Mobile Home Park Act (Part 4)
How must the notice to quit be served to the resident?
The notice to quit must be either personally served on the resident or posted at the main entrance of the mobile home. If service is made by posting, then the landlord must also send a copy of the notice to quit to the resident by certified mail with return receipt requested. The date of the posting must be included on the posted notice and on the copy that is sent by mail. The date of posting is the effective date of notice. §47-10-3(B).
How much notice must the landlord give the resident for termination?
If the termination is due to the resident’s nonpayment of rent when due, the landlord must give at least three days notice (from the date notice is served or posted) before terminating the rental agreement. The notice must allow the resident either to pay the rent and utility charges or remove the mobile home within a period of not less than three days. §47-10-6.
If the reason for terminating the lease is something other than nonpayment of rent, the landlord must give the resident at least 30 days from the end of the rental period in which the notice to quit was served to remove the mobile home, unless the mobile home is a multisection mobile home. In that case, the resident is entitled to at least 60 days notice. However, where a multisection mobile home is leased to or occupied by someone other than its owner and it is leased or occupied in a manner contrary to the landlord’s rules and regulations, then the landlord need only give thirty days notice. §47-10-3(C).
What rights do lienholders have in the termination of a rental agreement?
Before the court issues a writ of restitution, it shall make a finding of fact as to whether the mobile home is subject to the security interest of a lienholder. §47-10-9(F).
If the court finds that there is a lienholder with a security interest in the mobile home, then the landlord must provide the following in writing to the lienholder:
- Notice that the landlord has obtained a writ of restitution for the mobile home space where the mobile home is located;
- The effective date of the writ (or date of the tenant’s abandonment or surrender of the mobile home);
- The amount of the utility charges;
- The amount of any other charges incurred by the landlord, including rents and reasonable removal and storage charges;
- The amount of daily rents accruing under the rental agreement;
- The date upon which the resident is required to make regular payments to the landlord; and
- A copy of the lease and any of the landlord’s rules and regulations that apply to the resident.
What must the lienholder do to remove the mobile home from the park?
The lienholder must respond to the landlord’s notice within thirty days of receiving the notice and inform the landlord whether it intends to remove the mobile home or pay the rents and charges collectible by the landlord. §47-10-9(H).
If the lienholder intends to remove the mobile home, the lienholder must pay all rents and charges due to the landlord. Once that is done, the landlord must allow the lienholder to remove the mobile home.
If the landlord refuses to allow removal of the mobile home by the lienholder, then the landlord is liable for damages for each day that he or she unlawfully maintains possession of the mobile home. §47-10-9(L).
What may the landlord do if the lienholder does not pay the rents and charges due on the mobile home?
The landlord may give the lienholder notice of nonpayment and give the lienholder at least three days to either pay or remove the mobile home from the park. If the lienholder does not comply with this notice of nonpayment, the landlord may seek all remedies otherwise available under the Mobile Home Park Act (termination, restitution, damages, and reasonable attorney’s fees and costs). §47-10-9(I).
Can the Metropolitan and Magistrate Courts issue injunctions under the Mobile Home Park Act?
Yes. In general, the magistrate and metropolitan courts do not have jurisdiction to issue injunctions. §§35-3-3(C)(6) & 34-8A-3(A). However, the New Mexico Court of Appeals recently decided that the legislature has specifically given these courts discretion to issue injunctions in cases arising under the Mobile Home Park Act. Martinez v. Sedillo, 2005-NMCA-____, ¶1 (Docket no. 24,399, issued January 18, 2005).
The Martinez decision focused on Section 47-10-10(D), which allows individuals to sue when there is a violation of a rental agreement “in the appropriate court of the county in which the mobile home park is located.” (Emphasis added.) According to the Court of Appeals, the “appropriate court” is any court within the county that has original jurisdiction, including the magistrate, metropolitan, and district courts. Martinez at ¶¶2 & 6. Section 47-10-10(D) also establishes the remedies available for violations of the MHPA and specifically allows the court to issue an injunction to prevent further violations. In this section, “[t]he legislature clearly gave the court in which the action could be brought the authority to issue an injunction.” Martinez at ¶6. Consequently, the court concluded that the magistrate and metropolitan courts, though lacking the general authority to issue injunctions, have the specific authority to issue injunctions in suits alleging a violation of the MHPA or a rental agreement. Martinez at ¶¶2 & 6.