Landlord Charging a Tenant for Pre-Existing Mold

Attorney Answer

The mold was theirs to fix, not yours to pay for — and New Mexico law does not let them shift that duty onto you by putting it in the lease. But your remedies only unlock after you give written notice, so send it today.

The owner's duty is set out in NMSA 1978 § 47-8-20. The owner shall "substantially comply with requirements of the applicable minimum housing codes materially affecting health and safety" and "make repairs and do whatever is necessary to put and keep the premises in a safe condition." Subsection E is the provision that answers your charge directly: an owner may arrange for a resident to perform the owner's obligations, but "[a]ny such arrangement between the owner and the resident will not serve to diminish the owner's obligations as set forth in this section," nor may the resident's failure to perform them be a basis for eviction or a material breach. Mold that was already in the unit when you moved in twenty days ago is squarely the owner's obligation, and no lease clause converts it into yours.

How you enforce that is set out in NMSA 1978 §§ 47-8-27.1 and 47-8-27.2, and the sequence matters more than anything else here. You give the owner written notice specifying the breach. If the owner does not make a reasonable attempt to remedy it within seven days, you may terminate the rental agreement and recover the balance of prepaid rent and your deposit under § 47-8-27.1(A)(1), or you may instead seek abatement of rent under § 47-8-27.2. Under § 47-8-27.1(C) you may also recover damages and obtain injunctive relief for any material noncompliance. You cannot use both the termination and the abatement routes for the same violation in the same rental period. A tenant who skips the written notice loses the remedy — this is the single most common way these claims fail.

On the extra charges: NMSA 1978 § 47-8-39 prohibits an owner from retaliating against a resident who is in compliance with the rental agreement by increasing rent, decreasing services, or bringing or threatening a possession action because, within the previous six months, the resident complained to a code-enforcement agency, organized or joined a residents' organization, "acted in good faith to exercise his rights provided under the Uniform Owner-Resident Relations Act, including when the resident makes a written request or complaint to the owner to make repairs to comply with the owner's obligations under Section 47-8-20," made a fair housing complaint, litigated against the owner, or abated rent under § 47-8-27.1 or § 47-8-27.2. A violation entitles you to the remedies in § 47-8-48 and is a defense in any possession action against you.

What you can do

1. Today, deliver written notice describing the mold, where it is, and the date you found it, and demanding repair. Keep proof of delivery — email, certified mail, or a signed copy. The seven-day clock in § 47-8-27.1 runs from that notice, and nothing else starts it. 2. Photograph the washer, the mold, and any move-in inspection sheet or condition report. Twenty days in, the fact that it predates you should still be provable. 3. Pay your rent — but pay only your rent. Write with the payment that it is tendered for rent only and that the added charge is disputed, and keep a copy. 4. Ask them in writing to identify the lease provision and the legal basis for the added charges. Their answer, or their silence, is useful to you either way. 5. If they do not make a reasonable attempt within seven days, choose one route: terminate under § 47-8-27.1(A)(1), or abate under § 47-8-27.2. Not both for the same violation in the same rental period. 6. Call your local code enforcement office and ask for an inspection. An independent record of the condition is worth more than your photographs alone, and a code complaint is separately protected under § 47-8-39. 7. Calendar the date of your written complaint. The § 47-8-39 protection looks back six months, and if a rent increase or eviction threat follows, that date is what you will point to.

⏱ Time limits apply. NMSA 1978 § 47-8-27.1 gives the owner seven days from your written notice to make a reasonable attempt at repair before your remedies open up, and NMSA 1978 § 47-8-39's retaliation protection reaches back six months from the protected act. Both clocks depend on dates you control by acting now, so send the notice and record when you sent it.