Despite all good intentions by both parties to a lease agreement, there may be a time when possession is delayed, never taken, or occupancy must be delayed. In some cases rent abates and in other cases rent is still due when a tenant does not move in. The statutes are written to protect both parties from either having to uphold their end of the agreement when it’s no longer in their best interest, or to maintain the option to continue with the agreement.

Failure to take possession

For whatever reason, if a tenant fails to take possession within seven days of the beginning of the agreement term the landlord may terminate the agreement. However, the landlord may also elect to treat the premises as abandoned. Since the tenant is responsible for complying with the rental agreement, including paying rent, once an agreement is signed, the landlord can hold the tenant responsible for rent until the premises is re-rented, subject to the landlord’s duty to mitigate damages.

Delay of occupancy

Another situation that may arise is the landlord’s failure to deliver possession of the premises as agreed. This may be caused by no fault of the landlord, such as an existing tenant remaining in the premises, remodeling or repair work not being completed on time, etc. In this case rent abates until the landlord can deliver possession. In addition, the tenant may take one of the following actions:

  • Upon written notice to landlord, terminate the rental agreement effective immediately. Landlord must return all prepaid rent and deposits.
  • Demand performance of the rental agreement by the landlord and, if tenant elects, maintain an action for possession of the premises against any person wrongfully withholding possession and recover the damages sustained by tenant. Tenant may seek the remedies provided in NMSA 1978, § 47-8-48.