0001| SENATE BILL 904
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| FERNANDO R. MACIAS
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO PROPERTY; PROVIDING PROCEDURES AND REMEDIES FOR
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0012| ESTABLISHING AND ENFORCING LIENS INVOLVING MOBILE HOMES AND
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0013| MOBILE HOME PARKS.
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0014|
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0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016| Section 1. Section 47-8-3 NMSA 1978 (being Laws 1975,
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0017| Chapter 38, Section 3, as amended) is amended to read:
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0018| "47-8-3. DEFINITIONS.--As used in the Uniform
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0019| Owner-Resident Relations Act:
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0020| A. "abandonment" means absence of the resident from
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0021| the dwelling, without notice to the owner, for one full rental
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0022| period or in excess of seven days, whichever is less; providing
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0023| such absence occurs only after rent for the dwelling unit is
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0024| delinquent;
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0025| B. "action" includes recoupment, counterclaim, set
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0001| off, suit in equity and any other proceeding in which rights
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0002| are determined, including an action for possession;
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0003| C. "codes" includes building codes, housing codes,
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0004| health and safety codes, sanitation codes and any law,
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0005| ordinance or governmental regulation concerning fitness for
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0006| habitation or the construction, maintenance, operation,
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0007| occupancy or use of a dwelling unit;
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0008| D. "deposit" means an amount of currency or
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0009| instrument delivered to the owner by the resident as a pledge
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0010| to abide by terms and conditions of the rental agreement;
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0011| E. "dwelling unit" means a structure, mobile home
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0012| or the part of a structure, including a hotel or motel, that is
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0013| used as a home, residence or sleeping place by one person who
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0014| maintains a household or by two or more persons who maintain a
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0015| common household and includes a parcel of land [other than a
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mobile home lot] leased by its owner for use as a site for the
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0017| parking of a mobile home;
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0018| F. "eviction" means any action initiated by the
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0019| owner to regain possession of a dwelling unit and use of the
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0020| premises under terms of the Uniform Owner-Resident Relations
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0021| Act;
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0022| G. "fair rental value" is that value that is
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0023| comparable to the value established in the market place;
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0024| H. "good faith" means honesty in fact in the
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0025| conduct of the transaction concerned as evidenced by all
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0001| surrounding circumstances;
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0002| I. "normal wear and tear" means deterioration that
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0003| occurs based upon the use for which the rental unit is
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0004| intended, without negligence, carelessness, accident, abuse or
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0005| intentional damage of the premises, equipment or chattels of
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0006| the owner by the residents or by any other person in the
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0007| dwelling unit or on the premises with the resident's consent;
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0008| however, uncleanliness does not constitute normal wear and
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0009| tear;
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0010| J. "organization" includes a corporation,
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0011| government, governmental subdivision or agency thereof,
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0012| business trust, estate, trust, partnership or association, two
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0013| or more persons having a joint or common interest or any other
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0014| legal or commercial entity;
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0015| K. "owner" means one or more persons, jointly or
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0016| severally, in whom is vested:
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0017| (1) all or part of the legal title to
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0018| property, but shall not include the limited partner in an
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0019| association regulated under the Uniform Limited Partnership
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0020| Act; or
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0021| (2) all or part of the beneficial ownership
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0022| and a right to present use and enjoyment of the premises and
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0023| agents thereof and includes a mortgagee in possession and the
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0024| lessors, but shall not include a person or persons, jointly or
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0025| severally, who as owner leases the entire premises to a lessee
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0001| of vacant land for apartment use;
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0002| L. "person" includes an individual, corporation,
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0003| entity or organization;
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0004| M. "premises" means facilities, facilities and
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0005| appurtenances, areas and other facilities held out for use of
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0006| the resident or whose use is promised to the resident
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0007| coincidental with occupancy of a dwelling unit;
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0008| N. "rent" means payments in currency or in kind
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0009| under terms and conditions of the rental agreement for use of a
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0010| dwelling unit or premises, to be made to the owner by the
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0011| resident, but does not include deposits;
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0012| O. "rental agreement" means all written agreements
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0013| between an owner and resident and valid rules and regulations
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0014| adopted under Section 47-8-23 NMSA 1978 embodying the terms and
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0015| conditions concerning the use and occupancy of a dwelling unit
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0016| or premises;
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0017| P. "resident" means a person entitled under a
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0018| rental agreement to occupy a dwelling unit in peaceful
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0019| possession to the exclusion of others and includes the owner of
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0020| a mobile home renting premises, other than a lot or parcel in a
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0021| mobile home park, for use as a site for the location of the
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0022| mobile home;
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0023| Q. "roomer" means a person occupying a dwelling
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0024| unit that lacks a major bathroom or kitchen facility in a
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0025| structure where one or more major facilities are used in common
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0001| by occupants of the dwelling units. As referred to in this
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0002| subsection, "major facility", in the case of a bathroom, means
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0003| toilet and either a bath or shower and, in the case of a
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0004| kitchen, means refrigerator, stove or sink;
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0005| R. "single family residence" means a structure
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0006| maintained and used as a single dwelling unit. Notwithstanding
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0007| that a dwelling unit shares one or more walls with another
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0008| dwelling unit, it is a single family residence if it has direct
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0009| access to a street or thoroughfare and shares neither heating
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0010| facilities, hot water equipment nor any other essential
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0011| facility or service with any other dwelling unit;
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0012| S. "substantial violation" means any act or series
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0013| of acts that occur in the dwelling unit or on the premises by
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0014| the resident or with the resident's consent and:
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0015| (1) is [considered] a felony under the
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0016| Controlled Substances Act;
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0017| (2) involves a deadly weapon and is
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0018| [considered] a felony under the Criminal Code;
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0019| (3) is [considered] assault with intent to
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0020| commit a violent felony, murder, criminal sexual penetration,
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0021| robbery or burglary under the Criminal Code; or
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0022| (4) is [considered] criminal damage to
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0023| property and a felony under the Criminal Code;
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0024| T. "term" is the period of occupancy specified in
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0025| the rental agreement; and
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0001| U. "transient occupancy" means occupancy of a
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0002| dwelling unit for which rent is paid on less than a weekly
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0003| basis or where the resident has not manifested an intent to
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0004| make the dwelling unit a residence or household."
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0005| Section 2. Section 47-10-2 NMSA 1978 (being Laws 1983,
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0006| Chapter 122, Section 2, as amended) is amended to read:
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0007| "47-10-2. DEFINITIONS.--As used in the Mobile Home Park
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0008| Act:
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0009| A. "landlord" or "management" means the owner or
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0010| any person responsible for operating and managing a mobile home
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0011| park or an agent, employee or representative authorized to act
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0012| on the management's behalf in connection with matters relating
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0013| to tenancy in the park;
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0014| B. "mobile home" means a single-family dwelling
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0015| built on a permanent chassis designed for long-term residential
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0016| occupancy and containing complete electrical, plumbing and
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0017| sanitary facilities designed to be installed in a permanent or
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0018| semipermanent manner with or without a permanent foundation,
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0019| which dwelling is capable of being drawn over public highways
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0020| as a unit or in sections by special permit. "Mobile home" does
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0021| not include a recreational travel trailer or a recreational
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0022| vehicle, as those terms are defined in Section 66-1-4.15 NMSA
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0023| 1978;
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0024| C. "mobile home park", "trailer park" or "park"
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0025| means a parcel of land used for the continuous accommodation of
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0001| twelve or more occupied mobile homes and operated for the
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0002| pecuniary benefit of the owner of the parcel of land, his
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0003| agents, lessees or assignees. "Mobile home park" does not
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0004| include mobile home subdivisions or property zoned for
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0005| manufactured home subdivisions;
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0006| D. "mobile home space", "space", "mobile home lot"
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0007| or "lot" means a parcel of land within a mobile home park
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0008| designated by the management to accommodate one mobile home and
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0009| its accessory buildings and to which the required sewer and
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0010| utility connections are provided by the mobile home park;
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0011| E. "premises" means a mobile home park and existing
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0012| facilities and appurtenances therein, including furniture and
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0013| utilities where applicable, and grounds, areas and existing
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0014| facilities held out for the use of the residents generally or
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0015| the use of which is promised to the resident;
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0016| F. "rent" means any money or other consideration to
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0017| be paid to the management for the right of use, possession and
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0018| occupation of the premises;
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0019| G. "rental agreement" means a written agreement,
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0020| including those conditions implied by law, between the
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0021| management and the resident establishing the terms and
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0022| conditions of a tenancy, including reasonable rules and
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0023| regulations promulgated by the park management. A lease is a
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0024| rental agreement;
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0025| H. "resident" means any person or family of such
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0001| person owning a mobile home that is subject to a tenancy in a
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0002| mobile home park under a rental agreement;
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0003| I. "tenancy" means the right of a resident to use a
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0004| space or lot within a park on which to locate, maintain and
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0005| occupy a mobile home, lot improvements and accessory structures
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0006| for human habitation, including the use of services and
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0007| facilities of the park; [and]
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0008| J. "utility services" means electric, gas, water or
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0009| sewer services, but does not include refuse services;
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0010| K. "first lienholder" means a person or his
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0011| successor in interest who has a security interest in a mobile
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0012| home, whose interest has been perfected pursuant to the
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0013| provisions of Section 66-3-201 NMSA 1978 and whose interest is
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0014| prior to any other security interest in the mobile home; and
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0015| L. "abandoned" means absence of the resident from
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0016| the mobile home, without notice to the landlord, for one full
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0017| rental period or in excess of seven continuous days, whichever
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0018| is less, if the absence occurs after the mobile home lot rent
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0019| is delinquent."
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0020| Section 3. Section 47-10-9 NMSA 1978 (being Laws 1983,
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0021| Chapter 122, Section 9) is amended to read:
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0022| "47-10-9. REMEDIES.--
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0023| A. Upon granting judgment for possession by the
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0024| landlord in a forcible entry and detainer action, the court
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0025| shall issue the writ of restitution as provided in Section
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0001| 47-8-46 NMSA 1978.
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0002| B. The notice of judgment shall state that at a
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0003| specified time, not less than forty-eight hours from the entry
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0004| of judgment, the sheriff will return to serve a writ of
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0005| restitution and superintend the peaceful and orderly removal of
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0006| the mobile home under that order of court. The notice of
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0007| judgment shall also advise the mobile home owner to prepare the
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0008| mobile home for removal from the premises by removing the
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0009| skirting, disconnecting utilities, attaching tires and
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0010| otherwise making the mobile home safe and ready for highway
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0011| travel.
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0012| C. Should the mobile home owner fail to have the
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0013| mobile home safe and ready for physical removal from the
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0014| premises or should inclement weather or other unforeseen
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0015| problems occur at the time specified in the notice of judgment,
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0016| the landlord and the sheriff may by written agreement extend
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0017| the time for the execution of the writ of restitution to allow
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0018| time for the landlord to arrange to have the necessary work
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0019| done or to permit the sheriff's execution of the writ of
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0020| restitution at a time when weather or other conditions will
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0021| make removal less hazardous to the mobile home.
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0022| D. If the mobile home is not removed from the
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0023| landlord's land on behalf of the mobile home owner within the
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0024| time permitted by the writ of restitution, the landlord and the
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0025| sheriff shall have the right to take possession of the mobile
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0001| home for the purposes of removal and storage. The liability of
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0002| the landlord and the sheriff in [such] that event shall be
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0003| limited to gross negligence or willful and wanton disregard of
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0004| the property rights of the mobile home owner. The
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0005| responsibility to prevent freezing and to prevent wind and
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0006| weather damage to the mobile home lies exclusively with those
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0007| persons who have a property interest in the mobile home.
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0008| E. Utility charges, other charges incurred by the
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0009| landlord for which the resident is liable to the landlord
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0010| pursuant to the provisions of a rental agreement, including
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0011| amounts awarded to the landlord in an action brought pursuant
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0012| to this section, rents and reasonable removal and storage
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0013| charges may be paid by any party in interest. Those charges
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0014| [shall] constitute a lien [which] that will run with the
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0015| mobile home [and whoever ultimately claims the mobile home
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will owe that sum to the person who paid it]. The lien may be
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0017| foreclosed in the same manner as a landlord's lien created
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0018| pursuant to Section 48-3-5 NSMA 1978.
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0019| F. Prior to the issuance of [said] the writ of
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0020| restitution, the court shall make a finding of fact [based
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upon evidence or statements of counsel] that [there] the
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0022| mobile home is or is not [a security agreement on the mobile
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home being subjected to the writ of restitution] subject to
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0024| the security interest of a first lienholder. A written
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0025| statement on the mobile home resident's owner's application
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0001| for tenancy [with the landlord that there is no security
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agreement on the mobile home] identifying a lienholder by
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0003| name and address shall be prima facie evidence of the
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0004| [nonexistence] existence of [such security agreement]
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0005| the interest of the lienholder. If the application for
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0006| tenancy contains no information or states that no liens exist,
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0007| the landlord shall obtain a written title search statement from
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0008| the motor vehicle division of the taxation and revenue
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0009| department and the matter contained in that document shall be
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0010| conclusive evidence of the existence or nonexistence of
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0011| security interests in the mobile home.
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0012| G. [In those cases where] If the court finds
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0013| there is a security [agreement] interest in favor of a first
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0014| lienholder on the mobile home subject to the writ of
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0015| restitution [and where the holder of the security agreement
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can be identified with reasonable certainty] or if the mobile
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0017| home has been abandoned by the resident or possession of the
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0018| mobile home has been surrendered to the landlord by the
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0019| resident, then, upon receipt of the writ of restitution, the
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0020| [plaintiff] landlord shall [promptly inform the holder of
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such security agreement as to the location of the mobile home,
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the name of the landlord who obtained the] notify the first
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0023| lienholder in writing that the landlord has obtained a writ of
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0024| restitution [and the time when the mobile home will be subject
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to removal by the sheriff and the landlord] for the mobile
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0001| home park space where the mobile home is located or that the
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0002| mobile home has been abandoned or surrendered by the resident.
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0003| The notice shall be provided in accordance with the provisions
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0004| of Subsection J of this section and shall:
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0005| (1) state that an action for restitution has
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0006| been filed against the resident and the effective date of a
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0007| writ of restitution, if issued, or the date the mobile home was
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0008| abandoned or voluntarily surrendered by the resident;
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0009| (2) disclose the amount of the utility
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0010| charges, other charges incurred by the landlord as provided in
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0011| the rental agreement, rents and reasonable removal and storage
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0012| charges, accruing daily rent calculated pursuant to this
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0013| section, and the date upon which the resident is required to
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0014| make regular payments to the landlord; and
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0015| (3) attach a copy of the lease and the
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0016| landlord's rules and regulations that apply to the resident.
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0017| H. Notwithstanding the provisions of the
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0018| Subsection E of this section, the landlord shall be entitled to
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0019| collect from the first lienholder only the utility charges,
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0020| other charges incurred by the landlord as provided in the
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0021| rental agreement and rents and reasonable removal and storage
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0022| charges accruing from and after the date the landlord provides
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0023| the first lienholder the written notice prescribed under
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0024| Subsection G of this section. The first lienholder shall
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0025| notify the landlord within thirty days of receipt of the notice
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0001| whether it intends to pay the rents and charges collectible
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0002| under this subsection or remove the mobile home. The rents and
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0003| charges due under this subsection shall be prorated to the date
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0004| the mobile home is removed or the date a new lease with a new
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0005| resident becomes effective, and the first lienholder shall not
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0006| be liable for any rents and charges thereafter. The maximum
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0007| rent payable to the landlord under this subsection is a daily
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0008| rate equal to one-thirtieth of the then-current lot rental
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0009| amount that would have been payable by the resident under the
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0010| lease. The maximum daily rent may be increased over time in
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0011| accordance with the notice requirements under the applicable
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0012| provisions of the Mobile Home Park Act. The first lienholder
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0013| shall have thirty days from the date notice is provided by the
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0014| landlord to pay the rent and charges accruing to the notice
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0015| date. Thereafter, the first lienholder shall pay the rent and
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0016| charges in accordance with the resident's lease. If the first
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0017| lienholder desires to remove the mobile home prior to a payment
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0018| due date, the first lienholder shall pay the rent and charges
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0019| accrued to the date of removal prior to removing the mobile
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0020| home.
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0021| I. If the first lienholder fails to pay the rent
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0022| and charges due as provided in Subsection H of this section,
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0023| the landlord may give the first lienholder notice of the
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0024| nonpayment in accordance with Section 47-10-6 NMSA 1978. If
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0025| the first lienholder fails to make payment within the time
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0001| period specified in the notice, the landlord may proceed
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0002| against the first lienholder by exercising the remedies granted
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0003| it under the Mobile Home Park Act. The landlord may also seek
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0004| any other remedies to which it is entitled by law. The
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0005| prevailing party in any action brought in an event to seek
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0006| relief under this section, including an action for damages, is
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0007| entitled to an award for reasonable attorney fees and costs
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0008| incurred in the suit. Notwithstanding anything in this section
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0009| to the contrary, the judgment obtained in such an action, if in
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0010| favor of the landlord, constitutes a lien against the mobile
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0011| home having priority over the lien of the first lienholder.
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0012| The lien may be foreclosed pursuant to the procedures
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0013| pertaining to a landlord's lien created in Section 48-3-5 NMSA
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0014| 1978.
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0015| J. Any notice required by this section between the
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0016| first lienholder and landlord shall be in writing and either
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0017| hand delivered or mailed by certified mail, return receipt
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0018| requested. The notice shall be effective the date of delivery
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0019| or mailing. If hand delivered, the notice shall be delivered
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0020| at the principal office or place of business of the addressee
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0021| during regular business hours to the person in charge of the
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0022| office or place of business.
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0023| K. If the mobile home is sold to third parties who
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0024| intend to remain in the park, they will not be allowed to
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0025| reside in the mobile home unless the parties have been
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0001| qualified by the landlord as residents. Until the purchasers
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0002| and the landlord enter into a written lease agreement, the
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0003| landlord may refuse to recognize the sale and treat any persons
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0004| living in the mobile home as trespassers.
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0005| L. If the first lienholder has paid in full all
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0006| money due under Subsection H of this section, it shall be
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0007| unlawful for the landlord to refuse to allow the first
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0008| lienholder to remove the mobile home. If the landlord refuses
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0009| to allow the first lienholder to remove the mobile home, the
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0010| landlord is liable to the first lienholder for each day the
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0011| landlord unlawfully maintains possession of the mobile home, at
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0012| a daily rate equal to one-thirtieth of the monthly payment
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0013| required by a contract between the first lienholder and
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0014| resident. In all disputes between the landlord and the first
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0015| lienholder, the court shall award reasonable attorney fees and
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0016| costs to the prevailing party. In the event the mobile home
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0017| has not been resold within six months the of landlord providing
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0018| notice pursuant to Subsection G of this section, the landlord
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0019| may request the first lienholder to remove the mobile home
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0020| within thirty days of the request. Notice of the request shall
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0021| be given to the first lienholder in accordance with Subsection
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0022| J of this section."
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0023| Section 4. Section 48-3-5 NMSA 1978 (being Laws 1851-
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0024| 1852, P. 243, as amended) is amended to read:
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0025| "48-3-5. LANDLORDS' LIENS.--
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0001| A. Landlords have a lien on the property of their
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0002| tenants that remains in or about the premises rented, for the
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0003| rent due by the terms of any lease or other agreement in
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0004| writing, and the property shall not be removed from the
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0005| premises without the consent of the landlord until the rent is
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0006| paid or secured. A lien [shall] does not attach [where]
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0007| if the premises rented is a dwelling unit.
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0008| B. For purposes of this section, "dwelling unit"
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0009| means a structure, mobile home and a leased parcel of land
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0010| upon which it is located, or a part of a structure that is
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0011| used as a home, residence or sleeping place by one person who
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0012| maintains a household or by two or more persons who maintain a
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0013| common household."
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0014|
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0015|
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0016| FORTY-THIRD LEGISLATURE SB 904/a
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0017| FIRST SESSION, 1997
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0018|
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0019| March 3, 1997
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0020|
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0021| Mr. President:
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0022|
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0023| Your JUDICIARY COMMITTEE, to whom has been referred
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0024|
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0025| SENATE BILL 904
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0001|
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0002| has had it under consideration and reports same with
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0003| recommendation that it DO PASS, amended as follows:
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0004|
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0005| 1. On page 1, line 21, after the second comma strike the
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0006| remainder of the line.
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0007|
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0008| 2. On page 1, line 22, strike "period or" and after the
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0009| word "seven" insert "continuous", and strike ", whichever is
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0010| less".
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0011|
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0012| 3. On page 8, line 12, after the second comma strike the
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0013| reminder of the line.
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0014|
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0015| 4. On page 8, line 13, strike "rental period or", and
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0016| strike "whichever".
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0017|
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0018| 5. On page 8, line 14, strike "is less, if the" and insert
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0019| in lieu thereof "providing such".
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0020|
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0021| Respectfully submitted,
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0022|
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0023|
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0024|
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0025| __________________________________
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0001| Fernando R. Macias, Chairman
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0002|
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0003| Adopted_______________________ Not
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0004| Adopted_______________________
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0005| (Chief Clerk) (Chief Clerk)
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0006|
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0007| Date ________________________
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0008|
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0009|
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0010| The roll call vote was 5 For 0 Against
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0011| Yes: 5
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0012| No: None
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0013| Excused: Lopez, Sanchez, Vernon
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0014| Absent: None
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0015|
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0016|
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0017| S0904JU1
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0018|
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0019| State of New Mexico
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0020| House of Representatives
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0021|
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0022| FORTY-THIRD LEGISLATURE
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0023| FIRST SESSION, 1997
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0024|
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0025|
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0001| March 15, 1997
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0002|
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0003|
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0004| Mr. Speaker:
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0005|
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0006| Your JUDICIARY COMMITTEE, to whom has been referred
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0007|
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0008| SENATE BILL 904, as amended
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0009|
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0010| has had it under consideration and reports same with
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0011| recommendation that it DO PASS.
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0012|
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0013| Respectfully submitted,
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0014|
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0015|
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0016|
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0017|
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0018| Thomas P. Foy, Chairman
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0019|
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0020|
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0021| Adopted Not Adopted
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0022|
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0023| (Chief Clerk) (Chief Clerk)
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0024|
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0025| Date
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0001|
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0002| The roll call vote was 7 For 0 Against
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0003| Yes: 7
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0004| Excused: Alwin, King, Luna, Mallory, Rios, Sanchez
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0005| Absent: None
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0006|
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0007|
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0008| G:\BILLTEXT\BILLW_97\S0904
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