A. Except as provided in Section 35-10-1 NMSA 1978, three days' notice in writing to quit must be given to the defendant before a civil action for forcible entry or unlawful detainer may be filed.
B. The return day of the summons in an action for forcible entry or unlawful detainer shall be not less than three, nor more than ten, days from the time of service of the civil complaint and summons on the defendant. Except by consent of the parties, no continuance shall be granted for more than ten days.
C. The questions of title or boundaries of land shall not be investigated in an action for forcible entry or unlawful detainer, but the action does not prevent a party from testing the right of property in any other manner. An action for forcible entry or unlawful detainer may not be brought in connection with any other action, nor may it be made the subject of setoff.
D. The right of a landlord in an action for forcible entry or unlawful detainer is not affected by the underleasing of his tenant.
E. When a lessee has been induced to take a lease by means of force, fraud or intimidation, he may plead a paramount title in himself, an outstanding title or the want of title in the lessor.
F. Legal representatives of a person who, if alive, might have brought an action for forcible entry or unlawful detainer may bring the action after his death.
G. All laws and procedures governing magistrate courts apply to actions for forcible entry or unlawful detainer in the magistrate court except as otherwise provided by law.
History: 1953 Comp., § 36-12-2, enacted by Laws 1968, ch. 62, § 123.
ANNOTATIONSRepeals. — Laws 1968, ch. 62, § 171, repealed former 36-12-2, 1953 Comp., relating to disqualification of justice by interest or relationship, effective January 1, 1969.
Sufficiency of notice. — The notice to quit should be sufficiently definite to inform the tenant of the meaning of the notice, but the landlord's signature is not indispensable. Lund v. Ozanne, 1906-NMSC-001, 13 N.M. 293, 84 P. 710 (decided under former law).
Where sufficient. — Allegation in complaint "that on a certain day, to wit, the 30th day of September, 1949, at said county, demand in writing was duly made by plaintiff of said defendant for, and requiring the payment, said rent then due, amounting to the said sum of $4000., or the possession of said demised property, but said defendant neglected and refused for the space of three whole days and upward, after demand so made as aforesaid, and still neglects and refuses, to pay said rent, or surrender possession of said premises," sufficiently alleged statutory notice. Kuykendall v. Ulibarri, 1952-NMSC-007, 56 N.M. 43, 239 P.2d 731 (decided under former law).
Defenses allowed. — This section allows any defense, whether legal or equitable, to be raised that does not try title or boundaries to the disputed property. Wal-Go Assocs. v. Leon, 1981-NMSC-022, 95 N.M. 565, 624 P.2d 507.
Suit precluded by Subsection C. — Where defendants purchased ranch four years prior and remained in possession and plaintiff does not claim any possession prior to that, has never been in possession either as owner, tenant or in any other capacity, but bases title on a disputed contract between the parties, the plaintiff's title is so directly and inextricably involved in the action for unlawful detainer that suit is precluded by 35-10-3C NMSA 1978. Reinhart v. Lindholm, 1972-NMSC-087, 84 N.M. 546, 505 P.2d 1222.
Real estate provisions not violated. — Where the title to real estate is drawn in question indirectly or incidentally, statutory and constitutional provisions are not violated. Brown v. Bigham, 1958-NMSC-110, 65 N.M. 45, 331 P.2d 1106 (decided under former law).
Question of title resolved previously. — Prohibition in Subsection C against investigation of questions of title in unlawful detainer actions did not mean that magistrate court and district court lacked jurisdiction to decide whether plaintiff was entitled to possession of property which he had purchased at foreclosure sale but which defendant had failed to vacate, since the only question of title, that of the validity of the order of the district court under which the deed was issued to the plaintiff, had previously been resolved against the defendant. Minor v. Riebold, 1974-NMSC-033, 86 N.M. 279, 523 P.2d 14.
Trial by jury. — Right to a trial by jury does not exist in an action for forcible entry and detainer in the absence of statutory authority. Reece v. Montano, 1943-NMSC-054, 48 N.M. 1, 144 P.2d 461 (decided under former law).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 35 Am. Jur. 2d Forcible Entry and Detainer §§ 6, 34, 35, 37, 42, 43.
Right of landlord legally entitled to possession to dispossess tenant without legal process, 6 A.L.R.3d 177.
36A C.J.S. Forcible Entry and Detainer §§ 23 to 28, 35.