A. Landlords have a lien on the property of their tenants that remains in or about the premises rented, for the rent due by the terms of any lease or other agreement in writing, and the property shall not be removed from the premises without the consent of the landlord until the rent is paid or secured. A lien does not attach if the premises rented is a dwelling unit.

B. For purposes of this section, "dwelling unit" means a structure, mobile home and a leased parcel of land upon which it is located, or a part of a structure that is used as a home, residence or sleeping place by one person who maintains a household or by two or more persons who maintain a common household.

History: Laws 1851-1852, p. 243; C.L. 1865, ch. 77(2d), § 14; C.L. 1884, § 1537; C.L. 1897, § 2234; Code 1915, § 3334; Laws 1917, ch. 65, § 1 (3336); 1923, ch. 24, § 1 (3336); C.S. 1929, § 82-404; 1941 Comp., § 63-304; 1953 Comp., § 61-3-4; Laws 1995, ch. 195, § 25; 1997, ch. 39, § 4.

Compiler's notes. — The subject matter which was originally contained in Code 1915, 3334 bore the number 3336 in the 1917 and 1923 amendatory laws. For the original Code 1915, 3336, see 48-3-13 NMSA 1978.

Cross references. — For rental dwellings, lien of owners and operators, see 48-3-16 to 48-3-18 NMSA 1978.

For agricultural landlord liens, see 48-6-1 to 48-6-16 NMSA 1978.

For Uniform Owner-Resident Relations Act, see 47-8-1 NMSA 1978 et seq.

For landlord lien under the Uniform Resident-Owner Act, see 47-8-36.1 NMSA 1978.

For warehousemen's liens, see 55-7-209 to 55-7-210 NMSA 1978.

The 1997 amendment, effective June 20, 1997, substituted "does not attach if" for "shall not attach where" in the second sentence of Subsection A and inserted "and a leased parcel of land upon which it is located" in Subsection B.

The 1995 amendment, effective July 1, 1995, designated the existing language as Subsection A; in Subsection A, substituted "in or about the premises" for "in the house", deleted "or to become due" following "rent due", added the second sentence, and made minor stylistic changes throughout the subsection; and added Subsection B.

"House" does include a commercial building. Heyde v. State Sec., Inc., 1958-NMSC-009, 63 N.M. 395, 320 P.2d 747.

Apartment as "house rented". — Where a building consists of several apartments rented to different tenants, each apartment is a "house rented" within the meaning of the statute, and the removal of the property from one apartment to another is a removal from "said house." Wolcott v. Ashenfelter, 1890-NMSC-008, 5 N.M. 442, 23 P. 780.

Lien attached only after property on premises. — Generally, a landlord's lien attaches at the beginning of a tenancy for the rent due or to become due under the terms of the lease. But where lessee acquired the property (inventory) after his term began, the landlord's lien could only attach at the time the property came onto the premises. Nat'l Inv. Trust v. First Nat'l Bank, 1975-NMSC-065, 88 N.M. 514, 543 P.2d 482.

In general, a landlords' lien attaches at the beginning of the tenancy for any rent that will come due during the tenancy. However, the lien does not attach to the tenant's property until after the property is brought onto the premises. Kuemmerle v. United N.M. Bank, 1992-NMSC-028, 113 N.M. 677, 831 P.2d 976.

Written lease agreement required. — Since the plaintiff alleged that his contract for rent in the defendant's storage facility was oral, and the defendant admitted that, there was no landlord lien on plaintiff's goods. Bird v. Lankford, 1993-NMCA-128, 116 N.M. 408, 862 P.2d 1267.

Landlord's lien, provided by this section, has two parts as there is a lien for rent due and for rent to become due by the terms of a lease or other instrument in writing. Chessport Millworks, Inc. v. Solie, 1974-NMCA-036, 86 N.M. 265, 522 P.2d 812.

Landlord may not forcibly seize property prior to compliance with this section. Ross v. Overton, 1924-NMSC-043, 29 N.M. 651, 226 P. 162.

Conventional lien where statutory lien not specified. — Since pleadings did not show whether landlord was seeking to enforce his statutory lien or his conventional lien under his lease, the court was justified in finding that lessee's claim was based on his conventional lien where the claim was limited to property on leased premises. Whether he has waived his statutory lien is a matter of intent. In re Frick Book & Stationery Store, 1933-NMSC-104, 38 N.M. 120, 28 P.2d 660.

No lien when conditional vendor not tenant, with title. — In a controversy between a conditional vendor and a landlord, property which is held by the tenant under a conditional sale contract, where title has not passed, is not the property of the tenant within the meaning of the statute, and the landlord's lien would not extend to any such goods. Hesselden v. Karman, 1960-NMSC-114, 67 N.M. 434, 356 P.2d 451.

Foreclosure on conditional vendor's property not conversion. — A lessor who forecloses his landlord's lien and sells property for nonpayment of rent is not guilty of wrongfully converting that property where it appears that the property was being purchased by the lessee and the plaintiff under a conditional sales contract from a vendor who had guaranteed the rent. Hesselden v. Karman, 1960-NMSC-114, 67 N.M. 434, 356 P.2d 451.

A landlord's agistor's lien on cattle is lost by sale by tenant to a purchaser without notice of the lien, where there is no statute requiring recording of an agistor's lien and such lien was not recorded. Bell v. Dennis, 1939-NMSC-045, 43 N.M. 350, 93 P.2d 1003.

Property must belong to tenant. — A landlord may assert a lien on the property of its tenants; however, where the property in question is not owned by a tenant but by a third party, a landlord's purported foreclosure of its lien will not vest the landlord with valid title. Sec. Pac. Fin. Servs. v. Signfilled Corp., 1998-NMCA-046, 125 N.M. 38, 956 P.2d 837.

If landlord consents to removal of property, he waives lien. Wolcott v. Ashenfelter, 1890-NMSC-008, 5 N.M. 442, 23 P. 780.

No waiver when collateral security accepted. — Where landlord had accepted collateral security for the rentals due and to become due, it had not waived its landlord's lien. Gathman v. First Am. Indian Land, Inc., 1965-NMSC-003, 74 N.M. 729, 398 P.2d 57.

Rights retained as to assignee. — An assignment of a lease creates the landlord-tenant relationship between the lessor and assignee, and the lessor retains all rights, including landlord's liens. Nat'l Inv. Trust v. First Nat'l Bank, 1975-NMSC-065, 88 N.M. 514, 543 P.2d 482.

Priorities between landlord's lien, security interest, governed by case law. — Since there is no statutory provision, including the Uniform Commercial Code, to cover the priority between a statutory landlord's lien and a perfected security interest, the supreme court would rely on existing New Mexico case law to determine the priority between the interests. Nat'l Inv. Trust v. First Nat'l Bank, 1975-NMSC-065, 88 N.M. 514, 543 P.2d 482.

Priority between landlord's, mortgage liens. — Where rent was unpaid on a lease to three for the last month of the term, two of the lessees withdrew and a chattel mortgage was given on property included, by the third lessee, prior to the execution of a new lease to such third lessee, the landlord's lien was superior to the mortgage lien as to the one month's rent, but inferior to the mortgage lien for the term of the second lease. Dees v. Dismuke, 1925-NMSC-033, 30 N.M. 528, 240 P. 198.

Preexisting, perfected security interest with priority. — Under 63-304 and 63-501 through 63-504, 1941 Comp. (now Section 48-3-5 NMSA 1978), the filing by the Reconstruction Finance Corp. in Quay county served as constructive notice to the landlord of the chattel mortgage, and, consequently, the landlord's lien was inferior to the chattel mortgage, despite the fact that only the original mortgagors were named and not the assignee, and the described personalty was said to be located in Guadalupe county, so that as a practical matter, an inquirer could not readily have learned of the existence of the instant mortgage by checking the chattel records since no reference was made to the present owner. Reconstr. Fin. Corp. v. Stephens, 118 F. Supp. 565 (D.N.M. 1954).

Where the bank loaned money to business owner over a month before he entered into a lease assignment the bank could not be charged with notice of the lessor's statutory lien, which did not exist, while lessor had notice of the recorded security interest at the time of the assignment; therefore, it was held that the security interest of the bank had priority over the landlord's lien. Nat'l Inv. Trust v. First Nat'l Bank, 1975-NMSC-065, 88 N.M. 514, 543 P.2d 482.

A purchase money security interest that is perfected before any interest claimed by a landlord under a landlord's lien arises is superior to that landlord's lien. Sec. Pac. Fin. Servs. v. Signfilled Corp., 1998-NMCA-046, 125 N.M. 38, 956 P.2d 837.

Priority over subsequent security interest. — Landlord's statutory lien which attached at the beginning of the tenancy for rental due or to become due under the terms of the lease is accorded priority over a subsequent security interest. Chessport Millworks, Inc. v. Solie, 1974-NMCA-036, 86 N.M. 265, 522 P.2d 812.

Priority over execution lien from judgment during lease. — Landlord's statutory lien attached at the beginning of the tenancy for rental due or to become due under the terms of lease and had priority over execution lien arising from judgment recovered against tenants during lease, even though execution issued and sheriff levied on tenant's property before suit. Gathman v. First Am. Indian Land, Inc., 1965-NMSC-003, 74 N.M. 729, 398 P.2d 57.

Priority over homestead exemption. — Landlord's statutory lien for rent would defeat a claim for exemption in lieu of a homestead. Tomson v. Lerner, 1933-NMSC-078, 37 N.M. 546, 25 P.2d 209.

Law reviews. — For articles, "The Warehouseman vs. the Secured Party: Who Prevails When the Warehouseman's Lien Covers Goods Subject to a Security Interest?" see 8 Nat. Res. J. 331 (1968).

For survey, "The Uniform Owner-Resident Relations Act," see 6 N.M. L. Rev. 293 (1976).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 49 Am. Jur. 2d Landlord and Tenant §§ 675 to 725.

Subject matter covered by landlord's statutory lien for rent, 9 A.L.R. 300, 96 A.L.R. 249.

Lessor's right, upon bankruptcy of lessee, to enforce lien or retain security for future rentals, 45 A.L.R. 717.

Landlord's lien or right of distress on property sold to tenant on conditional sale, 45 A.L.R. 949.

Warehouse Receipts Act as affecting landlord's lien on property represented by receipts, 61 A.L.R. 952.

Landlord's distress for rent on property of stranger in possession of livery stable keeper, 62 A.L.R. 1125.

Landlord's lien on property sold to tenant by conditional sale, 96 A.L.R. 262.

Chattel mortgage or conditional sales contract, landlord's acceptance of, as waiver of his lien or reservation of title, 96 A.L.R. 568.

Landlord's lien for rent as including taxes or other expenditures which tenant has agreed to pay or make, 99 A.L.R. 1104.

Lien on property of lessor for damages resulting from lessee's sale of intoxicating liquor, 169 A.L.R. 1203.

Subrogation of lessee in respect of liens superior to his lease, 1 A.L.R.2d 286.

Contribution, subrogation and similar rights, as between cotenants, where one pays the other's share of sum owing on lien, 48 A.L.R.2d 1305.

Application of statutory landlord's lien to property of third person used by tenant on rented premises, 95 A.L.R.3d 1205.

Priority as between statutory landlord's lien and security interest perfected in accordance with uniform commercial code, 99 A.L.R.3d 1006.

Landlord's remedy by way of distress or lien on defaulting tenant's property on leased premises as including right to collect for all unpaid utility expenses, 99 A.L.R.3d 1100.

43A C.J.S. Inns, Hotels, and Eating Places § 19; 52 C.J.S. Landlord and Tenant §§ 619 to 673.