Petition for restitution filed prematurely. — Where, in 2017, tenant and landlord
entered into a lease agreement that specified that rent was $450 and was due the first
day of each month and that landlord would assess a $50 fee to rent paid more than
three days late, that tenant would pay a $400 security deposit, and that landlord would
make all necessary repairs to the common areas of the building, and where, in 2018,
landlord asked tenant to begin paying $10 a month for water, to which tenant agreed,
and where, months later, tenant withheld $40 from his rent after reviewing his lease and
discovering that there was no written obligation for him to pay for water, and where, the
following day, landlord delivered a notice of nonpayment requiring tenant to pay $450 in
rent plus a late fee of $50 for a total of $500, and where landlord filed a petition for
restitution three days after the notice of nonpayment was delivered, and where tenant
argued that landlord filed his petition for restitution prematurely because the three-day
notice period had not elapsed at the time of filing, the landlord’s petition should have
been dismissed as untimely filed, because an owner cannot file a petition for restitution
or otherwise terminate the rental agreement and seek possession of the premises until
the day following the third day. Allowing an owner to file before the third day has
elapsed would defeat the remedial purpose of Subsection D of this section. Cheng v.
Rabey, 2023-NMCA-013.