Overview

Keyword Index

SECTION 1.1
JURISDICTION; TIME LIMITS

1.1-1 Jurisdiction
A. General
B. Jurisdiction: Monetary Limit
C. Subject-Matter Jurisdiction: Exclusions
D. Subject-Matter Jurisdiction: Kinds of Actions
E. Territorial Jurisdiction
F. Venue of Actions
G. Personal Jurisdiction
H. Indian Jurisdiction

1.1-2 Time Limits for Bringing Actions
A. Computation of Time Limits
B. Time Limits in General
C. Other Time Limits
D. Determination That Time Limit Has Passed

SECTION 1.2
CIVIL PROCEDURE BEFORE TRIAL

1.2-1 Complaint
A. Filing of Complaint and Docketing of Action
B. Other Matters Related to Complaint

1.2-2 Summons
A. Purpose
B. Issuance
C. Service of Process - General
D. Service of Process - Methods of Service
E. Service by Mail
F. Who May Serve
G. Proof of Service of Process; Return

1.2-3 Answer, Counterclaim, Third-Party Complaint
A. General
B. Counterclaim or Setoff
C. Third-Party Complaint
D. Interpleader
E. Filing of Answer
F. Jury Demand by Defendant
G. Clarifying or Amending Complaint or Answer
H. Service of the Answer
I. Defenses
J. Default

1.2-4 Pleadings and Motions
A. Service and Filing of Papers
B. Pleadings
C. Motions
D. Motion for Judgment on the Pleadings
E. Motion for Summary Judgment

1.2-5 Parties
A. Who may Sue; Real Party in Interest
B. Minors and Incapacitated Persons
C. Death or Incapacity; Transfer of Interest
D. Joinder of Parties
E. Pro Se and Attorney Appearance
F. Other Authorized Appearances
G. Attorney Appearance
H. Withdrawal or Attorney Failure to Act

1.2-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal Without Court Order
C. Voluntary Dismissal By Court Order
D. Involuntary Dismissal By Court Order
E. Counterclaims, Cross-Claims
and Third-Party Claims
F. Costs of Previously Dismissed Action
G. Filing; Service

1.2-7 Other Preliminary Matters
A. Discovery
B. Pretrial Conference
C. Notice of Trial
D. Recording of Trial
E. Appointment of Special Master, Arbitrator or Metropolitan Court Judge Pro Tempore

1.2-8 Joint and Separate Trials
A. Reasons
B. Motions; Order

SECTION 1.3
JUDGMENT; ENFORCEMENT; APPEAL

1.3-1 Judgment
A. Definition
B. Entry of Judgment
C. Multiple Claims or Multiple Parties
D. Damages
E. Interest to Date
F. Costs to be Reimbursed (Taxing Costs)
G. Satisfaction of Judgment
H. Relief from Judgment: Clerical Mistake
I. Relief from Judgment: Void Judgment

1.3-2 Default Judgment
A. Definition; Types
B. Entry of Default Judgment
C. Motion to Set Aside Default Judgment
D. Multiple Parties

1.3-3 Reserved

1.3-4 Determination of Judgment Debtor's Assets
A. Judgment Debtor Examination
B. Deposition

1.3-5 Appeal
A. Right of Appeal
B. Notice of Appeal
C. Record on Appeal
D. Stay of Proceedings to Enforce Judgment
E. Review and Remand

SECTION 1.4
EXECUTIONS AND GARNISHMENTS

1.4-1 Executions of Judgments
A. Definitions; General
B. Writ of Execution
C. Exemptions
D. Claim of Exemption for Satisfaction of Separate and Community Debts
E. Transcript of Judgment
F. Levy and Sheriff's Sale
G. Renewal of Execution
H. Examinations and Depositions to Aid Execution

1.4-2 Garnishment
A. Definitions; General
B. Types of Garnishment
C. Garnishment in Advance of Execution
D. Garnishment in Aid of Execution of Judgment
E. Garnishment in Aid of Execution of Judgment Entered in Another Court
F. Default Judgment Against Garnishee
G. Release of Garnishment
H. Miscellaneous
I. Appeals on Rulings on Claims of Exemptions

SECTION 1.5
SPECIAL PROCEEDINGS

1.5-1 Attachment
A. Definition
B. Constitutionality
C. Procedures
D. Attachment Service Response
E. Dissolution of Attachment
F. Exemptions from Attachmen
G. Appeals in Attachment

1.5-2 Replevin
A. Definition
B. Complaint; Limits
C. Judgment; Execution

1.5-3 Forcible Entry or Unlawful Detainer
A. Procedure; Complaint
B. Judgment
C. Execution
D. Appeal

1.5-4 Bankruptcy
A. Overview of the Bankruptcy Process
B. Effect of Bankruptcy on Civil Court Cases
C. Effect of Bankruptcy on Criminal Court Cases
D. Effect of Bankruptcy on Collection of Criminal Fees and Fines

SECTION 1.6
LANDLORD-TENANT PROCEEDINGS

1.6-1 Uniform Owner-Resident Relations Act
A. Important Note
B. Coverage; Application of Act
Chart: Obligations of Owner and Resident Under Owner-Resident Relations Act
C. Obligations of the Owner Under the Act
D. Obligations of the Resident Under the Act
E. Types of Actions Allowed Under the Act
Chart Owner Resident Relations Act
Causes of Action
F. Notice
G. Termination of Rental Agreements and Abatement of Rent
H. Actions for Possession
I. Actions for Damages
J. Petition by Owner for Restitution; Petition by Resident for Relief; Summons
K. Judgment; Writ of Restitution
L. Actions for Counterclaim
M. Appeal in Actions for Possession
N. Deposits
O. Disposition of Property Left on Premises

1.6-2 Mobile Home Act
A. Application of Act
B. Conflicts of Law
C. Obligations of Owner
D. Obligations of Tenant
E. Tenancy Requirements, Rental Agreements
F. Termination of Tenancy
G. Action for Termination/Forcible Entry/Detainer
H. Security Agreements/Deposits
I. Alternative Dispute Resolution
J. Conflicts of Law/Mediation

CRIMINAL CHAPTER

SECTION 2.1
MISDEMEANORS: GENERAL; PROCEDURES BEFORE TRIAL

2.1-1 General
A. Definitions
B. Jurisdiction
C. Venue
D. Time Limitations
E. Determination of Present Competency

2.1-2 Complaint; Summons; Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Criminal Summons
C. Arrest without a Warrant
D. Preliminary Rights
E. Probable Cause Determination
F. Detention Hearing for Children
G. Arrest Warrant

2.1-3 Arraignment
A. Definition; General
B. Juveniles in the Magistrate and
Metropolitan Courts
C. Explanation of Rights
D. Representation by Counsel
E. Entry of Plea

2.1-4 Joint and Separate Trials
A. Joinder of Offenses
B. Joinder of Defendants
C. Consolidation
D. Severance; Separate Trials

2.1-5 Jury Trial
A. Right to Jury Trial
B. Exercise or Waiver of the Right to Jury

2.1-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal by Prosecution
C. Dismissal for Failure to Prosecute
D. Refiled Complaints in Metropolitan Court

2.1-7 Sentencing Options
A. Deferral, Suspension and Probation

2.1-8 Other Preliminary Matters
A. Subpoenas
B. Discovery
C. Pretrial Conference
D. Motions
E. Recording of Trial
F. Service and Filing by Facsimile
G. Service and Filing by Electronic Transmission

SECTION 2.2
FELONIES

2.2-1 General
A. Definition
B. Authority of Court

2.2-2 Complaint and Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Issuance of Arrest Warrant
C. Arrest and Return
D. Arrest Followed by Complaint
E. Amendment of Complaints

2.2-3 First Appearance
A. Definition; General
B. Explanation of Rights
C. Representation by Counsel
D. Determination of Indigency
E. Release; Bail
F. Explanation of Preliminary Examination and Grand Jury Indictment Process
G. Dialogue for First Appearance

2.2-4 Fugitive Actions
A. Fugitive Complaint
B. Arraignment and Commitment Hearing
C. Transfer of Actions

SECTION 2.3
MISDEMEANORS: JUDGMENT; SENTENCE; APPEAL

2.3-1 General
A. Judgment and Sentence; Written Orders
B. Right to Appeal

2.3-2 Sentencing
A. Pre-Sentence Report
B. Sentencing Options
C. Sentencing for Hate Crimes
D. Terms and Conditions of a Deferred or Suspended Sentence: Probation
E. Successful Completion of or Violation and Revocation of Probation

2.3-3 Court Costs and Fines
Payment of Court Costs and Fines

2.3-4 Appeal
A. Right, Notice and Docketing of Appeal
B. Transcript of Proceedings
C. Conditions of Release
D. Disposition; Time Limitations

SECTION 2.4
GAME AND FISH VIOLATIONS

2.4 Game and Fish Violations
A. Jurisdiction; Penalties
B. Arrest; Search Warrants; Citations
C. Prosecution

SECTION 2.5
SEARCH AND SEIZURE

2.5-1 Search Warrants
A. General
B. Sufficiency of Affidavit; Probable Cause

2.5-2 Searches Without Warrants
A. General
B. Searches of Persons and Places
C. Searches of Motor Vehicles

2.5-3 Motion to Suppress
A. General
B. Who May File Motion
C. Grounds for Suppression

2.5-4 Gambling: Search and Seizure
A. Affidavit
B. Search Warrant
C. Execution: Arrest

2.5-5 Inspection Orders
A. Administrative Inspection; Defined
B. Application for Inspectorial Search Order
C. Probable Cause for Issuance of Inspection Order
D. Exceptions to Requirement for Inspection Order

SECTION 2.6
RELEASE; BAIL

2.6-1 General
A. Right to Release; Purpose of Conditions
B. Factors to be Considered Prior to
Setting Conditions of Release
C. Conditions of Release to Assure Orderly Administration of Justice
D. Release Proceedings
E. Release Forms
F. Failure to Comply with Conditions of Release
G. Failure to Appear
H. Forfeiture of bail -- exoneration
I. Misdemeanors: Continuation and
Review of Release

2.6-2 Personal Recognizance and Bonds
A. Personal Recognizance
B. Bonds; General
C. Unsecured Appearance Bond
D. Appearance Bond: Cash Deposit.
E. Appearance Bond: 100 Percent Cash Deposit
F. Bail Bond
G. Bail Bond: Discharge of Surety
H. Bonds: Forfeiture

GENERAL CIVIL & CRIMINAL CHAPTER

SECTION 3.1
SUBPOENAS

3.1 Subpoenas
A. General
B. Issuance; General Rules
C. Service of Subpoena
D. Motion to Quash Subpoena
E. Failure of Appear

SECTION 3.2
JURY SELECTION AND TRIALS

3.2-1 Calling of Prospective Jurors
A. General
B. Request for Qualified Jurors
C. Excusing
D. Jury Costs

3.2-2 Trials General

3.2-3 Calling the Cause
A. Start of Trial
B. Readiness to Proceed with Trial
C. Motion to Quash Jury Array
Appendix
UJI Civil 13-106 7
UJI Criminal 14-101 10

3.2-4 Selection of Jury
A. Calling Jurors
B. Voir Dire: General
C. Challenges for Cause
D. Drawing Names
E. Peremptory Challenges
F. Additional Jurors
G. General
Appendix
   Voir Dire Instructions in Civil Cases
   Voir Dire Instructions in Criminal Cases

3.2-5 Oath to Jurors; Preliminary Instructions
A. Oath
B. Preliminary Instructions
C. Opening statement -- UJI Civil 13-108
Appendix
   Preliminary Instructions in Civil Cases
   Preliminary Instructions in Criminal Cases

3.2-6 Witness Oath; Exclusion Rules; Opening Statements
A. Witness Oath
B. Exclusion Rule
C. Opening Statements

3.2-7 Presentation of Evidence
A. Order of Presentation
B. Witnesses: Testimony
C. Defendant as Witness
D. Introduction of Documentary Evidence and Other Things
E. Objections
F. Confessions

3.2-8 Rules of Evidence
A. Overview
B. Application of the Rules of Evidence
C. Construction of the Rules of Evidence
D. General Principles of Evidence
E. Relevancy
F. Evidence on Specific Topics
G. Witness Testimony
H. Hearsay
I. Privileges

3.2-9 Instructions to Jury
A. General
B. Instructions in Criminal Cases
C. Instructions in Civil Cases
D. Requested Instructions

3.2-10 Closing Arguments
A. Definition
B. Order of Presentation

3.2-11 Jury Deliberation; Verdict; Trial by Court
A. Deliberation
B. Procedure When Jury Reaches Verdict
C. Failure of Jury to Reach Verdict
D. Trial by Court: Nonjury Trials

3.2-12 Motions for Directed Verdict or Dismissal During Trial
A. Motion for Directed Verdict
B. Motions for Dismissal

3.2-13 Motion for New Trial

3.2-14 Preservation and Disposition of Exhibits
A. Preservation
B. Return to Court for Appeal
C. Final Disposition

SECTION 3.3
BENCH WARRANT

3.3 Bench Warrant
A. General
B. Issuance
C. Execution; Return
D. Grounds for Issuing Bench Warrant

SECTION 3.4
CONTEMPT

3.4 Contempt
A. General; Definitions
B. Direct Contempt
C. Indirect Contempt
D. Notice
E. Hearing
F. Punishment; Appeal

SECTION 3.5
EXCUSAL, RECUSAL, INABILITY TO PROCEED

3.5-1 Excusal, Recusal, Inability to Proceed
A. Excusal
B. Recusal
C. Inability of a Judge to Proceed
D. Procedure for Replacing a Judge Upon Excusal or Recusal - Magistrate Court
E. Procedure for Replacing a Judge Upon Excusal or Recusal - Metropolitan Court

3.5-2 Recording of Proceedings
A. Record
B. Broadcasting and Photographs

SECTION 3.6
EFFECTIVE DATES OF STATUTES AND COURT RULES

3.6 Effective Dates of Statute and Court Rules
A. General
B. Exceptions

1.6-1 Uniform Owner-Resident Relations Act

(Sections 47-81 through -52)

A. Important Note

1. This subsection of the benchbook is designed for use in conjunction with the Uniform Owner-Resident Relations Act. It will be necessary for the judge to refer to the statutory language for specific requirements of the law. The benchbook material is intended to serve as a guide to the Act and does not cover all the detailed requirements and provisions of the law. In this subsection of the benchbook, the Uniform Owner-Resident Relations Act is referred to as "the Act." Two charts have been included: one lists obligations of owner and resident and the other lists causes of action.
2. The court should apply the Uniform Owner-Resident Relations Act in accordance with the following purpose as stated by the New Mexico Supreme Court:

   The purpose of the Uniform Owner Resident Relations Act [Sections 47 8 1 through 47 8 51] 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.

   T.W.I.W., Inc. v. Rhudy, 96 N.M. 354, 356-57, 630 P.2d 753 (1981) (quoting §47-8-2).

Caution: Federal law and regulations may also apply to certain categories of rental housing and may in such cases supercede provisions of this Act.

B. Coverage; Application of Act

1. The Act generally covers relations between landlords and tenants of dwelling units. “Rental agreement,” as used in the Act, refers exclusively to written rental agreements. The Act requires the landlord/owner to provide a written rental agreement to each tenant prior to the beginning of the occupancy.
2. The following are exempt from provisions of the Act:

   a. Residence at a public or private institution for detention or which provides medical, geriatric, counseling, religious, educational (when room and board are included) or other similar services. Section 47-8-9(A).

   b. Occupancy by a purchaser or successor in interest under a contract of sale of the dwelling unit or the property of which the dwelling unit is a part. Section 47-8-9(B).

   c. Occupancy by a member of a fraternal or social organization in that portion of a structure operated for the benefit of the organization. Section 47-8-9(C).

   d. Transient occupancy in a hotel or motel. Non-transient occupancy in a hotel or motel, however, is now subject to the Act. Transient occupancy is indicated either by the payment of rent on a less than weekly basis or the absence of a manifested intent by the resident to make the dwelling unit a residence or household. Sections 47-8-9(D) and 47-8-3(U) & (V).

   e. Occupancy by an employee where residency is conditioned by written agreement on employment in and about the premises. Section 47-8-9(E).

   f. Occupancy under a rental agreement covering premises used by the occupant primarily for agricultural purposes. Section 47-8-9(F).

3. Actions brought under the Act and counterclaims are subject to the same jurisdictional and venue limitations as other civil actions in courts of limited jurisdiction. Sections 34-8A-3 and 35-3-3; see also §1.1-1 of this Benchbook regarding jurisdiction.
   
   a. Generally, magistrate and metropolitan courts do not have jurisdiction in civil actions to issue writs of injunction. Sections 35-3-3(C)(6) and 34-8A-3(A).
   
   b. Section 47-8-10 allows claims to be brought under the Act in either the magistrate or district court.
   
   c. Section 47-8-38 provides for injunctive relief for violations of the Act, but does not specify whether injunctive relief may be awarded by the courts of limited jurisdiction.
   
   d. The New Mexico Court of Appeals recently decided that metropolitan courts have jurisdiction to issue injunctions under the Mobile Home Park Act. See Martinez v. Sedillo, 2005-NMCA-029, 107 P.3d 543. However, the court has not yet decided how to interpret the provision allowing injunctions under the Owner Resident Relations Act. Although the statutory language differs slightly between the two acts, it is possible that the Court will decide that courts of limited jurisdiction have authority to issue injunctions under the Owner Resident Relations Act.
   
   e. On the other hand, applying the rules of statutory construction, the Court may conclude that the more specific statute (regarding jurisdiction) governs and that the magistrate and metropolitan courts therefore have no jurisdiction to issue injunctions under the Act. City of Alamogordo v. Walker Motor Co., Inc., 94 N.M. 690 (1980); §§ 35-3-3(C)(6) and 34-8A-3(A).
4. Although the Act places no limit on monetary damages, any action or counterclaim seeking damages in excess of $10,000 must be brought in district court. Sections 35-3-3(A) and 34-8A-3(A)(2).
5. The courts of limited jurisdiction have jurisdiction if the dwelling unit that is the subject of the action is located in the court district. Section 47-8-10(A).
6. Actions must be instituted:

   a. If based on a written rental agreement or other written contract, within six (6) years from default of payment or other event on which the action depends. Section 37-1-3. Or

   b. If based on damage to property, on conversion of personal property, or on fraud, within four years from default of payment or other event on which the action depends. Section 37-1-4. If the action is based on injury to property, on conversion of personal property or on fraud, the four-year period does not begin until the injury, conversion, or fraud is discovered. Section 37-1-7.

7. The provisions of Sections 35-10-1 through 35-10-6, relating to forcible entry and detainer are not applicable to actions brought pursuant to the Act. Section 35-10-2.

C. Obligations of the Owner Under the Act

1. According to Section 47-8-20(A) and (B), the owner shall:

   a. Comply substantially with requirements of the applicable minimum housing codes materially affecting health and safety. Mercer v. Flats, 91 N.M. 677 (1978) (housing and fire codes applied).

   b. 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 in Section 47-8-23. See, e.g., Castillo v. County of Santa Fe, 107 N.M. 204 (1988) (loose dogs as unsafe condition).

   c. Keep common areas of the premises in a safe condition. See, e.g., Calkins v. Cox Estates, 110 N.M. 59 (1990) (duty of landlord to maintain safety of a playground in a potentially hazardous location by providing a fence).

   d. 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 the owner.

   e. 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.

   f. Supply running water and a reasonable amount of hot water at all times and reasonable heat, unless the heating installation is within the exclusive control of the resident and supplied by a direct public utility connection. And

   g. Provide a written rental agreement to each tenant prior to the beginning of the occupancy. Section 47-8-20(G); see also Ramirez-Eames v. Hover, 108 N.M. 520 (1989) (court may make equitable determination of underlying fairness of the rental agreement pursuant to Section 47-8-12 using a standard of inequity).

2. The owner and resident of a single family residence may agree in writing and for consideration that the resident perform specified repairs, maintenance tasks, alterations, remodeling, as well as those duties of the owner that are enumerated in Subsections 47-8-20(A)(5) and (6). See 47-8-20(C). Such agreement must not be for the purpose of evading the obligations of the owner, and must be made in good faith.
3. The owner and resident of a dwelling unit other than a single family residence may agree that the resident is to perform specified duties of the owner only if the stipulations of paragraph 2, above, are met and the transaction does not diminish or affect the obligations of the owner to other residents on the premises. Section 47-8-20(D).
4. The owner may not evict a resident for failure to perform the owner's obligations, nor may it be considered a material breach of the resident's obligations under the Act or of the rental agreement. Section 47-8-20(E)
5. In multi-unit housing, if separate metering for each unit exists, the resident shall receive a copy of the utility bill for his unit upon request made to the owner or his agent. Section 47-8-20(F). If the unit is submetered, the resident shall receive a copy of the apartment's utility bill.

   a. When common area utility bills are passed on to residents, each resident, upon request, may receive a copy of such bills along with the calculations and basis for apportioning such bills. The portion of common area costs allocated to any empty unit as if it were occupied shall not be allocated to residents and is the responsibility of owners.

   b. The owner may charge a maximum of $5.00 per monthly request as an administrative fee for utility documentation.

D. Obligations of the Resident Under the Act
Section 47-8-22 requires the resident to:

1. comply with obligations imposed upon residents by applicable minimum standards of housing codes materially affecting health and safety;
2. keep that part of the premises that he or she 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 a clean condition, excepting ordinary wear and tear, as when residency commenced;
3. dispose from the dwelling unit all ashes, rubbish, garbage, and other waste in a clean and safe manner;
4. keep all plumbing fixtures in the dwelling unit or those outside the dwelling unit used by the resident as clean as their condition permits;
5. use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances, including elevators, if any, on the premises;
6. not deliberately or negligently destroy, deface, damage, impair, or remove any part of the premises or knowingly permit any person to do so;
7. conduct himself or herself, and require visitors to conduct themselves, in a manner that will not disturb neighbors' peaceful enjoyment of the premises;
8. abide by all bylaws, covenants, rules, or regulations of any applicable agreements not inconsistent with the owner's rights or duties; and
9. not knowingly commit, or consent to any other person knowingly committing, a "substantial violation." This is defined in the Act as an act or series of acts occurring in the dwelling unit or on the premises, by the resident or with the resident's consent, and is a felony under at least one of the following:

   (a) violation of the Controlled Substances Act;

   (b) unlawful use of a deadly weapon;

   (c) an unlawful act that causes serious physical harm to another;

   (d) sexual assault or molestation;

   (e) entry into a dwelling unit or vehicle of another without that person’s consent and with intent to commit theft or assault;

   (f) theft or attempted theft by force or threatened force; or

   (g) intentional or reckless damage to property in excess of $1,000.

   The resident may assert certain defenses to an action brought on this basis. Section 47-8-33(J) & (K); see also §1.6-1(G)(2)(f) for a discussion of the tenant's defenses.

E. Types of Actions Allowed Under the Act (Sections 47 8 6, 47 8 27.1, 47 8 35, 47 8 37 & 38, and 47 8 40 through 42)

1. There are three types of actions allowable under the Act: termination or enforcement of the rental agreement, possession, damages and restitution.
2. Residents may initiate actions for termination or enforcement of rental agreements and damages either separately or jointly; except that the resident may not claim damages when the owner's noncompliance results from circumstances beyond the owner's control. Section 47-8-27.1(B). A resident may only take initial action for possession against a person who has not vacated the premises where his or her residency is to commence.
3. Owners may initiate actions for termination or enforcement of rental agreements and possession, either separately or jointly.

   a. Actions for termination or enforcement of rental agreements usually precede actions for possession and damages.

   b. Actions for damages as an initial action may only be brought if the resident refuses to allow access to the owner, or if the resident fails to give notice of extended absence if required by the rental agreement. Sections 47-8-34 & -38.

F. Notice

1. Notice is the first required legal step required to enforce or terminate the rental agreement by either party. The notice informs a party (owner or resident) of a breach of the rental agreement or material noncompliance with the Act.

   a. If the notified party remedies the breach within the specified time limit, no further action is necessary.

   b. If the notified party fails to remedy the breach within the specified time limit, the rental agreement is deemed terminated, and further action may be pursued in court.

2. A resident may give notice to terminate the rental agreement for the owner's failure to comply with the Act or the rental agreement. Sections 47 8 27.1 &-27.2 and 47 8 31; T.W.I.W., Inc. v. Rhudy, 96 N.M. 354 (1981) (notice must be definite to vacate the premises; a notice coupled with an option to remain is insufficient); Kepler v. Covarrubia, 91 N.M. 443 (1978) (regarding written notice requirement of repealed section on abatement of rent). If the owner adequately attempts to remedy the breach in seven days after receipt of the notice, the rental agreement will not terminate.
3. An owner may give notice to terminate the rental agreement for the resident's failure to comply with the Act or the rental agreement if the breach, specifically detailed in the notice, is not remedied in seven days. Section 47-8-33(A). If a second failure to comply occurs within six months from the date of a prior noncompliance by the resident, the owner shall present a written notice to the resident. The rental agreement shall terminate upon a date not less than seven days after receipt of the notice. The rental agreement will terminate whether or not the resident remedies the breach, provided that the owner has stated in the first notice that termination would result from a second breach within six months of the first one. Section 47-8-33 (B) & (C).
4. If the owner seeks to terminate the lease because the tenant has knowingly committed or consented to another person committing a substantial violation only three days notice is required. Section 47-8-33(I); see also §1.6-1(D)(9) of this Benchbook regarding substantial violations.
5. The time requirements for termination after written notice are as follows (the court-approved forms may be used):

   a. Not less than three days after service of written notice from the owner, if the resident is in default in payment of rent. Section 47-8-33(D); Civil Form 4-901 (Three-Day Notice of Nonpayment of Rent).

   b. Not less than seven days after service of written notice from the resident, if the owner is in material noncompliance with the owner's obligations. Section 47-8-27.1 (A)(1); Civil Form 4-902 (Seven-Day Notice of Noncompliance with Rental Agreement (Other Than Failure to Pay Rent)).

   c. Not less than seven days after service of written notice from the owner, if the resident is in material noncompliance with the resident's obligations. Section 47-8-33(A); Civil Form 4-902 (Seven-Day Notice of Noncompliance with Rental Agreement (Other Than Failure to Pay Rent)). And,

   d. Not less than three days after service of written notice from the owner that a substantial violation has occurred. Section 47-8-33(I); Civil Form 4-901A (Three-Day Notice of Substantial Violation of Rental Agreement).

6. When the last day under any time limits falls on a weekend or federal holiday, the court extends the period to remedy to the next day that is neither a weekend nor federal holiday. Sections 47-8-27.1(E) and 47-8-33(H).
7. If injunctive relief is sought by either party to the rental agreement, notice is not required. Sections 47-8-27.1(C), 47-8-33(F), 47-8-38(A) & (B).
8. Service of notice to the owner is by delivery to the place of business of the owner through which the rental agreement was made or other place designated by the owner as a place for the receipt by in-hand delivery. Notice to the resident may be mailed to the resident at the place designated or held out by the resident as the place for receipt of communication, or if there is none, then to the last known place of residence. Section 47-8-13(B) & (C).
9. A notice of nonpayment of rent may be hand-delivered or mailed to the resident or posted on the outside door of the dwelling unit. Any other type of notice to the resident must be hand-delivered or mailed, even if also posted. In any case, the notice must be dated. Section 47-8-13(D).
10. Even though the Act may require a resident to give notice to enforce any rights, that notice requirement is waived if the owner fails to disclose to the resident the name, address, and phone number of a person designated to accept notice. Section 47-8-19(D).
11. When prior written notice is required to be given under the Act, any judicial relief is limited to the grounds set forth in the notice. This does not limit the assertion of any defense or counterclaim for which written notice is not otherwise required under the Act. Section 47-8-33(G).

G. Termination of Rental Agreements and Abatement of Rent

1. The following is a general outline of the grounds for termination of a rental agreement.
2. According to Section 47-8-33, an owner may terminate a rental agreement upon proper notice if:

   a. The resident does not comply with obligations imposed by Section 47-8-22, and the noncompliance materially affects health and safety.

   b. The resident does not comply with the rental agreement or any separate agreement if the noncompliance is material.

   c. The resident fails to pay rent within three days after written notice. Sections 47-8-15 & -33(D).

   d. The resident refuses to allow lawful access to the premises or dwelling unit. Section 47-8-24(E).

   e. The resident does not comply with rules and regulations of residence, the noncompliance is material, the resident was presented with copies of rules, and the rule or regulation claimed to be violated is enforceable under Section 47-8-23. See also §47-8-33 (for enforcement of rules and regulations adopted by the owner).

   f. The resident knowingly commits or consents to any other person in the dwelling unit or on the premises knowingly committing a substantial violation. Sections 47-8-3(T) & -33(I). The resident may assert as a defense to an action for possession that he or she is the victim of domestic violence committed by the offender. If the resident has filed for or obtained a temporary domestic violence restraining order, this defense automatically blocks issuance of a writ of restitution. Lack of knowledge, the opportunity to know or the ability to prevent the substantial violation is also a defense. Section 47-8-33(J) & (K); see also §§1.6-1(D) & (F) of this Benchbook regarding resident obligations and notice requirements. The resident also has a defense if he or she took reasonable and lawful actions in defense of him or her self, others, or property. Section 47-8-33(L).

3. 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 fees. Section 47-8-35; see also §1.6-1(I) of this Benchbook regarding actions for damages.
4. A resident may terminate a rental agreement if:

   a. The owner does not comply with obligations imposed by the Act, and the noncompliance materially affects health and safety. Section 47-8-27.1 (A)(1); see also §§1.6-1(C) & (F) of this Benchbook regarding owner obligations and notice requirements

   b. The owner does not comply with the rental agreement, and the noncompliance is material. Section 47-8-27.1(A)(1).

   c. The owner fails to deliver possession at the beginning of the rental term. Section 47-8-26 (regarding delivery of possession).

   d. 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. Section 47-8-31.

   e. The owner unlawfully and without a court order attempts or threatens to remove the resident by fraud, changing locks, blocking the entrance, interfering with utility services that the resident has paid for, removing personal property, appliances or fixtures, or rendering the dwelling unit or personal property inaccessible or the unit uninhabitable, except when necessary to make lawful repairs or inspections. Sections 47-8-36(A) & (B). Or,

   f. The owner retaliates against a resident who is in compliance with the rental agreement and the Act because the resident has done one of the following within the prior three months. Sections 47-8-39 (regarding owner retaliation) and -27.1 (regarding resident rights in event of breach).

   i. Complained to a governmental agency charged with the responsibility of enforcing building or housing codes about a code violation materially affecting health or safety.

   ii. Organized or became a member of a resident's union or similar organization.

   iii. Acted in good faith to exercise his rights provided under the Act.

   iv. Complained to a government agency concerning housing discrimination.

   v. Filed or prevailed in a lawsuit against the owner relating to the residency.

   vi. Testified for another resident. Or

vii. Abated rent as permitted under the Act.

5. If the owner retaliates by filing an action for possession, the resident may use Section 47-8-39 as a defense against the possession action.
6. If the rental agreement is terminated, an action for possession and damages can commence. See §§1.6-1(H) & (I) of this Benchbook regarding possession and damages.
7. Termination of a rental agreement should not be confused with termination of residency. Section 47-8-37. An owner or resident may terminate residency by giving written notice:

   a. at least seven days prior to the termination date stated in the notice for week-to-week residency; or

   b. at least 30 days prior to the termination date stated in the notice for month-to-month residency. Civil Form 4-903 (Thirty-Day Notice to Terminate Rental Agreement).

8. As an alternative to termination of the rental agreement, the resident is entitled to reasonable abatement (reduction) in rent:

   a. If the owner, after notice in writing from the resident of a violation of Section 47-8-20, fails to remedy the conditions needing repair. Abatement in such circumstances occurs at the rate of one-third of the pro rata daily rate from the date of notice until the date of remedy of the condition; or one hundred per cent during that period if the resident leaves because the condition rendered the unit uninhabitable. Section 47-8-27.2.

   b. If the resident's rent is subsidized by a government agency, the rate of abatement applies to the whole rent, not just the resident's portion. Section 47-8-27.2(C).

H. Actions for Possession

1. In action for possession under the Act, the owner, resident or prospective resident seeks possession of the dwelling unit from the defendant.
2. Actions for possession are appropriate in any case where allegations are made that the plaintiff is being unlawfully denied possession of the premises in question.
3. Actions for possession may be brought by the owner if:

   a. The resident or any person is wrongfully in possession at the time of delivery of possession to a new resident. Section 47-8-26.

   b. The resident remains in possession without the owner's consent after the expiration of the term or termination of the rental agreement. Section 47-8-37(C).

   c. The violation of any applicable minimum building or housing code was caused primarily by lack of reasonable care by the resident or other person in the household or upon the premises with the resident's consent. Section 47-8-40(A)(1).

   d. The resident is in default in rent. Section 47-8-40(A)(2).

   e. The owner has the right to terminate due to the resident's material noncompliance with the rental agreement. Section 47-8-40(A)(3).

   f. The resident has knowingly committed or consented to another person knowingly committing a substantial violation. Sections 47-8-40(A)(4) & -3(S).

   g. Compliance with the applicable building or housing code requires alteration, remodeling or demolition that would effectively deprive the resident of use of dwelling unit. Section 47-8-40(A)(5).

   h. If the owner has brought and prevailed in an action for possession based upon non-payment of rent, where the resident disputes the amount owed either because of an abatement of the rent or because payments made to the owner have been allocated to pay for damages, then the resident must be given three days in which to pay the rent owed before the writ of restitution may be executed; if the payment is made, then the writ is dismissed. Section 47-8-33(E).

4. Residents or prospective residents may bring actions for possession in the following situations:

   a. if the owner unlawfully removes or excludes the resident from the premises by any unlawful means. Section 47-8-36(C)(3); see also §1.6-1(H)(4) of this Benchbook. In such cases, the resident may be awarded, in addition to possession, full abatement of rent for each day of the violation, civil penalties of double the monthly rent, and damages, costs and attorney's fees. Section 47-8-36(C). Damages may not be awarded, however, if the owner made reasonable efforts to obtain possession of the premises and returned all money received within seven days of receiving the resident's notice of termination. Section 47-8-26(C).

I. Actions for Damages

1. Actions for damages are brought under the Act by the owner filing a petition for restitution or by the resident filing a petition for relief. Civil Forms 4-905 (Petition by Owner for Restitution) and 4-906 (Petition by Resident for Relief).
2. The term "damages" may include any sum of money due under a rental agreement or the Act. There may also be damages in addition to rent.
3. "Damages" (other than a sum of money due under the rental agreement), as used by the Act, are consequential damages.

   a. Consequential damages are those damages that were, or should have been, contemplated by the parties at the time of entering into the rental agreement.

   b. Consequential damages may include rent due unless the Act provides otherwise.

   c. If the Act provides for an award of damages and rent, rents due are not part of damages and may not be included in damages. Section 47-8-35.

4. If no substantial loss or injury is proven but a violation of a right or breach of a duty is proven, then nominal damages may be awarded.
5. An aggrieved party must be allowed to recover proven damages. Section 47-8-6(A).

   a. The aggrieved party has a duty to mitigate damages.

   b. The duty to mitigate damages is the duty to take reasonable steps to lessen the amount of damages incurred because of default or wrongful acts. For example, if on the 5th day of a calendar month, the resident moves out and rent is owed for that month, the owner is expected to find a new tenant. If the owner finds a tenant who pays rent from the 12th day to the end of the month, then the former tenant owes rent only from the 1st day to the 12th day of the month.

6. An owner may seek to recover damages or money due in any of the following situations. Sections 47-8-26 (regarding delivery of possession), 47-8-33(F) (regarding damages and injunctive relief), and 47-8-48 (regarding attorney’s fees, court costs, and civil penalties).

   a. The owner may recover damages against a resident or any other person wrongfully in possession of a dwelling unit or failing to deliver possession of a dwelling unit; the owner may also recover reasonable attorney's fees and court costs if the wrongful possession or failure to deliver possession is willful.

   b. The owner may recover damages for any material noncompliance by the resident with the rental agreement or other separate agreement Section 47-8-33(A). The owner may also recover reasonable attorney's fees and court costs if the resident's noncompliance is willful. Termination of the rental agreement may precede any action for recovery of damages.

   c. The owner may recover damages for any noncompliance with the resident obligations of Section 47-8-22 materially affecting health and safety. Section 47-8-33(A). The owner may also recover reasonable attorney's fees and court costs if the resident's noncompliance is willful. Termination of the rental agreement may precede any action for recovery of damages.

   d. The owner may recover damages if the resident fails to comply with rules and regulations concerning the resident's occupancy or use of the premises. Termination of the rental agreement may precede an action for recovery of damages if the rules and regulations of residency are a part of the rental agreement, if the resident has received them, and if they are reasonably and fairly designed to fulfill a reasonable purpose of the owner. Section 47-8-23 (regarding rules and regulations).

   e. The owner may recover damages if the rent is unpaid when due and the resident fails to pay the rent within three days written notice from the owner. Sections 47-8-33(D) & (F). The owner may also collect a late fee of up to ten per cent of the monthly rental for each late payment, if the rental agreement so provides, so long as the owner has given the resident notice of the late fee charged by the end of the next rental period after the default. Section 47-8-15(D). Termination of the rental agreement may precede an action for damages.

   f. The owner may recover damages if the resident willfully fails to give notice to the owner of an anticipated extended absence in excess of seven days if required to do so by the rental agreement. Section 47-8-34(B).

   g. The owner may have a claim for rent if the rental agreement is terminated. Sections 47-8-35 & -33(F).

   h. The owner may have a claim for damages for breach of a rental agreement if the rental agreement is terminated. Sections 47-8-35 & -33(F).

   i. The owner may recover damages and reasonable attorney's fees if:

   i. the resident remains in possession without the owner's consent after expiration of the term or termination of the rental agreement; and

   ii. the resident's holdover is willful and not in good faith. Section 47-8-37(C).

   j. The owner may recover damages, reasonable attorney's fees and court costs if the resident refuses to allow lawful access. Section 47-8-38(A). Termination of the rental agreement may precede an action for damages.

   k. A resident who intentionally violates Section 47-8-22(F), which prohibits deliberate damage to or removal of any part of the premises, is subject to a civil penalty of twice the monthly rent. Although not clearly spelled out in the Act, a civil penalty is generally a fine, payable not to the prevailing party but to the state unless otherwise provided by law. Section 47-8-48(A); compare Section 47-8-48(A).

   l. If the owner prevails in any suit to enforce the terms of the rental agreement or any part of the Act, the owner is entitled to reasonable attorneys' fees and court costs. Section 47-8-48(A).

7. The following are actions for which a resident may seek to recover damages and money due. See Section 47-8-27.1(C); see also §§1.6-1(H)(4)(a) (regarding termination of rental agreement for noncompliance with obligations of §47-8-20) and 1.6-1(G)(8) (regarding abatement of rent for noncompliance with §47-8-20).

   a. The resident may recover damages and reasonable attorney's fees if the owner deliberately uses a rental agreement containing provisions known by the owner to be prohibited by law. Sections 47-8-48(A) & -17. Use of a rental agreement provision purporting to waive rights granted by the Act would support an action for damages. Section 47-8-16.

   b. The resident may recover a civil penalty in the amount of $250.00 against the owner who retains a deposit in bad faith and in violation of the Act. Section 47-8-18(E).

   c. The resident may recover damages for any material noncompliance by the owner with the rental agreement or the owner obligations in Section 47-8-20. Section 47-8-27.1(C). Note that this civil penalty is legislatively awarded to the resident, while the civil penalty against the resident is not statutorily awarded to the owner. Compare Section 47-8-48(C).

   i. The resident may not recover consequential damages if the owner's noncompliance is caused by a deliberate or negligent act of the resident, a family member or other person on the premises with the resident's consent or by conditions beyond the owner's control. Section 47-8-27.1(B). However, the resident has remedies provided in 47-8-31, and even if the condition was beyond the owner’s control, the resident has the right of either termination or abatement under Section 47-8-27.1(A).

   d. The prospective resident may recover damages against any person wrongfully in possession or wrongfully withholding possession at the time the dwelling unit is to be turned over to the prospective resident. Section 47-8-26(B)(2). The prospective resident may also recover reasonable attorney's fees and court costs. Section 47-8-48(A).

   e. The resident may recover damages, one hundred per cent abatement of rent each day that possession is wrongfully withheld, civil penalties from the owner, and restitution to the premises or termination of the agreement if the owner excludes or threatens to exclude the tenant from the premises by unlawful means without a court order, including by lockouts or shutoff of utility services. Sections47-8-36(A) & (C). The resident may also recover reasonable attorney’s fees and costs. Section 47-8-48(A).

   f. The resident may recover damages and reasonable attorney's fees if the owner:

   i. makes an unlawful entry or lawful entry in an unreasonable manner; or

   ii. makes repeated demands for entry which are otherwise lawful but which have the effect of unreasonably harassing the resident. Termination of the rental agreement may precede an action for damages.

   iii. Unless otherwise agreed, the owner must give 24 hours notice to the resident prior to entering, must explain the reason and time for entry, and must accommodate reasonable and timely resident requests for alternate times. This notice requirement does not apply to entries intended to make repairs within seven days of the resident's request for them, or to accompany public inspectors or utility representatives. Sections 47-8-38(B) & -24(A).

   g. If the resident prevails in any suit to enforce the terms of the rental agreement or any part of the Act, the resident is entitled to reasonable attorney’s fees and court costs. Section 47-8-48(A).

   h. If the owner brings a frivolous or bad faith action for possession based on a claim of substantial violation, the resident may recover damages, attorney’s fees, and costs, and the owner is subject to a civil penalty of twice the monthly rent. Section 47-8-33(M).

J. Petition by Owner for Restitution; Petition by Resident for Relief; Summons (Section 47-8-42)

1. An owner seeking possession or damages files a petition by owner for restitution. Civil Form 4-905 (Petition by Owner for Restitution). A resident seeking possession or damages files a petition by resident for relief; the petitions take the place of a civil complaint. Civil Form 4-906 (Petition by Resident for Relief).
2. The petitions must contain the following information. Section 47-8-42.

   a. the facts, with particularity, by which the plaintiff seeks to recover;

   b. a reasonably accurate description of the premises; and

   c. the requisite compliance with the notice provisions of the Act.

3. If the petitions contain both actions for possession and damages, they may be tried separately if requested by either party in writing. Section 47-8-42.
4. Summons. Section 47-8-43; Civil Form 4-904 (Summons and Notice of Trial on Petition for Writ of Restitution).

   a. At the time a petition is filed, by either the owner or resident, the court issues a summons and notice of trial.

   b. The summons must contain an appearance (return) date which is not less than seven or more than ten days from the day the summons will be served if the petition is by the owner for possession; and not less than three or more than five days if the petition is by the resident for possession. Section 47-8-43(A).

   c. The appearance (return) date on the summons is the date of trial, not merely the date by which an answer must be filed or an appearance made as with other civil actions. The court may, however, continue the trial for up to seven days upon finding of good cause.

   d. A copy of the petition and an answer form are served with the summons. Civil Form 4 907 (Answer by Resident to Petition for Restitution); see generally §§1.2 2(C) & (D) of this Benchbook regarding service of process. Service and return are made as for other civil actions. The person making the service shall file with the court an affidavit stating the manner in which service was made.

   e. There is no requirement that the defendant file an answer as for other civil actions.

K. Judgment; Writ of Restitution

1. A trial on a petition by owner for restitution or a petition by resident for relief is like other civil trials and a judgment is entered on the verdict of the jury or decision of the court.
2. If actions for possession and damages are tried together, the court approved judgment form for actions under the Act is used. Civil Form 4-909 (Judgment for Restitution). The form is modified if the defendant prevails.
3. If actions for possession and damages are tried separately, use the court-approved judgment form for actions under the Act to rule on possession and the general judgment form to rule on damages. Civil Form 4-701 (Judgment) (used when damages are determined separately).
4. If either party fails to appear on the date set in the summons, after the judge has determined that the appearing party has a valid claim, the judge enters a default judgment against the absent party. Section 47-8-44; Civil Forms 4-703 and 4-909; see also §1.3-2 of this Benchbook regarding default judgment.
5. The plaintiff or plaintiff's attorney upon request is entitled to have the court issue a writ of restitution if judgment is entered against the defendant for restitution of the premises. Section 47-8-46; Civil Forms 4-913 (Writ of Restitution to Owner) and 4-914 (Writ of Restitution to Resident).
6. The writ of restitution shall, at the request of the prevailing party, direct the sheriff to restore possession of the premises to the plaintiff on a specific date not less than three nor more than seven days after entry of judgment, if the plaintiff is the owner; and within twenty-four hours if the plaintiff is the resident. Section 47-8-46.
7. To enforce judgment on both restitution and damages, the court approved combined form for writ of restitution and writ of execution may be used. The regular writ of execution form may be used to enforce judgment for damages only. Civil Form 4-802 (Writ of Execution in Forceable Entry or Detainer).

L. Actions for Counterclaim (Section 47 8 30; Civil Form 4 907 (Answer by Resident to Petition for Restitution); §1.2 3 of this Benchbook

1. In the answer, the defendant (whether resident or owner) may state a counterclaim or setoff for any amount recoverable under a rental agreement or under the Act.
2. If a counterclaim is filed by the resident while in possession of the dwelling unit, the resident is required to pay rent during the period of time he or she is in possession. Section 47-8-30(A).
3. The owner may receive reasonable attorney's fees and court costs if the resident’s defense or counterclaim is determined by the court to be without merit and not raised in good faith. Section 47-8-30(B).
4. If the owner's initial action or reply to a counterclaim is without merit and is not in good faith, the resident may recover reasonable attorney's fees and court costs. Section 47-8-30(C).

M. Appeal in Actions for Possession (Section 47-8-47)

1. Either party may appeal from a judgment in an action under the Act. See generally §1.3-5 of this Benchbook regarding appeals.
2. Appeals must be taken as in other civil actions.
3. Taking an appeal stays an unexecuted writ of restitution, meaning that the writ may not be executed; but where the resident is the appellant, the writ is stayed only if the resident pays into an escrow account the amount of the rent that is due after the date of judgment, and the amount due each month thereafter while the appeal is pending. These payments are turned over to the owner as they would have fallen due, unless the trial court orders otherwise. Section 47-8-47(A).
4. Where the resident receives a governmental rent subsidy, only the resident's portion of the rent is deposited into escrow.
5. If the resident fails to make any monthly deposit on time, the owner may give the resident a three-day notice. If the resident still fails to pay after those three days, the trial court must schedule a hearing within ten days, and then lift the stay unless the resident shows a legal justification for non-payment.
6. The trial court may stay the execution of a money judgment, and in doing so may require the appellant to deposit with the clerk of the court the amount of any judgment rendered against him or her or require the posting of an appeal bond, with or without surety as the court determines appropriate. Section 47-8-47(B).

N. Deposits (Section 47-8-18)

1. Upon termination of the residency, property or money held by the owner as a deposit may be applied by the owner for rent and damages the owner has suffered by reason of the resident's noncompliance with the rental agreement or obligations set out in Section 47-8-22.

   a. A deposit shall not be retained to cover normal wear and tear.

   b. If actual cause exists to retain any portion of the deposit, the owner must provide the resident with an itemized written list of deductions and deposit balance within thirty days of the resident’s departure or termination of the rental agreement, whichever is later. The owner complies by mailing the statement and any balance to the last known address of the resident.

2. If an owner fails to comply with the above requirements, the owner:

   a. forfeits the right to withhold any of the deposit;

   b. forfeits the right to assert any counterclaim to recover the deposit;

   c. is liable to the resident for court costs and reasonable attorney fees; and

   d. forfeits the right to assert action for damages to the rental property. Section 47-8-18(D).

3. An owner who retains a deposit in bad faith and in violation of Section 47-8-18 shall pay a $250.00 civil penalty to the resident. Section 47-8-18(E).

O. Disposition of Property Left on Premises (Section 47-8-34.1)

1. When a tenancy ends, but property of the resident remains on the premises, the owner must give notice to the tenant and store the property for the resident to claim it:

   a. for thirty days if the tenancy ended by abandonment;

   b. for fourteen days if the tenancy ended by the resident's voluntary surrender of the premises;

   c. for three days if the tenancy ended by writ of restitution.

2. The notice must alert the resident to the owner's intent to dispose of the property and state the telephone number and address for contacting the owner to retrieve it.
3. The notice must be served either personally or by mail, and if returned, the owner must attempt to deliver it to other addresses supplied by the resident. Section 47-8-34.1(A)(3).
4. The owner may dispose of unclaimed property after the time to reclaim it has expired. If the value of the property exceeds $100, the resident is entitled to a refund of the value of the property or the proceeds of any sale in excess of the amount owed to the owner. Section 47-8-34.1(E)-(H).
5. The owner may charge the resident reasonable storage fees and the prevailing rate of moving fees. The owner may require payment of those fees before releasing the resident’s property. Section 47-8-34.1(G).
6. The landlord's lien has been eliminated for any dwelling units subject to the Act. Section 47-8-36.1.