A. Upon petition for restitution filed by the owner if judgment is rendered against the
defendant for restitution of the premises, the court shall declare the forfeiture of the
rental agreement and shall, at the request of the plaintiff or his attorney, issue a writ of
restitution directing the sheriff to restore possession of the premises to the plaintiff on a
specified date not less than three nor more than seven days after entry of judgment.
B. Upon a petition for restitution filed by the resident, if judgment is rendered against
the defendant for restitution of the premises, the court shall, at the request of the plaintiff
or his attorney, issue a writ of restitution directing the sheriff to restore possession of the
premises to the plaintiff within twenty-four hours after entry of judgment.
History: 1953 Comp., § 70-7-46, enacted by Laws 1975, ch. 38, § 46; 1995, ch. 195, §
21.
ANNOTATIONS
The 1995 amendment, effective July 1, 1995, added Subsection A; designated the
existing language as Subsection B, and in that subsection, substituted "Upon a petition
for restitution filed by the resident" for "Trial shall be had on the date or dates set as in
all other cases, and" at the beginning, deleted "declare the forfeiture of the rental
agreement and shall" following "the court shall", substituted "within twenty-four hours"
for "specified date not more than seven days" near the end, and made minor stylistic
changes throughout the subsection.
Restitution not mandatory in back rent actions. — This section does not require that
a court issue a writ of restitution if it renders a money judgment against a tenant based
on causes of action such as back rent. City of Albuquerque v. Brooks, 1992-NMSC-069,
114 N.M. 572, 844 P.2d 822.
Law reviews. — 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. — Setoff or counterclaim in action by
tenant against landlord for restitution under Federal Housing and Rent Act of 1947 and
amendments, 10 A.L.R.2d 249.
52A C.J.S. Landlord and Tenant § 762.
Notes of Decisions
Cited in
7
cases (
3 in the last 5 years), 1992–2023 · leading case:
Roser v. Hufstedler, 531 P.3d 615 (N.M. Ct. App. 2023).
Roser v. Hufstedler, 531 P.3d 615 (N.M. Ct. App. 2023).
· cites it 6× “See § 47-8-46 (referring to entry of a “judgment .”
City of Albuquerque v. Brooks, 844 P.2d 822 (N.M. 1992).
· cites it 4× “Section 47-8-46, relied upon by the district court, states: [I]f judgment be rendered against defendant for the restitution of the premises, the court shall declare the forfeiture of the rental agreement and shall, at the request of the plaintiff or his attorney, issue a writ of…”
White v. Farris, 2021 NMCA 014 (N.M. Ct. App. 2021).
“See § 47-8-3(G) (defining “eviction” as “any action initiated by the owner to regain possession of a dwelling unit and use of the premises under terms of the [UORRA]”); § 47-8-40 (establishing grounds on which an owner may bring an action for possession); § 47-8-42 (providing…”
Roser v. Hufstedler (N.M. Ct. App. 2023).
· cites it 6× “See NMSA 1978, § 47-8-46(A) (1995) (providing that, 19 “[u]pon petition for restitution filed by the owner if judgment is rendered against the 20 defendant for restitution of the premises, the court shall .”
S Knight v. Dardanelles Found. (N.M. Ct. App. 2009).
· cites it 2× “[RP 031] The magistrate court acted on that petition and issued a writ of 5 1 restitution pursuant to NMSA 1978, Section 47-8-46(A) (1995). [RP 003] Section 2 47-8-46(A) directs “the sheriff to restore possession of the premises to the plaintiff on 3 a specified date not less…”
Coughlin v. CAI, LLC (N.M. Ct. App. 2014).
· cites it 2× “, NMSA 1978, § 47-8-43 (1995) 13 (requiring that a trial of the action for possession shall be set “not less than seven or 14 more than ten days after the service of summons”); NMSA 1978, § 47-8-46 (1995) 15 (requiring that a writ of restitution be executed “not less than three…”
Sims v. Barncastle (N.M. Ct. App. 2018).
“” [RP 83-84] See § 47-8-46(A) 6 1 (stating that when judgment is rendered against the resident for restitution, the court 2 shall issue a writ of restitution directing the sheriff to restore the premises to the 3 owner on a specified date not less than three nor more than seven…”
— N.M. Stat. § 47-8-46(A) — 5 cases
Roser v. Hufstedler, 531 P.3d 615 (N.M. Ct. App. 2023).
“See § 47-8-46 (referring to entry of a “judgment .”
White v. Farris, 2021 NMCA 014 (N.M. Ct. App. 2021).
“See § 47-8-3(G) (defining “eviction” as “any action initiated by the owner to regain possession of a dwelling unit and use of the premises under terms of the [UORRA]”); § 47-8-40 (establishing grounds on which an owner may bring an action for possession); § 47-8-42 (providing…”
Roser v. Hufstedler (N.M. Ct. App. 2023).
“See NMSA 1978, § 47-8-46(A) (1995) (providing that, 19 “[u]pon petition for restitution filed by the owner if judgment is rendered against the 20 defendant for restitution of the premises, the court shall .”
S Knight v. Dardanelles Found. (N.M. Ct. App. 2009).
“[RP 031] The magistrate court acted on that petition and issued a writ of 5 1 restitution pursuant to NMSA 1978, Section 47-8-46(A) (1995). [RP 003] Section 2 47-8-46(A) directs “the sheriff to restore possession of the premises to the plaintiff on 3 a specified date not less…”
Sims v. Barncastle (N.M. Ct. App. 2018).
“” [RP 83-84] See § 47-8-46(A) 6 1 (stating that when judgment is rendered against the resident for restitution, the court 2 shall issue a writ of restitution directing the sheriff to restore the premises to the 3 owner on a specified date not less than three nor more than seven…”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.