FReepers-please, PLEASE help..I'm scared to death, can't get rid of my rentors. {Vanity}

I'm so furious, I can't see straight, forgive me if this is scrambled. I need your help. Mr. S_S and I own the home directly adjacent to us, which we rent out. We have sucessfully managed three previous tennants with no problems; two whom we knew, and one acquired via a rental agency. This spring, we used the same rental agency to find the current rentors.

After the company approved them, we found out that-

They flat *lied* on their lease agreement about their jobs, income, previous addresses and reason for leaving, and about how many people were going to occupy this house.

The 'credit check' area of the lease was left blank by the rental company, leading me to think none was performed; and when the problems began and I called this company to complain, I was basically told that it wasn't their problem anymore, and 'tough sh*t'. I went to the county clerks office, filled out a 72-hour eviction notice 4 months ago and stuck it on their door, for failure to pay rent in a timely fashon. The rent was paid within 12 hours, and rather then involve the law, we [dumbly] decided to overlook it.

The first month, and with every additional month, the rent was late. By late, I mean typically 4-6 weeks overdue-This group has the bad luck to have some type of calamity befall them the first week of each month which prevents the $$ being available. Someone hurting themselves, a birthday, a sister in the hospital, etc, etc.

They are a family of...uh... "_______-American" decent, loudly drinking/yelling/partying/fighting 3-5 nights/week [many past midnight], while waking my children and keeping me up many of these nights. The property looks awful with the beer cans, ciggy butts and trash strewn all over, they've broken the gate leading into the yard beyond reasonable repair, and I am not even planning on going INside the home without Mr. S_S with me.

I should mention that 95% of these problems with noise and drunken behavior happens when Mr. S_S is out of town.

Last night, he was home. 2am, they were outside my bedroom window, music thumping, loud yelling, etc. He stuck his head over the fence, told them to shut up. They didn't. He called the cops, within 2 minutes of that call, they quieted down. I was glad they were out for the night. He was wondering at the chances of them shutting up right after the call was made. About thirty minutes later, two of them were fighting over the beer, again, right outside my bedroom window. We were afraid that they were going to try to drive the truck, and being 'drunk', may end up plowing it through the bedroom instead. Mr. S_S stuck his head out again, told them to 'shut-the-****-up' this time, came to me, brought me my Taurus .357, holstered his Rueger .45, handed me the phone, and told me to call the police; these guys that were fighting were pissed now, and he was ready to fire if it looked like there was going to be trouble.

I called LEO, and while I was on the phone, the ***** next door yelled outside, "shut up, they're calling the cops right now".

They are monitoring our phone calls with some sort of a ******* scanner. My engineer brother-in-law came over and told us that our phone was at a frequency to high for a normal 'bought at RadioShack' scanner to pick up, so it may be a police scanner.

WTF am I going to do NOW??

These rentors are minorities, on welfare, and seem to think that as such, they are entitled to ignore the rules. Mr. S_S wants to evict them, using *ahem* unspecified "methods" that won't point back to him. These people are pissed at us, and honestly, I'm scared, mainly because of my little ones being here with me, and because Mr. S_S is gone so much of the time. People have told me basically that I'm screwed, because they are minorities, on welfare, blah, frickin' blah blah blah...

I am scared to death. I really, really, really need some advice, help, anything to point me to where I can find if I have any rights in this.

FOR NEW MEXICO

Landlord-Tenant Relations

The Rental Agreement
When a landlord rents a residence to a tenant, the two parties enter into a rental agreement. This agreement determines the amount of rent and when it must be paid, the length of the tenancy, and how much advance notice either party must give to end the agreement. The agreement may be oral, with no written rules or signatures. Such oral tenancies are periodic and automatically renew themselves for the specified period (weekly or monthly). In the Uniform Owner-Resident Relations Act in the Definitions Statute 47-8-3 section "O", "rental agreement" means all written 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.

There are conflicting opinions among the judiciary and some believe that without a written lease agreement, the Uniform Owner-Resident Relations Act cannot be enforced. Others honor verbal agreements. Nonetheless, it is important to have a written lease agreement because both parties are better protected. To go to court without a paper trail is risky. Oral agreements are difficult to enforce by either side, meaning one side cannot request certain things be enforced; vice-versa applies to the other side. Examples: Can you have pets? Who's responsible for paying the utilities? Am I allowed or entitled to a grace period for paying my rent? These are only some of a lot more issues that can arise from not having a written contract. A written agreement, or lease, may provide for periodic renewal, or for a fixed term, such as a six month or one year lease.

To end a month-to-month tenancy, the landlord or the tenant must give 30 days advance notice at the beginning of the next rental period. Similarly, seven days advance notice is necessary to end a week-to-week tenancy. A written fixed-term lease may or may not require giving notice before the termination date.

Rules and regulations
Besides the basic obligations of landlords and tenants which are listed below, rental agreements may include rules dealing with special situations, such as pets, subletting, and charges for late rent. New Mexico law requires a landlord to give each tenant a written copy of any rules and regulations in order for them to be enforceable. They may be part of the lease. New rules or changes (including rent increases) in a month-to-month agreement require a 30-day notice at the beginning of the rental period. Modifications during a fixed-term tenancy depend upon the terms of the agreement.
Deposits
The landlord may require the tenant to pay a security or damage deposit before moving in. This is money to be held by the landlord during the tenancy to protect against losses from unpaid rent or damage to the property (normal wear and tear excepted).

A landlord cannot charge a tenant more than one month's rent as a deposit on any lease of less than a year. If the lease is for a year or more, the landlord may collect a deposit of more than one month's rent; but if he does so, he must pay the tenant current passbook interest on the whole deposit.

To avoid disputes at the end of the tenancy, the landlord and the tenant should, at the move-in, inventory the furnishings and condition of the unit, and co-sign such a list.

The tenant may not use the deposit to cover the last month's rent, although the landlord may apply it toward rent unpaid. A deposit, by definition, is refundable. The landlord must have suffered actual losses in order to withhold any part of the deposit.

The landlord has 30 days from the end of the tenancy in which to return the deposit or an itemized list of deductions plus any balance. The tenant must provide a forwarding address where he or she may receive this accounting.

If a landlord does not send an itemized statement to the tenant within the 30 days of the tenant properly moving out, i.e., giving proper notice, the landlord forfeits all rights to any of the deposit and to take further legal action against the tenant in a court of a law. The tenant could have incurred $10,000 in damages, but if the landlord does not meet the 30-day requirement, he loses the right to claim the damage. If a tenant breaks the lease or does not give a proper 30-Day Notice, the landlord has 30 days from the day the rental unit is re-rented to send an itemized statement to the tenant. If not, the landlord forfeits the right to the deposit. In case there is no forwarding address, the law requires the itemized statement be sent to the last known address.

The landlord's obligations
The landlord must:

Comply with applicable housing codes materially affecting health and safety.
Make repairs and do whatever is necessary to put and keep the premises in safe condition.
Keep the common areas in a safe condition.
Maintain a good and safe working condition in electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, if any, supplied or required to be supplied by the landlord.
Provide and maintain receptacles for the removal of trash.
Supply running water, a reasonable amount of hot water and reasonable heat in the dwelling at all times.

The tenant's obligations

Comply with minimal housing codes imposed upon residents which materially affect health and safety.
Keep the premises in as clean and safe condition as the premises permit, and return the dwelling in the same condition as when the tenant moved in, except for reasonable wear and tear.
Dispose of trash in a clean and safe manner.
Keep plumbing fixtures as clean as their condition permits.
Use all plumbing, electrical, sanitary, heating, ventilation, air conditioning and other facilities and appliances in a reasonable manner.
Not deliberately destroy or allow anyone to destroy any part of the premises.
Not disturb the neighbors' peace, and
Abide by all rules and regulations not inconsistent with the owner's or tenant's rights or obligations.

The tenant's remedies
If the landlord has failed to comply with his or her obligations under the law or the rental agreement, the tenant may give the landlord a written notice describing the problem and stating that if no reasonable attempt is made to remedy the problem within seven days, the agreement will end at the conclusion of that seven day period. The tenant is then entitled to a refund of pre-paid rent and deposits.

If the landlord has violated a local housing code or any other obligations as listed above, the tenant may give a written notice describing the problem, and stating that if no reasonable attempt is made to remedy the problem within seven days, the tenant will abate (reduce) the rent. The law does not provide a formula for determining a "reasonable abatement," so the tenant must base this either upon his or her own reasonable repair costs, or upon a calculation of the fair market rent for the premises, in light of the repair or maintenance problem. The state statutes which were made law in July of 1995, clearly define what type of compensation the tenant may be entitled to. Example: If the dwelling unit is habitable, then only (1/3) per month on a pro-rata-basis until all things are remedied. Other is 100% deductible from rent only if the dwelling unit is uninhabitable by the tenant. In either case, the tenant has to give the landlord proper written notification indicating what problems need to be repaired or replaced by the landlord.

Under some circumstances, with legal assistance, the tenant may wish to seek an injunction to force compliance by the landlord, or to restrain him or her from some action, so the tenant may have legal grounds to seek damages. The tenant may also sue for recovery of the deposit.

The landlord's remedies
When rent payment is past due, the landlord may give notice to the tenant that he or she has three days in which to pay or move out. If the tenant has breached the rental agreement in some other way, the landlord may give notice that the tenant has seven days in which to correct the breach or move out. If the tenant does remedy the breach, but is served a second seven-day notice of breach within six months, he or she must move at the end of the seven days, without opportunity to correct the problem. In the event that the tenant fails to move when required by proper notice (including proper 30-day notice), the landlord must seek a court order, or "Writ of Restitution," for a legally authorized eviction.

The law also entitles the landlord to sue for damages or injunctive relief when necessary.

A statute which pre-dates the Owner-Resident Relations Act entitles the landlord to a lien on the tenant's property for unpaid rent. This lien is of dubious constitutionality.

Does the Owner-Resident Relations Act entitle the landlord to a lien? The revised state statutes state a NO LANDLORD LIEN STATUTE (47-8-36.1) On non-payment issues the landlord must give a three-day notice, then must go to court to file for a "writ of restitution of property" in Small Claims Court. After a landlord has received judgment for "x" amount of money owed from the courts, then the landlord can pursue other avenues to collect his/her money from the tenants (i.e., collection service, credit bureau, or file for garnishment of wages if possible).

Certain landlord's remedies are prohibited by law. The landlord may not lock the tenant out or remove his or her property without a court order; nor may the landlord shut off the tenant's utilities to enforce compliance with the rental agreement. If a tenant has complained to a government agency responsible for enforcing housing standards; or if a tenant has organized or joined a tenants' organization, the landlord may not retaliate by raising the rent, decreasing services or threatening to evict the tenant.

Right of entry
This statute was revised in July 1995 states that if a tenant does not request any type of services to be performed in the residence, then the landlord must provide the tenant with a written 24 hour written notice before entering the premises. Unless the tenant has asked the landlord to perform a certain task then the landlord only has to indicate to the tenant when he/she will be performing the task of remedying the situation.
Going to court
Landlord/tenant issues in Bernalillo County are routinely handled by the Metropolitan Court. In the rest of the state, Magistrate Courts handle landlord/tenant issues. These courts are like small claims courts; it is not necessary to be represented by an attorney, and the courts provide forms for the filing of actions and answers. Evidence necessary for presenting a case may include documents (such as leases, receipts, bills and copies of notices), photographs and witnesses.

Referrals to legal assistance may be obtained though local lawyer referral services. Persons of low income may consult with their local branch of Legal Services or Legal Aid.

Special Note
This information has been issued to inform and not to advise. It is based on New Mexico law in effect at the time of writing. The statements are general and individual facts in any given situation may alter their application or involve other laws not referred to here. You should always seek advice from an attorney if any questions arise. This document is intended as a public service and is not an endorsement of any attorney or law firm.
11/96

New Mexico Territorial Laws Chapter 47 Property Law Chapter 47, Article 8A Rent Control Prohibition

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