New Mexico and federal law give tenants strong protections when landlords discriminate against their mental or physical health conditions. Landlords are required to provide reasonable accommodations for tenants’ handicaps.
New Mexico and federal law cover mental and physical health-related handicaps. A “health condition” is much broader than a diagnosed disease in official medical books. It can be any mental or physical impairment which substantially limits one or more major life activities. Conditions that may not obviously be a disability qualify for protection, such as a sports injury, hoarding tendencies, or paranoia. Of course, medically diagnosed conditions also qualify, such as HIV, cancer, Alzheimer’s, or bipolar disorder. The law also covers tenants that had a history of such an impairment and tenants who have been regarded as having such an impairment. N.M. Stat. 28-1-7 , N.M. Stat. Sec. 28-1-7 .
New Mexico expands on federal protections by extending the protections in situations where the landlord discriminates based on a belief that the tenant has a disability when in reality, the tenant does not. N.M. Stat. 28-1-7 , N.M. Stat. Sec. 28-1-7 .
Landlords cannot discriminate against recovering addicts unless they are currently using or addicted to illegal drugs. Discrimination against alcoholics is illegal.
Tenants may request reasonable accommodations for their disability. Tenants should request a specific change that would help in writing to ensure that there is a record of when the request was made. Landlords are required to provide reasonable accommodations to help tenants’ disability. For example, if a tenant breaks their leg, the tenant is likely entitled to a makeshift ramp to enter and exit their apartment (or another low-cost solution). If a tenant’s mental condition disturbs their neighbor, the tenant is often entitled to the option of moving to another vacant apartment in the building (so long as the cost is reasonable to the landlord). N.M. Stat. 28-1-7 , N.M. Stat. Sec. 28-1-7 .
Modifications to Apartment
Tenants are entitled to make reasonable structural modifications to their apartment to suit their handicap or disability – landlords cannot typically say no. However, these modifications must be made at the tenant’s expense, along with the costs of restoring the apartment to its original state. Landlords are also allowed to charge an additional deposit to cover the cost in case the tenant fails to restore the apartment to its original state. Tenant’s Guide to Fair Housing (by HUD)
Emotional Support Animals and Service Dogs
Service dogs and emotional support animals are always permitted, regardless of the landlord’s pet policy. In addition, animals may serve a reasonable accommodation for a tenant’s disability even if the animal has no special designation. For example, a deaf tenant may have a dog that will help alert them to smoke and fire dangers in lieu of auditory smoke alarms. Layman explanation from AAOA HUD Service and Assistance Animal Guidance
Asking About a Tenant’s Disability
It’s generally illegal for landlords to ask whether a tenant has a disability, the nature or severity of a handicap, what treatments or medications they take, or whether they have seen a psychiatrist. However, the landlord is permitted to inquire about the disability in the limited circumstances where the tenant is applying to housing set aside for people with disabilities or if the tenant is asking the landlord to make a reasonable accommodation for their disability. To determine the accommodations needed, landlords are allowed to ask about the nature of the disability. Tenant Resource Center on Renting with Disabilities
Exception for Dangerous Tenants
New Mexico’s housing law does not have an exception for when a tenant’s mental health condition may cause a direct threat to another tenant.
Exemptions for Second Homes
New Mexico includes an exception intended for landlords who are renting out their second homes. The law is intended to reduce the compliance burden for such non-professional landlords. Specifically, landlords who rent fewer than 4 single-family houses do not have to abide by most of the discrimination laws.
Such exemptions do not typically apply to discriminatory advertising (e.g., “Only accepting tenants over 40”) or where the landlord uses a professional property manager.
Exception for Landlord-Occupied Homes
New Mexico has an exception called the “Murphy Rule”, which is intended to allow landlords to rent out extra rooms in their home without a large compliance burden. If the apartment is in the landlord’s own residence, then the landlord is free to discriminate regarding whom they rent to. This exception only applies to smaller homes, specifically where the house or building has four or fewer apartment units.
This exemption does not typically apply to advertising (e.g., “Only accepting white tenants”) or where the landlord uses a professional property manager or other real estate professional. Some states may have additional see restrictions. See state law for more details.
Tenants may report discrimination regarding mental or physical health conditions to the federal government directly. They also have the option in New Mexico to report it to state authorities. Tenants may choose to report the problem to both.
What happens when a tenant reports a problem to the federal government? The most recent year we have data is from 2016. In 2016, 63.4% (80.6% from New Mexico) of discrimination cases were resolved in the year they were filed. 26 out of the 36 discrimination complaints from New Mexico were about discrimination against those with mental or physical health conditions. Landlords that violate the federal Fair Housing Act can face civil penalties up to $16,000 for a first violation and $65,000 for future violations (each act of discrimination is a separate violation). In cases where the Justice Department is involved, civil penalties may rise to $100,000 per violation and federal courts can add additional damages. Landlords should also keep in mind the time and costs involved in defending against an action by the federal government. About 36% of complaints end up with a charge or settlement, based on 2016 data. Data.gov
What happens when a tenant reports a problem to the authorities of New Mexico or a local government? They may ask the tenant for information to help bring the case, including any evidence (e.g., emails and pictures). If the government finds there’s sufficient information between the tenant’s complaint (as well as complaints from other tenants), the landlord may be charged and taken to court to defend themselves. New Mexico law does not describe the penalties for violations of the fair housing rules. This means a judge decides consequences on a case-by-case basis. .
Reporting a Violation
Tenants may report violations of federal laws (i.e., discrimination against children and families) through the HUD website – it can be done online or via phone. Tenants can report issues to their state government by looking at the state website. A google search for “report fair housing violation in New Mexico” will likely provide applicable information. In either case, tenants may be able to call the number on the page to ask whether their situation legally qualifies as rental discrimination.
Retaliation by the Landlord
Federal law (the https://www.hud.gov/program_offices/fair_housing_equal_opp/online-complaintFair Housing Act ) makes it illegal for landlords to harass a tenant in retaliation for reporting a problem. Examples of such harassment may include raising the rent or threatening to evict the tenant. Each such attempt is an additional violation. These protections do not apply if the tenant complained about something that they don’t have right to, so tenants should know whether it’s a violation. Dept of Housing and Urban Development.
State and Local Laws
Laws differ heavily by state, county, and city. Use RenterPeace to see more specific laws for to a given apartment and to see comments from people in your area.
Documenting the Problem
For most problems, tenants should document their issues, notify their landlord (document this too!), and stay informed about their rights. Renterpeace is a free website that helps with each step of this process. Tenants use RenterPeace to more easily see applicable laws, track their problems, and much more. There's a reason RenterPeace was selected "Best of" legal apps for both Android and iOS. It also includes household management tools, like a chore manager and bill tracker. Try it - you don't even to login first.
Using Property Management
To stay updated and organized about the problems in their apartments, landlords should use a property management system. Many are expensive or have high setup fees, but using RenterPeace for landlords is free. It's complete with legal compliance tips targeted to their problems, maintenance tracking, tenant screening, money-saving grant information, and tenant chat. It makes managing properties easier and staying updated about status of rental properties a breeze. Try it today.