HOUSE BILL 110

53rd legislature - STATE OF NEW MEXICO - second session, 2018

INTRODUCED BY

Alonzo Baldonado

AN ACT

RELATING TO RENTAL PROPERTY; AMENDING THE UNIFORM OWNER-RESIDENT RELATIONS ACT TO LIFT THE STAY OF EXECUTION ON AN APPEAL BY A RESIDENT OF A WRIT OF RESTITUTION AND ALLOWING A COURT TO REQUIRE AN APPELLANT TO POST A BOND PENDING THE APPEAL.

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

     SECTION 1. Section 47-8-46 NMSA 1978 (being Laws 1975, Chapter 38, Section 46, as amended) is amended to read:

     "47-8-46. WRIT OF RESTITUTION.--

          A. Upon petition for restitution filed by the owner if judgment is rendered against the defendant for restitution of the premises, the court shall declare the forfeiture of the rental agreement and shall, at the request of the plaintiff or [his] the plaintiff's attorney, issue a writ of restitution directing the sheriff to restore possession of the premises to the plaintiff on a specified date not less than three [nor] or more than seven days after entry of judgment. The defendant and all other occupants shall be enjoined and prohibited from reentering the premises without the permission of the owner for one hundred eighty days following the execution of the writ. This prohibition on return shall not affect the owner's duty to make any personal property of the defendant left in the dwelling unit available for three days following the execution of the writ of restitution.

          B. Upon a petition for restitution filed by the resident, if judgment is rendered against the defendant for restitution of the premises, the court shall, at the request of the plaintiff or [his] the plaintiff's attorney, issue a writ of restitution directing the sheriff to restore possession of the premises to the plaintiff within twenty-four hours after entry of judgment."

     SECTION 2. Section 47-8-47 NMSA 1978 (being Laws 1975, Chapter 38, Section 47, as amended) is amended to read:

     "47-8-47. APPEAL [STAYS EXECUTION].--

          A. If either party feels aggrieved by the judgment, that party may appeal as in other civil actions. [An appeal by the defendant shall stay the execution of any] A writ of restitution [provided that in] may be subject to stay pending appeal upon such terms as set by the court pursuant to the rules of court, which terms may include a bond or other conditions designed to protect the interests of the appellee and, in the case of an appeal by the resident, protecting the interests of other residents living near the appellant. In cases in which the resident is the appellant, the execution of the writ of restitution shall not be stayed by the court unless, in addition to a bond or other terms imposed by the court, the resident, within five days of the filing of the notice of appeal, pays to the owner or into an escrow account with a professional escrow agent an amount equal to the rental amount that shall come due from the day following the judgment through the end of that rental period. The resident shall continue to pay the monthly rent established by the rental agreement at the time the complaint was filed, on a monthly basis on the date rent would otherwise become due. Payments pursuant to this subsection by a subsidized resident shall not exceed the actual amount of monthly rent paid by that resident. When the resident pays the owner directly, the owner shall immediately provide a written receipt to the resident upon demand. When the resident pays into an escrow account, the resident shall cause such amounts to be paid over to the owner immediately upon receipt unless otherwise ordered by the court. Upon the failure of the resident or the escrow agent to make a monthly rent payment on the first day rent would otherwise be due, the owner may serve a three-day written notice on the resident pursuant to Subsection D of Section 47-8-33 NMSA 1978. If the resident or the resident's escrow agent fails to pay the rent within the three days, a hearing on the issue shall be scheduled within ten days from the date the court is notified of the failure to pay rent. In the case of an appeal de novo, the hearing shall be in the court in which the appeal will be heard. If, at the hearing, the court finds that rent has not been paid, the court shall immediately lift the stay and issue the writ of restitution unless the resident demonstrates a legal justification for failing to comply with the rent payment requirement. There shall be no right to abate the rental payments required of the resident pursuant to this section to maintain possession of the property during appeal.

          B. In order to stay the execution of a money judgment, the trial court, within its discretion, may require an appellant to deposit with the clerk of the trial court the amount of judgment and costs or to give a supersedeas bond in the amount of judgment and costs with or without surety as provided by the rules of court. Any bond or deposit shall not be refundable during the pendency of any appeal."

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