0001| HOUSE BILL 1153 | 0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0003| INTRODUCED BY | 0004| LEO C. WATCHMAN JR. | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO PROPERTY; PROVIDING PROCEDURES AND REMEDIES FOR | 0012| ESTABLISHING AND ENFORCING LIENS INVOLVING MOBILE HOMES AND | 0013| MOBILE HOME PARKS. | 0014| | 0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0016| Section 1. Section 47-8-3 NMSA 1978 (being Laws 1975, | 0017| Chapter 38, Section 3, as amended) is amended to read: | 0018| "47-8-3. DEFINITIONS.--As used in the Uniform | 0019| Owner-Resident Relations Act: | 0020| A. "abandonment" means absence of the resident from | 0021| the dwelling, without notice to the owner, for one full rental | 0022| period or in excess of seven days, whichever is less; providing | 0023| such absence occurs only after rent for the dwelling unit is | 0024| delinquent; | 0025| B. "action" includes recoupment, counterclaim, set | 0001| off, suit in equity and any other proceeding in which rights | 0002| are determined, including an action for possession; | 0003| C. "codes" includes building codes, housing codes, | 0004| health and safety codes, sanitation codes and any law, | 0005| ordinance or governmental regulation concerning fitness for | 0006| habitation or the construction, maintenance, operation, | 0007| occupancy or use of a dwelling unit; | 0008| D. "deposit" means an amount of currency or | 0009| instrument delivered to the owner by the resident as a pledge | 0010| to abide by terms and conditions of the rental agreement; | 0011| E. "dwelling unit" means a structure, mobile home | 0012| or the part of a structure, including a hotel or motel, that is | 0013| used as a home, residence or sleeping place by one person who | 0014| maintains a household or by two or more persons who maintain a | 0015| common household and includes a parcel of land [other than a | 0016| mobile home lot] leased by its owner for use as a site for the | 0017| parking of a mobile home; | 0018| F. "eviction" means any action initiated by the | 0019| owner to regain possession of a dwelling unit and use of the | 0020| premises under terms of the Uniform Owner-Resident Relations | 0021| Act; | 0022| G. "fair rental value" is that value that is | 0023| comparable to the value established in the market place; | 0024| H. "good faith" means honesty in fact in the | 0025| conduct of the transaction concerned as evidenced by all | 0001| surrounding circumstances; | 0002| I. "normal wear and tear" means deterioration that | 0003| occurs based upon the use for which the rental unit is | 0004| intended, without negligence, carelessness, accident, abuse or | 0005| intentional damage of the premises, equipment or chattels of | 0006| the owner by the residents or by any other person in the | 0007| dwelling unit or on the premises with the resident's consent; | 0008| however, uncleanliness does not constitute normal wear and | 0009| tear; | 0010| J. "organization" includes a corporation, | 0011| government, governmental subdivision or agency thereof, | 0012| business trust, estate, trust, partnership or association, two | 0013| or more persons having a joint or common interest or any other | 0014| legal or commercial entity; | 0015| K. "owner" means one or more persons, jointly or | 0016| severally, in whom is vested: | 0017| (1) all or part of the legal title to | 0018| property, but shall not include the limited partner in an | 0019| association regulated under the Uniform Limited Partnership | 0020| Act; or | 0021| (2) all or part of the beneficial ownership | 0022| and a right to present use and enjoyment of the premises and | 0023| agents thereof and includes a mortgagee in possession and the | 0024| lessors, but shall not include a person or persons, jointly or | 0025| severally, who as owner leases the entire premises to a lessee | 0001| of vacant land for apartment use; | 0002| L. "person" includes an individual, corporation, | 0003| entity or organization; | 0004| M. "premises" means facilities, facilities and | 0005| appurtenances, areas and other facilities held out for use of | 0006| the resident or whose use is promised to the resident | 0007| coincidental with occupancy of a dwelling unit; | 0008| N. "rent" means payments in currency or in kind | 0009| under terms and conditions of the rental agreement for use of a | 0010| dwelling unit or premises, to be made to the owner by the | 0011| resident, but does not include deposits; | 0012| O. "rental agreement" means all written agreements | 0013| between an owner and resident and valid rules and regulations | 0014| adopted under Section 47-8-23 NMSA 1978 embodying the terms and | 0015| conditions concerning the use and occupancy of a dwelling unit | 0016| or premises; | 0017| P. "resident" means a person entitled under a | 0018| rental agreement to occupy a dwelling unit in peaceful | 0019| possession to the exclusion of others and includes the owner of | 0020| a mobile home renting premises, other than a lot or parcel in a | 0021| mobile home park, for use as a site for the location of the | 0022| mobile home; | 0023| Q. "roomer" means a person occupying a dwelling | 0024| unit that lacks a major bathroom or kitchen facility in a | 0025| structure where one or more major facilities are used in common | 0001| by occupants of the dwelling units. As referred to in this | 0002| subsection, "major facility", in the case of a bathroom, means | 0003| toilet and either a bath or shower and, in the case of a | 0004| kitchen, means refrigerator, stove or sink; | 0005| R. "single family residence" means a structure | 0006| maintained and used as a single dwelling unit. Notwithstanding | 0007| that a dwelling unit shares one or more walls with another | 0008| dwelling unit, it is a single family residence if it has direct | 0009| access to a street or thoroughfare and shares neither heating | 0010| facilities, hot water equipment nor any other essential | 0011| facility or service with any other dwelling unit; | 0012| S. "substantial violation" means any act or series | 0013| of acts that occur in the dwelling unit or on the premises by | 0014| the resident or with the resident's consent and: | 0015| (1) is [considered] a felony under the | 0016| Controlled Substances Act; | 0017| (2) involves a deadly weapon and is | 0018| [considered] a felony under the Criminal Code; | 0019| (3) is [considered] assault with intent to | 0020| commit a violent felony, murder, criminal sexual penetration, | 0021| robbery or burglary under the Criminal Code; or | 0022| (4) is [considered] criminal damage to | 0023| property and a felony under the Criminal Code; | 0024| T. "term" is the period of occupancy specified in | 0025| the rental agreement; and | 0001| U. "transient occupancy" means occupancy of a | 0002| dwelling unit for which rent is paid on less than a weekly | 0003| basis or where the resident has not manifested an intent to | 0004| make the dwelling unit a residence or household." | 0005| Section 2. Section 47-10-2 NMSA 1978 (being Laws 1983, | 0006| Chapter 122, Section 2, as amended) is amended to read: | 0007| "47-10-2. DEFINITIONS.--As used in the Mobile Home Park | 0008| Act: | 0009| A. "landlord" or "management" means the owner or | 0010| any person responsible for operating and managing a mobile home | 0011| park or an agent, employee or representative authorized to act | 0012| on the management's behalf in connection with matters relating | 0013| to tenancy in the park; | 0014| B. "mobile home" means a single-family dwelling | 0015| built on a permanent chassis designed for long-term residential | 0016| occupancy and containing complete electrical, plumbing and | 0017| sanitary facilities designed to be installed in a permanent or | 0018| semipermanent manner with or without a permanent foundation, | 0019| which dwelling is capable of being drawn over public highways | 0020| as a unit or in sections by special permit. "Mobile home" does | 0021| not include a recreational travel trailer or a recreational | 0022| vehicle, as those terms are defined in Section 66-1-4.15 NMSA | 0023| 1978; | 0024| C. "mobile home park", "trailer park" or "park" | 0025| means a parcel of land used for the continuous accommodation of | 0001| twelve or more occupied mobile homes and operated for the | 0002| pecuniary benefit of the owner of the parcel of land, his | 0003| agents, lessees or assignees. "Mobile home park" does not | 0004| include mobile home subdivisions or property zoned for | 0005| manufactured home subdivisions; | 0006| D. "mobile home space", "space", "mobile home lot" | 0007| or "lot" means a parcel of land within a mobile home park | 0008| designated by the management to accommodate one mobile home and | 0009| its accessory buildings and to which the required sewer and | 0010| utility connections are provided by the mobile home park; | 0011| E. "premises" means a mobile home park and existing | 0012| facilities and appurtenances therein, including furniture and | 0013| utilities where applicable, and grounds, areas and existing | 0014| facilities held out for the use of the residents generally or | 0015| the use of which is promised to the resident; | 0016| F. "rent" means any money or other consideration to | 0017| be paid to the management for the right of use, possession and | 0018| occupation of the premises; | 0019| G. "rental agreement" means a written agreement, | 0020| including those conditions implied by law, between the | 0021| management and the resident establishing the terms and | 0022| conditions of a tenancy, including reasonable rules and | 0023| regulations promulgated by the park management. A lease is a | 0024| rental agreement; | 0025| H. "resident" means any person or family of such | 0001| person owning a mobile home that is subject to a tenancy in a | 0002| mobile home park under a rental agreement; | 0003| I. "tenancy" means the right of a resident to use a | 0004| space or lot within a park on which to locate, maintain and | 0005| occupy a mobile home, lot improvements and accessory structures | 0006| for human habitation, including the use of services and | 0007| facilities of the park; [and] | 0008| J. "utility services" means electric, gas, water or | 0009| sewer services, but does not include refuse services; | 0010| K. "first lienholder" means a person or his | 0011| successor in interest who has a security interest in a mobile | 0012| home, whose interest has been perfected pursuant to the | 0013| provisions of Section 66-3-201 NMSA 1978 and whose interest is | 0014| prior to any other security interest in the mobile home; and | 0015| L. "abandoned" means absence of the resident from | 0016| the mobile home, without notice to the landlord, for one full | 0017| rental period or in excess of seven continuous days, whichever | 0018| is less, if the absence occurs after the mobile home lot rent | 0019| is delinquent." | 0020| Section 3. Section 47-10-9 NMSA 1978 (being Laws 1983, | 0021| Chapter 122, Section 9) is amended to read: | 0022| "47-10-9. REMEDIES.-- | 0023| A. Upon granting judgment for possession by the | 0024| landlord in a forcible entry and detainer action, the court | 0025| shall issue the writ of restitution as provided in Section | 0001| 47-8-46 NMSA 1978. | 0002| B. The notice of judgment shall state that at a | 0003| specified time, not less than forty-eight hours from the entry | 0004| of judgment, the sheriff will return to serve a writ of | 0005| restitution and superintend the peaceful and orderly removal of | 0006| the mobile home under that order of court. The notice of | 0007| judgment shall also advise the mobile home owner to prepare the | 0008| mobile home for removal from the premises by removing the | 0009| skirting, disconnecting utilities, attaching tires and | 0010| otherwise making the mobile home safe and ready for highway | 0011| travel. | 0012| C. Should the mobile home owner fail to have the | 0013| mobile home safe and ready for physical removal from the | 0014| premises or should inclement weather or other unforeseen | 0015| problems occur at the time specified in the notice of judgment, | 0016| the landlord and the sheriff may by written agreement extend | 0017| the time for the execution of the writ of restitution to allow | 0018| time for the landlord to arrange to have the necessary work | 0019| done or to permit the sheriff's execution of the writ of | 0020| restitution at a time when weather or other conditions will | 0021| make removal less hazardous to the mobile home. | 0022| D. If the mobile home is not removed from the | 0023| landlord's land on behalf of the mobile home owner within the | 0024| time permitted by the writ of restitution, the landlord and the | 0025| sheriff shall have the right to take possession of the mobile | 0001| home for the purposes of removal and storage. The liability of | 0002| the landlord and the sheriff in [such] that event shall be | 0003| limited to gross negligence or willful and wanton disregard of | 0004| the property rights of the mobile home owner. The | 0005| responsibility to prevent freezing and to prevent wind and | 0006| weather damage to the mobile home lies exclusively with those | 0007| persons who have a property interest in the mobile home. | 0008| E. Utility charges, other charges incurred by the | 0009| landlord for which the resident is liable to the landlord | 0010| pursuant to the provisions of a rental agreement, including | 0011| amounts awarded to the landlord in an action brought pursuant | 0012| to this section, rents and reasonable removal and storage | 0013| charges may be paid by any party in interest. Those charges | 0014| [shall] constitute a lien [which] that will run with the | 0015| mobile home [and whoever ultimately claims the mobile home | 0016| will owe that sum to the person who paid it]. The lien may be | 0017| foreclosed in the same manner as a landlord's lien created | 0018| pursuant to Section 48-3-5 NSMA 1978. | 0019| F. Prior to the issuance of [said] the writ of | 0020| restitution, the court shall make a finding of fact [based | 0021| upon evidence or statements of counsel] that [there] the | 0022| mobile home is or is not [a security agreement on the mobile | 0023| home being subjected to the writ of restitution] subject to | 0024| the security interest of a first lienholder. A written | 0025| statement on the mobile home resident's owner's application | 0001| for tenancy [with the landlord that there is no security | 0002| agreement on the mobile home] identifying a lienholder by | 0003| name and address shall be prima facie evidence of the | 0004| [nonexistence] existence of [such security agreement] | 0005| the interest of the lienholder. If the application for | 0006| tenancy contains no information or states that no liens exist, | 0007| the landlord shall obtain a written title search statement from | 0008| the motor vehicle division of the taxation and revenue | 0009| department and the matter contained in that document shall be | 0010| conclusive evidence of the existence or nonexistence of | 0011| security interests in the mobile home. | 0012| G. [In those cases where] If the court finds | 0013| there is a security [agreement] interest in favor of a first | 0014| lienholder on the mobile home subject to the writ of | 0015| restitution [and where the holder of the security agreement | 0016| can be identified with reasonable certainty] or if the mobile | 0017| home has been abandoned by the resident or possession of the | 0018| mobile home has been surrendered to the landlord by the | 0019| resident, then, upon receipt of the writ of restitution, the | 0020| [plaintiff] landlord shall [promptly inform the holder of | 0021| such security agreement as to the location of the mobile home, | 0022| the name of the landlord who obtained the] notify the first | 0023| lienholder in writing that the landlord has obtained a writ of | 0024| restitution [and the time when the mobile home will be subject | 0025| to removal by the sheriff and the landlord] for the mobile | 0001| home park space where the mobile home is located or that the | 0002| mobile home has been abandoned or surrendered by the resident. | 0003| The notice shall be provided in accordance with the provisions | 0004| of Subsection J of this section and shall: | 0005| (1) state that an action for restitution has | 0006| been filed against the resident and the effective date of a | 0007| writ of restitution, if issued, or the date the mobile home was | 0008| abandoned or voluntarily surrendered by the resident; | 0009| (2) disclose the amount of the utility | 0010| charges, other charges incurred by the landlord as provided in | 0011| the rental agreement, rents and reasonable removal and storage | 0012| charges, accruing daily rent calculated pursuant to this | 0013| section, and the date upon which the resident is required to | 0014| make regular payments to the landlord; and | 0015| (3) attach a copy of the lease and the | 0016| landlord's rules and regulations that apply to the resident. | 0017| H. Notwithstanding the provisions of the | 0018| Subsection E of this section, the landlord shall be entitled to | 0019| collect from the first lienholder only the utility charges, | 0020| other charges incurred by the landlord as provided in the | 0021| rental agreement and rents and reasonable removal and storage | 0022| charges accruing from and after the date the landlord provides | 0023| the first lienholder the written notice prescribed under | 0024| Subsection G of this section. The first lienholder shall | 0025| notify the landlord within thirty days of receipt of the notice | 0001| whether it intends to pay the rents and charges collectible | 0002| under this subsection or remove the mobile home. The rents and | 0003| charges due under this subsection shall be prorated to the date | 0004| the mobile home is removed or the date a new lease with a new | 0005| resident becomes effective, and the first lienholder shall not | 0006| be liable for any rents and charges thereafter. The maximum | 0007| rent payable to the landlord under this subsection is a daily | 0008| rate equal to one-thirtieth of the then-current lot rental | 0009| amount that would have been payable by the resident under the | 0010| lease. The maximum daily rent may be increased over time in | 0011| accordance with the notice requirements under the applicable | 0012| provisions of the Mobile Home Park Act. The first lienholder | 0013| shall have thirty days from the date notice is provided by the | 0014| landlord to pay the rent and charges accruing to the notice | 0015| date. Thereafter, the first lienholder shall pay the rent and | 0016| charges in accordance with the resident's lease. If the first | 0017| lienholder desires to remove the mobile home prior to a payment | 0018| due date, the first lienholder shall pay the rent and charges | 0019| accrued to the date of removal prior to removing the mobile | 0020| home. | 0021| I. If the first lienholder fails to pay the rent | 0022| and charges due as provided in Subsection H of this section, | 0023| the landlord may give the first lienholder notice of the | 0024| nonpayment in accordance with Section 47-10-6 NMSA 1978. If | 0025| the first lienholder fails to make payment within the time | 0001| period specified in the notice, the landlord may proceed | 0002| against the first lienholder by exercising the remedies granted | 0003| it under the Mobile Home Park Act. The landlord may also seek | 0004| any other remedies to which it is entitled by law. The | 0005| prevailing party in any action brought in an event to seek | 0006| relief under this section, including an action for damages, is | 0007| entitled to an award against the other for reasonable attorney | 0008| fees and costs incurred in the suit. Notwithstanding anything | 0009| in this section to the contrary, the judgment obtained in such | 0010| an action, if in favor of the landlord, constitutes a lien | 0011| against the mobile home having priority over the lien of the | 0012| first lienholder. The lien may be foreclosed pursuant to the | 0013| procedures pertaining to a landlord's lien created in Section | 0014| 48-3-5 NMSA 1978. | 0015| J. Any notice required by this section between the | 0016| first lienholder and landlord shall be in writing and either | 0017| hand delivered or mailed by certified mail, return receipt | 0018| requested. The notice shall be effective the date of delivery | 0019| or mailing. If hand delivered, the notice shall be delivered | 0020| at the principal office or place of business of the addressee | 0021| during regular business hours to the person in charge of the | 0022| office or place of business. | 0023| K. If the mobile home is sold to third parties who | 0024| intend to remain in the park, they will not be allowed to | 0025| reside in the mobile home unless the parties have been | 0001| qualified by the landlord as residents. Until the purchasers | 0002| and the landlord enter into a written lease agreement, the | 0003| landlord may refuse to recognize the sale and treat any persons | 0004| living in the mobile home as trespassers. | 0005| L. If the first lienholder has paid in full all | 0006| money due under Subsection H of this section, it shall be | 0007| unlawful for the landlord to refuse to allow the first | 0008| lienholder to remove the mobile home. If the landlord refuses | 0009| to allow the first lienholder to remove the mobile home, the | 0010| landlord is liable to the first lienholder for each day the | 0011| landlord unlawfully maintains possession of the mobile home, at | 0012| a daily rate equal to one-thirtieth of the monthly payment | 0013| required by a contract between the first lienholder and | 0014| resident. In all disputes between the landlord and the first | 0015| lienholder, the court shall award reasonable attorney fees and | 0016| costs to the prevailing party. In the event the mobile home | 0017| has not been resold within six months the of landlord providing | 0018| notice pursuant to Subsection G of this section, the landlord | 0019| may request the first lienholder to remove the mobile home | 0020| within thirty days of the request. Notice of the request shall | 0021| be given to the first lienholder in accordance with Subsection | 0022| J of this section." | 0023| Section 4. Section 48-3-5 NMSA 1978 (being Laws 1851- | 0024| 1852, P. 243, as amended) is amended to read: | 0025| "48-3-5. LANDLORDS' LIENS.-- | 0001| A. Landlords have a lien on the property of their | 0002| tenants that remains in or about the premises rented, for the | 0003| rent due by the terms of any lease or other agreement in | 0004| writing, and the property shall not be removed from the | 0005| premises without the consent of the landlord until the rent is | 0006| paid or secured. A lien [shall] does not attach [where] | 0007| if the premises rented is a dwelling unit. | 0008| B. For purposes of this section, "dwelling unit" | 0009| means a structure, mobile home and a leased parcel of land | 0010| upon which it is located, or a part of a structure that is | 0011| used as a home, residence or sleeping place by one person who | 0012| maintains a household or by two or more persons who maintain a | 0013| common household." | 0014|  | 0015| State of New Mexico | 0016| House of Representatives | 0017| | 0018| FORTY-THIRD LEGISLATURE | 0019| FIRST SESSION, 1997 | 0020| | 0021| | 0022| March 4, 1997 | 0023| | 0024| | 0025| Mr. Speaker: | 0001| | 0002| Your CONSUMER AND PUBLIC AFFAIRS COMMITTEE, to | 0003| whom has been referred | 0004| | 0005| HOUSE BILL 1153 | 0006| | 0007| has had it under consideration and reports same with | 0008| recommendation that it DO PASS, amended as follows: | 0009| | 0010| 1. On page 1, line 21, after the second comma strike the | 0011| remainder of the line. | 0012| | 0013| 2. On page 1, line 22, strike "period or", and after the | 0014| word "seven" insert "continuous" and strike ", whichever is | 0015| less". | 0016| | 0017| 3. On page 8, line 12, after the second comma strike the | 0018| remainder of the line. | 0019| | 0020| 4. On page 8, line 13, strike "rental period or" and strike | 0021| "whichever". | 0022| | 0023| 5. On page 8, line 14, strike "is less, if the" and insert | 0024| in lieu thereof "providing such"., | 0025| | 0001| and thence referred to the JUDICIARY COMMITTEE. | 0002| | 0003| Respectfully submitted, | 0004| | 0005| | 0006| | 0007| | 0008| | 0009| Gary King, Chairman | 0010| | 0011| | 0012| Adopted Not Adopted | 0013| | 0014| (Chief Clerk) (Chief Clerk) | 0015| | 0016| Date | 0017| | 0018| The roll call vote was 6 For 0 Against | 0019| Yes: 6 | 0020| Excused: Rios, Sandel, Vigil, King | 0021| Absent: None | 0022| | 0023| | 0024| | 0025| G:\BILLTEXT\BILLW_97\H1153 State of New Mexico | 0001| House of Representatives | 0002| | 0003| FORTY-THIRD LEGISLATURE | 0004| FIRST SESSION, 1997 | 0005| | 0006| | 0007| March 15, 1997 | 0008| | 0009| | 0010| Mr. Speaker: | 0011| | 0012| Your JUDICIARY COMMITTEE, to whom has been referred | 0013| | 0014| HOUSE BILL 1153, as amended | 0015| | 0016| has had it under consideration and reports same with | 0017| recommendation that it DO PASS. | 0018| | 0019| Respectfully submitted, | 0020| | 0021| | 0022| | 0023| | 0024| | 0025| Thomas P. Foy, Chairman | 0001| | 0002| | 0003| Adopted Not Adopted | 0004| | 0005| (Chief Clerk) (Chief Clerk) | 0006| | 0007| Date | 0008| | 0009| The roll call vote was 7 For 0 Against | 0010| Yes: 7 | 0011| Excused: Alwin, King, Luna, Mallory, Rios, Sanchez | 0012| Absent: None | 0013| | 0014| | 0015| G:\BILLTEXT\BILLW_97\H1153 |