1. A. If there is a violation of Subsection A of Section 47-8-20 NMSA 1978, other than a failure or defect in an amenity, the resident shall give written notice to the owner of the conditions needing repair. If the owner does not remedy the conditions set out in the notice within seven days of the notice, the resident is entitled to abate rent as set forth below:

   1. (1) one-third of the pro-rata daily rent for each day from the date the resident notified the owner of the conditions needing repair, through the day the conditions in the notice are remedied. If the conditions complained of continue to exist without remedy through any portion of a subsequent rental period, the resident may abate at the same rate for each day that the conditions are not remedied; and
   2. (2) one hundred percent of the rent for each day from the date the resident notified the owner of the conditions needing repair until the date the breach is cured if the dwelling is uninhabitable and the resident does not inhabit the dwelling unit as a result of the condition.
2. B. For each rental period in which there is a violation under Subsection A of this section, the resident may abate the rent or may choose an alternate remedy in accordance with the Uniform Owner-Resident Relations Act. The choice of one remedy shall not preclude the use of an alternate remedy for the same violation in a subsequent rental period.
3. C. If the resident's rent is subsidized in whole or in part by a government agency, the abatement limitation of one month's rent shall mean the total monthly rent paid for the dwelling and not the portion of the rent that the resident alone pays. Where there is a third party payor, either the payor or the resident may authorize the remedy and may abate rent payments as provided in this section.
4. D. Nothing in this section shall limit a court in its discretion to apply equitable abatement.
5. E. Nothing in this section shall entitle the resident to abate rent for the unavailability of an amenity.

History: 1978 Comp., § 47-8-27.2, enacted by Laws 1995, ch. 195, § 12; 1999, ch. 91, § 4.

ANNOTATIONS

The 1999 amendment, effective June 18, 1999, in Subsection A in the first sentence inserted "other than a failure or defect in an amenity" and updated a statutory reference and in the second sentence inserted "set out in the notice within seven days of the notice"; and added Subsection E.

Tenant was not entitled to abatement for repairs. — Where, in 2017, tenant and landlord entered into a lease agreement that specified that rent was $450 and was due the first day of each month and that landlord would assess a $50 fee to rent paid more than three days late, that tenant would pay a $400 security deposit, and that landlord would make all necessary repairs to the common areas of the building, and where, in 2018, landlord asked tenant to begin paying $10 a month for water, to which tenant agreed, and where, months later, tenant withheld $40 from his rent after reviewing his lease and discovering that there was no written obligation for him to pay for water, and where, the following day, landlord delivered a notice of nonpayment requiring tenant to pay $450 in rent plus a late fee of $50 for a total of $500, and where landlord filed a petition for restitution three days after the notice of nonpayment was delivered, and where tenant counterclaimed that he was entitled to abatement of his rent for repairs not made, the district court did not err in determining that tenant was not entitled to abatement for repairs, because tenant did not give landlord any written notice of the needed repairs until the notice of nonpayment was delivered and did not ask for any abatement or reimbursement in writing. The Uniform Owner Resident Relations Act, 47-8-1 to 47-8-51 NMSA 1978, requires written notice of conditions needing repair and the passage of seven days before a resident can withhold rent. Cheng v. Rabey, 2023-NMCA-013.

Abatement not allowed. — Tenants were not entitled to abate rent where the tenants were living on the premises continuously until the fire and the premises were not uninhabitable for any of the 17 months the tenants had not paid rent; moreover, the trial court did not err in granting a directed verdict on the claim of retaliation because there was no issue of retaliation in response to rent abatement if there was no right to abate. Hedicke v. Gunville, 2003-NMCA-032, 133 N.M. 335, 62 P.3d 1217, cert. denied, 133 N.M. 413, 63 P.3d 516.