be deposited into the property management trust account.
(5)
Tenant rental deposits. Funds collected as a tenant rental deposit shall
be
deposited into the property management trust account to secure a
reservation.
(6)
Employees of the brokerage handling short term or vacation rentals or
third parties who engage only in taking reservations for short term or
vacation
rentals shall not be required to be licensed.
[16.61.24.16 NMAC - Rp, 16.61.24.16 NMAC, 1-1-2012]
PART 25:
TIME SHARE REGISTRATION
16.61.25.7.
Definitions.
A.
‘‘Commission’’ means the New Mexico real estate commission.
B.
‘‘Developer’’ means any person creating or engaged in the business of
selling ten or more of its own time shares and includes any person who
controls, is controlled by or is in common control with the developer and who
is engaged in creating or selling time shares for the developer;
C.
‘‘Exchange company’’ means any person operating an exchange program;
D.
‘‘Purchaser’’ means any person, other than a developer or lender, who
owns or acquires an interest or proposes to acquire an interest in a time share;
E.
‘‘Time share salesperson’’ means a person, other than a person who has at
least a fifteen (15) percent interest in the developer, who sells or offers to sell
on behalf of a developer a time share to a purchaser; and
[8-15-97, A, 2-14-
2000; 16.61.25.7 NMAC - Rn & A, 16 NMAC 61.25.7,
1-1-
[Refer to 16.61.1.7 NMAC]
93
16.61.25.8.
Application for registration.
Every application for time share project registration shall be filed at the
commission office upon form TS-1 (questionnaire and application for
registration of time share project) and shall contain all information requested
by form
TS-1 applicable to the time share project. Registration fee: Every
application for time share project registration
must be accompanied by a
certified check made payable to the New Mexico real estate commission in the
amount of twenty dollars ($20.00) per time share
interest to be sold, to a
maximum of one thousand five hundred dollars
($1,500.00). Applications
for registration not accompanied by the appropriate
fee shall not be
considered by the commission. In the event a properly completed application
filed with the commission is denied for any reason, the
amount of two
hundred fifty dollars ($250.00) shall be retained by the
commission from the
application fee and the balance refunded to the applicant
developer. A
developer shall obtain a separate certificate of registration for each time
share program. Noncontiguous time share projects created by the same
developer may be treated for registration purposes as one time share program
only if such projects are (1) marketed and otherwise held out to the public as
one program, and (2) offered for sale by a single staff of time share
salespersons.
A.
A developer shall file an amendment to the time share project
registration with the commission within a reasonable time after the
occurrence of any
event or change in plans which materially affects the
operation or status of the
time share project, including but not limited to the
following:
(1)
a material change in ownership of the developer;
(2)
an increase or decrease in the number of time shares to be offered;
(3)
any material alteration of the physical plant and amenities, or of plans
for development thereof;
(4)
any material change in the exchange rights offered to purchasers;
(5)
the appearance of new hazards or other unusual conditions near the
time share project;
(6)
any material amendment to the documents governing rights and
restrictions of time share ownership
(7)
the recording of any new lien or encumbrance against the time share
project;
(8)
any change in management of the time share project;
(9)
any material change in the developer’s arrangement for the escrow of
purchaser’s funds; and,
(10)
any other change requiring a material amendment to the disclosure
statement for the project.
B.
Amendments to the time share project registration shall be made in
writing to the commission. Every amendment shall identify the section of the
project registration to be amended and shall contain a summary of the
amendment and a brief statement of the reasons for the amendment. The
94
amendment shall include either the text of the project registration section to be
substituted or a copy of the document to be modified.
C.
The commission may, in its discretion, require the developer to file a new
time share project registration application in the place of an amendment form.
Such refiling shall be without a fee.
D.
If a developer files an amendment to increase the number of time shares
to be offered for sale, a registration fee of twenty dollars ($20.00) per additional
time share interest, subject to the overall maximum of one thousand five
hundred dollars ($1,500.00), shall accompany the amendment.
[8-15-97; 16.61.25.8 NMAC - Rn, 16 NMAC 61.25.8, 1-1-2002]
16.61.25.9.
Disclosure statements.
A.
In addition to the disclosures required by Section 5 of the act,
each developer shall fully and conspicuously disclose to each purchaser
in the
disclosure statement the following information:
(1)
if any part of the project is not completely constructed at the
time of
sale, what financial arrangements have been made to secure the
completion of
each portion.
(2)
if the unit sold to the purchaser is not completely
constructed and
furnished at the time of sale, the projected date the
unit will be ready for
occupancy; any limitations upon the
purchaser’s exchange rights until the unit
is ready for occupancy; any
limitations upon the effectiveness of title insurance
obtained by the
purchaser prior to the time the unit is ready for occupancy;
(3)
a complete description of the project, including: the total
number of
time shares sold and to be sold in the project; the number
and types of units
available; the types of facilities and amenities
available;
(4)
a description of all terms and conditions of each charter
membership, owner referral, rental, resale, in-house exchange or
other program offered to time share owners; provided, however, if no
reference to the program will be
made to the purchaser prior to the
expiration of the purchaser’s 7-day right of
rescission, the developer
may provide such description, by separate letter to the
purchaser, after
the expiration of such period; and,
(5)
any other information contained in the questionnaire and
application for registration of time share project which the commission
may require to be
disclosed.
B.
Every disclosure statement shall contain an introductory summary
prescribed by the commission and completed by the developer entitled
‘‘summary of disclosures.’’ The ‘‘summary of disclosures’’ shall appear on the
cover,
or immediately following the cover of the disclosure statement, and
shall be on
the form prescribed by the commission. ‘‘Summary of
disclosures’’ forms are
available upon request at the commission office.
95
C.
Information contained in a disclosure statement shall be accurate on the
date it is supplied to a purchaser.
[8-15-97; 16.61.25.9 NMAC - Rn, 16 NMAC 61.25.9, 1-1-2002]
16.61.25.10.
Description of interest in time share
property;
recordation.
All contracts and deeds conveying an interest in a time share must contain
a
legal description of the time share project, time share unit and interval
number for which the interest is being conveyed, if applicable. The developer
shall not record a conveyance instrument until after the expiration of the
purchaser’s 7-day right of rescission.
[8-15-97; 16.61.25.10 NMAC - Rn, 16 NMAC 61.25.10, 1-1-2002]
16.61.25.11.
Questionnaire and application.
The ‘‘questionnaire and application for registration of time share project’’
(form TS-1) shall be made on the form prescribed by the commission.
Questionnaire and appl ication forms are available upon request
at the
commission office.
[8-15-97; 16.61.25.11 NMAC - Rn, 16 NMAC 61.25.11, 1-1-2002]
16.61.25.12.
License requirements.
Any individual, including a tour guide, who shows time share units or
facilities to prospective purchasers, shall hold a New Mexico real estate
associate broker’s or qualifying broker’s license. No person except the
developer may participate in any part of a time share sales presentation
unless that
person holds a New Mexico real estate associate broker or
qualifying broker
license.
[8-15-97, A, 2-14-2000; 16.61.25.12 NMAC - Rn, 16 NMAC 61.25.12, 1-1-
2002; A, 1-1-2006]
16.61.25.13.
Developers.
Every developer of a time share project registered in this state shall, in
addition to any other requirements by law:
A.
Maintain a full and complete record of all transactions wherein that
developer or any real estate associate broker or qualifying broker representing
said developer are engaged. All records shall contain, but are not limited to:
(1)
record of all purchases, sales, leases or exchanges of time share
interests in the registered time share project;
(2)
the name or names of the buyer and seller, or in the case of exchanges,
the names of the parties thereto;
(3)
the date or dates of such transactions;
(4)
the amount, if any, of the commission earned in such transaction; and,
96
(5)
the amount, if any, of the commission or commissions paid by the
qualifying broker or the developer to an associate broker and the amount, if
any, of the commission or commissions retained by the qualifying broker or
developer.
B.
All sales of time share interests by associate brokers must be through the
qualifying broker of the time share project, and all commissions to such
associate brokers must be disbursed by the qualifying broker. If a qualifying
broker transfers his license from a time share project and all commissions
earned by associate brokers have not been disbursed, those commissions must
be accounted for and remitted within a reasonable time by the time share
developer.
C.
The records required to be maintained by these regulations will be
available to the commission or its duly authorized representative at the
location of the registered time share project in New Mexico, at the location of
the time share sales office in New Mexico, or at the commission offices.
[8-15-97, A, 2-14-2000; 16.61.25.13 NMAC - Rn & A, 16 NMAC 61.25.13,
1-1-2002; A, 1-1-2006]
16.61.25.14.
Trust accounts.
Records to be maintained. Every developer of a time share project registered
in New Mexico shall, within a reasonable time, account for and remit
any
money coming into his possession which belongs to others during the
sale of a
time share interest. Such developer shall keep such funds of
others in an
escrow or trust account maintained by him in a bank or
savings and loan
institution or title company authorized to do business
in this state. Such
developer shall not commingle funds of others with his
own. Every developer
of a time share project registered in this state shall
maintain full and complete
records of all funds deposited in his trust
account. Such records shall clearly
indicate the date and from whom the
money was received, date deposited, date of withdrawal, and any other
pertinent information concerning the transaction. The records shall clearly
show for whose account the money is deposited
and to whom the money
belongs. All such records and funds shall be subject to
inspection by the
commission or its duly authorized representative at the
location in New
Mexico of the registered time share project, the location in New
Mexico of the
time share sales office, or at the commission offices.
[8-15-97, A, 2-14-2000;
16.61.25.14 NMAC - Rn, 16 NMAC 61.25.14, 1-1-
2002; A, 1-1-2006]
PART 26:
LAND TITLE TRUST FUND ACT
16.61.26.7.
Definitions.
Refer to 16.61.1.7.
[16.61.26.7 NMAC - N, 1-1-2002]
97
16.61.26.8.
Trust accounts, escrow accounts, special
accounts,
pooled interest-bearing
accounts, and disposition of
earned
interest on certain accounts.
A.
Every real estate qualifying broker who maintains a trust or escrow
account as required pursuant to the provisions of Subsection H of 61-29-12
NMSA 1978 may maintain a pooled interest-bearing escrow account and may
deposit all customer funds into that account except for:
(1)
funds required to be deposited into a property management trust
account under an express property management agreement; or
(2)
funds required to be deposited into an interest-bearing account under
an express agreement between the parties to a transaction and under which
agreement provisions are made for the payment of interest to be earned on the
funds deposited.
B.
The following procedures and forms should be used in establishing and
operating pooled interest-bearing escrow accounts.
(1)
Form 5828-1 instructions for financial institutions regarding process-
ing land title trust fund act and low income housing trust fund act accounts.
(2)
Form 5828-2 account enrollment and agreement between company
and financial institution.
(3)
Form 5828-3 financial institution report of interest remittance.
[16.61.26.8 NMAC - N, 1-1-2002; A, 1-1-2006]
PART 27:
FOREIGN BROKERS
16.61.27.1
Foreign Brokers
A.
A foreign broker may act in the capacity of a qualifying broker or associate broker
with respect to
commercial real estate located in New Mexico provided that prior to
performing any of the real estate
activities of a qualifying broker or associate broker the
foreign broker enters into a transaction-specific
written agreement with a New Mexico
qualifying broker that includes, at a minimum:
(1)
a description of the parties, the commercial real estate and any additional
information necessary to
identify the specific transaction governed by the agreement;
(2)
the terms of compensation between the foreign broker and the New Mexico
qualifying broker;
(3)
the effective date and definitive termination date of the agreement;
(4)
a statement that the foreign broker agrees to:
(a)
cooperate fully with the New Mexico qualifying broker and all
associate brokers designated by the
New Mexico qualifying broker.
(b)
except for the foreign broker’s interaction with the foreign broker’s
client, conduct all contact with the parties, including the general
public and other brokers, in association with the New Mexico
98
qualifying broker or associate broker designated by the New
Mexico qualifying broker.
(c)
conduct all marketing and solicitations for business in the name of
the New Mexico qualifying
broker.
(d)
timely furnish the New Mexico qualifying broker with copies of all
documents related to the
transaction that are required by the laws of
New Mexico to be retained by its brokers, including
without
limitation brokerage relationship disclosures, offers, counteroffers,
purchase and sale
contracts, leases and closing statements.
(e)
comply with and be bound by and subject to New Mexico law and
the rules of the real estate
commission;
(f)
submit to the jurisdiction of the courts of New Mexico with respect
to the transaction and any and
all claims related thereto by service
of process upon the New Mexico Secretary of State and
upon the
appropriate official of the state, province, or nation of the foreign
broker’s real estate
licensure.
E. When a New Mexico associate broker or qualifying broker makes a referral to or
receives a referral from a
foreign broker for the purpose of receiving a fee, commission or
other consideration, the qualifying broker
of the New Mexico brokerage office and the
foreign broker shall execute a written, transaction-specific
referral agreement at the time of
the referral.
[16.61.27.8 NMAC, Rp. 16.61.27.8, 1-1-2014; N, 1-1-2017]
16.61.27.2 Scope
The provisions in Part 3 of Chapter 61 apply to all applicants for real estate broker
licensure in New Mexico. [16.61.27.2 NMAC, Rp. 16.61.27.2 NMAC, 1-1-2014; N, 1-
1-2017]
16.61.27.3 Statutory Authority
Part 3 of Chapter 61 is promulgated pursuant to the Real Estate License Law, NMSA
1978, Section 61-29-16.1 [16.61.27.3 NMAC, Rp. 16.61.27.3 NMAC, 1-1-2014; N, 1-
1-2017]
16.61.27.4 Duration
The duration of Part 27 is Permanent. [16.61.27.4 NMAC, Rp. 16.61.27.4 NMAC, 1-1-2014;
N, 1-1-2017]
16.61.27.5 Effective Date
The effective date is 1-1-2017, unless a later date is cited at the end of a section. [16.61.27.5
NMAC, Rp. 61.61.27 NMAC, 1-1-2014; N, 1-1-2017]
16.61.27.6 Objective
99
The objective of Part 27 of Chapter 61 is to set forth the requirements for a foreign broker, a
real estate broker licensed in another state, to conduct commercial real estate brokerage
business in New Mexico. [16.61.27.6 NMAC, Rp. 61.61.27.6 NMAC, 1-1-2014; N, 1-1-2017]
16.61.27.7 Definitions
Refer to 16.61.1.7 NMAC [16.61.27.7 NMAC, Rp. 61.61.27.7 NMAC, 1-1-2014; N, 1-1-2017]
PART 28: [RESERVED]
PART 29
:
TRADE NAME
16.61.29.7.
Definitions.
Refer to 16.61.1.7 NMAC.
[16.61.29.7 NMAC - Rp, 16 NMAC 61.29.7, 1-1-2002]
16.61.29.8.
Registration and use of trade name.
A.
Prior to the use of any trade name for the operation of a brokerage,
the
qualifying broker shall register such trade name with the
commission. A
qualifying broker must conduct their real estate brokerage
business under a
B.
trade name registered with the commission. A qualifying broker
wishing to
conduct real estate brokerage business under a different trade
name must execute a new trade name registration form, provide
verification of current errors and omission coverage and pay the required
fee with the commission.
C.
When a brokerage ceases using a trade name, the qualifying broker
shall,
within 10 days, return the qualifying broker’s license and the
licenses of all
qualifying and associate brokers affiliated with the brokerage
to the commission, advise the commission in writing that the trade name is
no longer being used, and remove all signs and advertising using the trade
name.
D.
Use of a trade name in such a fashion as to mislead the public may
be
grounds for disciplinary action by the commission.
E.
An associate broker executing a trade name registration form for
the
purposes of reinstating qualifying broker status shall be required, as a
condition of reinstatement, to provide documentation of having completed
the
commission-approved minimum four-hour qualifying broker refresher
course during the current license renewal cycle.
[16.61.29.8 NMAC - Rp, 16 NMAC 61.29.8, 1-1-2002; A, 1-1-2006; A,
1-1-2012]
100
PART 30:
BRANCH OFFICE/TEMPORARY OFFICE
[REPEALED
01-01-06]
PART 31: SIGNAGE
16.61.31.7.
Definitions.
Refer to 16.61.1.7 NMAC.
[1-1-2000; 16.61.31.7 NMAC - Rn, 16 NMAC 61.31.7, 1-1-2002]
16.61.31.8.
Requirements.
A.
Each qualifying broker shall place and maintain a legible sign in
a
conspicuous place near the office entrance identifying them as the
qualifying broker. The trade name of the brokerage as registered with the
commission
shall be clearly shown.
B.
In the case of a qualifying broker whose office is located in an office
building, the qualifying broker may comply with this regulation by listing
their
name on the directory of offices provided by the office building
and by
displaying the trade name on or near the office entrance.
[1-1-2000, A, 2-14-2000; 16.61.31.8 NMAC - Rn, 16 NMAC 61.31.8, 1-1-2002;
A, 12-31-2008]
PART 32
REAL ESTATE ADVERTISING
16.61.32.7.
Definitions.
Refer to 16.61.1.7 NMAC.
[1-1-2000; 16.61.32.7 NMAC - Rn, 16 NMAC 61.32.7, 1-1-2002]
16.61.32.8.
Advertisements.
All real estate advertising shall be a true and factual representation of the property and
real estate services being advertised and the brokerage providing the services and shall
not be presented in such a manner that will confuse or mislead the public.
B. Every qualifying broker advertising real property for others for sale, purchase, lease,
exchange or rent, including short-term or vacation rentals, or advertising real estate
services, shall at a minimum, use in such advertising the trade name and current
brokerage office telephone number as registered with the commission. Directional
signs are exempt from these requirements. Additional telephone numbers may be used
in such advertising.
C. Associate brokers, when advertising real property for others for sale, purchase,
lease, exchange or rent, or when advertising real estate services, shall include in the
advertisement the trade name and the current telephone number as registered with the
commission of the brokerage with which they are affiliated. Effective January 1, 2017,
the brokerage trade name and telephone number shall be prominently displayed in a
101
type size not less than thirty-three percent of the type size of the associate broker’s
name, or in the case of a team of associate brokers, the team name.
D. A broker advertising to, sell, or exchange real property which the broker owns or
partially owns shall indicate within such advertising, including signs, that the broker
owns the real property. Disclosure of such ownership must also be made in the listing
contract, purchase agreement, or exchange agreement. If an owner-broker engages a
third party broker to list the owner-broker’s property, the third party broker is not
required to make an owner-broker disclosure in advertising and signs, but such
disclosure is required in the listing contract, purchase agreement or exchange
agreement. A broker advertising to rent or lease real property which the broker owns or
partially owns is not required to disclose such ownership in advertising and signs, but is
required to make such disclosure in rental or lease agreements.
E. When advertising real property owned by a broker and the telephone number of the
brokerage is used in the advertisement, the advertisement must also include the trade
name of the brokerage as registered with the commission.
F. All advertising must be in compliance with all local, state and federal laws and
regulations.
G. These requirements apply to all forms of advertising, including but not limited to
print, audio and video recordings, computer presentations, online and electronic media.
In the event that disclosure of the brokerage name and telephone number as registered
with the commission is not practical in electronic displays of limited information, such
as thumbnails, text messages, links and tweets of 200 characters or less, such displays
are exempt from the disclosure requirement provided such displays are linked to a
display that includes all of the required disclosures.
[N, 1-1-2000; 16.61.32.8 NMAC - Rn, 16 NMAC 61.32.8, 1-1-2002; A, 1-1-2006; A,
1-1-2007; A, 1-1-2017]
PART 33:
DOCUMENT EXECUTION AND DELIVERY
16.61.33.7.
Definitions.
Refer to 16.61.1.7.
[16.61.33.7 NMAC - Rp, 16 NMAC 61.33.7, 1-1-2002]
16.61.33.8.
Execution of documents.
All transactions shall be documented and signed by all parties to the
transaction.
[16.61.33.8 NMAC - Rp, 16 NMAC 61.33.8, 1-1-2002]
16.61.33.9.
Delivery of documents.
Except as otherwise provided by law, in all circumstances it shall be the
responsibility of each broker engaged in a transaction to assure that all parties
to the transaction receive legible copies of any and all documents they have
signed and any documents that pertain to their respective interest in the
102
transaction as soon as practicably possible, and copies of all fully executed
documents thereafter.
[16.61.33.9 NMAC - Rp, 16 NMAC 61.33.9, 1-1-2002; A, 1-1-2006]
PART 34
[RESERVED]
PART 35:
CHILD SUPPORT ENFORCEMENT
16.61.35.7.
Definitions.
All terms defined in the Parental Responsibility Act shall have the same
meanings in Part 35 of Chapter 61 as used in Part 35.
A.
‘‘HSD’’ means the New Mexico human services department;
B.
‘‘license’’ means a license issued by the commission that a person is
required to have to engage in the profession or occupation of real estate in New
Mexico;
C.
‘‘statement of compliance’’ means a certified statement from HSD stating
that an applicant or broker is in compliance with a judgment and order for
support; and
D.
‘‘statement of non-compliance’’ means a certified statement from HSD
stating that an applicant or broker is not in compliance with a judgment and
order for support.
[8-15-97, A, 2-14-2000; 16.61.35.7 NMAC - Rn, 16 NMAC 61.35.7, 1-1-2002;
A, 1-1-2006]
16.61.35.8.
Disciplinary action.
If a license applicant or licensed broker is not in compliance with a judgment
and order for support, the commission:
A.
shall deny an application for a license;
B.
shall deny the renewal of the license; and
C.
has grounds for suspension or revocation of the license.
[8-15-97; 16.61.35.8 NMAC - Rn & A, 16 NMAC 61.35.8, 1-1-2002; A,
1-1-2006]
16.61.35.9.
Certified list.
Upon receipt of HSD’s certified list of obligors not in compliance with a
judgment and order for support, the commission shall match the certified list
103
against the current list of commission brokers or broker applicants. Upon the
later receipt of an application for license or renewal, the commission shall
match the applicant against the current certified list. By the end of the month
in which the certified list is received, the commission shall report to HSD the
names of commission brokers or broker applicants who are on the certified list
and the action the commission has taken in connection with such brokers or
broker applicants.
[8-15-97, A, 2-14-2000; 16.61.35.9 NMAC - Rn & A, 16 NMAC 61.35.9,
1-1-2002; A, 1-1-2006]
16.61.35.10.
Initial action.
Upon determination that a broker or broker applicant appears on the
certified list, the commission shall:
A.
commence a formal proceeding as set forth in Section 11 of Part 35 to take
the appropriate action under Section 8 of Part 35; or
B.
for current brokers only, informally notify the broker that the broker’s
name is on the certified list, and that the broker must provide the commission
with a subsequent statement of compliance from HSD by the earlier of the
application for license renewal or a specified date not to exceed thirty (30) days.
If the broker fails to provide this statement, the commission shall commence a
formal proceeding as set forth in Section 11 of Part 35.
[8-15-97, A, 2-14-2000; 16.61.35.10 NMAC - Rn, 16 NMAC 61.35.10, 1-1-
2002; A, 1-1-2006]
16.61.35.11.
Notice of contemplated action.
Prior to taking any action specified in Section 8 of Part 35, the commission
shall serve upon the broker or broker applicant a written notice stating that:
A.
the commission has grounds to take such action, and that the commission
shall take such action unless the broker or broker applicant:
(1)
mails a letter (certified, return receipt requested) within
twenty (20)
days after service of the notice requesting a hearing; or
(2)
provides the commission, within thirty (30) days of the date
of the
notice, with a statement of compliance from HSD; and
B.
if the broker or broker applicant disagrees with the determination of
non-
compliance, or wishes to come into compliance, the broker or broker
applicant
should contact the HSD child support enforcement division.
[8-15-97, A, 1-1-2000; 16.61.35.11 NMAC - Rn & A, 16 NMAC 61.35.11,
1-1-2002; A, 1-1-2006]
104
16.61.35.12.
Evidence and proof.
In any hearing under Part 35 of Chapter 61, relevant evidence is limited to
the following:
A.
a statement of non-compliance is conclusive evidence that requires the
commission to take the appropriate action under Section 8 of Part 35 of
Chapter 61 unless;
B.
the broker or broker applicant provides the commission a subsequent
statement of compliance which shall preclude the commission from taking any
action based solely on the prior statement of non-compliance.
[8-15-97; 16.61.35.12 NMAC - Rn & A, 16 NMAC 61.35.11, 1-1-2002; A,
1-1-2006]
16.61.35.13.
Order.
When an action is taken under Part 35 of Chapter 61 solely because the
license applicant or Licensee is not in compliance with a judgment and order
for support, the order shall state that the application or license shall be
reinstated upon presentation of a subsequent Statement of Compliance. The
Commission may also include any other conditions necessary to comply with
Commission requirements for reapplication or reinstatement of lapsed li-
censes.
[8-15-97, A, 1-1-2000; 16.61.35.13 NMAC - Rn & A, 16 NMAC 61.35.13,
1-
1-2002; A, 1-1-2006]
16.61.35.14.
Procedures.
Proceedings under Part 35 of Chapter 61 shall be governed by the Uniform
Licensing Act, Section 61-1-1, et seq., or any other adjudicatory procedures
adopted by the commission.
[8-15-97; 16.61.35.14 NMAC - Rn, 16 NMAC 61.35.14, 1-1-2002]
PART 36:
COMPLAINTS AND INVESTIGATIONS
NMREC Web link to Disciplinary Actions Tab
NMREC Web link to Filing a Complaint Tab
16.61.36.7.
Definitions.
Refer to 16.61.1.7 NMAC.
[16.61.36.7 NMAC - Rp, 16 NMAC 61.36.7, 1-1-2002]
16.61.36.8.
Complaints.
The commission may file a complaint against any person who engages in the
business or acts in the capacity of a real estate broker or a real estate
commission approved education sponsor or instructor, in New Mexico with or
105
without a New Mexico real estate license based on information indicating that
there may have been a violation of the real estate license law or the
commission rules.
The commission may also act on a complaint made by a
member of the
commission, a member of the public, or another real estate
broker. Upon
receipt of a complaint the commission will determine if the
complaint is
within its jurisdiction. If the commission determines the complaint is
within its jurisdiction, the complaint will be assigned for investigation.
[16.61.36.8 NMAC - Rp, 16 NMAC 61.36.8, 1-1-2002; A, 1-1-2006; A,
12-31-2008]
16.61.36.9.
Investigations.
In conducting an investigation, the commission shall give the person under
investigation the opportunity to answer the complaint made against them in writing and
to produce relevant documentary evidence, in accordance with the Uniform Licensing
Act. If the person under investigation fails to respond within 10 working days of
having been provided with a copy of the complaint and having been informed by the
commission in writing that a complaint has been filed against him or her, the
investigation may proceed without benefit of that person's response.
A. If the investigation reveals that the complaint does not involve a
violation of the Real Estate License Law or the commission rules, the complaint will be
dismissed by the commission, and the parties to the complaint will be so advised.
B. If the investigation reveals that the complaint does involve a violation
of the Real Estate License Law or the commission rules, the commission may refer the
complaint to the attorney general’s office and request that a notice of contemplated
action (NCA) be issued to the respondent, or offer the respondent a pre-NCA settlement
with the understanding that if the respondent does not accept the settlement offer, the
complaint will be referred to the attorney general’s office for the issuance of an NCA.
C. Withdrawal of a complaint by a member of the commission, a member
of the public, or another broker does not bind the commission to dismiss the complaint.
[16.61.36.9 NMAC - Rp, 16 NMAC 61.36.9, 1-1-2002; A, 1-1-2017]
106
CHAPTER 47 -
Property Law
ARTICLE 8-
Owner-Resident Relations
107
CHAPTER 47
Property Law
ARTICLE 8
Owner-Resident Relations
Sec.
47-8-1. Short title.
47-8-2. Purpose.
47-8-3. Definitions.
47-8-4. Principles of law and equity.
47-8-5. General act.
47-8-6. Recovery of damages.
47-8-7. Provision for agreement.
47-8-8. Rights, obligations and remedies.
47-8-9. Exemptions.
47-8-10. Judicial jurisdiction.
47-8-11. Obligation of good faith.
47-8-12. Inequitable agreement provision.
47-8-13. Service of notice.
47-8-14. Terms and conditions of agreement.
47-8-15. Payment of rent.
47-8-16. Waiver of rights prohibited.
47-8-17. Unlawful agreement provision.
47-8-18. Deposits.
47-8-19. Owner disclosure.
47-8-20. Obligations of owner. 47-8-
21. Relief of owner liability. 47-8-22.
Obligations of resident.
47-8-23. Application of rules or
regulations.
47-8-24. Right of entry.
47-8-25. Use of dwelling unit limited.
47-8-26. Delivery of possession.
47-8-27. Repealed.
47-8-27.1. Breach of agreement by owner
and
relief by resident.
47-8-27.2. Abatement.
47-8-28. Repealed.
47-8-29. Repealed.
47-8-30. Action for counterclaim for
resident.
Sec.
47-8-31. Resident rights following fire or ca-
sualty.
47-8-32. Repealed.
47-8-33. Breach of agreement by resident and
relief by owner.
47-8-34. Notice of extended absence.
47-8-34.1. Disposition of property left on the
premises.
47-8-34.2. Personal property and security de-
posit of deceased resident; con-
tact person.
47-8-35. Claim for rent and damages.
47-8-36. Unlawful removal and diminution of
services prohibited. 47-8-
36.1. Landlord lien.
47-8-37. Notice of termination and damages.
47-8-38. Injunctive relief.
47-8-39. Owner retaliation prohibited.
47-8-40. Action for possession by owner.
47-8-41. Action for possession by owner or
resident.
47-8-42. Petition for restitution.
47-8-43. Issuance of summons.
47-8-44. Absence from court of defendant.
47-8-
45. Legal or equitable defense.
47-8-46. Writ of restitution.
47-8-47. Appeal stays execution.
47-8-48. Prevailing party rights in law suit;
civil penalties.
47-8-49. Unlawful and forcible entry.
47-8-
50. Prior transactions valid.
47-8-51. Applicability.
47-8-52. Conflicts; applicability of law.
107
47-8-1. Short title.
Sections 47-8-1 through 47-8-51 [47-8-52] NMSA 1978 may be cited as the
‘‘Uniform Owner-Resident Relations Act’’.
History: 1953 Comp., § 70-7-1,
enacted by Laws 1975, ch. 38, § 1; 1995, ch. 195,
§ 1.
STATUTORY NOTES
Cross reference.— Conversion buildings, 47-7D-12
NMSA 1978.
JUDICIAL DECISIONS
Constitutionality.
Generally.
Applicability.
Construction.
Instructions.
Notice Requirements.
Statute of limitations.
Constitutionality.
70-7-27B, 1953 Comp. is not found to be constitutionally
vague in connection with an action brought by a landowner
to recover un- paid rent under the Uniform Owner-Resident
Relations Act, ‘‘former 70-7-1, 1953 Comp. (now 47-8-1
NMSA 1978)’’, after the resident was awarded damages.
Kepler v. Covarrubia, 91 N.M. 443, 575 P.2d 952 (1978).
Generally.
Property owners’ actions against residents were not barred
by Uniform Owner-Resident Relations Act (UORRA)
because the UORRA created no bar to an otherwise proper
action for possession brought in retaliation for residents’
complaints about their noisy neighbors. Casa Blanca
Mobile Home Park v. Hill, 1998-NMCA-094, 125 N.M.
465, 963 P.2d 542, cert. denied, 125 N.M. 322, 961 P.2d
167 (1998).
Ruling that plaintiff mobile home park met the notice
requirements contained in the Mobile Home Park Act, 47-
10-1 NMSA 1978, for the termination of a mobile home
tenancy was reversed where the park failed to strictly
comply with the notice requirements of the Owner-
Resident Relations Act, 47-8-1 to 47-8-52 NMSA 1978,
showing good cause for the termination of defendant
renter’s month-to-month tenancy in the park; even though
there had been extensive communication, both written and
oral, regarding the park’s dissatisfaction with the renter’s
maintenance of the rental space, the park was required to
include in its notice to quit a statement of the cause
justifying the termination and strict compliance with the
notice provision was required. Green Valley Mobile Home
Park v. Mulvaney, 1996-NMSC-037, 121 N.M. 817, 918
P.2d 1317. Metropolitan court has legal and equity
jurisdiction in cases arising under the New Mexico
Uniform Owner-Resident Relations Act, 47- 8-1 NMSA
1978 et seq., pursuant to 47-8-45 NMSA 1978; the
application of equitable defenses in cases involving public
housing rests in the sound discretion of the metropolitan
court, and its exercise thereof will not be disturbed on
appeal unless there is a clear abuse of discretion.
Albuquerque v. Brooks, 114 N.M. 572, 844 P.2d 822
(1992).
Applicability.
New Mexico Uniform Owner-Resident Relations Act
applied to parties’ agreement that constituted a residential
lease; tenants had no right to abate rent where property was
not uninhabitable. Hedicke v. Gunville, 2003- NMCA-032,
133 N.M. 335, 62 P.3d 1217, cert. denied, 133 N.M. 413,
63 P.3d 516 (2003). Contention of a tenant that the implied
warranty of habitability was in effect in New Mexico and
that he had a right to abate rent because the landlord did
not supply reasonable heat for his rental unit was remanded
to the trial court for determination of the applicability of
47-8-20 NMSA 1978 of the Uniform Owner-Resident
Relations Act, 47-8-1 to 47-8-51 NMSA 1978, which
encompassed the issue and which was adopted after the
court held that there was no implied warranty of
habitability in New Mexico. T.W.I.W., Inc. v. Rhudy, 96
N.M. 354, 630 P.2d 753 (1981).
Construction.
The Uniform Owner-Resident Relations Act, 47-8-1 NMSA
1978 et seq., does not create a bar to property owners’ alleged
retaliatory action for possession of the premises following the
residents’ complaints about their noisy neighbors. Casa
Blanca Mobile Home Park v. Hill, 1998-NMCA-094, 125
N.M. 465, 963 P.2d 542, cert. denied, 125 N.M. 322, 961
P.2d 167 (1998)
108
Instructions.
Given the provisions of Rules 12-216 and 1-051 NMRA,
because defendant landlord did not tender correct
instructions to inform jury of his theory that the Owner-
Resident Relations Act, 47-8-1 to 47-8-51 NMSA 1978,
did not apply because plaintiff tenant was an employee
whose residency depended on his employment status, and
because landlord was not entitled to rely on the concept of
fundamental error to escape the consequences of his failure
to object and his failure to tender appropriate instructions,
judgment in favor of tenant against landlord was affirmed.
Gracia v. Bittner, 120 N.M. 191, 900 P.2d 351 (Ct. App.
1995).
Notice.
Resident is not entitled to abatement of rent after being
awarded damages in connection with an action brought by a
landowner to recover unpaid rent under the Uniform Owner-
Resident Relations Act, ‘‘former 70-7-1, 1953 Comp. (now
47-8-1 NMSA 1978)’’, because the resident failed to give
written notice of any breach as required by 70-7-29, 1953
Comp. Kepler v. Covarrubia, 91 N.M. 443, 575 P.2d 952
(1978).
Requirements.
‘‘Former 70-7-13A, 1953 Comp. (now 47-8-13NMSA
1978)’’ controls any notice requirement under the Uniform
Owner-Resident Relations Act, ‘‘former 70-7-1, 1953
Comp. (now 47-8-1 NMSA 1978)’’, except for the written
notice specifically required by 70-7-29, 1953 Comp.
Kepler v. Covarrubia, 91 N.M. 443, 575 P.2d 952 (1978)
Statute of limitations.
Where the tenant waited three years after removed out of
the rental property before suing the landlords for
negligence in connection with mold and for a violation of
their obligations under 47-8-20A(1)-(4) NMSA 1978 of the
New Mexico Uniform Owner-Resident Relations Act, the
tenant’s claim was barred by the applicable three-year
statute of limitations set forth in 37-1-8 NMSA 1978.
Applying the discovery rule, the tenant’s cause of action
accrued no later than the day he vacated the home; at that
time, the tenant knew there was mold in the home, believed
that the mold was causing his symptoms, and had been
informed that mold could be dangerous to humans. Gerke
v. Romero, 2010-NMCA-060, 148 N.M. 367, 237d 111
47-8-2. Purpose.
The purpose of the Uniform Owner-Resident Relations Act [47-8-1 NMSA
1978] is to simplify, clarify, modernize and revise the law governing the
rental
of dwelling units and the rights and obligations of owner and resident,
and to encourage the owners and the residents to maintain and improve the
quality
of housing in New Mexico.
History: 1953 Comp., § 70-7-2,
enacted by Laws 1975, ch. 38, § 2.
JUDICIAL DECISIONS
Negligence.
Because 47-8-2 NMSA 1978 in the Uniform Owner-Resident
Relations Act, 47-8-1 to 47- 8-51 NMSA 1978, states that the
Act’s general purpose is to clarify the rights and the
obligations of owners and residents and because it is not clear
that the provision in 47-8-47 NMSA 1978, which gives a
tenant a right to file an appeal to stay the execution of a writ
of restitution regarding an eviction action, in the Act is
intended to provide protection against sheriff ’s deputies who
execute the writ due to not know- ing of the appeal, the
execution of the writ by the deputies did not entitle the
tenants to a recovery as to the negligence claim that was filed
against the County of Bernalillo (New Mexico), the sheriff
and the deputies. Runge v. Fox, 110 N.M. 447, 796 P.2d
1143 (Ct. App. 1990).
47-8-3. Definitions.
As used in the Uniform Owner-Resident Relations Act [47-8-1 NMSA 1978]:
A.
‘‘abandonment’’ means absence of the resident from the dwelling,
without notice to the owner, in excess of seven continuous days; providing such
absence occurs only after rent for the dwelling unit is delinquent;
109
B.
‘‘action’’ includes recoupment, counterclaim, set-off, suit in equity
and any other proceeding in which rights are determined, including an action
for possession;
C.
‘‘amenity’’ means a facility appurtenance or area supplied by the
owner and the absence of which would not materially affect the health and
safety of the resident or the habitability of the dwelling unit;
D.
‘‘codes’’ includes building codes, housing codes, health and safety
codes, sanitation codes and any law, ordinance or governmental regulation
concerning fitness for habitation or the construction, maintenance, operation,
occupancy or use of a dwelling unit;
E.
‘‘deposit’’ means an amount of currency or instrument delivered to
the owner by the resident as a pledge to abide by terms and conditions of the
rental agreement;
F.
‘‘dwelling unit’’ means a structure, mobile home or the part of a
structure, including a hotel or motel, that is used as a home, residence or
sleeping place by one person who maintains a household or by two or more
persons who maintain a common household and includes a parcel of land
leased by its owner for use as a site for the parking of a mobile home;
G.
‘‘eviction’’ means any action initiated by the owner to regain posses-
sion of a dwelling unit and use of the premises under terms of the Uniform
Owner-Resident Relations Act;
H.
‘‘fair rental value’’ is that value that is comparable to the value
established in the market place;
I.
‘‘good faith’’ means honesty in fact in the conduct of the transaction
concerned as evidenced by all surrounding circumstances;
J.
‘‘normal wear and tear’’ means deterioration that occurs based upon
the use for which the rental unit is intended, without negligence, carelessness,
accident, abuse or intentional damage of the premises, equipment or chattels
of the owner by the residents or by any other person in the dwelling unit or on
the premises with the resident’s consent; however, uncleanliness does not
constitute normal wear and tear;
K.
‘‘organization’’ includes a corporation, government, governmental
subdivision or agency thereof, business trust, estate, trust, partnership or
association, two or more persons having a joint or common interest or any
other legal or commercial entity;
L.
‘‘owner’’ means one or more persons, jointly or severally, in whom is
vested:
(1)
all or part of the legal title to property, but shall not
include the
limited partner in an association regulated under the
Uniform Limited Partnership Act [54-2-1 NMSA 1978]; or
110
(2)
all or part of the beneficial ownership and a right to
present use
and enjoyment of the premises and agents thereof and
includes a mortgagee in
possession and the lessors, but shall not
include a person or persons, jointly or severally, who as owner leases
the entire premises to a lessee of vacant land for
apartment use;
M.
‘‘person’’ includes an individual, corporation, entity or
organization;
N.
‘‘premises’’ means facilities, facilities and appurtenances, areas and
other facilities held out for use of the resident or whose use is promised to the
resident coincidental with occupancy of a dwelling unit;
O.
‘‘rent’’ means payments in currency or in-kind under terms and
conditions of the rental agreement for use of a dwelling unit or premises, to be
made to the owner by the resident, but does not include deposits;
P.
‘‘rental agreement’’ means all agreements between an owner and
resident and valid rules and regulations adopted under Section 47-8-23 NMSA
1978 embodying the terms and conditions concerning the use and occupancy of
a dwelling unit or premises;
Q.
‘‘resident’’ means a person entitled under a rental agreement to
occupy a dwelling unit in peaceful possession to the exclusion of others and
includes the owner of a mobile home renting premises, other than a lot or
parcel in a mobile home park, for use as a site for the location of the mobile
home;
R.
‘‘roomer’’ means a person occupying a dwelling unit that lacks a
major bathroom or kitchen facility in a structure where one or more major
facilities are used in common by occupants of the dwelling units. As referred to
in this subsection, ‘‘major facility’’, in the case of a bathroom, means toilet and
either a bath or shower and, in the case of a kitchen, means refrigerator, stove
or sink;
S.
‘‘single family residence’’ means a structure maintained and used as
a single dwelling unit. Notwithstanding that a dwelling unit shares one or
more walls with another dwelling unit, it is a single family residence if it has
direct access to a street or thoroughfare and shares neither heating facilities,
hot water equipment nor any other essential facility or service with any other
dwelling unit;
T.
‘‘substantial violation’’ means a violation of the rental agreement or
rules and regulations by the resident or occurring with the resident’s consent
that occurs in the dwelling unit, on the premises or within three hundred feet
of the premises and that includes the following conduct, which shall be the sole
grounds for a substantial violation:
(1)
possession, use, sale, distribution or manufacture of a controlled
substance, excluding misdemeanor possession and use; unlawful use
of a deadly weapon;
(2)
unlawful action causing serious physical harm to
another
person;
111
sexual assault or sexual molestation of another person;
entry into the dwelling unit or vehicle of another person without that
person’s permission and with intent to commit theft or assault;
(3)
theft or attempted theft of the property of another person by use
or
threatened use of force; or
(4)
intentional or reckless damage to property in excess of one
thousand dollars ($1,000);
U.
‘‘term’’ is the period of occupancy specified in the rental
agreement;
and;
V.
‘‘transient occupancy’’ means occupancy of a dwelling unit for which
rent
is paid on less than a weekly basis or where the resident has not
manifested an intent to make the dwelling unit a residence or
household.
History: 1953 Comp., § 70-7-3, enacted by
Laws 1975, ch. 38, § 3; 1977, ch. 55, § 1; 1983,
ch. 122, § 18; 1985, ch. 146, § 1; 1989, ch. 340, §
1; 1995, ch. 195, § 2; 1997, ch. 39,
§ 1; 1999, ch.
91, § 1.
STATUTORY NOTES
Cross reference. — Deposits, 47-8-18 NMSA 1978.
JUDICIAL DECISIONS
Generally.
Applicability.
Eviction.
Holdover period.
Generally.
Uniform Building Code, 47-8-3C (now D) NMSA 1978, sets
minimum standards to safeguard health and property by
regulating and controlling the use and occupancy and
maintenance of all buildings and structures within New
Mexico; 47-8-3C (now D) NMSA 1978 defines ‘‘codes’’
within the Act as including building codes. T.W.I.W., Inc. v.
Rhudy, 96 N.M. 354, 630 P.2d 753 (1981).
Applicability.
Court disagreed that the New Mexico Uniform Owner-
Resident Relations Act (Act) applied to this case because
there were no claims alleged under the Act; however, the
court noted in passing that the Act includes a definition of
single family residence that was a much closer match
linguistically to the language before the court. Estates at
Desert Ridge Trails Home- owners’ Ass’n v.
Vazquez,N.M.300 P.3d 736 (Ct. App. 2013).
Eviction.
In an action filed against a nursing home for wrongful death,
personal injury, negligent hiring, training and supervision,
and loss of consortium, the court ruled an arbitration
agreement that the nursing home required to be signed as a
condition of admission was substantively unconscionable and
therefore unenforceable. The ‘‘collection actions’’ exemption
provision showed that the agreement was one-sided because
the arbitration agreement exempted the most likely claims the
nursing home would bring against a resident for
guardianship, collection, and eviction under Subsection G of
this section. Figueroa v. THI of N.M. at Casa Arena Blanca
LLC,N.M.,P.3d (Ct. App. July 18, 2012).
Holdover period.
Pursuant to 47-8-35 NMSA 1978 of the Uniform Owner-
Resident Relations Act, 47-8-1 to 47-8-51, NMSA 1978, a
landowner was entitled to rent during a holdover period;
because there was no rental agreement after a particular date,
the tenant was required to pay the fair rental value of the
premises as they existed during these months, under 47-8-15
NMSA 1978 and defined by 47-8-3 NMSA 1978, Inc. v.
Rhudy, 96 N.M. 354, 630 P.2d 753 (1981).
112
47-8-4. Principles of law and equity.
Unless displaced by the provisions of the Uniform Owner-Resident Relations
Act [47-8-1 NMSA 1978], the principles of law and equity, including the law
relating to capacity to contract, mutuality of obligations, equitable abatement,
principal and agent, real property, public health, safety and fire prevention,
estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy or
other validating or invalidating cause supplement its provisions.
History: 1953 Comp., § 70-7-4, enacted by Laws 1975, ch.
38, § 4; 1995, ch. 195, § 3
STATUTORY NOTES
Cross-reference.— Breach of agreement by resident
and relief by owner, 47-8-33 NMSA 1978.
47-8-5. General act.
The Uniform Owner-Resident Relations Act [47-8-1 NMSA 1978] being a
general act is intended as a unified coverage of its subject matter, and no
part
of it is to be construed as impliedly repealed by subsequent legislation
if that
construction can reasonably be avoided.
History: 1953 Comp., § 70-7-5, enacted by Laws 1975, ch.
38, § 5.
47-8-6. Recovery of damages.
A.
The remedies provided by the Uniform Owner-Resident Relations Act
[47-8-1 NMSA 1978] shall be so administered that the aggrieved party may
recover damages as provided in the Uniform Owner-Resident Relations Act.
The aggrieved party has a duty to mitigate damages.
B.
Any right or obligation declared by the Uniform Owner-Resident Rela-
tions Act [47-8-1 NMSA 1978] is enforceable by action unless the provision
declaring it specifies a different and limited effect.
History: 1953 Comp., § 70-7-6, enacted by Laws 1975, ch.
38, § 6
47-8-7. Provision for agreement.
A claim or right arising under the Uniform Owner-Resident Relations Act
[47-8-1 NMSA 1978] or on a rental agreement may be settled by agreement.
History: 1953 Comp., § 70-7-7, enacted by Laws 1975, ch.
38, § 7
47-8-8. Rights, obligations and remedies.
The Uniform Owner-Resident Relations Act [47-8-1 NMSA 1978] applies to,
regulates and determines rights, obligations and remedies under a rental
agreement, wherever made, for a dwelling unit located within this state.
113
History: 1953 Comp., § 70-7-8, enacted by Laws 1975, ch. 38, § 8
JUDICIAL DECISIONS
Generally.
Incidental to employment.
Generally.
(Unpublished) Where 47-8-8 NMSA 1978 in the Uniform
Resident Relation Act, 47-8-1 et seq. NMSA 1978, stated that
the Act only applied when a landlord-tenant relationship
existed, the Act did not provide any basis of relief to the
private employee regarding the police-assisted removal of
him from the barn in which he was living as an incident of
his employment for the employer since the employee was not
a tenant because he did not pay rent or any other expenses
and because he did not have an oral or a written lease. Collins
v. Storment, 1993 U.S. Dist. LEXIS 20156, Civ. No. 91-
1010-HB (D.N.M. Apr. 23, 1993).
Incidental to employment.
(Unpublished) Where a tenant’s occupation of premises was
incidental to his employment, the relationship of landlord and
tenant did not exist and the Uniform Resident Relation Act,
47-8-8 NMSA 1978, was inapplicable to the tenant’s claim of
illegal eviction against certain law enforcement officers.
Collins v. Storment, 1993 U.S. Dist. LEXIS 20156, Civ. No.
91-1010-HB (D.N.M. Apr. 23, 1993)
47-8-9. Exemptions.
Unless created to avoid the application of the Uniform Owner-Resident
Relations Act [47-8-1 NMSA 1978], the following arrangements are exempted
by that act:
A.
residence at an institution, public or private, if incidental to deten-
tion or the provision of medical, geriatric, counseling, religious, educational
when room and board are an entity or similar service;
B.
occupancy under a contract of sale of a dwelling unit or the property
of which it is part, if the occupant is the purchaser or a person who succeeds to
his interest;
C.
occupancy by a member of a fraternal or social organization in the
portion of a structure operated for the benefit of the organization;
D.
transient occupancy in a hotel or motel;
E.
occupancy by an employee of an owner pursuant to a written rental
or employment agreement that specifies the employee’s right to occupancy is
conditional upon employment in and about the premises; and
F.
occupancy under a rental agreement covering premises used by the
occupant primarily for agricultural purposes.
History: 1953 Comp., § 70-7-9, enacted by Laws 1975, ch.
38, § 9; 1995, ch. 195, § 4.
47-8-10. Judicial jurisdiction.
A.
The district or magistrate court of this state may exercise jurisdiction
over any person with respect to any conduct in this state governed by the
Uniform Owner-Resident Relations Act [47-8-1 NMSA 1978] or with respect to
any claim arising from a transaction subject to this act for a dwelling unit
located within its jurisdictional boundaries. In addition to any other method
provided by rule or by statute, personal jurisdiction over a person may be
114
acquired in a civil action or proceeding instituted in the district or magistrate
court by the service of process in the manner provided by this section.
B.
If a person is not a resident of this state or is a corporation not authorized
to do business in this state and engages in any conduct in this state governed
by the Uniform Owner-Resident Relations Act [47-8-1 NMSA 1978], or engages
in a transaction subject to this act, he may designate an agent upon whom
service of process may be made in this state. The agent shall be a resident of
this state or a corporation authorized to do business in this state. The
designation shall be in writing and shall be filed with the secretary of state. If
no designation is made and filed or if process cannot be served in this state
upon the designated agent, process may be served upon the secretary of state,
but service upon him is not effective unless the plaintiff or petitioner imme-
diately mails a copy of the process and pleading by registered or certified mail
to the defendant or respondent at his last reasonably ascertainable address. An
affidavit of compliance with this section shall be filed with the clerk of the court
on or before the return day of the process, if any, or within any further time the
court allows.
History: 1953 Comp., § 70-7-10, enacted by Laws 1975,
ch. 38, § 10.
47-8-11. Obligation of good faith.
Every duty under the Uniform Owner-Resident Relations Act [47-8-1 NMSA
1978] and every act which must be performed as a condition precedent to the
exercise of a right or remedy under the Uniform Owner-Resident Relations Act
imposes an obligation of good faith in its performance or enforcement.
History: 1953 Comp., § 70-7-11, enacted by Laws 1975,
ch. 38, § 11.
JUDICIAL DECISIONS
Reasonableness.
Reversal of decision that found lessor had right to refuse to
allow sublease but could only do so reasonably and in good
faith was improper because 47-8-11 NMSA 1978 required
commercial transaction to be guided by right dealing and
fairness. Boss Barbara, Inc. v. Newbill, 97 N.M. 239, 638
P.2d 1084 (1982)
47-8-12. Inequitable agreement provision.
A.
If the court, as a matter of law, finds that any provision of a rental
agreement was inequitable when made, the court may limit the application of
such inequitable provisions to avoid an inequitable result.
B.
If inequitability is put into issue by a party to the rental agreement, the
parties to the rental agreement shall be afforded a reasonable opportunity to
present evidence as to the setting, purpose and effect of the rental agreement,
or settlement, to aid the court in making determination.
History: 1953 Comp., § 70-7-12, enacted by Laws 1975,
ch. 38, § 12.
115
JUDICIAL DECISIONS
Generally. Review.— Standards.
Generally
In an action brought by a lessee against a lessor to recover a
security deposit, the trial court’s conclusion that the lessee
should not be forced to pay $850 per month where the
apartment in question was occupied by another party at
fair market value throughout the duration of the lease was
appropriate; there was authority and substantial evidence
upon which the trial court could have found that the lessee’s
agreement to pay $850 per month, $125 over the market
value, was inequitable and should not have been enforced.
Ramirez-Eames v. Hover, 108 N.M. 520, 775 P.2d 722
(1989)
Review — Standards.
Uniform Owner-Resident Relations Act, 47- 8-1 NMSA 1978
et seq., specifically 47-8-12 NMSA 1978, modifies common
law unconscionability principles by allowing a trial court in
its discretion to make a determination of the underlying
fairness of a rental agreement when made and by allowing
selective enforcement of the contract to bring about an
equitable result. However, appellate courts should not be de
novo courts of equity in landlord-tenant disputes and should
uphold the trial court’s determination if it is supported by
substantial evidence. Ramirez-eames v. Hover, 108 N.M.
520, 775 P.2d 722 (1989).
47-8-13. Service of notice.
A.
A person has notice of a fact if:
(1)
he has actual knowledge of it;
(2)
he has received a notice or notification of it; or
(3)
from all facts and circumstances known to him at the time in
question he has reason to know that it exists.
B.
A person notifies or gives a notice or notification to another by taking
steps reasonably calculated to inform the other in ordinary course, whether or
not the other actually comes to know of it.
C.
A person receives a notice or notification:
(1)
when it comes to his attention;
(2)
where written notice to the owner is required, when it is mailed or
otherwise delivered at the place of business of the owner through which
the
rental agreement was made or at any place held out by him as the
place for
receipt of the communication; or
(3)
if written notice to the resident is required, when it is delivered in
hand to the resident or mailed to him at the place held out by him as the
place
for receipt of the communication, or in the absence of such
designation, to his
last known place of residence.
D.
Notwithstanding any other provisions of this section, notice to a resident
for nonpayment of rent shall be effective only when hand delivered or mailed
to the resident or posted on an exterior door of the dwelling unit. In all other
cases where written notice to the resident is required, even if there is a notice
by posting, there must also be a mailing of the notice by first class mail or hand
delivery of the notice to the resident. The date of a posting shall be included in
any notice posted, mailed or hand delivered, and shall constitute the effective
date of the notice. A posted notice shall be affixed to a door by taping all sides
or placed in a fixture or receptacle designed for notices or mail.
E.
Notice, knowledge or a notice or notification received by the resident or
person is effective for a particular transaction from the time it is brought to the
116
attention of the resident or person conducting that transaction, and in any
event from the time it would have been brought to the resident’s or person’s
attention if the resident or person had exercised reasonable diligence.
F.
Where service of notice is required under the Uniform Owner-Resident
Relations Act [47-8-1 NMSA 1978], and the item is mailed but returned as
undeliverable, or where the last known address is the vacated dwelling unit,
the owner shall serve at least one additional notice if an alternative address
has been provided to the owner by the resident.
History: 1953 Comp., § 70-7-13, enacted by Laws 1975,
ch. 38, § 13; 1995, ch. 195, § 5
JUDICIAL DECISIONS
Requirements.
‘‘Former 70-7-13A, 1953 Comp. (now 47-8-13 NMSA
1978)’’ controls any notice requirement under the Uniform
Owner-Resident Relations Act, ‘‘former 70-7-1, 1953 Comp.
(now 47-8-1 NMSA 1978)’’, except for the written notice
specifically required by 70-7-29, 1953 Comp. Kepler v.
Covarrubia, 91 N.M. 443, 575 P.2d 952 (1978)
47-8-14. Terms and conditions of agreement.
The owner and resident may include in a rental agreement terms and
conditions not prohibited by the Uniform Owner-Resident Relations Act
[47-8-1 NMSA 1978] or other rule of law including rent, term of the agreement
or other provisions governing the rights and obligations of the parties.
History: 1953 Comp., § 70-7-14, enacted by Laws 1975,
ch. 38, § 14.
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. To
assess a late fee, the owner shall provide notice of the late fee charged no later
117
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.
History: 1953 Comp., § 70-7-15, enacted by Laws 1975,
ch. 38, § 15; 1995, ch. 195, § 6.
JUDICIAL DECISIONS
Holdover period.
Pursuant to 47-8-35 NMSA 1978 of the Uni-
form
Owner-Resident Relations Act, 47-8-1 to
47-8-51
NMSA 1978, a landowner was entitled
to rent
during a holdover period; because there
was no
rental agreement after a particular date, the
tenant was required to pay the fair rental value
of the premises as they existed during these
months, under 47-8-15 NMSA
1978 and defined
by 47-8-3 NMSA 1978.
, Inc. v. Rhudy, 96 N.M.
354, 630 P.2d 753 (
1981
).
47-8-16. Waiver of rights prohibited.
No rental agreement may provide that the resident or owner agrees to waive
or to forego rights or remedies under the law.
History: 1953 Comp., § 70-7-16, enacted by Laws 1975, ch.
38, § 16
.
47-8-17. Unlawful agreement provision.
If an owner deliberately uses a rental agreement containing provisions
known by him to be prohibited by law, the resident may recover damages
sustained by him resulting from application of the illegal provision and
reasonable attorney’s fees.
History: 1953 Comp., § 70-7-17, enacted by Laws 1975,
ch. 38, § 17.
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 term of residency.
118
(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 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 the owner has suffered by reason of the resident’s noncom-
pliance 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, 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 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.
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;
(2)
shall forfeit the right to assert any counterclaim in any action
brought to recover that deposit;
(3)
shall be liable to the resident for court costs and reasonable
attorneys’ fees; and
(4)
shall forfeit the right to assert an independent action against the
resident for damages to the rental property.
E.
An owner who in bad faith retains a deposit in violation of this section is
liable for a civil penalty in the amount of two hundred fifty dollars ($250)
payable to the resident.
History: 1953 Comp., § 70-7-18, enacted by Laws 1975,
ch. 38, § 18; 1985, ch. 146, § 2; 1989, ch. 340, § 2.
STATUTORY NOTES
Cross reference.
—Breach of a g re eme nt
by
owner and relief by resident, 47-8-27.1 NMSA
1978.
119
JUDICIAL DECISIONS
Generally.
Attorney fees.
Breach of lease.
Generally.
In a landlord-tenant dispute, the trial court did not err in
granting directed verdicts on the claims for interest and for
conversion since there was no security deposit upon which
interest could accrue or conversion could be committed
because no reasonable jury could have found that $50,000
was merely a security deposit; 47-8-18A NMSA 1978
required the deposit to be reasonable and there would have
been no circumstance under which a landlord would ask
for, or a tenant would agree to, a security deposit that was
nearly 32 times greater than the monthly rent. Hedicke v.
Gunville, 2003-NMCA-032, 133 N.M. 335, 62 d 1217,
cert. denied, 133 N.M. 413, 63 P.3d 516 (2003). Landlord
was entitled to apply tenant’s security deposit to tenant’s
unpaid rent without sending a written itemization where
tenant failed to provide landlord with 30 days’ notice of his
intent to terminate their rental agreement as required by
47-8-37 NMSA 1978.
Bruce v. Attaway, 1996-NMSC-030, 121 N.M. 755, 918 P.2d
341. If a landlord does not provide a former tenant with an
itemized listing of damages to the property within 30 days of
vacancy, the landlord forfeits any right to withhold any
portion of the deposit or to file suit for the alleged damages to
the property. Bruce v. Attaway, 1996-NMSC-030, 121 N.M.
755, 918 P.2d 341. Section 47-8-18D NMSA 1978 provides
that if an owner fails to provide a resident with a written
statement of deductions from a de- posit and the balance
shown by the statement to be due, within 30 days of the
termination of the tenancy, the owner shall forfeit the right to
withhold any portion of the deposit, shall forfeit the right to
assert any counterclaim in any action brought to recover that
deposit, shall be liable to the resident for court costs and
reasonable attorneys’ fees, and shall forfeit the right to assert
an independent action against the resident for damages to the
rental property. Bruce v. Attaway, 1996-NMSC-030, 121
N.M. 755, 918 P.2d 341. Owner is deemed to have complied
with 47- 8-18C NMSA 1978 by mailing a statement and any
payment required to the last known address of resident;
nothing in 47-8-18 NMSA 1978 shall preclude an owner
from retaining portions of a deposit for nonpayment of rent or
utilities, repair work, or other legitimate damages. Bruce v.
Attaway, 1996-NMSC-030, 121 N.M. 755, 918 P.2d 341.
Section 47-8-18C NMSA 1978 provides that upon
termination of 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 the owner
has suffered by reason of the resident’s non-compliance with
the rental agreement or of 47-8-22 NMSA 1978; no deposit
shall be retained to cover normal wear and tear, and in the
event actual cause exists for retaining any portion of the
deposit, 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 30 days of the date of
termination of the rental agreement or resident departure,
whichever is later. Bruce v. Attaway, 1996-NMSC-030, 121
N.M. 755, 918 P.2d 341.
Attorney fees.
Landlord, who did not comply with the requirement of 47-8-
18 NMSA 1978 to give an itemized account of damages
pursuant to 47- 8-22 NMSA 1978, forfeited the deposit and
the rights to recover additional damages, and owed the tenant
attorney fees pursuant to 47-8- 18D(3) NMSA 1978. Garcia
v. Thong, 119 N.M. 704, 895 P.2d 226 (1995).
Breach of lease.
Metropolitan court committed legal error by terminating a
lease under the Section 8 Housing Choice Voucher
Program, 42 U.S.C.S. § 1437f(o), because the tenant failed to
timely pay rent for two months and delayed in the payment of
a portion of her security deposit under Subsection A of this
section. Under the terms of the lease, no date was identified
regarding when the tenant would pay the security deposit or
whether partial payments could be made; given the
ambiguous language of the lease and the lack of any evidence
identifying a significant or materially adverse effect on
landlord, he could not establish a serious violation based
upon the tenant’s three-month delay in paying the balance of
the security deposit. Serna v. Gutierrez, 2013-NMCA-026,
N.M.,297 P.3d 1238.
47-8-19. Owner disclosure.
A.
The owner or any person authorized to enter into a rental agreement on
his behalf shall disclose to the resident in writing at or before the commence-
ment of the residency the name, address and telephone number of:
(1)
the person authorized to manage the premises; and
(2)
an owner of the premises or a person authorized to act for and on
behalf of the owner for the purpose of service of process and for the purpose of
receiving and receipting for notices and demands.
120
B.
The information required to be furnished by this section shall be kept
current, and this section extends to and is enforceable against any successor,
owner or manager.
C.
A person designated under Paragraph (2) of Subsection A of this section
becomes an agent of each person who is an owner for the purpose of service of
process and receiving and receipting for notices and demands. A person
designated under Paragraph (1) of Subsection A of this section becomes an
agent of each person who is an owner for the purpose of performing the
obligations of the owner under the Uniform Owner-Resident Relations Act
[47-8-1 NMSA 1978] and under the rental agreement.
D.
Failure of the owner to comply with this section shall relieve the resident
from the obligation to provide notice to the owner as required by the Uniform
Owner-Resident Relations Act [47-8-1 NMSA 1978].
History: 1953 Comp., § 70-7-19, enacted by Laws 1975,
ch. 38, § 19; 1995, ch. 195,§ 7.
47-8-20. Obligations of owner.
A.
The owner shall:
(1)
substantially comply with requirements of the applicable minimum
housing codes materially affecting health and safety;
(2)
make repairs and do whatever is necessary to put and keep the
premises in a safe condition as provided by applicable law and rules and
regulations as provided in Section 47-8-23 NMSA 1978;
(3)
keep common areas of the premises in a safe condition;
(4)
maintain in good and safe working order and condition electrical,
plumbing, sanitary, heating, ventilating, air conditioning and other facilities
and appliances, including elevators, if any, supplied or required to be supplied
by him;
(5)
provide and maintain appropriate receptacles and conveniences for
the removal of ashes, garbage, rubbish and other waste incidental to the
occupancy of the dwelling unit and arrange for their removal from the
appropriate receptacle; and
(6)
supply running water and a reasonable amount of hot water at all
times and reasonable heat, except where the building that includes the
dwelling unit is not required by law to be equipped for that purpose or the
dwelling unit is so constructed that heat or hot water is generated by an
installation within the exclusive control of the resident and supplied by a
direct public utility connection.
B.
If there exists a minimum housing code applicable to the premises, the
owner’s maximum duty under this section shall be determined by Paragraph
(1) of Subsection A of this section. The obligations imposed by this section are
not intended to change existing tort law in the state.
C.
The owner and resident of a single family residence may agree that the
resident perform the owner’s duties specified in Paragraphs (5) and (6) of
121
Subsection A of this section and also specified repairs, maintenance tasks,
alterations and remodeling, but only if the transaction is in writing, for
consideration, entered into in good faith and not for the purpose of evading the
obligations of the owner.
D.
The owner and resident of a dwelling unit other than a single family
residence may agree that the resident is to perform specified repairs, mainte-
nance tasks, alterations or remodeling only if:
(1)
the agreement of the parties is entered into in good faith and not for
the purpose of evading the obligations of the owner and is set forth in a
separate writing signed by the parties and supported by consideration; and
(2)
the agreement does not diminish or affect the obligation of the owner
to other residents in the premises.
E.
Notwithstanding any provision of this section, an owner may arrange
with a resident to perform the obligations of the owner. Any such arrangement
between the owner and the resident will not serve to diminish the owner’s
obligations as set forth in this section, nor shall the failure of the resident to
perform the obligations of the owner serve as a basis for eviction or in any way
be considered a material breach by the resident of his obligations under the
Uniform Owner-Resident Relations Act [47-8-1 NMSA 1978] or the rental
agreement.
F.
In multi-unit housing, if there is separate utility metering for each unit,
the resident shall receive a copy of the utility bill for his unit upon request
made to the owner or his agent. If the unit is sub-metered, the resident
shall
then be entitled to receive a copy of the apartment’s utility bill. When
utility
bills for common areas are separately apportioned between units and
the costs
are passed on to the residents of each unit, each resident may,
upon request,
receive a copy of all utility bills being apportioned. The
calculations used as the
basis for apportioning the cost of utilities for
common areas and sub-metered
apartments shall be made available to any
resident upon request. The portion of the common area cost that would be
allocated to an empty unit if it were occupied shall not be allocated to the
remaining residents. It is solely the
owner’s responsibility to supply the
items and information in this subsection to the resident upon request. The
owner may charge an administrative fee not to exceed five dollars ($5.00)
for each monthly request of the items in this
subsection.
G.
The owner shall provide a written rental agreement to each resident
prior to the beginning of occupancy.
History: 1953 Comp., § 70-7-20, enacted by Laws 1975,
ch. 38, § 20; 1987, ch. 297, § 1; 1989, ch. 340, § 3; 1999, ch.
91, § 2.
STATUTORY NOTES
Cross-reference. — Delivery of possession, 47-8-26 NMSA
1978. Breach of agreement by owner and relief by resident,
47-8-27.1 NMSA 1978. Abatement, 47-8-27.2 NMSA 1978.
Owner retaliation prohibited,47-8-39 NMSA 1978. Action
for possession by owner, 47-8-40 NMSA 1978.
122
JUDICIAL DECISIONS
Applicability.
Burden of proof.
Construction with other law.
Negligence.
Negligence per se.
Statute of limitations.
Applicability.
Contention of a tenant that the implied warranty of
habitability was in effect in New Mexico and that he had a
right to abate rent because the landlord did not supply
reasonable heat for his rental unit was remanded to the trial
court for determination of the applicability of 47-8-20 NMSA
1978 of the Uniform Owner-Resident Relations Act, 47-8-1
to 47-8-51 NMSA 1978, which encompassed the issue and
which was adopted after the court held that there was no
implied warranty of habitability in New Mexico. T.W.I.W.,
Inc. v. Rhudy, 96 N.M. 354, 630 P.2d 753 (1981).
Burden of proof.
Section 47-8-20A(6), B NMSA 1978 of the Uniform Owner-
Resident Relations Act, 47-8-1 to 47-8-51 NMSA 1978,
places the burden upon the landlord to show that a law
exists that exempts him from providing reasonable heat for a
tenant. T.W.I.W.,Inc. v. Rhudy, 96 N.M. 354, 630 P.2d 753
(1981).
Construction with other law.
Section 47-8-20A(1),B of the Uniform Owner-Resident
Relations Act, 47-8-1 to 47-8-51 NMSA 1978, require
owners to comply with housing and building codes; Section
47-8- 20A(2) — (6) NMSA 1978 remain as minimum
standards if there is no applicable code. It does not make
sense to read 47-8-20A (6)NMSA 1978 as requiring
reasonable heat unless there is a law requiring it and if a
housing or building code applied, the court would never get
to 47-8-20A(6) NMSA 1978 because 47-8-20A(1) NMSA
1978 would apply and this would make 47-8-20A(6) NMSA
1978 mere surplusage. T.W.I.W., Inc. v. Rhudy, 96 N.M.
354, 630 P.2d 753 (1981).
Negligence.
A landlord owed a duty to his tenant, an eight-year-old child,
to keep a fence that he erected around a common playground
area in reasonably safe condition. Calkins v. Cox Estates, 110
N.M. 59, 792 P.2d 36 (1990).
Negligence per se.
In a negligence action against landlord by tenant whose son
was injured when he fell through a gap in a balcony railing,
trial court properly refused to hold landlord to higher
standard than that of ordinary care, and refused tenant’s
proffered negligence per se instruction. Heath v. La
Mariana Apts., 2007- NMCA-003, 141 N.M. 131,151 P.3d
903, aff ’d in part, rev’d in part on other grounds, 2008-
NMSC-017, 143 N.M. 657, 180 P.3d 664, 2008 LEXIS
188
Statute of limitations.
Where the tenant waited three years after he moved out of
the rental property before suing the landlords for
negligence in connection with mold and for a violation of
their obligations under Subsection A(1)-(4), the tenant’s
claim was barred by the applicable three-year statute of
limitations set forth in 37-1-8 NMSA 1978. Applying the
discovery rule, the tenant’s cause of action accrued no later
than the day he vacated the home; at that time, the tenant
knew there was mold in the home, believed that the mold
was causing his symptoms, and had been informed that
mold could be dangerous to humans. Gerke v. Romero,
2010-NMCA-060, 148 N.M. 367, 237 P.3d 111
RESEARCH REFERENCES
New Mexico Law Review.
Note: The Continuing Debate Over Tort Duty in New
Mexico: The Role of Foreseeability and Policy in Herrera v.
Quality Pontiac, Quinn M. Bumgarner-Kirby, 34 N.M.L.
Rev. 433 (2004).
47-8-21. Relief of owner liability.
A.
Unless otherwise agreed, upon termination of the owner’s interest in the
dwelling unit, including but not limited to terminations of interest by sale,
assignment, death, bankruptcy, appointment of receiver or otherwise, the
owner is relieved of all liability under the rental agreement and of all
obligations under the Uniform Owner-Resident Relations Act [47-8-1 NMSA
1978] as to events occurring subsequent to written notice to the resident of the
termination of the owner’s interest. The successor in interest to the owner
shall be liable for all obligations under the rental agreement or under the
123
Uniform Owner-Resident Relations Act. Upon receipt by the resident of
written notice of the termination of the owner’s interest in the dwelling unit,
the resident shall pay all future rental payments, when due, to the successor
in interest to the owner.
B.
Unless otherwise agreed, a manager of premises that include a dwelling
unit is relieved of liability under the rental agreement and the Uniform
Owner-Resident Relations Act [47-8-1 NMSA 1978] as to events occurring after
written notice to the resident of the termination of his management.
History: 1953 Comp., § 70-7-21, enacted by Laws
1975, ch. 38, § 21.
47-8-22. Obligations of resident.
The resident shall:
A.
comply with obligations imposed upon residents by applicable min-
imum standards of housing codes materially affecting health or safety;
B.
keep that part of the premises that he occupies and uses as clean and
safe as the condition of the premises permit, and, upon termination of the
residency, place the dwelling unit in as clean condition, excepting ordinary
wear and tear, as when residency commenced;
C.
dispose from his dwelling unit all ashes, rubbish, garbage and other
waste in a clean and safe manner;
D.
keep all plumbing fixtures in the dwelling unit or used by the
resident as clean as their condition permits;
E.
use in a reasonable manner all electrical, plumbing, sanitary, heat-
ing, ventilation, air conditioning and other facilities and appliances including
elevators, if any, in the premises;
F.
not deliberately or negligently destroy, deface, damage, impair or
remove any part of the premises or knowingly permit any person to do so;
G.
conduct himself and require other persons on the premises with his
consent to conduct themselves in a manner that will not disturb his neighbors’
peaceful enjoyment of the premises;
H.
abide by all bylaws, covenants, rules or regulations of any applicable
condominium regime, cooperative housing agreement or neighborhood associ-
ation not inconsistent with owner’s rights or duties; and
I.
not knowingly commit or consent to any other person knowingly
committing a substantial violation.
History: 1953 Comp., §70-7-22, enacted by Laws 1975, ch.
38, §22; 1995, ch. 195, §8
124
STATUTORY NOTES
Cross reference. — Deposits, 47-8-18 NMSA 1978.
Breach of agreement by resident and relief by owner, 47-8-
33 NMSA 1978. Prevailing party rights in law suit; civil
penalties, 47-8-48 NMSA 1978.
JUDICIAL DECISIONS
Damages.
Landlord, who did not comply with the requirement of 47-8-
18 NMSA 1978 to give an itemized account of damages
pursuant to 47- 8-22 NMSA 1978, forfeited the deposit and
the rights to recover additional damages, and owed the tenant
attorney fees pursuant to 47-8- 18D(3) NMSA 1978. Garcia
v. Thong, 119 N.M.704, 895 P.2d 226 (1995).
47-8-23. Application of rules or regulations.
An owner, from time to time, may adopt rules or regulations, however
described, concerning the resident’s use and occupancy of the premises. They
are enforceable as provided in Section 47-8-33 NMSA 1978 against the resident
only if:
A.
their purpose is to promote the appearance, convenience, safety or
welfare of the residents in the premises, preserve the owner’s property from
abusive use or make a fair distribution of services and facilities held out for the
residents generally;
B.
they are reasonably related to the purpose for which they are
adopted;
C.
they apply to all residents in the premises in a fair manner;
D.
they are sufficiently explicit in their prohibition, direction or limita-
tion of the resident’s conduct to fairly inform him of what he must or must not
do to comply;
E.
they are not for the purpose of evading the obligations of the
owner;
F. and
the resident is presented with copies of existing rules and regulations
at
the time he enters into the rental agreement and is presented notice of
amendments to the rules and regulations and rules and regulations adopted
subsequent to the time he enters into the rental agreement. A rule or regulation
adopted after the resident enters into the rental agreement is
enforceable against the
resident if reasonable notice of its adoption is given to the resident and it does not
work a substantial modification of his bargain.
History: 1953 Comp., § 70-7-23, enacted by
Laws 1975, ch. 38, § 23; 1995, ch. 195,
§ 9.
STATUTORY NOTES
Cross reference. — Definitions, 47-8-3 NMSA 1978. Obligations
of owner, 47-8-20 NMSA 1978.
47-8-24. Right of entry.
A.
The resident shall, in accordance with provisions of the rental agreement
and notice provisions as provided in this section, consent to the owner to enter
125
into the dwelling unit in order to inspect the premises, make necessary or
agreed repairs, decorations, alterations or improvements, supply necessary or
agreed services or exhibit the dwelling unit to prospective or actual purchas-
ers, mortgagees, prospective residents, workmen or contractors; provided that:
(1)
unless otherwise agreed upon by the owner and resident, the owner
may enter the resident’s dwelling unit pursuant to this subsection only
after
giving the resident twenty-four hours written notification of his intent
to enter,
the purpose for entry and the date and reasonable estimate of the
time frame
of the entry;
(2)
this subsection is not applicable to entry by the owner to perform
repairs or services within seven days of a request by the resident or when
the
owner is accompanied by a public official conducting an inspection or a
cable
television, electric, gas or telephone company representative; and
(3)
where the resident gives reasonable prior notice and alternate times
or dates for entry and it is practicable or will not result in economic
detriment
to the owner, then the owner shall attempt to reasonably
accommodate the
alternate time of entry.
B.
The owner may enter the dwelling unit without consent of the resident in
case of an emergency.
C.
The owner shall not abuse the right of access.
D.
The owner has no other right of access except by court order, as permitted
by this section if the resident has abandoned or surrendered the premises or if
the resident has been absent from the premises more than seven days, as
permitted in Section 47-8-34 NMSA 1978.
E.
If the resident refuses to allow lawful access, the owner may obtain
injunctive relief to compel access or terminate the rental agreement. In either
case, the owner may recover damages.
F.
If the owner makes an unlawful entry, or a lawful entry in an unreason-
able manner, or makes repeated demands for entry that are otherwise lawful
but that have the effect of unreasonably interfering with the resident’s quiet
enjoyment of the dwelling unit, the resident may obtain injunctive relief to
prevent the recurrence of the conduct or terminate the rental agreement. In
either case, the resident may recover damages.
History: 1953 Comp., § 70-7-24, enacted by Laws 1975,
ch. 38, § 24; 1995, ch. 195, § 10.
47-8-25. Use of dwelling unit limited.
Unless otherwise agreed, the resident shall occupy his dwelling unit only as
a dwelling unit and in compliance with terms and conditions of the rental
agreement. The rental agreement may require that the resident notify the
owner of any anticipated extended absence from the premises in excess of
seven days no later than the first day of the extended absence.
History: 1953 Comp., § 70-7-25, enacted by Laws
1975, ch. 38, § 25
126
47-8-26. Delivery of possession.
A.
At the time specified in the rental agreement for the commencement of
occupancy, the owner shall deliver possession of the premises to the resident in
compliance with the rental agreement and Section 47-8-20 NMSA 1978. The
owner may bring an action for possession against the resident or any person
wrongfully in possession and may recover the damages provided in Subsection
F of Section 47-8-33 NMSA 1978.
B.
If the owner fails to deliver possession of the premises to the prospective
resident as provided in Subsection A of this section, one hundred percent of the
rent abates until possession is delivered and the prospective resident may:
(1)
upon written notice to the owner, terminate the rental agreement
effective immediately. Upon termination the owner shall return all prepaid
rent and deposits; or
(2)
demand performance of the rental agreement by the owner and, if
the prospective resident elects, maintain an action for possession of the
premises against any person wrongfully withholding possession and recover
the damages sustained by him and seek the remedies provided in Section
47-8-48 NMSA 1978.
C.
If the owner makes reasonable efforts to obtain possession of the
premises and returns prepaid rents, deposits and fees within seven days
of
receiving a prospective resident’s notice of termination, the owner shall
not be
liable for damages under this section.
History: 1953 Comp., §70-7-26, enacted by Laws 1975, ch.
38, §26; 1999, ch. 91, § 3.
47-8-27. Repealed.
STATUTORY NOTES
Repeals. — Laws 1995, ch. 195 § 27, repeals this section,
as last affected by Laws 1975, ch. 38, § 27, relating to
owner-resident relations and noncompliance by the owner.
47-8-27.1. Breach of agreement by owner and relief by
resident.
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 [47-8-1 NMSA 1978] 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
127
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.
B.
The rights provided under this section do not arise if the condition was
caused by the deliberate or negligent act or omission of the resident, a member
of his family or other person on the premises with his consent. If the
noncompliance with the rental agreement or with Section 47-8-20 NMSA 1978
results solely from circumstances beyond the owner’s control, the resident is
entitled only to those remedies set forth in Paragraph (1) or (2) of this
subsection and is not entitled to an action for damages or injunctive relief
against the owner.
C.
The resident may also recover damages and obtain injunctive relief for
any material noncompliance by the owner with the rental agreement or the
provisions of Section 47-8-20 NMSA 1978. The remedy provided in this
subsection is in addition to any right of the resident arising under Subsection
A of this section.
D.
If the resident proceeds under Paragraph (1) of Subsection A of this
section, he shall not proceed under Paragraph (2) of Subsection A of this section
in the same rental period for the same violation. If the resident proceeds under
Paragraph (2) of Subsection A of this section, he shall not proceed under
Paragraph (1) of Subsection A of this section in the same rental period for the
same violation. A resident may, however, proceed under another paragraph of
Subsection A of this section for a subsequent violation or the same violation
that occurs in subsequent rental periods.
E.
When the last day for remedying any breach pursuant to the written
notice required under the Uniform Owner-Resident Relations Act [47-8-1
NMSA 1978] 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.
History: 1978 Comp., §47-8-27.1, enacted by Laws
1995, ch. 195, §11.
STATUTORY NOTES
Cross reference. — Owner retaliation prohibited, 47-8-39
NMSA 1978.
128
JUDICIAL DECISIONS
Notice.
Where the resident did not give written no tice of deficiencies
to the landowner, the resident was not eligible for abatement
of rent and the trial court erred by abating after finding only
that the landowner had actual notice of deficiencies. Kepler v.
Covarrubia, 91 N.M. 443,575 P.2d 952 (1978)
47-8-27.2. Abatement.
A.
If there is a violation of Subsection A of Section 47-8-20 NMSA 1978,
other than a failure or defect in an amenity, the resident shall give written
notice to the owner of the conditions needing repair. If the owner does not
remedy the conditions set out in the notice within seven days of the notice, the
resident is entitled to abate rent as set forth below:
(1)
one-third of the pro-rata daily rent for each day from the date the
resident notified the owner of the conditions needing repair, through the day
the conditions in the notice are remedied. If the conditions complained of
continue to exist without remedy through any portion of a subsequent rental
period, the resident may abate at the same rate for each day that the
conditions are not remedied; and
(2)
one hundred percent of the rent for each day from the date the
resident notified the owner of the conditions needing repair until the date the
breach is cured if the dwelling is uninhabitable and the resident does not
inhabit the dwelling unit as a result of the condition.
B.
For each rental period in which there is a violation under Subsection A of
this section, the resident may abate the rent or may choose an alternate
remedy in accordance with the Uniform Owner-Resident Relations Act [47-8-1
NMSA 1978]. The choice of one remedy shall not preclude the use of an
alternate remedy for the same violation in a subsequent rental period.
C.
If the resident’s rent is subsidized in whole or in part by a government
agency, the abatement limitation of one month’s rent shall mean the total
monthly rent paid for the dwelling and not the portion of the rent that the
resident alone pays. Where there is a third party payor, either the payor or the
resident may authorize the remedy and may abate rent payments as provided
in this section.
D.
Nothing in this section shall limit a court in its discretion to apply
equitable abatement.
E.
Nothing in this section shall entitle the resident to abate rent for the
unavailability of an amenity.
History: 1978 Comp., §47-8-27.2, enacted by Laws
1995, ch. 195, §12; 1999, ch. 91, §4
STATUTORY NOTES
Cross reference — Breach of agreement by owner and relief
by resident, 47-8-27.1 NMSA 1978. Breach of agreement by
resident and relief by owner, 47-8-33 NMSA1978. Owner
retaliation prohibited, 47-8-39 NMSA 1978.
129
47-8-28. Repealed
.
STATUTORY NOTES
Repeals. — Laws 1999, ch. 91, §8 repeals this section, as last
affected by Laws 1975, ch.38, §28, relating to owner-resident
relations, failure to deliver possession.
47-8-29. Repealed.
STATUTORY NOTES
Repeals. — Laws 1995, ch. 195 § 27, repeals this section, as
last affected by Laws 1975, ch. 38, §29, relating to owner-
resident relations and resident rights in the event of breach.
47-8-30. Action for counterclaim for resident.
A.
In an action for possession based upon nonpayment of rent or in an action
for rent where the resident is in possession, the resident may counterclaim for
any amount which he may recover under the rental agreement or the Uniform
Owner-Resident Relations Act [47-8-1 NMSA 1978], providing that the resi-
dent shall be responsible for payment to the owner of the rent specified in the
rental agreement during his period of possession. Judgment shall be entered in
accordance with the facts of the case.
B.
If the defense or counterclaim by the resident is without merit and is not
raised in good faith, the owner may recover reasonable attorney’s fees and his
court costs.
C.
If the action or reply to the counterclaim is without merit and is not in
good faith, the resident may recover reasonable attorney’s fees and his court
costs.
History: 1953 Comp., § 70-7-30, enacted by Laws
1975, ch. 38, § 30.
47-8-31. Resident rights following fire or casualty.
A.
If the dwelling unit or premises are damaged or destroyed by fire or
casualty to an extent that enjoyment of the dwelling unit is substantially
impaired, the resident may:
(1)
vacate the premises and notify the owner in writing within seven
days thereafter of his intention to terminate the rental agreement, in which
case the rental agreement terminates as of the date of vacating; or
(2)
if continued occupancy is lawful, vacate any part of the dwelling unit
rendered unusable by the fire or casualty, in which case the resident’s liability
for rent is reduced in proportion to the diminution in the fair rental value of the
dwelling unit.
B.
If the rental agreement is terminated, the owner shall return the
balance, if
any, [of] prepaid rent and deposits recoverable under Section 18
[47-8-18 NMSA
130
1978] of the Uniform Owner-Resident Relations Act. Account-
ing for rent, in the event
of termination or apportionment, is to occur as of the
date of the vacation.
Notwithstanding the provisions of this section, the
resident is responsible for damage
caused by his negligence.
History: 1953 Comp., §70-7-31, enacted by Laws 1975, ch.
38, § 31
47-8-32. Repealed.
STATUTORY NOTES
Repeals. — Laws 1995, ch. 195 §27, repeals this section, as
last affected by Laws 1975, ch. 38, §32, relating to owner-
resident relations and injunctive relief.
47-8-33. Breach of agreement by resident and relief by
owner.
A.
Except as provided in the Uniform Owner-Resident Relations Act [47-8-1
NMSA 1978], if there is noncompliance with Section 47-8-22 NMSA 1978
materially affecting health and safety or upon the initial material non-compl-
ance by the resident with the rental agreement or any 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 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
days after written notice from the owner of nonpayment and his intention to
terminate the rental agreement, the owner may terminate the rental agree-
ment and the resident shall immediately deliver possession of the dwelling
unit; provided that tender of the full amount due, in the manner stated in the
131
notice, prior to the expiration of the three-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 conditioned upon the right of the resident to
remedy within three days of entry of judgment. If the resident has satisfied the
judgment within three days, the writ 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.
F.
Except as provided in the Uniform Owner-Resident Relations Act [47-8-1
NMSA 1978], 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 [47-8-1
NMSA 1978].
H.
When the last day for remedying any breach pursuant to written notice
required under the Uniform Owner-Resident Relations Act [47-8-1 NMSA
1978] 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 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
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 Subsection I of this section, it shall be
a defense that the resident did not know of, and could not have reasonably
132
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 action for possession under Subsection I of this section, it shall be
a defense that the resident took reasonable and lawful actions in defense of
himself, others or his property.
M.
In any action for possession under Subsection I of this section, if the
court
finds that the action was frivolous or brought in bad faith, the petitioner
shall be subject
to a civil penalty equal to two times the amount of the monthly rent, plus damages and
costs.
History: 1953 Comp., §70-7-33, enacted by laws 1975, ch.
38, §33; 1977, ch. 130, §1; 1995, ch. 195, §14; 1999, ch. 91,
§5.
STATUTORY NOTES
Cross reference. — Application of rules or regulations, 47-
8-23 NMSA 1978. Delivery of possession, 47-8-26 NMSA
1978. Appeal stays execution, 47-8-47 NMSA 1978.
JUDICIAL DECISIONS
Payment after notice.
Restitution.
Payment after notice.
Judgment was properly rendered in favor of a tenant in
connection with a landlord’s unlawful detainer action, which
had been brought under former 1915 Code, § 2384 after the
tenant failed to pay the rent at the time stipulated for the
payment thereof, because the tenant tendered his rent money
to the landlord within three days after receiving notice of
termination of the lease from the landlord as required under
former N.M. Code § 2386. El Dorado Inv. Co. v. Burrus, 28
N.M. 551, 215 P. 819 (1923)
Restitution.
In a city’s action against a tenant of a public housing unit for
a money judgment and for a writ of restitution that would
order that the premises be vacated, restitution by a qualified
indigent tenant was not mandatory and other forms of relief
were available under the New Mexico Uniform Owner-
Resident Relations Act, 47-8-1 NMSA 1978, where the trial
court found that the tenant was in default on rent. City of
Albuquerque v. Brooks, 114 N.M. 572, 844 P.2d 822 (1992).
47-8-34. Notice of extended absence.
A.
If the rental agreement requires the resident to give notice to the owner
of an anticipated extended absence in excess of seven days as required in
Subsection A of Section 3 [47-8-3 NMSA 1978] of the Uniform Owner-Resident
Relations Act and the resident willfully fails to do so, the owner may recover
damages from the resident.
B.
During any absence of the resident in excess of seven days, the owner
may enter the dwelling unit at times reasonably necessary.
C.
If the resident abandons the dwelling unit as defined in Subsection A of
Section 3 [47-8-3 NMSA 1978] of the Uniform Owner-Resident Relations Act,
the owner shall be entitled to take immediate possession of the dwelling unit.
The owner shall, in such cases, be responsible for the removing and storing of
the personal property for such periods as are provided by law. Upon abandon-
ment, the owner may make reasonable efforts to rent the dwelling unit and
133
premises at a fair rental. If the owner rents the dwelling unit for a term
beginning prior to the expiration of the rental agreement, it is deemed to be
terminated as of the date the new tenancy begins.
History: 1953 Comp., §70-7-34, enacted by Laws 1975, ch.
38, §34.
STATUTORY NOTES
Cross reference. — Right of entry, 47-8-24 NMSA
1978.Disposition of property left on the premises, 47-8-34.1
NMSA 1978.
47-8-34.1. Disposition of property left on the premises.
A.
Where the rental agreement terminates by abandonment pursuant to
Section 47-8-34 NMSA 1978:
(1)
the owner shall store all personal property of the resident left on the
premises for not less than thirty days;
(2)
the owner shall serve the resident with written notice stating the
owner’s intent to dispose of the personal property on a date not less than thirty
days from the date of the notice. The notice shall also contain a telephone
number and address where the resident can reasonably contact the owner to
retrieve the property prior to the disposition date in the notice;
(3)
the notice of intent to dispose of personal property shall be person-
ally delivered to the resident or be sent by first class mail, postage prepaid, to
the resident at his last known address. If the notice is returned as undeliver-
able, or where the resident’s last known address is the vacated dwelling unit,
the owner shall also serve at least one notice to such other address as has been
provided to the owner by the resident, including the address of the resident’s
place of employment, or of a family member or emergency contact for which the
owner has a record;
(4)
the resident may contact the owner to retrieve the property at any
time prior to the date specified in the notice for disposition of the property;
(5)
the owner shall provide reasonable access and adequate opportuni-
ties for the resident to retrieve all of the property stored prior to any
disposition; and
(6)
if the resident does not claim or make attempt to retrieve the stored
personal property prior to the date specified in the notice of disposition of the
property, the owner may dispose of the stored personal property.
B.
Where the rental agreement terminates by the resident’s voluntary
surrender of the premises, the owner shall store any personal property on the
premises for a minimum of fourteen days from the date of surrender of the
premises. The owner shall provide reasonable access to the resident for the
purpose of the resident obtaining possession of the personal property stored. If
after fourteen days from surrender of the premises, the resident has not
retrieved all the stored personal property, the owner may dispose of the stored
personal property.
134
C.
Where the rental agreement terminates by a writ of restitution, the
owner shall have no obligation to store any personal property left on the
premises after three days following execution of writ of restitution, unless
otherwise agreed by the owner and resident. The owner may thereafter dispose
of the personal property in any manner without further notice or liability.
D.
Where the property has a market value of less than one hundred dollars
($100), the owner has the right to dispose of the property in any manner.
E.
Where the property has a market value of more than one hundred dollars
($100), the owner may:
(1)
sell the personal property under any provisions herein,
and the
proceeds of the sale, if in excess of money due and owing to the
owner, shall be
mailed to the resident at his last known address
along with an itemized statement of the amounts received and
amounts allocated to other costs,
within fifteen days of the sale; or
(2)
retain the property for his own use or the use of others, in
which case the owner shall credit the account of the resident for the fair
market value of
the property against any money due and owing to the
owner, and any value in
excess of money due and owing shall be
mailed to the resident at his last
known address along with an itemized
statement of the value allocated to the
property and the amount allocated
to costs within fifteen days of the retention
of the property.
F.
If the last known address is the dwelling unit, the owner shall also mail
at least one copy of the accounting and notice of the sums for distribution, to
the other address, if provided to the owner by the resident, such as, place of
employment, family members, or emergency contact on record with the owner.
G.
An owner may charge the resident reasonable storage fees for any time
that the owner provided storage for the resident’s personal property and the
prevailing rate of moving fees. The owner may require payment of storage and
moving costs prior to the release of the property.
H.
The owner may not hold the property for any other debts claimed due or
owning or for judgments for which an application for writ of execution has not
previously been filed. The owner may not retain exempt property where an
application for a writ of execution has been granted.
History: 1978 Comp., §47-8-34.1, enacted by Laws 1995,
ch. 195, §15.
135
47-8-34.2. Personal property and security deposit of de-
ceased resident; contact person.
A.
As used in this section, ‘‘contact person’’ means the person designated by
a resident in writing as the person to contact and release property to in the
event of the resident’s death.
B.
The owner may request in writing, including by a requirement in the
rental agreement, that the resident:
(1)
provide the owner with the name, address and telephone number of
a contact person; and
(2)
sign a statement authorizing the owner in the event of the resident’s
death to:
(a)
grant the contact person access to the dwelling unit at a
reasonable time and in the presence of the owner or the owner’s agent;
(b)
allow the contact person to remove the resident’s property from
the dwelling unit; and
(c)
refund the resident’s security deposit, less lawful deductions, to
the contact person.
C.
A resident may, without request from the owner, provide the owner with
the name, address and telephone number of a contact person.
D.
Except as provided in Subsection E of this section, in the event of the
death of a resident who is the sole occupant of a rental dwelling, the owner:
(1)
shall turn over possession of property in the dwelling unit to the
contact person or to any other person lawfully entitled to the property if the
request is made prior to the property being discarded pursuant to Paragraph
(5)
of this subsection;
(2)
shall refund the resident’s security deposit, less lawful deductions,
including the cost of removing and storing the property, to the contact person
or to any other person lawfully entitled to the refund;
(3)
may remove and store all property found in the dwelling unit;
(4)
may require any person who removes property from the resident’s
dwelling unit to sign an inventory of the property being removed; and
(5)
may discard property removed by the owner from the resident’s
dwelling unit if:
(a)
the owner has mailed a written request by certified mail, return
receipt requested, to the contact person, requesting that the property be
removed;
(b)
the contact person failed to remove the property within thirty
days after the request is mailed; and
(c)
the owner, prior to the date of discarding the property, has not
been contacted by anyone claiming the property.
136
E.
An owner and a resident may agree to a procedure different than the
procedure in this section for removing, storing or disposing of property in the
dwelling unit of a deceased resident in a written rental agreement or other
agreement.
F.
If, after a written request by an owner, a resident does not provide the
owner with the name, address and telephone number of a contact person, the
owner shall have no responsibility after the resident’s death for removal,
storage, disappearance, damage or disposition of property in the resident’s
dwelling.
G.
An owner who violates Subsection D of this section shall be liable to the
estate of the deceased resident for actual damages.
History: Laws 2007, ch. 169, §1.
47-8-35. Claim for rent and damages.
If the rental agreement is terminated, the owner is entitled to possession
and may have a claim for rent and a separate claim for damages for breach of
the rental agreement and reasonable attorney’s fees as provided in Subsection
C of Section 33 [47-8-33 NMSA 1978] of the Uniform Owner-Resident Relations
Act.
JUDICIAL DECISIONS
Holdover period.
Restitution.
Holdover period.
Pursuant to 47-8-35 NMSA 1978 of the Uniform Owner-
Resident Relations Act, 47-8-1 to 47-8-51 NMSA 1978, a
landowner was entitled to rent during a holdover period;
because there was no rental agreement after a particular
date, the tenant was required to pay the fair rental value of
the premises as they existed during these months, under 47-
8-15 NMSA 1978 and defined by 47-8-3 NMSA 1978.,
Inc. v. Rhudy, 96 N.M. 354, 630 P.2d753 (1981).
Restitution.
In a city’s action against a tenant of a public housing unit
for a money judgment and for a writ of restitution that
would order that the premises be vacated, restitution by a
qualified indigent tenant was not mandatory and other
forms of relief were available under the New Mexico
Uniform Owner-Resident Relations Act, 47-8-1 NMSA
1978 et seq., where the trial court found that the tenant was
in default on rent. City of Albuquerque v. Brooks, 114
N.M. 572, 844 P.2d 822 (1992).
47-8-36. Unlawful removal and diminution of services pro-
hibited.
A.
Except in case of abandonment, surrender or as otherwise permitted in
the Uniform Owner-Resident Relations Act [47-8-1 NMSA 1978], an owner or
any person acting on behalf of the owner shall not knowingly exclude the
resident, remove, threaten or attempt to remove or dispossess a resident from
the dwelling unit without a court order by:
(1)
fraud;
(2)
plugging, changing, adding or removing any lock or latching
device;
(3)
blocking any entrance into the dwelling unit;
(4)
interfering with services or normal and necessary utilities to the
unit pursuant to Section 47-8-32 NMSA 1978 [repealed], including but not
137
limited to electricity, gas, hot or cold water, plumbing, heat or telephone
service, provided that this section shall not impose a duty upon the owner to
make utility payments or otherwise prevent utility interruptions resulting
from nonpayment of utility charges by the resident;
(5)
removing the resident’s personal property from the dwelling unit or
its premises;
(6)
removing or incapacitating appliances or fixtures, except for making
necessary and legitimate repairs; or
(7)
any willful act rendering a dwelling unit or any personal property
located in the dwelling unit or on the premises inaccessible or uninhabitable.
B.
The provisions of Subsection A of this section shall not apply if an owner
temporarily interferes with possession while making legitimate repairs or
inspections as provided for in the Uniform Owner-Resident Relations Act
[47-8-1 NMSA 1978].
C.
If an owner commits any of the acts stated in Subsection A of this section,
the resident may:
(1)
abate one hundred percent of the rent for each day in which the
resident is denied possession of the premises for any portion of the day or each
day where the owner caused termination or diminishment of any service for
any portion of the day;
(2)
be entitled to civil penalties as provided in Subsection B of Section
47-8-48 NMSA 1978;
(3)
seek restitution of the premises pursuant to Sections 47-8-41 and
Section 47-8-42 NMSA 1978 or terminate the rental agreement; and
(4)
be entitled to damages.
History: 1953 Comp., §70-7-36, enacted by Laws 1975, ch. 38, §36; 1995, ch. 195, § 16.
STATUTORY NOTES
Cross reference. — Prevailing party rights in law suit; civil
penalties, 47-8-48 NMSA 1978.
Editor’s notes. — Section 47-8-32 NMSA 1978, referred to
in Subsection A(4), was repealed Laws 1995, ch. 195, § 27.
47-8-36.1. Landlord lien.
A.
There shall be no landlord’s lien arising out of the rental of a dwelling
unit to which the Uniform Owner-Resident [Relations] Act [47-8-1 NMSA
1978] applies.
B.
Nothing in this section shall prohibit the owner from levy and execution
on a judgment arising out of a claim for rent or damages.
History: 1978 Comp., §47-8-36.1, enacted by Laws 1995,
ch. 195, §17
.
JUDICIAL DECISIONS
Lien.
A landlord who had a landlord’s lien on the property of a
lessee was found to have been wholly wrong in her procedure
when she forcibly took possession of the property without
first demanding the rent due and claiming the landlord’s lien
as required under 1917 N.M. Laws ch. 65, § 26 (47-8-36.1
138
NMSA 1978); thus, the remedy of injunction was available to
the lessee because the business of the lessee would be
destroyed by way of legal remedies. Ross v. Overton, 29
N.M. 651, 226 P. 162 (1924).
47-8-37. Notice of termination and damages.
A.
The owner or the resident may terminate a week-to-week residency by a
written notice given to the other at least seven days prior to the termination
date specified in the notice.
B.
The owner or the resident may terminate a month-to-month residency by
a written notice given to the other at least thirty days prior to the periodic
rental date specified in the notice.
C.
If the resident remains in possession without the owner’s consent after
expiration of the term of the rental agreement or its termination, the owner
may bring an action for possession and if the resident’s holdover is willful and
not in good faith the owner, in addition, may recover the damages sustained by
him and reasonable attorney’s fees. If the owner consents to the resident’s
continued occupancy, Subsection C of Section 15 [47-8-15 NMSA 1978] of the
Uniform Owner-Resident Relations Act applies.
History: 1953 Comp., §70-7-37, enacted by Laws 1975, ch.
38, §37
Construction with other law.
Equivocal.
Payment after notice.
Time limitations.
Construction with other law.
A court overturned a decision allowing a mobile home park
to terminate some residents’ month-to-month tenancy, as the
court deter- mined that (1) the mobile home park had failed to
provide a statement of cause on the notice to quit served on
the residents, and (2) even if the notice to quit complied with
the requirements of the Owner-Resident Relations Act
(ORRA) in 47-8-37B NMSA 1978, the Mobile Home Park
Act (which, under 47-10-3A NMSA 1978, was found to
require a statement of cause on the notice of quit) prevailed
over the ORRA where the statutes were in direct conflict.
Green Val- ley Mobile Home Park v. Mulvaney, 1996-
NMSC-037, 121 N.M. 817, 918 P.2d 1317.
Equivocal.
Tenant contended that a notice to quit was ineffective
because it did not sufficiently notify him that he must
terminate the tenancy, as required by 47-8-37 of the Uniform
Owner- Resident Relations Act, 47-8-1 to 47-8-51 NMSA
1978; the court found that the notice was not sufficiently
definite to inform the ten- ants of the landlords desire that
they vacate because it was equivocal and they could have
construed it to mean that they could remain at an increased
rental, although a second notice that was unequivocal was
sufficient. T.W.I.W., Inc. v. Rhudy, 96 N.M. 354, 630 P.2d
753 (1981).
Payment after notice.
Judgment was properly rendered in favor of a tenant in
connection with a landlord’s unlawful detainer action, which
had been brought under former 1915 Code, § 2384 after the
tenant failed to pay the rent at the time stipulated for the
payment thereof, because the tenant tendered his rent money
to the landlord within three days after receiving notice of
termination of the lease from the landlord as required under
former 1915 Code, § 2386. El Dorado Inv. Co. v. Burrus, 28
N.M. 551, 215 P. 819 (1923).
Time limitations.
Tenant contended that the landlord’s notices to quit were not
effective because they were not given at least 30 days prior to
the periodic rental rate, as required by 47-8-37B of the
Uniform Owner-Resident Relations Act, 47-8-1 to 47-8-51
NMSA 1978; the court held that a notice to quit which is
ineffective because it did not give the month-to-month tenant
the requisite 30 days prior to the periodic rental date is
nonetheless effective for the next ensuing rental date.
T.W.I.W., Inc. v. Rhudy, 96 N.M. 354, 630 P.2d 753 (1981).
47-8-38. Injunctive relief.
A.
If the resident refuses to allow lawful access, the owner may obtain
injunctive relief to compel access or terminate the rental agreement. In either
139
case, the owner may recover damages, reasonable attorney’s fees and court
costs.
B.
If the owner makes an unlawful entry or a lawful entry in an unreason-
able manner or makes repeated demands for entry otherwise lawful but which
have the effect of unreasonably harassing the resident, the resident may
obtain injunctive relief to prevent the recurrence of the conduct or terminate
the rental agreement. In either case, the resident may recover damages and
reasonable attorney’s fees.
History: 1953 Comp., §70-7-38, enacted by Laws 1975, ch.
38, §38.
47-8-39. Owner retaliation prohibited.
A.
An owner may not retaliate against a resident who is in compliance with
the rental agreement and not otherwise in violation of any provision of the
Uniform Owner-Resident Relations Act [47-8-1 NMSA 1978] by increasing
rent, decreasing services or by bringing or threatening to bring an action for
possession because the resident has within the previous six months:
(1)
complained to a government agency charged with responsibility for
enforcement of a minimum building or housing code of a violation applicable to
the premises materially affecting health and safety;
(2)
organized or become a member of a residents’ union, association or
similar organization;
(3)
acted in good faith to exercise his rights provided under the Uniform
Owner-Resident Relations Act [47-8-1 NMSA 1978], including when the
resident makes a written request or complaint to the owner to make repairs to
comply with the owner’s obligations under Section 47-8-20 NMSA 1978;
(4)
made a fair housing complaint to a government agency charged with
authority for enforcement of laws or regulations prohibiting discrimination in
rental housing;
(5)
prevailed in a lawsuit as either plaintiff or defendant or has a
lawsuit pending against the owner relating to the residency;
(6)
testified on behalf of another resident; or
(7)
abated rent in accordance with the provisions of Section 47-8-27.1 or
47-8-27.2 NMSA 1978.
B.
If the owner acts in violation of Subsection A of this section, the resident
is entitled to the remedies provided in Section 47-8-48 NMSA 1978 and the
violation shall be a defense in any action against him for possession.
C.
Notwithstanding the provisions of Subsection A of this section, the owner
may increase the rent or change services upon appropriate notice at the end of
the term of the rental agreement or as provided under the terms of the rental
agreement if the owner can establish that the increased rent or changes in
services are consistent with those imposed on other residents of similar rental
units and are not directed at the particular resident, but are uniform.
140
History: 1953 Comp., §70-7-39, enacted by Laws 1975, ch.
38, §39; 1989, ch. 253, §1; 1995, ch. 195, §18; 1999, ch. 91,
§6.
STATUTORY NOTES
Cross reference. — Action for possession by owner, 47-8-
40 NMSA 1978. Prevailing party rights in law suit; civil
penalties, 47-8-48 NMSA 1978.
JUDICIAL DECISIONS
Generally. Burden of proof.
Construction. Defenses.
Generally.
Where an owner properly terminated a rental agreement and
brought an action for possession motivated by retaliation for
a resident’s complaints about noisy neighbors, that retaliatory
action was not barred by 47-8- 39A(3) NMSA 1978 of the
Uniform Owner- Resident Relations Act because no specific
pro- vision of the Uniform Owner-Resident Relations Act,
47-8-1 NMSA 1978 et seq., gave a resident the right to
complain about noisy neighbors or required the owner to
keep residents from being too noisy. Casa Blanca Mobile
Home Park v. Hill, 1998-NMCA-094, 125 N.M. 465, 963
P.2d 542, cert. denied, 125 N.M. 322, 961 P.2d 167 (1998).
Burden of proof.
Tenants’ claim that a landlord’s motion for restitution was
retaliation against them for abating the rent and was therefore
a violation of 47-8-39 NMSA 1978 failed because the tenants
were living on the premises continuously until a fire
occurred, and the premises were not uninhabitable for any of
the 17 months that the tenants had not paid rent; therefore,
the tenants were not permitted to abate their rent pursuant to
the New Mexico Uniform Owner- Resident Relations Act,
47-8-1 through 47-8-51NMSA 1978. Hedicke v. Gunville,
2003-NMCA- 032, 133 N.M. 335, 62 P.3d 1217, cert. denied,
133 N.M. 413, 63 P.3d 516 (2003).
Construction.
Where an owner properly terminated a rental agreement and
brought an action for possession motivated by retaliation for
a resident’s complaints about noisy neighbors, that retaliatory
action was not barred by 47-8- 39A(3) NMSA 1978 of the
Uniform Owner- Resident Relations Act; no specific
provision of the Uniform Owner-Resident Relations Act, 47-
8-1 NMSA 1978 et seq., gave a resident the right to complain
about noisy neighbors or required the owner to keep residents
from being too noisy. Casa Blanca Mobile Home Park v.
Hill, 1998-NMCA-094, 125 N.M. 465, 963 P.2d 542, cert.
denied, 125 N.M. 322, 961 P.2d 167(1998).
Defenses.
As landlord and tenant did not dispute that the apartment
owner’s decision to discontinue participation in the section-
eight housing pro- gram was to be equally applied to each
section- eight tenant upon expiration of the respective lease,
the tenant could not ground her retaliation defense on the
owner’s discontinuance of participation in the section-eight
program. Carol Rickert & Assocs. v. Law, 2002-NMCA-
096,132,N.M.687,54P.3d91
47-8-40. Action for possession by owner.
A.
Notwithstanding Subsections A and B of Section 47-8-39 NMSA 1978, an
owner may bring an action for possession if:
(1)
the violation of the applicable minimum building or housing code
was caused primarily by lack of reasonable care by the resident or other person
in his household or upon the premises with the resident’s consent;
(2)
the resident is in default in rent;
(3)
there is a material noncompliance with the rental agreement that
would otherwise give rise to the owner’s right to terminate the rental
agreement;
(4)
a resident knowingly commits or consents to any other person in the
dwelling unit or on the premises knowingly committing a substantial violation;
or
(5)
compliance with the applicable building or housing code requires
alteration, remodeling or demolition that would effectively deprive the resi-
dent of use of the dwelling unit.
141
B.
The maintenance of an action under Subsection A of this section does not
release the owner from liability under Section 47-8-20 NMSA 1978.
History: 1953 Comp., §70-7-40, enacted by Laws 1975, ch.
38, §40; 1995, ch. 195, §19.
JUDICIAL DECISIONS
Restitution.
In a city’s action against a tenant of a public housing unit
for a money judgment and for a writ of restitution that
would order that the premises be vacated, restitution by a
qualified indigent tenant was not mandatory and other
forms of relief were available under the New Mexico
Uniform Owner-Resident Relations Act, 47-8-1 NMSA
1978, where the trial court found that the tenant was in
default on rent. City of Albuquerque v. Brooks, 114 N.M.
572, 844 P.2d 822 (1992)
47-8-41. Action for possession by owner or resident.
An action for possession of any premises subject to the provisions of the
Uniform Owner-Resident Relations Act [47-8-1 NMSA 1978] shall be com-
menced in the manner prescribed by the Uniform Owner-Resident Relations
Act.
History: 1953 Comp., §70-7-41, enacted by Laws 1975, ch.
38, §41
47-8-42. Petition for restitution.
The person seeking possession shall file a petition for restitution with the
clerk of the district or magistrate court. The petition shall contain:
A.
the facts, with particularity, on which he seeks to recover;
B.
a reasonably accurate description of the premises; and
C.
the requisite compliance with the notice provisions of the Uniform
Owner-Resident Relations Act [47-8-1 NMSA 1978].
The petition may also contain other causes of action relating to the residency,
but such causes of action shall be answered and tried separately, if requested
by either party in writing.
History: 1953 Comp., §70-7-42, enacted by Laws 1975, ch.
38, §42
STATUTORY NOTES
Cross reference.—Unlawful removal and diminution of
services prohibited, 47-8-36 NMSA 1978
142
JUDICIAL DECISIONS
.
Restitution.
In a city’s action against a tenant of a public housing unit
for a money judgment and for a writ of restitution that
would order that the premises be vacated, restitution by a
qualified indigent tenant was not mandatory and other
forms of relief were available under the New Mexico
Uniform Owner-Resident Relations Act, 47-8-1 NMSA
1978, where the trial court found that the tenant was in
default on rent. City of Albuquerque v. Brooks, 114 N.M.
572, 844 P.2d 822 (1992)
47-8-43. Issuance of summons.
A.
The summons shall be issued and directed, with a copy of the petition
attached to the summons, and shall state the cause of the complaint, the
answer day for other causes of action and notice that if the defendant fails to
appear, judgment shall be entered against him. The summons may be served
pursuant to the New Mexico rules of civil procedure and returned as in other
cases. Trial of the action for possession shall be set as follows:
(1)
for any matter brought by the owner for possession, not less than
seven or more than ten days after the service of summons; or
(2)
for any matter brought by the resident for possession, not less than
three or more than five days after the service of summons.
B.
Upon finding of good cause, the court may continue the date of hearing on
the action for possession for up to seven days from the date of the initial
hearing.
History: 1953 Comp., §70-7-43, enacted by Laws 1975, ch.
38, §43; 1995, ch. 195, §20.
STATUTORY NOTES
Cross reference.—Action for termination, 47-10-4 NMSA
1978.
47-8-44. Absence from court of defendant.
If the defendant shall not appear in response to the summons, and it shall
have been properly served, the court shall try the cause as though he were
present.
History: 1953 Comp., §70-7-44, enacted by Laws 1975, ch.
38, §44.
47-8-45. Legal or equitable defense.
On or before the day fixed for his appearance, the defendant may appear and
answer and assert any legal or equitable defense, setoff or counterclaim.
History: 1953 Comp., §70-7-45, enacted by Laws 1975, ch.
38, §45
143
JUDICIAL DECISIONS
Restitution.
In a city’s action against a tenant of a public housing unit
for a money judgment and for a writ of restitution that
would order that the premises be vacated, restitution by a
qualified indigent tenant was not mandatory and other
forms of relief were available under the New Mexico
Uniform Owner-Resident Relations Act, 47-8-1 NMSA
1978 et seq., where the trial court found that the tenant was
in default on rent. City of Albuquerque v. Brooks, 114
N.M. 572, 844 P.2d 822 (1992). Metropolitan court had
both equitable and legal jurisdiction under the New Mexico
Uniform Owner-Resident Relations Act, 47-8-1 NMSA
1978 et seq., in the city’s action against a tenant of a public
housing unit for a money judgment and for a writ of
restitution that would order that the premises be vacated.
City of Albuquerque v. Brooks, 114 N.M. 572, 844 P.2d
822(1992)
47-8-46. Writ of restitution.
A.
Upon petition for restitution filed by the owner if judgment is rendered
against the defendant for restitution of the premises, the court shall declare
the forfeiture of the rental agreement and shall, at the request of the plaintiff
or his attorney, issue a writ of restitution directing the sheriff to restore
possession of the premises to the plaintiff on a specified date not less than
three nor more than seven days after entry of judgment.
B.
Upon a petition for restitution filed by the resident, if judgment is
rendered against the defendant for restitution of the premises, the court shall,
at the request of the plaintiff or his attorney, issue a writ of restitution
directing the sheriff to restore possession of the premises to the plaintiff within
twenty-four hours after entry of judgment.
History: 1953 Comp., §70-7-46, enacted by Laws 1975, ch.
38, §46; 1995, ch. 195, §21
STATUTORY NOTES
Cross reference. — Remedies, 47-10-9 NMSA 1978
JUDICIAL DECISIONS
Restitution.
In a city’s action against a tenant of a public housing unit for
a money judgment and for a writ of restitution that would
order that the premises be vacated, restitution by a qualified
indigent tenant was not mandatory and other forms of relief
were available under the New Mexico Uniform Owner-
Resident Relations Act, 47-8-1 NMSA 1978 et seq., where
the trial court found that the tenant was in default on rent.
City of Albuquerque v. Brooks, 114 N.M. 572, 844 P.2d 822
(1992)
144
47-8-47. Appeal stays execution.
A.
If either party feels aggrieved by the judgment, that party may appeal as
in other civil actions. An appeal by the defendant shall stay the execution of
any writ of restitution; provided that in cases in which the resident is the
appellant, the execution of the writ of restitution shall not be stayed unless the
resident, within five days of the filing of the notice of appeal, pays to the owner
or into an escrow account with a professional escrow agent an amount equal to
the rental amount that shall come due from the day following the judgment
through the end of that rental period. The resident shall continue to pay the
monthly rent established by the rental agreement at the time the complaint
was filed, on a monthly basis on the date rent would otherwise become due.
Payments pursuant to this subsection by a subsidized resident shall not exceed
the actual amount of monthly rent paid by that resident. When the resident
pays the owner directly, the owner shall immediately provide a written receipt
to the resident upon demand. When the resident pays into an escrow account
the resident shall cause such amounts to be paid over to the owner immedi-
ately upon receipt unless otherwise ordered by the court. Upon the failure of
the resident or the escrow agent to make a monthly rent payment on the first
day rent would otherwise be due, the owner may serve a three-day written
notice on the resident pursuant to Subsection D of Section 47-8-33 NMSA 1978.
If the resident or the resident’s escrow agent fails to pay the rent within the
three days, a hearing on the issue shall be scheduled within ten days from the
date the court is notified of the failure to pay rent. In the case of an appeal de
novo, the hearing shall be in the court in which the appeal will be heard. If, at
the hearing, the court finds that rent has not been paid, the court shall
immediately lift the stay and issue the writ of restitution unless the resident
demonstrates a legal justification for failing to comply with the rent payment
requirement.
B.
In order to stay the execution of a money judgment, the trial court, within
its discretion, may require an appellant to deposit with the clerk of the trial
court the amount of judgment and costs or to give a supersedeas bond in the
amount of judgment and costs with or without surety. Any bond or deposit shall
not be refundable during the pendency of any appeal.
History: 1953 Comp., §70-7-47, enacted by Laws 1975, ch.
38, §47; 1989, ch. 253, §2; 1995, ch. 195, §22; 1999, ch. 91,
§7
JUDICIAL DECISIONS
Negligence.
Because 47-8-2 NMSA 1978 in the Uniform Owner-Resident
Relations Act, 47-8-1 to 47- 8-51 NMSA 1978, states that the
Act’s general purpose is to clarify the rights and the
obligations of owners and residents and because it is not clear
that the provision in 47-8-47 NMSA 1978, which gives a
tenant a right to file an appeal to stay the execution of a writ
of restitution regarding an eviction action, in the Act is
intended to provide protection against sheriff ’s deputies who
execute the writ due to not knowing of the appeal, the
execution of the writ by the deputies did not entitle the
tenants to a recovery as to the negligence claim that was filed
against the County of Bernalillo (New Mexico), the sheriff
and the deputies. Runge v. Fox, 110 N.M. 447, 796 P.2d
1143 (Ct. App.1990) Bernalillo County (New Mexico), the
sheriff, and the deputies were entitled to a favorable
judgment regarding the tenants’ negligence claim under 41-4-
4 NMSA 1978 in the Tort Claims Act, 41-4-1 to 41-4-27
NMSA 1978, regarding executing the writ of restitution that
was issued due to the landlord’s desire to evict the tenants;
the county was not negligent because the deputies were not
negligent because the deputies were only meeting their duty
145
under 4-41-14 NMSA 1978 in executing the facially valid
writ of restitution and the deputies were not required to check
with the magistrate clerk’s office regarding the possibility of
the tenants filing the appeal, which they did file, that had the
intent under 47-8-47 NMSA 1978 in the Uniform Owner-
Resident Relation Act, 47-8-1 to 47-8-51 NMSA 1978, of
staying the execution of the writ. Runge v. Fox, 110 N.M.
447,796P.2d 1143 (Ct.App.1990)
47-8-48. Prevailing party rights in law suit; civil penalties.
A.
If suit is brought by any party to the rental agreement to enforce the
terms and conditions of the rental agreement or to enforce any provisions of the
Uniform Owner-Resident Relations Act [47-8-1 NMSA 1978], the prevailing
party shall be entitled to reasonable attorneys’ fees and court costs to be
assessed by the court.
B.
Any owner who violates a provision of Section 47-8-36 or 47-8-39 NMSA
1978 shall be subject to a civil penalty equal to two times the amount of the
monthly rent.
C.
Any resident who intentionally violates a provision of Subsection F of
Section 47-8-22 NMSA 1978 shall be subject to a civil penalty equal to two
times the amount of the monthly rent.
History: 1953 Comp., §70-7-48, enacted by Laws
1975, ch. 38, §48; 1995, ch. 195, §2
STATUTORY NOTES
Cross reference. — Delivery of possession, 47-8-26
NMSA 1978. Unlawful removal and diminution of services
prohibited, 47-8-36 NMSA 1978. Owner retaliation
prohibited, 47-8-39 NMSA 1978
.
Index
Acceptable financial institution
, 46
ADVERTISING, 100
Agency
, 46
Agency:
, 46
Agent
, 46
Application for license and examination
,
18
Approved education course
, 46
Approved training course
, 47
Associate broker
, 47
ASSOCIATE BROKER, 78
Broker
, 16, 47, 59, 91
Broker duties
, 47
Broker in charge
, 47
Brokerage relationships
, 13, 27
Brokerage trust account
, 47, 85
CHILD SUPPORT ENFORCEMENT, 102
Client
, 47
Commercial real estate
, 47
Commingling
, 88, 89
compliance
, 29, 59, 102, 103, 104
CONTINUING EDUCATION, 64
Core course
, 47
Core elective course
, 47
Creation of commission; powers and
duties
, 18
Credit hours(s)
, 47
Custodial trust account
, 47
Customer
, 48
Definitions
, 13, 14, 46, 52, 53, 56, 59, 60, 61,
62, 63, 64, 65, 69, 76, 78, 79, 82, 84, 89, 96,
99, 100, 101, 102, 104
deposit
, 24, 31, 32, 85, 88, 91, 92, 97
Designated agency
, 48
Designated agent
, 48
Disability
, 84
Disciplinary actions
, 63
disclosure
, 13, 28, 46, 48, 62, 87, 88, 92, 93,
94, 95
Distance education
, 48
Dual agency
, 48, 81
EDUCATION AND TRAINING FUND, 65
Employee
, 48
Errors and omissions insurance
, 48
ERRORS AND OMISSIONS INSURANCE, 56
examination
, 23, 25, 18, 27, 52, 71
EXAMINATION AND LICENSING
APPLICATION REQUIREMENTS, 53, 56
Exclusive agency
, 48
Expired license
, 49
Express written agreement
, 49
Facilitator
, 49
Fees
, 52, 53, 87
FINGERPRINTING, 60
Foreign broker
, 49
GENERAL PROVISIONS, 46
good faith
, 49
Honesty and Reasonable Care and Ethical and
Professional Conduct
, 49
In house transaction
, 49
Inactive broker
, 49
instructor
, 23, 24, 48, 52, 72, 104
Investigations
, 105
Issuance, renewal and surrender of
licenses
, 29
Land title trust account
, 49
lead-based paint
, 46
license
, 13,
14
, 14, 16, 17, 18, 10, 21, 23, 24,
25, 18, 27, 29, 30, 31, 32, 33, 34, 37, 38, 41,
44, 47, 48, 49, 50, 51, 52, 53, 59, 61, 62, 63,
64, 65, 78, 84, 89, 95, 96, 99, 102, 103, 104,
105
LICENSE EXPIRATION, 62
License fees; disposition
, 23
LICENSE RENEWAL, 62
LICENSE REVOCATION, 63
License s urrender
, 63
LICENSE SUSPENSION, 63
LICENSE T RANSFER, 61
Licensee’s duties
, 13, 28
Military service member
, 49
New Mexico Administrative Code
, 46
non-refundable fees
, 53
Nonresident brokers; consent to service;
refer-
ral fees
, 36
organization
, 31, 51, 68
Organization of commission
, 21
owner
, 15, 16, 17, 46, 47, 48, 49, 50, 86, 87,
88, 89, 90, 92, 94
Owner or Property Owner
, 49
Owner-Resident Relations
, 50
Party to the transaction
, 49
Penalties for violation
, 59
Person
, 49
Post-licensing course
, 49
Principal
, 49
profes-
sional liability insurance;
minimum coverage
, 10
Property ledger
, 50
Property management
, 50, 85, 86, 89
Property management trust account
, 50
Property manager
, 50
Qualifying broker
, 50
QUALIFYING BROKER, 59, 76
Real estate education and training
fund
, 39
Recent veteran
, 50
Reconciliation
, 50
Referral
, 50
Refusal, suspension or revocation of
license
, 31, 37
Responsible person
, 50
Scope of authority
, 50
Short-term/vacation rental
, 50
Special trust account
, 51, 85
Sponsor
, 51
sponsors
, 39, 68, 71
Subagent
, 51
Telephonic meeting attendance
, 51
Terms of coverage
, 57
TIME SHARE, 92
Transaction
, 51
Transaction broker
, 51
Trust account
, 51
Trust accounts
, 96
TRUST ACCOUNTS, 84
Types of licenses
, 53
Unlicensed assistant
, 51
Virtual Office
, 51
