SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR

SENATE BILL 70

50th legislature - STATE OF NEW MEXICO - second session, 2012

AN ACT

RELATING TO LOCAL GOVERNMENT; REQUIRING THAT THE GOVERNING BODY OF A CLASS A COUNTY ENACT A FORECLOSURE MAINTENANCE ORDINANCE REQUIRING THE LEGAL OWNER OF A FORECLOSED RESIDENTIAL REAL PROPERTY TO MAINTAIN THE PROPERTY; PROVIDING FOR A PENALTY; DECLARING AN EMERGENCY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. SHORT TITLE.--This act may be cited as the "Foreclosure Maintenance Act".

     SECTION 2. DEFINITIONS.--As used in the Foreclosure Maintenance Act:

          A. "abandoned residential real property" means any residential property that:

                (1) is vacant and is under a current notice of default or notice of mortgagee's sale by the lender or is the subject of a tax lien sale; or

                (2) has been the subject of a foreclosure sale where the title was retained by the beneficiary of a mortgage involved in the foreclosure or transferred under a deed in lieu of foreclosure or sale;

          B. "evidence of vacancy" means any condition that on its own, or combined with other conditions present, would lead a reasonable person to believe that the property is vacant, including:

                (1) overgrown or dead vegetation;

                (2) accumulation of abandoned personal property; or

                (3) statements by neighbors, delivery agents or government agents in combination with other evidence that the property is vacant;

          C. "failure to maintain" means failure to provide general upkeep and care for the property, including failure to:

                (1) remove excessive amounts or overgrowth of weeds, brush or dead vegetation;

                (2) remove trash, junk, debris or unused building materials;

                (3) remove an accumulation of newspapers, circulars, flyers or notices, except those required by federal, state or local law;

                (4) remove discarded personal items, including furniture, clothing, large and small appliances, printed materials, vehicles and any other items that provide evidence of vacancy; or

                (5) prevent or eliminate rodent, pest or insect infestation, including mosquito larvae growing in standing water;

          D. "foreclosure" means the process by which a property, placed as security for a real estate loan, is sold at public sale to satisfy the debt when the borrower defaults on the loan, including the recording of a lis pendens in contemplation of a foreclosure;

          E. "governing body" means the board of county commissioners of a class A county; 

          F. "public nuisance" means a condition on the property resulting from a failure to maintain that jeopardizes the public health and safety or negatively affects the surrounding residential property values; and

          G. "vacant" means not legally occupied.

     SECTION 3. PROPERTY MAINTENANCE REQUIREMENT.--Whether purchased at a foreclosure sale or acquired through foreclosure under a mortgage or deed of trust, a legal owner shall maintain abandoned residential real property. Failure to maintain an abandoned residential real property may result in a penalty imposed upon the legal owner as provided by the ordinance enacted by the governing body. Abandoned residential real property that is not properly maintained constitutes a public nuisance.

     SECTION 4. ORDINANCE ENACTED--REQUIRED PROVISIONS--APPLICABILITY.--

           A. A governing body by ordinance shall compel the legal owner of abandoned residential real property to maintain the structure and the land within the lot lines of the property. An ordinance enacted in accordance with the provisions of the Foreclosure Maintenance Act shall at a minimum provide:

                (1) that a violation of any provision of the ordinance shall be subject to a citation and may be subject to a monetary penalty;

                (2) notice of the alleged violation to the legal owner, including a description of the conditions that gave rise to the allegations;

                (3) notice of the intent to impose a monetary penalty if action by the legal owner to correct the violation is not commenced within a period of not more than fourteen days and completed within a period of not less than thirty days;

                (4) except as otherwise provided in this section, notice of a period of not less than thirty days for the legal owner of the property to remedy any violation prior to the imposition of the monetary penalty;

                (5) a process to allow the legal owner an opportunity to contest the allegations contained in the citation;

                (6) a process used in determining the amount of the penalty to be imposed that includes consideration given to any timely and good faith efforts by the legal owner to remedy the violation; and

                (7) a maximum penalty of one thousand dollars ($1,000) for each day that the legal owner fails to maintain the property, commencing on the day following the expiration of the period allowed to remedy the violation established by the local ordinance.

          B. The ordinance enacted pursuant to the provisions of the Foreclosure Maintenance Act may include provisions to establish different compliance periods for different conditions on the same property.

          C. The ordinance may provide less than thirty days' notice to remedy a condition before the imposition of a penalty if it is determined that a specific condition of the property threatens public health or safety; provided that adequate notice of that determination and the time for compliance is given. 

          D. Monetary penalties collected pursuant to an ordinance enacted in accordance with the provisions of the Foreclosure Maintenance Act shall be directed to the governing body's local nuisance abatement program or other similar local program as determined by the governing body.

          E. The provisions of an ordinance enacted in accordance with the Foreclosure Maintenance Act apply only to abandoned residential real property.

      SECTION 5. NOTICE--REQUIREMENTS.--The notice provision of an ordinance enacted pursuant to the Foreclosure Maintenance Act shall provide as follows:

          A. for real property foreclosed but not yet sold, the notice shall be mailed to the address provided in the deed or other instrument as specified in Section 48-10-12 NMSA 1978; or

          B. for real property sold at foreclosure, notice to the purchaser of the trustee's deed as specified in Subsection B of Section 48-10-14 NMSA 1978 and to the return address provided on the deed or other instrument.

     SECTION 6. SEVERABILITY.--The provisions of the Foreclosure Maintenance Act are severable. If any provision of that act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

     SECTION 7. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

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