Summary:

 House Bill 309 (HB 309) provides a process for removing unlawful occupants of real property from that property; provides a form to request the removal of an unlawful occupant from real property; provides procedures for a peace officer to remove unlawful occupants from real property; prescribes procedures for notice; provides fees; and creates a cause of action for persons who were wrongfully removed from real property.  

Legislation Overview:

 House Bill 309 (HB 309) enacts a new section of Chapter 31 NMSA 1978 to read:

In this section, “unlawfully occupying” is defined as a crime constituting trespassing. A property owner or their agent may request at a police station or sheriff's office the immediate removal of a person or persons unlawfully occupying real property owned by that property owner, provided that:

(1) the requester is the property owner or authorized agent of the property owner; 
(2) the real property that is being occupied includes a residential dwelling; 
(3) the purported unlawful occupant or occupants entered without permission from the property owner or the authorized agent of the property owner and continuously reside/s on the real property in question; 
(4) the real property was not open to members of the public at the time the unlawful occupant or occupants entered; 
(5) the property owner or authorized agent of the property owner has directed the unlawful occupant or occupants to leave the real property; 
(6) the unlawful occupant or occupants are not current or former residents of the real property at issue according to a written or oral rental agreement;
(7) the unlawful occupant or occupants are not immediate family members of the property owner; and
(8) there is no pending litigation related to the real property between the property owner and any known unlawful occupant or occupants.

To request the immediate removal of an unlawful occupant of real property, the property owner or agent must submit a completed and verified complaint to remove unlawful occupants to the staff of a police station or sheriff's office. The required language for the form is provided.

Upon the receipt of the above-mentioned form, a peace officer must verify that the person submitting the form is the record owner of the real property or their agent. If verified, a peace officer is to serve a notice to immediately vacate on all unlawful occupants, and also put the person submitting the form in actual possession of the real property. A peace officer must also attempt to verify the identities of all persons unlawfully occupying the real property. If appropriate, the peace officer may arrest any person found on the real property for trespass, outstanding warrants or any other legal cause, where warranted. 

Notice served may be accomplished by: (1) hand delivery of notice to the alleged unlawful occupant; or (2) posting the notice on the front door or entrance of the real property at issue. 
After a peace officer serves the notice to immediately vacate, the property owner or agent may request that the peace officer stand by to keep the peace while locks are changed and property of the unlawful occupants is removed. 

When such a request is made, the police station or sheriff's office that employs the peace officer may charge a reasonable fee, and the person making the request is responsible for paying the fee. The property owner or their agent is not liable to an unlawful occupant or any other party for the loss, destruction or damage to the personal property unless the removal was wrongful. 

Nothing in this act may limit the rights of a property owner or limit the authority of a peace officer to arrest an unlawful occupant for trespassing, vandalism, theft or other crimes.
Section 30-15-1 NMSA 1978 is amended to state that criminal damage to property consists of intentionally damaging any real or personal property of another without the consent of the owner of the property. Whoever commits criminal damage to property is guilty of a petty misdemeanor, except that when the damage to the property amounts to more than one thousand dollars ($1,000), the person is guilty of a second degree felony.

A new section of Chapter 42, Article 4 NMSA 1978 is enacted to read: A person removed pursuant to this act may bring a civil cause of action for ejectment to seek to restore possession of the real property at issue. A person entitled to possession of the real property according to the act may recover actual costs and damages incurred and statutory damages.



 

Current Law:

 Current Law
The requirements as stated in the proposed new section are not currently in place. Further, Section 30-15-1 NMSA 1978 states that it is a fourth degree felony for committing criminal damage to a property amounting to more than one thousand dollars ($1000).