New Mexico Contractor Licensing Law

New Mexico Code · 9 sections

The following is the full text of New Mexico’s contractor licensing law statutes as published in the New Mexico Code. For the official version, see the New Mexico Legislature.

N.M. Stat. Ann. § 61-1-1

Chapter 61, Article 1 NMSA 1978 may be cited as the "Uniform Licensing Act".

History: 1953 Comp., § 67-26-1, enacted by Laws 1957, ch. 247, § 1; 1971, ch. 54, § 1; 2021 (1st S.S.), ch. 3, § 7.

ANNOTATIONS

Compiler's notes. — Laws 2002, ch. 83, §§ 2 to 4 purported to enact new sections under the Uniform Licensing Act, but those sections were relocated to appear following the State Civil Emergency Preparedness Act, which is compiled as 12-10-1 to 12-10-10 NMSA 1978.

Cross references. — For State Rules Act, see 14-4-1 NMSA 1978 et seq.

For criminal offender employment, see 28-2-1 NMSA 1978.

For the Parental Responsibility Act, see 40-5A-1 NMSA 1978 et seq.

The 2021 (1st S.S.) amendment, effective June 29, 2021, changed "Sections 67-26-1 through 67-26-31 NMSA 1953" to "Chapter 61, Article 1 NMSA 1978".

Due process. — A regulation of the New Mexico board of psychologist examiners requiring an oral examination for reinstatement of a retiree's license was rationally related to a legitimate governmental purpose; however, the examination might not comply with due process, and, thus, an applicant for reinstatement was entitled to a hearing on the rational justification for the oral examination requirement. Mills v. N.M. State Bd. of Psychologist Exam'rs, 1997-NMSC-028, 123 N.M. 421, 941 P.2d 502.

Appeals. — Because the Uniform Licensing Act did not provide a retired psychologist with a basis for appealing a decision of the New Mexico board of psychologist examiners to require an oral examination for reinstatement of her license, she could request a writ of certiorari to obtain review of the board's alleged due process violations. Mills v. N.M. State Bd. of Psychologist Exam'rs, 1997-NMSC-028, 123 N.M. 421, 941 P.2d 502.

Revocation must be based on substantial evidence. — In administrative adjudications where a person's livelihood (a property right) is at stake, any action depriving a person of that property must be based upon such substantial evidence as would support a verdict in a court of law. Young v. Board of Pharmacy, 1969-NMSC-168, 81 N.M. 5, 462 P.2d 139.

Naked hearsay insufficient. — In proceedings to revoke a license to conduct a business or profession, where, by law, the licensee is entitled to a hearing before the licensing authority, revocation based solely upon hearsay evidence is unwarranted. Young v. Board of Pharmacy, 1969-NMSC-168, 81 N.M. 5, 462 P.2d 139.

License not revocable on grounds for original denial. — An administrative agency, having once issued a license to an applicant who has made full disclosure of all pertinent facts, may not revoke that same license for reasons that would not have permitted issuance of the license in the first instance. Roberts v. State Bd. of Embalmers & Funeral Dirs., 1967-NMSC-257, 78 N.M. 536, 434 P.2d 61.

Barring fraud and misrepresentation and the existence of statutory authority, state may not revoke the license issued previously to party for the reason that party did not have two years of college training required by the statute when, in fact, at the time appellant granted the license to party, state knew that appellee did not have said college work but, nevertheless, proceeded to grant the license under a policy which, in effect, eliminated the college requirement. Roberts v. State Bd. of Embalmers & Funeral Dirs., 1967-NMSC-257, 78 N.M. 536, 434 P.2d 61.

Specification of "unprofessional conduct" not required. — A board may suspend or revoke a license to practice a profession for "unprofessional conduct" without its being required to first specify by regulation or rule exactly what acts may be so considered. Young v. Board of Pharmacy, 1969-NMSC-168, 81 N.M. 5, 462 P.2d 139.

Preexisting account not required to receive funds. — No law or regulation of the New Mexico real estate commission requires a custodial, trust or escrow account prior to the receipt of funds appropriate for deposit in such account. McCaughtry v. N.M. Real Estate Comm'n, 1970-NMSC-143, 82 N.M. 116, 477 P.2d 292.

Law reviews. — For note, "Police Power and the Design of Buildings," see 5 Nat. Res. J. 122 (1965).

For article, "An Administrative Procedure Act for New Mexico," see 8 Nat. Res. J. 114 (1968).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 58 Am. Jur. 2d Occupations, Trades, and Professions §§ 1 to 10.

Single or isolated transactions as falling within provisions of commercial or occupational licensing requirements, 93 A.L.R.2d 90.

Physician's or other healer's conduct, or conviction of offense, not directly related to medical practice, as ground for disciplinary action, 34 A.L.R.4th 609.

Physician's or other healer's conduct in connection with defense of or resistance to malpractice action as ground for revocation of license or other disciplinary action, 44 A.L.R.4th 248.

Failure of building and construction artisan or contractor to procure business or occupational license as affecting enforceability of contract or right to recover for work done - modern cases, 44 A.L.R.4th 271.

Validity of state or municipal tax or license fee upon occupation of practicing law, 50 A.L.R.4th 467.

N.M. Stat. Ann. § 61-15-2

As used in the Architectural Act [61-15-1.1 NMSA 1978]:

A. "architect" means any individual registered under the Architectural Act to practice architecture;

B. "architectural services" means the services, as defined by rule of the board, performed in the practice of architecture. These services include predesign services, programming and planning, providing designs, drawings, specifications, other technical submissions, administration of construction contracts, coordination of technical submissions prepared by others and such other professional services as may be necessary to the planning, progress and completion of any architectural services. An architect who has complied with all of the laws of New Mexico relating to the practice of architecture has a right to engage in the incidental practice of activities properly classifiable as engineering; provided that the architect does not hold himself out to be an engineer or as performing engineering services and further provided that the architect performs only that part of the work for which the architect is professionally qualified and uses qualified professional engineers, architects or others for those portions of the work in which the contracting architect is not qualified. Furthermore, the architect shall assume all responsibility for compliance with all laws, codes, rules and ordinances of the state or its political subdivisions pertaining to documents bearing an architect's professional seal;

C. "board" means the board of examiners for architects;

D. "construction administration", when performed by an architect, means the interpretation of the drawings and specifications, the establishment of standards of acceptable workmanship and the observation of construction to determine its consistency with the general intent of the construction documents. Inspection of buildings by contractors, subcontractors or building inspectors or their agents shall not constitute construction administration;

E. "incidental practice" means the performance of other professional services that are related to an architect's performance of architectural services;

F. "intern architect" means a person who is actively pursuing completion of the requirements for diversified training in accordance with rules of the board;

G. "practice of architecture" means rendering or offering to render architectural services in connection with the design, construction, enlargement or alteration of a building or group of buildings and the space within the site surrounding those buildings, which have as their principal purpose human occupancy or habitation. "Practice of architecture" does not include the practice of engineering as defined in the Engineering and Surveying Practice Act [61-23-1 NMSA 1978] but may include such engineering work as is incidental practice;

H. "project" means the building or group of buildings and the space within the site surrounding the buildings as defined by the construction documents; and

I. "responsible charge" means that all architectural services have been or will be performed under the direction, guidance and restraining power of a registered architect who has exercised professional judgment with respect thereto.

History: 1978 Comp., § 61-15-2, enacted by Laws 1979, ch. 362, § 2; 1987, ch. 282, § 3; 1999, ch. 263, § 1.

ANNOTATIONS

Delayed repeals. — For delayed repeal of this section, see 61-15-13 NMSA 1978.

Repeals and reenactments. — Laws 1979, ch. 362, § 2, repealed former 61-15-2 NMSA 1978, relating to definitions of "practice of architecture," "general administration of construction" and "building," and enacted a new 61-15-2 NMSA 1978.

The 1999 amendment, effective June 18, 1999, in Subsection B, inserted "as defined by rule of the board", substituted "predesign services, programming and planning, providing designs" for "planning, providing preliminary studies, designs", substituted "administration of construction contracts, coordination of technical submissions prepared by others and such" for "and the observation of construction for the purpose of assuring substantial compliance with drawings and specifications and include such" in the first sentence, deleted language allowing engineers to engage in activities properly classified as architecture insofar as it is incidental to work as an engineer, and added the language beginning "codes, rules and ordinances" at the end of the subsection; in Subsection D, substituted the term "construction administration" for the term "construction observation of a construction contract" twice and deleted "periodic" preceding "observation"; deleted former Subsection E, which defined "direct supervision"; added Subsections E, F, H and I, and redesignated former Subsection F as Subsection G; and in Subsection G, substituted "architectural services" for "any service which requires architectural education, training and experience" in the first sentence, and added the second sentence.

The 1987 amendment, effective June 19, 1987, alphabetized and relettered the subsections; rewrote Subsection B; in Subsection D substituted "construction observation of a construction contract" for "general administration of a construction contract" at the beginning, and added "when performed by a person engaged in the practice of architecture" to the end of the first sentence and added the second sentence; inserted Subsection E; and rewrote Subsection F.

Law reviews. — For note, "Police Power and the Design of Buildings," see 5 Nat. Res. J. 122 (1965).

N.M. Stat. Ann. § 61-23-22

61-23-22. Engineering; exemptions. (Repealed effective July 1, 2030.)

A. A New Mexico licensed architect who has complied with all of the laws of New Mexico relating to the practice of architecture has the right to engage in the incidental practice, as defined by regulation, of activities properly classified as engineering; provided that the architect shall not make any representation as being a professional engineer or as performing engineering services; and further provided that the architect shall perform only that part of the work for which the architect is professionally qualified and shall use qualified professional engineers or others for those portions of the work in which the contracting architect is not qualified. Furthermore, the architect shall assume all responsibility for compliance with all laws, codes, regulations and ordinances of the state or its political subdivisions pertaining to all documents bearing the architect's professional seal.

B. An engineer employed by a business entity who performs only the engineering services involved in the operation of the business entity's or an affiliated business entity's business shall be exempt from the provisions of the Engineering and Surveying Practice Act; provided that neither the employee nor the employer offers engineering services to the public; and provided further that any such engineering services are limited to the legal boundaries of the property owned, leased or lawfully operated by the business entity or an affiliated business entity that employs the engineer. Performance of engineering on public works projects pursuant to Section 61-23-26 NMSA 1978 or within off-premises easements constitutes engineering services to the public and is subject to the Engineering and Surveying Practice Act.

C. A rural electric distribution cooperative shall be exempt from the provisions of the Engineering and Surveying Practice Act; provided that the cooperative's services are not offered to the public and are performed only within the legal boundaries of the property that the cooperative owns, leases, has an easement or right of way on or lawfully operates.

History: 1978 Comp., § 61-23-22, enacted by Laws 1993, ch. 218, § 17; 1998, ch. 43, § 1; 2017, ch. 42, § 10; 2023, ch. 79, § 6; 2025, ch. 41, § 1.

ANNOTATIONS

Delayed repeals. — For delayed repeal of this section, see 61-23-32 NMSA 1978.

Repeals and reenactments. — Laws 1987, ch. 336 repealed former 61-23-32 NMSA 1978, as amended by Laws 1979, ch. 363, § 17, relating to organizations permitted to practice, effective June 19, 1987, and enacted former 61-23-22 NMSA 1978.

Laws 1993, ch. 218, § 17 repealed former 61-23-22 NMSA 1978, as enacted by Laws 1987, ch. 336, § 22, providing exemptions from the Engineering and Surveying Practice Act, and enacted a new section, effective July 1, 1993.

The 2025 amendment, effective June 20, 2025, created an exemption from the Engineering and Surveying Practice Act for rural electric distribution cooperatives; and added Subsection C.

The 2023 amendment, effective June 16, 2023, provided the condition that the engineering services that are exempt from the provisions of the Engineering and Surveying Practice Act must be limited to the legal boundaries of the property owned, leased or lawfully operated by the business entity, and clarified language in the section; in Subsection A, added "professional" preceding "engineer"; and in Subsection B, after "business entity's", added "or an affiliated business entity's", and after "services to the public", added "and provided further that any such engineering services are limited to the legal boundaries of the property owned, leased or lawfully operated by the business entity or an affiliated business entity that employs the engineer", after "Section 61-23-26 NMSA 1978", added "or within off-premises easements", and after "to the public and is", deleted "not exempt" and added "subject to the Engineering and Surveying Practice Act".

The 2017 amendment, effective July 1, 2017, clarified that performing engineering services on public works projects constitutes engineering services to the public and is not exempt from the provisions of the Engineering and Surveying Practice Act; in Subsection A, after "the architect shall not", deleted "hold himself out to be" and added "make any representation as being"; and in Subsection B, after "employed by a", deleted "firm, association or corporation" and added "business entity", after "operation of the", deleted "employer’s" and added "business entity’s", after "the employee nor the", deleted "employer" and added "business entity", and added the last sentence.

The 1998 amendment, effective May 20, 1998, deleted Subsection B and redesignated Subsection C as Subsection B.

N.M. Stat. Ann. § 61-23-27.9

61-23-27.9. Surveying; practice of surveying; mandatory disclosure. (Repealed effective July 1, 2030.)

A. No business entity shall be licensed pursuant to the Engineering and Surveying Practice Act. No business entity shall practice or offer to practice surveying in the state except as provided in the Engineering and Surveying Practice Act.

B. Professional surveyors may engage in the practice of surveying and perform surveying work pursuant to the Engineering and Surveying Practice Act as individuals or through a business entity. In the case of an individual, the individual shall be a professional surveyor pursuant to the Engineering and Surveying Practice Act. All plats, drawings and reports that are involved in the practice, or that are issued by or for the practice, shall bear the seal and signature of a professional surveyor in responsible charge of and directly responsible for the work issued. In the case of practice through a business entity that is a partnership, at least one of the partners shall be a professional surveyor pursuant to the Engineering and Surveying Practice Act. In the case of a single professional surveyor partner, all drawings or reports issued by or for the partnership shall bear the seal of the professional surveyor partner who shall be responsible for the work. In the case of practice through a business entity other than a partnership, services or work involving the practice of surveying may be offered through the business entity; provided the person in responsible charge of the activities of the business entity that constitute the practice of surveying is a professional surveyor who has authority to bind the business entity by contract; and further provided that all drawings or reports that are involved in such practice, or that are issued by or for the business entity, bear the seal and signature of a professional surveyor in responsible charge of and directly responsible for the work when issued.

C. In the case of practice through a business entity offering or providing services or work involving the practice of surveying, an authorized company officer and the professional surveyor who is employed by the business entity and in responsible charge shall place on file with the board a signed affidavit, as prescribed by board rule. The affidavit shall be kept current, and, if there is any change in the professional surveyor or authorized company officer, the affidavit shall be promptly revised and resubmitted to the board.

D. An individual or business entity may not use or assume a name involving the terms "surveyor", "professional surveyor" or "surveying" or any modification or derivative of those terms unless that individual or business entity is qualified to practice surveying in accordance with the requirements of the Engineering and Surveying Practice Act.

E. For all contracts and agreements for professional surveying services, the surveying services contractor shall provide a written statement indicating:

(1) the minimum terms and conditions of professional liability insurance coverage, including limits and exceptions; or

(2) the absence of professional liability insurance coverage.

History: 1978 Comp., § 61-23-27.9, enacted by Laws 1993, ch. 218, § 30; 1999, ch. 259, § 25; 2005, ch. 69, § 13; 2017, ch. 42, § 14.

N.M. Stat. Ann. § 61-24B-5

A. The following shall be exempt from the provisions of the Landscape Architects Act as long as they do not hold themselves out as landscape architects or use the term "landscape architect" without being registered pursuant to the Landscape Architects Act:

(1) landscape architects who are not legal residents of or who have no established place of business in this state who are acting as consulting associates of a landscape architect registered under the provisions of the Landscape Architects Act; provided that the nonresident landscape architect meets equivalent registration qualifications in the landscape architect's own state or country;

(2) landscape architects acting solely as officers or employees of the United States; and

(3) a person making plans for a landscape associated with a single-family residence or a multifamily residential complex of four units or less except when it is part of a larger complex.

B. Nothing in the Landscape Architects Act is intended to limit, interfere with or prevent a professional architect, engineer or land surveyor from engaging in landscape architecture within the limits of the architect's, engineer's or land surveyor's licensure.

C. Nothing in the Landscape Architects Act is intended to limit, interfere with or prevent the landscape architects in training, drafters, students, clerks or superintendents and other employees of registered landscape architects from acting under the instructions, control or supervision of the landscape architect or to prevent the employment of superintendents on the construction, enlargement or alterations of landscape improvements or any appurtenances thereto or to prevent such superintendents from acting under the immediate personal supervision of landscape architects by whom the plans and specifications of any landscape architectural services were prepared.

History: Laws 1985, ch. 151, § 5; 1999, ch. 272, § 31; 2001, ch. 155, § 3; 2007, ch. 126, § 2.

ANNOTATIONS

Delayed repeals. — For delayed repeal of this section, see 61-24B-17 NMSA 1978.

The 2007 amendment, effective June 15, 2007, provides that the Landscape Architects Act does not prevent landscape architects in training from acting under the supervision of a landscape architect.

The 2001 amendment, effective June 15, 2001, added the Subsection A designation to the first paragraph and redesignated former Subsections A and B as Paragraphs A(1) and A(2); deleted "or any interstate railroad system; and" from the end of present Paragraph A(2); deleted "landscape designers, land planners, agriculturalists, soil conservationists, agronomists, horticulturists, foresters, tree experts, arborists, gardeners, contract landscape caretakers, landscape nurserymen, graders or contractors, or cultivators of land and any person making plans for property owned by himself" from the beginning of former Subsection C; inserted Paragraph A(3) and the Subsection designations B and C; and deleted "registered" preceding "landscape architect" in two places in present Subsection C.

The 1999 amendment, effective June 18, 1999, deleted "resident" following "consulting associates of a" in Subsection A.

N.M. Stat. Ann. § 61-24D-5

A. A person who is not a licensee shall not:

(1) conduct home inspections, develop a report or otherwise engage in the business of home inspection;

(2) in the course of conducting business, use the title "home inspector", "certified home inspector", "registered home inspector", "licensed home inspector", "professional home inspector" or any other title, abbreviation, letters, figures or signs that indicate the person is a licensed home inspector; or

(3) use the terms "state licensed" or "licensed" to refer to an inspection conducted or a report prepared by a person who is not a licensee.

B. A business entity shall not provide home inspection services unless all of the home inspectors employed by the business are licensees.

C. A business entity shall not use, in connection with the name or signature of the business, the title "home inspectors" to describe the business entity's services unless each person employed by the business as a home inspector is a licensee.

D. The Home Inspector Licensing Act does not apply to a person:

(1) licensed by the state as an engineer, an architect, a real estate qualifying or associate broker, a real estate appraiser, a certified general appraiser, a residential real estate appraiser or a pest control operator, when acting within the scope of the person's license;

(2) licensed by the state or a political subdivision of the state as an electrician, a general contractor, a plumber or a heating and air conditioning technician, when acting within the scope of the person's license;

(3) regulated by the state as an insurance adjuster, when acting within the scope of the person's license;

(4) employed by the state or a political subdivision of the state as a code enforcement official, when acting within the scope of the person's employment;

(5) who performs an energy audit of a residential property;

(6) who performs a warranty evaluation of components, systems or appliances within a resale residential property for the purpose of issuing a home warranty; provided that all warranty evaluation reports include a statement that the warranty evaluation performed is not a home inspection and does not meet the standards of a home inspection pursuant to the provisions of the Home Inspector Licensing Act. A home warranty company shall not refer to a warranty evaluation as a home inspection;

(7) who in the scope of the person's employment performs safety inspections of utility equipment in or attached to residential real property pursuant to the provisions of Chapter 62 NMSA 1978 or rules adopted by the public regulation commission; and

(8) hired by the owner or lessor of residential real property to perform an inspection of the components of the residential real property for the purpose of preparing a bid or estimate for performing construction, remodeling or repair work in the residential real property.

History: Laws 2019, ch. 239, § 5.

ANNOTATIONS

Effective dates. — Laws 2019, ch. 239, § 17 made Laws 2019, ch. 239 effective January 1, 2020.

N.M. Stat. Ann. § 61-29-10.2

61-29-10.2. Licensee's duties; disclosure.

A. Prior to the time a licensee generates or presents any written document that has the potential to become an express written agreement, the licensee shall give to a prospective buyer, seller, landlord or tenant a list of the licensee's duties that are in accordance with requirements established by the commission.

B. Licensees shall perform all duties that are established for licensees by the commission.

History: Laws 1999, ch. 127, § 3; 2003, ch. 36, § 3; 2005, ch. 35, § 12.

ANNOTATIONS

The 2005 amendment, effective January 1, 2006, provides that prior to the time a licensee prepares or presents a document that will be a written agreement, the licensee must provide a list of the licensee’s duties.

The 2003 amendment, effective January 1, 2004, substituted "Licensee's Duties - Disclosure" for "Brokerage Relationship; Disclosure" in the heading; designated the former first paragraph as Subsection A and added Subsection B; and substituted "at the time when the parties enter into an express written agreement, a list of the licensee's duties that are in accordance with requirements established by the commission" for "at the first substantive contact a brokerage relationship disclosure in accordance with requirements established by the commission" at the end of Subsection A.

Transaction brokers duty of care includes disclosing the licensing status of recommended contractors. — Where defendant signed a listing agreement with plaintiffs to be their transaction broker for the sale of their home, and where, after a home inspection revealed problems with portions of the roof, defendant volunteered to find a roofer to perform the work, and where the roofer, who was not licensed or insured, performed the work negligently, causing a fire that destroyed plaintiffs’ home, the district court did not err in concluding that defendant owed statutory duties independent of the listing agreement regarding the recommendation and procurement of the roofer or in concluding that the fire and plaintiffs’ damages were a natural and continuous result from defendant’s recommendation of an unqualified roofer, because the New Mexico real estate commission’s established reasonable care as a duty for transaction brokers; this duty includes disclosing the licensing status for recommended contractors. LM Insurance v. I Do ABQ, 2023-NMCA-021.

District judge did not err in awarding attorney fees where there was a connection between negligence claims and listing agreement. — Where defendant signed a listing agreement with plaintiffs to be their transaction broker for the sale of their home, and where, after a home inspection revealed problems with portions of the roof, defendant volunteered to find a roofer to perform the work, and where the roofer, who was not licensed or insured, performed the work negligently, causing a fire that destroyed plaintiffs’ home, and where the district court concluded that defendant owed statutory duties independent of the listing agreement regarding the recommendation and procurement of the roofer and that the fire and plaintiffs’ damages were a natural and continuous result from defendant’s recommendation of an unqualified roofer, the district court did not err in awarding attorney fees based on the listing agreement’s attorney fee provision, because plaintiffs’ negligence claims were related to the parties listing agreement and resulted in litigation, as contemplated by the attorney fees provision. LM Insurance v. I Do ABQ, 2023-NMCA-021.

N.M. Stat. Ann. § 61-29-2

61-29-2. Definitions and exceptions.

A. As used in Chapter 61, Article 29 NMSA 1978:

(1) "agency relationship" means the fiduciary relationship created solely by an express written agency agreement between a person and a brokerage, authorizing the brokerage to act as an agent for the person according to the scope of authority granted in that express written agreement for real estate services subject to the jurisdiction of the commission;

(2) "agent" means the brokerage authorized, solely by means of an express written agreement, to act as a fiduciary for a person and to provide real estate services that are subject to the jurisdiction of the commission; in the case of an associate broker, "agent" means the person who has been authorized to act by that associate broker's qualifying broker;

(3) "associate broker" means a person who, for compensation or other valuable consideration, is associated with or engaged under contract by a qualifying broker to carry on the qualifying broker's business as a whole or partial vocation, and:

(a) lists, sells or offers to sell real estate; buys or offers to buy real estate; or negotiates the purchase, sale or exchange of real estate or options on real estate;

(b) is engaged in managing property for others;

(d) advertises or makes any representation as being engaged in the business of buying, selling, exchanging, renting, leasing, auctioning or dealing with options on real estate for others as a whole or partial vocation; or

(e) engages in the business of charging an advance fee or contracting for collection of a fee in connection with a contract under which the qualifying broker undertakes primarily to promote the sale of real estate through its listing in a publication issued primarily for that purpose or for the purpose of referral of information concerning real estate to other qualifying brokers or associate brokers;

(4) "auctioneer" means a person who auctions or offers to auction real property;

(5) "brokerage" means a licensed qualifying broker and the licensed real estate business represented by the qualifying broker and its affiliated licensees;

(6) "brokerage relationship" means the legal or contractual relationship between a person and a brokerage in a real estate transaction subject to the jurisdiction of the commission;

(7) "client" means a person who has entered into an express written agreement with a brokerage for real estate services subject to the jurisdiction of the commission;

(8) "commercial real estate" means real estate that is zoned:

(a) for business or commercial use by a city or county; or

(b) by a city or county to allow five or more multifamily units; provided that all units are located on a single parcel of land with a single legal description;

(9) "commission" means the New Mexico real estate commission;

(10) "customer" means a person who uses real estate services without entering into an express written agreement with a brokerage subject to the jurisdiction of the commission;

(11) "foreign broker" means a real estate broker who does not hold a real estate license issued by the commission, but who holds a current and valid real estate broker's license issued by another state in the United States, a province of Canada or any other sovereign nation;

(12) "license" means a qualifying broker's license or an associate broker's license issued by the commission;

(13) "licensee" means a person holding a valid qualifying broker's license or an associate broker's license subject to the jurisdiction of the commission;

(14) "nonresident licensee" means an associate or qualifying broker holding a real estate license issued by the commission and whose license application address is not within the state of New Mexico;

(15) "property management" means real estate services as specified by a management agreement that include marketing, showing, renting and leasing of real property; collection and disbursement of funds on behalf of the owner; supervision of employees and vendors; coordination of maintenance and repairs; management of tenant relations; and preparation of leases or rental agreements, financial reports and other documents. "Property management" does not mean inspections of property, repairs and maintenance incidental to the sale and marketing of property as authorized by the owner or the management of a condominium or homeowner association or advertising or taking reservations for vacation rental properties;

(16) "qualifying broker" means a licensed real estate broker who has qualified a proprietorship, corporation, partnership or association to do business as a real estate brokerage in the state of New Mexico, who discharges the responsibilities specific to a qualifying broker as defined by the commission and who for compensation or other consideration from another:

(a) lists, sells or offers to sell real estate; buys or offers to buy real estate; or negotiates the purchase, sale or exchange of real estate or options on real estate;

(b) is engaged in managing property for others;

(17) "real estate" means land, improvements, leaseholds and other interests in real property that are less than a fee simple ownership interest, whether tangible or intangible; and

(18) "transaction broker" means a qualifying broker, associate broker or brokerage that provides real estate services without entering into an agency relationship.

B. A single act of a person in performing or attempting to perform an activity described in Paragraph (16) of Subsection A of this section makes the person a qualifying broker. A single act of a person in performing or attempting to perform an activity described in Paragraph (3) of Subsection A of this section makes the person an associate broker.

C. The provisions of Chapter 61, Article 29 NMSA 1978 do not apply to:

(1) a person who as owner performs any of the activities included in this section with reference to property owned by the person, except when the sale or offering for sale of the property constitutes a subdivision containing one hundred or more parcels;

(2) the employees of the owner or the employees of a qualifying broker acting on behalf of the owner, with respect to the property owned, if the acts are performed in the regular course of or incident to the management of the property and the investments;

(3) isolated or sporadic transactions not exceeding two transactions annually in which a person acts as attorney-in-fact under a duly executed power of attorney delivered by an owner authorizing the person to finally consummate and to perform under any contract the sale, leasing or exchange of real estate on behalf of the owner; and the owner or attorney-in-fact has not used a power of attorney for the purpose of evading the provisions of Chapter 61, Article 29 NMSA 1978;

(4) transactions in which a person acts as attorney-in-fact under a duly executed power of attorney delivered by an owner related to the attorney-in-fact within the fourth degree of consanguinity or closer, authorizing the person to finally consummate and to perform under any contract for the sale, leasing or exchange of real estate on behalf of the owner;

(5) the services rendered by an attorney at law in the performance of the attorney's duties as an attorney at law;

(6) a person acting in the capacity of a receiver, trustee in bankruptcy, administrator or executor, a person selling real estate pursuant to an order of any court or a trustee acting under a trust agreement, deed of trust or will or the regular salaried employee of a trustee;

(7) the activities of a salaried employee of a governmental agency acting within the scope of employment;

(8) persons who deal exclusively in mineral leases or the sale or purchase of mineral rights or royalties in any case in which the fee to the land or the surface rights are in no way involved in the transaction; or

(9) an auctioneer; provided that payments to an auctioneer for services rendered in connection with an auction shall be made to the auctioneer by a qualifying broker, and prior to performing an auction of real estate, the auctioneer shall enter into a transaction-specific written agreement with a qualifying broker that includes:

(a) a description of the parties, the real estate and any additional information necessary to identify the specific transaction governed by the agreement;

(b) the terms of compensation between the auctioneer and the qualifying broker;

(d) a statement that the auctioneer agrees to: 1) cooperate fully with the qualifying broker and all associate brokers designated by the qualifying broker; 2) conduct all contact with parties, including the general public and other brokers, in association with the qualifying broker or associate brokers designated by the qualifying broker; and 3) conduct all marketing and solicitations for business in the name of the qualifying broker.

History: 1978 Comp., § 61-29-2, enacted by Laws 1999, ch. 127, § 1; 2003, ch. 36, § 1; 2005, ch. 35, § 2; 2011, ch. 85, § 1; 2013, ch. 167, § 2; 2014, ch. 27, § 1; 2019, ch. 90, § 1; 2021, ch. 106, § 1.

ANNOTATIONS

The 2021 amendment, effective July 1, 2021, defined "property management" as used in Chapter 61, Article 29 NMSA 1978; and in Subsection A, added new Paragraph A(15) and redesignated the succeeding paragraphs accordingly.

The 2019 amendment, effective June 14, 2019, defined "auctioneer" as used in Chapter 61, Article 29 NMSA 1978, and exempted an auctioneer working under the control of a qualifying broker from the licensure requirements, and provided requirements for the agreement between the auctioneer and the qualifying broker; in Subsection A, added a new Paragraph A(4) and redesignated former Paragraphs A(4) through A(16) as Paragraphs A(5) through A(17), respectively; in Subsection B, after the first occurrence of "Paragraph", deleted "(14)" and added "(15)"; and in Subsection C, added Paragraph C(9).

The 2014 amendment, effective May 21, 2014, added definitions of "commercial real estate", "foreign broker", and "nonresident licensee" to provide for foreign brokers acting as qualifying or associate brokers with respect to commercial real estate; and in Subsection A, added Paragraphs (7), (10) and (13).

The 2013 amendment, effective June 14, 2013, changed the definition of "associate broker" and added the definition of "qualifying broker"; in Paragraph (3) of Subsection A, in the introductory sentence, after "qualifying broker", deleted "to participate in an activity described in Paragraph (4) of this subsection or"; added Subparagraphs (a) through (e) of Paragraph (3) of Subsection A; deleted former Paragraph (4) of Subsection A, which defined "broker" and "qualifying broker"; in Paragraph (6) of Subsection A, after "means a", deleted "buyer, seller, landlord or tenant" and added "person"; in Paragraph (8) of Subsection A, after "means a", deleted "buyer, seller, landlord or tenant" and added "person"; added Paragraph (11) of Subsection A; deleted former Paragraph (13) of Subsection A, which defined "real estate salesperson"; and in Paragraph (2) of Subsection C, after "property and the investments", deleted "except when the sale or offering for sale of the property constitutes a subdivision containing one hundred or more parcels".

The 2011 amendment, effective July 1 2011, in Subsection A, included property managers in the definition of "broker"; and in Subsection C, provided that Chapter 61, Article 29 NMSA 1978 applies when a sale constitutes a subdivision of property containing one hundred or more parcels.

The 2005 amendment, effective January 1, 2006, redefines “agency relationship” to mean the fiduciary relationship created solely by a written agreement between a person and a brokerage; defines “agent” to mean the brokerage authorized solely by a written agreement; defines “associate broker” to mean a person who is associated with or engaged under contract by a qualifying broker; defines “brokerage relationship” as the legal or contractual relationship between a person and a brokerage in a real estate transaction; redefines “licensee” to mean a person holding a qualifying broker’s or associate broker’s license; and defines “transaction broker” to mean a qualifying broker, associate broker or brokerage that provides real estate services without entering into an agency relationship.

The 2003 amendment, effective January 1, 2004, substituted "contractual" for "contractural" following "means the legal or" near the middle of Paragraph A(1); deleted "created pursuant to Section 61-29-4 NMSA 1978" at the end of Paragraph A(5); inserted "or a real estate salesperson's license" following "real estate broker's license" in the middle of Paragraph A(7); substituted "a person" for "anyone" following "licensee means" near the beginning of Paragraph A(8); deleted Paragraph A(9) and redesignated the subsequent paragraphs accordingly; and substituted "(10)" for "(11)" following "Paragraph" near the end of Subsection B.

Texas broker was acting as a broker in New Mexico. — Where plaintiff, who was a licensed real estate broker in Texas, agreed to buy a ranch in New Mexico and the owners agreed to pay plaintiff a six percent commission; defendants, who were licensed brokers in New Mexico, assisted plaintiff conduct due diligence in connection with the purchase of the ranch; plaintiff and defendants subsequently agreed that if defendants found a third-party purchaser of the ranch, that plaintiff would not buy the ranch and plaintiff and defendants would share the sales commission; defendants told plaintiff about a possible buyer of the ranch and plaintiff directed defendants to contact the owner of the ranch about the prospective buyer; the ranch was not listed for sale; and the only way defendants knew the ranch was for sale was through their contact with plaintiff, plaintiff was a broker within the meaning of Section 61-29-2 NMSA 1978 because plaintiff was a finder or middleman who brought the ranch owner and the buyer together with the assistance of defendants. PC Carter Co. v. Miller, 2011-NMCA-052, 149 N.M. 660, 253 P.3d 950.

Broker buying or selling property for himself. — The commission lacks jurisdiction over a real estate broker who is buying or selling property for himself, unless he holds himself out as a broker. Vihstadt v. Real Estate Comm'n, 1988-NMSC-003, 106 N.M. 641, 748 P.2d 14.

Burden on broker when acting for himself. — A licensed broker has the burden of showing that there is no possibility of misunderstanding or confusion as to his status when he purports to act for himself. Poorbaugh v. N.M. Real Estate Comm'n, 1978-NMSC-033, 91 N.M. 622, 578 P.2d 323.

Hiring of note broker for sale of real estate contract. — Because the seller of a real estate contract, who hired a note broker to handle the sale, was not acting as a real estate broker during the sale, the commission lacked jurisdiction to revoke the seller's license for misrepresentation. Vihstadt v. Real Estate Comm'n, 1988-NMSC-003, 106 N.M. 641, 748 P.2d 14.

Whether landowner made representation as to being real estate broker is factual determination to be made by the trier of fact. Poorbaugh v. N.M. Real Estate Comm'n, 1978-NMSC-033, 91 N.M. 622, 578 P.2d 323.

Fiduciary duties of salesperson extended to broker. — Because a real estate salesperson must work under a broker, when a principal buyer or seller engages a real estate salesperson as an agent, the principal also engages the salesperson's qualifying broker as an agent, thus extending the fiduciary duty owed to the principal buyer or seller up the salesperson's chain of command to the broker. Although agency fiduciary obligations and liabilities may extend from a salesperson to the qualifying broker, the fiduciary duties of one real estate salesperson are not attributable to another salesperson operating under the same qualifying broker unless one salesperson is at fault in appointing, supervising or cooperating with the other. Moser v. Bertram, 1993-NMSC-040, 115 N.M. 766, 858 P.2d 854.

Broker status not changed by power of attorney. — Where a real estate broker entered into a real estate transaction as a broker, he was not exempt from the jurisdiction of the commission under the "attorney in fact" exception in Subsection D (now C(4)), even though he was given the power of attorney to enable him to complete the transaction without the owners being present. Elliott v. N.M. Real Estate Comm'n, 1985-NMSC-078, 103 N.M. 273, 705 P.2d 679.

Activities not excepted. — Activities did not fall within exception provided for in Subsection D (now C). Bosque Farms Home Ctr., Inc. v. Tabet Lumber Co., 1988-NMSC-027, 107 N.M. 115, 753 P.2d 894.

No license required for arranging investments. — Arranging investments in real estate contracts is not a transaction for which a real estate broker's or salesperson's license is required. Garcia v. N.M. Real Estate Comm'n, 1989-NMCA-034, 108 N.M. 591, 775 P.2d 1308, cert. denied, 108 N.M. 624, 776 P.2d 846.

A person who auctions the real estate of another person for compensation is acting as an associate or qualifying broker. — The Real Estate Brokers and Salesmen Act (act), 61-29-1 to 61-29-29 NMSA 1978, specifically lists auctioning or the offer to auction real estate, when performed for another and for compensation, as conduct that brings one within in the definition of associate broker and qualifying broker, and therefore a person who auctions or offers for auction the real estate of another person for compensation is acting as an associate or qualifying broker under the act and must possess a broker's license issued by the New Mexico real estate commission, regardless of whether the auctioneer is hired by the seller or by a licensed broker. Necessity of a Real Estate Broker's License to Auction Real Estate (5/24/16), Att'y Gen. Adv. Ltr. 2016-05.

Rule governing advertisements applies to advertisements of real estate auctions. — The New Mexico real estate commission has adopted a rule governing real estate advertising that requires all real estate advertising be a true and factual representation of the property and real estate services being advertised, and because auctioning or offering for auction the real estate of another for compensation is a real estate service that requires a broker's license, it follows that advertisements regarding the sale of real estate by auction comes under this rule. Necessity of a Real Estate Broker's License to Auction Real Estate (5/24/16), Att'y Gen. Adv. Ltr. 2016-05.

Broker to supervise salespeople. — This section and Section 61-29-11 NMSA 1978 express a clear legislative mandate that brokers, as the persons principally responsible to the public, actually be in a position to supervise the actions of their salespeople. At the same time, the statutes do not require the broker himself to engage in business full-time. 1980 Op. Att'y Gen. No. 80-22.

The exemption contained in Subsection D (now C(4)) applies only to those persons holding the power of attorney and who are not engaged in business as real estate brokers. 1965 Op. Att'y Gen. No. 65-122.

Law reviews. — For article, "Attachment in New Mexico - Part I," see 1 Nat. Res. J. 303 (1961).

For 1984-88 survey of New Mexico administrative law, 19 N.M.L. Rev. 575 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 12 Am. Jur. 2d Brokers § 1.

Who is real estate broker within meaning of statute, 167 A.L.R. 774.

Effect of statement of real estate broker to prospective purchaser that property may be bought for less than list price as breach of duty to vendor, 17 A.L.R.2d 904.

Duty of real estate broker to disclose that prospective purchaser is a relative, 26 A.L.R.2d 1307.

Payment to broker authorized to sell real property as payment to principal, 30 A.L.R.2d 805.

Power of real estate broker to execute contract of sale in behalf of principal, 43 A.L.R.2d 1014.

Liability of vendor's real-estate broker or agent to purchaser or prospect for misrepresenting or concealing offer or acceptance, 55 A.L.R.2d 342.

Power of real estate broker to bind principal by representations as to character, condition, location, quantity or title of property, 58 A.L.R.2d 10.

Liability of real estate broker for accepting note, check or property, rather than cash, as earnest money, 59 A.L.R.2d 1455.

Misrepresentation as basis of real estate broker's liability for damages or losses sustained by vendor responsible to vendee on account thereof, 61 A.L.R.2d 1237.

Modern view as to right of real estate broker to recover commission from seller-principal where buyer defaults under valid contract of sale, 12 A.L.R.4th 1083.

Right of attorney, as such, to act or become licensed to act as real estate broker, 23 A.L.R.4th 230.

Real-estate broker's liability to purchaser for misrepresentation or nondisclosure of physical defects in property sold, 46 A.L.R.4th 546.

12 C.J.S. Brokers § 2.

N.M. Stat. Ann. § 61-30-9

61-30-9. Reimbursement and expenses. (Repealed effective July 1, 2030.)

The board may appoint such committees of the board as may be necessary. A member of the board or a committee shall receive per diem and mileage as provided in the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978] and shall receive no other perquisite, compensation or allowance. Compensation for investigative contractors or consultants [and] any necessary supplies and equipment shall be paid from the appraiser fund.

History: Laws 1990, ch. 75, § 9; 1993, ch. 269, § 6; 2003, ch. 328, § 6; 2003, ch. 408, § 33.

ANNOTATIONS

Delayed repeals. — For delayed repeal of this section, see 61-30-24 NMSA 1978.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

2003 Multiple Amendments. — Laws 2003, ch. 328, § 6 and Laws 2003, ch. 408, § 33 enacted different amendments to this section that can be reconciled. Pursuant to 12-1-8 NMSA 1978, Laws 2003, ch. 408, § 33, as the last act signed by the governor, is set out above and incorporates both amendments. The amendments enacted by Laws 2003, ch. 328, § 6 and Laws 2003, ch. 408, § 33 are described below. To view the session laws in their entirety, see the 2003 session laws on NMOneSource.com.

Laws 2003, ch. 408, § 33, effective July 1, 2003, deleted "and employ such persons to assist the board" following "committees of the board" near the beginning of the section; and deleted "employees and" following "Compensation for" near the end of the section.

Laws 2003, ch. 328, § 6, effective July 1, 2003, deleted "and employ such persons to assist the board" following "committees of the board" near the middle of the first sentence; and inserted "investigative contractors or consultant" following "Compensation for employees," near the beginning of the third sentence.

The 1993 amendment, effective June 18, 1993, substituted "board" for "commission" and deleted "and commission" following "board", in the first sentence.

The law belongs to the people. Georgia v. Public.Resource.Org, 590 U.S. (2020)