New Mexico Roofing Licensing Law

New Mexico Code · 21 sections

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

N.M. Stat. Ann. § 61-1-11

61-1-11. Rules of evidence.

A. In proceedings held under the Uniform Licensing Act, boards and hearing officers may admit any evidence and may give probative effect to evidence that is of a kind commonly relied on by reasonably prudent people in the conduct of serious affairs. Boards and hearing officers may in their discretion exclude incompetent, irrelevant, immaterial and unduly repetitious evidence. In proceedings involving the suspension or revocation of a license, rules of privilege shall be applicable to the same extent as in proceedings before the courts of this state. Documentary evidence may be received in the form of copies or excerpts.

B. Boards and hearing officers may take notice of judicially cognizable facts and in addition may take notice of general, technical or scientific facts within their specialized knowledge. When any board or hearing officer takes notice of a fact, the applicant or licensee shall be notified either before or during the hearing of the fact so noticed and its source and shall be afforded an opportunity to contest the fact so noticed.

C. Boards and hearing officers may utilize their experience, technical competence and specialized knowledge in the evaluation of evidence presented to them.

History: 1953 Comp., § 67-26-11, enacted by Laws 1957, ch. 247, § 11; 1981, ch. 349, § 10.

ANNOTATIONS

Reliable evidence given probative effect. — Evidence of a kind commonly relied on by reasonably prudent men in the conduct of serious affairs may be given probative effect under this section. Young v. Board of Pharmacy, 1969-NMSC-168, 81 N.M. 5, 462 P.2d 139.

Necessity of expert testimony. — Expert testimony is not required to establish negligence or a failure to comply with the standards of professional conduct. A board is required to rely on substantial evidence in reaching its decision; while the court will defer to the board's expert interpretation of evidence, the court will not allow the board to take disciplinary action without substantial evidence in the record to justify the application of the board's expertise. Gonzales v. N.M. Bd. of Chiropractic Exam'rs, 1998-NMSC-021, 125 N.M. 418, 962 P.2d 1253.

Expert testimony was not required to support charges that a dentist submitted a false claim for reimbursement and that the dentist was guilty of unprofessional conduct and failed to practice dentistry in a professionally competent manner. Where the agency conducting the hearing is itself composed of experts qualified to make a judgment as to the licensee's adherence to standards of professional conduct, there is no need for the kind of assistance an expert provides in the form of an opinion. Weiss v. N.M. Bd. of Dentistry, 1990-NMSC-077, 110 N.M. 574, 798 P.2d 175.

Hearsay admissible. — This section clearly contemplates that a board may admit and consider hearsay evidence, if it is of a kind commonly relied upon by reasonably prudent men in the conduct of serious affairs. In re Willoughby, 1971-NMSC-040, 82 N.M. 443, 483 P.2d 498.

Reference to indictment. — Because an agency has wide discretion in receiving and excluding evidence in proceedings under the Uniform Licensing Act, any error in allowing reference to an indictment against a dentist was harmless. Weiss v. N.M. Bd. of Dentistry, 1990-NMSC-077110 N.M. 574, 798 P.2d 175.

Standard of proof applied in administrative proceedings, with few exceptions, is a preponderance of the evidence. Foster v. Bd. of Dentistry, 1986-NMSC-009, 103 N.M. 776, 714 P.2d 580.

Substantial evidence must support revocation. — The revocation or suspension of a license to conduct a business or profession must not be based solely upon hearsay evidence, as other legally competent evidence, together with the hearsay evidence, must substantially support the findings upon which the revocation or suspension is based. In re Willoughby, 1971-NMSC-040, 82 N.M. 443, 483 P.2d 498.

Higher burden to prove fraud. — If fraud is charged in an administrative proceeding, the evidence in support of a finding of fraud is not deemed substantial "if it is not clear, strong and convincing." Seidenberg v. N.M. Bd. of Med. Exam'rs, 1969-NMSC-028, 80 N.M. 135, 452 P.2d 469.

Special weight given to technical findings. — Courts may properly give special weight and credence to findings concerning technical or scientific matters by administrative bodies whose members, by education, training or experience, are especially qualified and are functioning within the perimeters of their expertise since legislative approval of the treatment of the findings of these boards is implicit in this section. McDaniel v. N.M. Bd. of Med. Exam'rs, 1974-NMSC-062, 86 N.M. 447, 525 P.2d 374.

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

For article, "The Use of the Substantial Evidence Rule to Review Administrative Findings of Fact in New Mexico," see 10 N.M.L. Rev. 103 (1979-80).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 51 Am. Jur. 2d Licenses and Permits §§ 62, 71, 79, 80, 83.

Hearsay in proceedings for suspension or revocation of license to conduct business or profession, 142 A.L.R. 1388.

Hearsay evidence in proceedings before state administrative agencies, 36 A.L.R.3d 12.

Necessity of expert evidence in proceeding for revocation or suspension of license of physician, surgeon, or dentist, 74 A.L.R.4th 969.

53 C.J.S. Licenses §§ 43, 58, 59.

N.M. Stat. Ann. § 61-1-13

61-1-13. Decision.

A. After a hearing has been completed, the members of the board shall proceed to consider the case and as soon as practicable shall render their decision, provided that the decision shall be rendered by a quorum of the board. In cases in which the hearing is conducted by a hearing officer, all members who were not present throughout the hearing shall familiarize themselves with the record, including the hearing officer's report, before participating in the decision. In cases in which the hearing is conducted by the board, all members who were not present throughout the hearing shall thoroughly familiarize themselves with the entire record, including all evidence taken at the hearing, before participating in the decision.

B. A final decision and order based on the hearing shall be made by a quorum of the board and signed and executed by the person designated by the board within ninety days after the hearing is closed by the board.

History: 1953 Comp., § 67-26-13, enacted by Laws 1957, ch. 247, § 13; 1978 Comp., § 61-1-13; 1981, ch. 349, § 12; 1993, ch. 295, § 6; 2023, ch. 190, § 14.

ANNOTATIONS

The 2023 amendment, effective July 1, 2023, clarified certain language in the section, and revised the deadline by which the board must submit a final decision and order following a hearing; and in Subsection B, after "A", added "final", after "decision", added "and order", after "signed", added "and executed", after "by the board within", deleted "sixty days after the completion of the preparation of the record or submission of a hearing officer’s report, whichever is later. In any case, the decision must be rendered and signed within", and after "after the hearing", added "is closed by the board."

The 1993 amendment, effective June 18, 1993, in Subsection A, substituted "a quorum of the board" for "the board at a meeting where a majority of the members are present and participating in the decision" at the end of the first sentence; and made stylistic changes in the second and third sentences.

Standard of proof for a hearing under this section is by a preponderance of the evidence. Foster v. Board of Dentistry, 1986-NMSC-009, 103 N.M. 776, 714 P.2d 580.

Section requires that decision be made by majority of the members of the board. McCaughtry v. N.M. Real Estate Comm'n, 1970-NMSC-143, 82 N.M. 116, 477 P.2d 292.

The board is not required to give deference to a hearing officer’s report. — Where the hearing officer was appointed to take evidence on a complaint that the dentist engaged in unprofessional conduct, the hearing officer found that the dentist had not engaged in unprofessional conduct and recommended that no disciplinary action be taken; the board reviewed the hearing officer’s report and the evidence, and concluded that the dentist had engaged in unprofessional conduct; and the Uniform Licensing Act only permits the hearing officer to make findings, but not to make conclusions of law or recommendations regarding disciplinary action and requires the board to use its knowledge and expertise to make its own findings and conclusions, and to determine what disciplinary action is appropriate, the district court erred by concluding that the board acted arbitrarily and capriciously when it failed to defer to the hearing officer’s report. N.M. Bd. of Dental Health Care v. Jaime, 2013-NMCA-040, 296 P.3d 1261.

Effect of failure to timely sign decision. — Failure of the board of dentistry to render and sign its decision suspending a dentist's license within 90 days after completion of the hearing made the decision null and void. Foster v. Board of Dentistry, 1986-NMSC-009, 103 N.M. 776, 714 P.2d 580.

The 90-day time limit imposed by this section is expressly jurisdictional. Where the board fails to take action within the required 90-day period, its decision is void and must be reversed. Lopez v. N.M. Bd. of Med. Exam'rs, 1988-NMSC-039, 107 N.M. 145, 754 P.2d 522.

Authority of secretary of public education to revoke teachers’ licenses. — Article XII, Section 6 of the New Mexico Constitution, the Uniform Licensing Act, Sections 61-1-1 et seq. NMSA 1978, the Public Education Department Act, Chapter 9, Article 24 NMSA 1978, the Public School Code, Chapter 22 NMSA 1978, and the School Personnel Act, Chapter 22, Article 10A NMSA 1978, do not preclude the secretary of public education from having exclusive authority to make the final decision to revoke a teacher’s license. Skowronski v. N.M. Pub. Educ. Dep’t, 2013-NMCA-034, 298 P.3d 469, cert. granted, 2013-NMCERT-003.

Uniform Licensing Act is not a tax statute, and does not carry with it the presumption of correctness and burden of persuasion that favors the state in tax matters. Kmart Props., Inc. v. N.M. Taxation & Revenue Dep't, 2006-NMCA-026, 139 N.M. 177, 131 P.3d 27, aff'd, 2006-NMSC-006, 139 N.M. 172, 131 P.3d 22.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 53 C.J.S. Licenses §§ 43, 60.

N.M. Stat. Ann. § 61-1-36

61-1-36. Criminal convictions; exclusion from licensure; disclosure requirement.

A. A board shall not exclude from licensure a person who is otherwise qualified on the sole basis that the person has been previously arrested for or convicted of a crime, unless the person has a disqualifying criminal conviction.

B. By December 31, 2021, each board shall promulgate and post on the board's website rules relating to licensing requirements to list the specific criminal convictions that could disqualify an applicant from receiving a license on the basis of a previous felony conviction. Rules relating to licensing requirements promulgated by a board shall not use the terms "moral turpitude" or "good character". A board shall only list potentially disqualifying criminal convictions.

C. In an administrative hearing or agency appeal, a board shall carry the burden of proof on the question of whether the exclusion from occupational or professional licensure is based upon a potentially disqualifying criminal conviction.

D. No later than October 31 of each year, while ensuring the confidentiality of individual applicants, a board shall make available to the public an annual report for the prior fiscal year containing the following information:

(1) the number of applicants for licensure and, of that number, the number granted a license;

(2) the number of applicants for licensure or license renewal with a potential disqualifying criminal conviction who received notice of potential disqualification;

(3) the number of applicants for licensure or license renewal with a potential disqualifying criminal conviction who provided a written justification with evidence of mitigation or rehabilitation; and

(4) the number of applicants for licensure or license renewal with a potential disqualifying criminal conviction who were granted a license, denied a license for any reason or denied a license because of the conviction.

E. As used in this section, "disqualifying criminal conviction" means a conviction for a crime that is job-related for the position in question and consistent with business necessity.

History: Laws 2021 (1st S.S.), ch. 3, § 8; 2023, ch. 190, § 25.

ANNOTATIONS

The 2023 amendment, effective July 1, 2023, in Subsections B and C, added "potentially" preceding "disqualifying".

61-1-37. Residency in New Mexico not a requirement for licensure.

A person who otherwise meets the requirements for a professional or occupational license shall not be denied licensure or license renewal because the person does not live in New Mexico.

History: Laws 2022, ch. 39, § 2; 2023, ch. 190, § 26.

ANNOTATIONS

The 2023 amendment, effective July 1, 2023, after "denied licensure or", deleted "relicensure" and added "license renewal".

ARTICLE 2

Optometry

N.M. Stat. Ann. § 61-15-12

A. In accordance with the provisions of the Uniform Licensing Act [61-1-1 to 61-1-31 NMSA 1978], the board may refuse to issue, may suspend or may revoke any certificate of registration as an architect, and the board may impose disciplinary conditions, including a letter of censure or reprimand, a civil penalty pursuant to Section 61-15-10 NMSA 1978, probation, peer review, remedial education and testing and other conditions as deemed necessary by the board to promote the public welfare, upon satisfactory proof being made to the board that the registrant has:

(1) engaged in any fraud or deceit in obtaining a certificate of registration;

(2) made a false statement under oath or a false affidavit to the board;

(3) engaged in gross negligence, incompetency or misconduct in the practice of architecture as set forth by rule;

(4) stamped with the registrant's official seal any plans, specifications, plats or reports in violation of the Architectural Act;

(5) practiced architecture without a valid and current registration in the jurisdiction in which the practice took place;

(6) made any representation as being an architect without having a valid and current certificate of registration as an architect in the jurisdiction in which the representation took place;

(7) violated any provisions of the Architectural Act or the rules adopted by the board;

(8) refused to accept or to respond to a certified mail communication from the board;

(9) failed to provide the board or its representatives in a timely manner all documentation or information in the registrant's possession or knowledge that has been requested by the board for the purposes of investigation of an alleged violation of the Architectural Act or the rules adopted by the board;

(10) procured, aided or abetted a violation of the Architectural Act or the rules adopted by the board;

(11) failed to comply with the minimum standards of the practice of architecture;

(12) habitually or excessively used intoxicants or controlled substances; or

(13) failed to report to the board any adverse actions taken against the registrant by another jurisdiction, any professional organization, any governmental or law enforcement agency or any court for an act or conduct that would constitute grounds for actions as provided by this section.

B. The board may deny access to examination, may refuse to issue, may suspend or may revoke any certificate of registration as an architect:

(1) for any applicant found to have violated any provision of the Architectural Act or the rules adopted by the board; or

(2) for any registrant or applicant who is convicted of a felony.

C. Disciplinary proceedings may be instituted by any person, shall be instituted by sworn complaint and shall conform to the provisions of the Uniform Licensing Act. Any party to a hearing may obtain a copy of the hearing record upon payment of the costs for the copy.

D. The board may modify any prior order of revocation, suspension or refusal to issue a certificate of registration of an architect, but only upon a finding by the board that there no longer exist any grounds for disciplinary action; provided, however, that any cessation of the practice of architecture for twelve months or more shall require the architect to undergo such additional examination as the board determines necessary.

E. Nothing in the Architectural Act shall be construed as requiring the board to report, for the institution of proceedings, minor violations of that act; provided that the board, after an informal hearing, determines that the public interest will be adequately served by a suitable written notice or warning or by the suspension of the offender's license or certificate of registration for a period not to exceed thirty days.

F. The applicant or registrant shall be liable for all costs of disciplinary proceedings unless exonerated and shall be liable for all costs associated with monitoring compliance with any disciplinary action.

History: 1978 Comp., § 61-15-12, enacted by Laws 1979, ch. 362, § 9; 1987, ch. 282, § 13; 1999, ch. 263, § 9; 2017, ch. 107, § 7.

ANNOTATIONS

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

The 2017 amendment, effective June 16, 2017, included the civil penalties provided for in Section 61-15-10 NMSA 1978 in the types of disciplinary action that the board of examiners for architects may impose for misconduct by registered architects; and in Subsection A, in the introductory clause, after "censure or reprimand", deleted "an administrative" and added "a civil", and after "penalty", added "pursuant to Section 61-15-10 NMSA 1978", and in Paragraph A(6), after the paragraph designation, deleted "represented himself to be" and added "made any representation as being".

The 1999 amendment, effective June 18, 1999, rewrote the section heading, which formerly read "Refusal, suspension or revocation of certificate of registration"; in Subsection A, in the introductory language, substituted the language beginning "and the board may impose disciplinary conditions" for "upon the grounds that the licensee or applicant is" in the introductory language, in Paragraph (1) substituted "engaged in" for "found guilty by the board of", added Paragraph (2), in Paragraph (3) substituted "engaged in" for "guilty of" and inserted "as set forth by rule", in Paragraph (4) substituted "stamped" for "guilty of stamping", in Paragraph (5) substituted "practiced" for "guilty of practicing" and "registration in the jurisdiction in which the practice took place" for "license", in Paragraph (6) substituted "represented" for "guilty of representing" and added "in the jurisdiction in which the representation took place" at the end, deleted former Paragraph (6) which read "guilty of dishonorable or unprofessional conduct as defined by regulation of the board; or", deleted former Paragraph (7) which read "convicted of a felony", and added Paragraphs (7) to (13); added Subsection B, redesignating subsequent subsections accordingly; deleted "license or" preceding "certificate of registration" in Subsection D; and added Subsection F.

The 1987 amendment, effective June 19, 1987, in Subsection A added Paragraph (7) and made minor changes in language.

N.M. Stat. Ann. § 61-23-33

A. If a boundary survey of property is conducted within or bordering the common lands of a community land grant governed and operating pursuant to Chapter 49, Article 6, 7, 8 or 10 NMSA 1978, the surveyor shall give written notice by certified mail to the board of trustees or commissioners of the affected land grant prior to recording the boundary survey or plat with the county clerk. The notice shall indicate where and when the boundary survey will be or was conducted.

B. The board of trustees or commissioners of a community land grant governed and operating pursuant to Chapter 49, Article 6, 7, 8 or 10 NMSA 1978 shall record with the county clerk of the county within which the land grant is located the address and contact information of the appropriate officer of the board or commission to which notice shall be given pursuant to Subsection A of this section. Any change in address or contact information shall be updated and recorded as soon as practicable to ensure that timely notice may be accomplished by certified mail.

C. A surveyor shall give proof of the notice required by Subsection A of this section by having the tracking number of the certified mailing and the address of the land grant as recorded with the county clerk acknowledged and recorded on the boundary survey or plat. A boundary survey or plat recorded pursuant to Section 61-23-28.2 NMSA 1978 without proof of the notice required by Subsection A of this section shall not be considered a valid filing or recording of the boundary survey or plat.

History: Laws 2010, ch. 6, § 1.

ANNOTATIONS

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

Effective dates. — Laws 2010, ch. 6 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 19, 2010, 90 days after the adjournment of the legislature.

N.M. Stat. Ann. § 61-24D-2

As used in the Home Inspector Licensing Act:

A. "approved examination" means a national home inspector licensing examination that has been third-party accredited as complying with the prevailing standards of the Standards for Educational and Psychological Testing and assesses an applicant's knowledge of:

(1) roofing;

(2) exterior;

(3) interior;

(4) structure;

(5) electrical;

(6) plumbing;

(7) heating and cooling;

(8) insulation;

(9) fireplace and chimney; and

(10) ethical business practices, professional standards and reports;

B. "board" means the New Mexico home inspectors board;

C. "client" means a person or an agent of the person who, through a written pre-inspection agreement, engages the services of a home inspector for the purpose of obtaining a report on the condition of residential real property;

D. "compensation" means the payment for home inspection services pursuant to the written pre-inspection agreement;

E. "foreign home inspector" means a home inspector who does not hold a license but who holds a current and valid home inspector license issued by another jurisdiction in the United States;

F. "home inspection" means a noninvasive, nondestructive examination by a person of the interior and exterior components of a residential real property, including the property's structural components, foundation and roof, for the purposes of providing a professional written opinion regarding the site aspects and condition of the property and its carports, garages and reasonably accessible installed components. "Home inspection" includes the examination of the property's heating, cooling, plumbing and electrical systems, including the operational condition of the systems' controls that are normally operated by a property owner;

G. "home inspector" means a person who performs home inspections for compensation;

H. "license" means a home inspector license issued by the board in accordance with the Home Inspector Licensing Act;

I. "licensee" means the holder of a license;

J. "pre-inspection agreement" means the written agreement signed by the client and a home inspector by which a client engages the services of the home inspector and that sets forth at a minimum the following:

(1) the amount of compensation due and payable to the home inspector for the home inspection and delivery of a report;

(2) a list of all components and systems that will be inspected; and

(3) the date by which the client will receive the report;

K. "report" means a written opinion prepared by a home inspector pursuant to the terms of a pre-inspection agreement regarding the functional and physical condition of the residential real property as determined by a home inspection conducted by a home inspector; and

L. "residential real property" means any real property or manufactured or modular home that is used for or intended to be used for residential purposes and that is a single-family dwelling, duplex, triplex, quadplex or unit, as "unit" is defined by the Condominium Act [47-7A-1 to 47-7D-20 NMSA 1978].

History: Laws 2019, ch. 239, § 2; 2023, ch. 54, § 1.

ANNOTATIONS

The 2023 amendment, effective July 1, 2023, defined "approved examination" as used in the Home Inspector Licensing Act; and added a new Subsection A and redesignated former Subsections A through K as Subsections B through L, respectively.

N.M. Stat. Ann. § 61-24D-6

A. Unless otherwise provided in the Home Inspector Licensing Act, an applicant for a license shall:

(1) complete an application on forms provided by the board;

(2) provide documentation to establish that the applicant is at least eighteen years of age;

(3) provide the board with the applicant's fingerprints and all information necessary for a state and national criminal background check;

(4) provide proof of and maintain insurance coverage as provided in Section 61-24D-12 NMSA 1978;

(5) have completed at least eighty hours of classroom training, the content of which shall be established by rule of the board;

(6) pass an approved examination and any additional New Mexico-specific licensing examinations as prescribed by the board; and

(7) have completed at least eighty hours of field training, or its equivalent, as determined by the board.

B. Paragraphs (5) and (7) of Subsection A of this section shall not apply to a person who has:

(1) worked as a home inspector in each of the twenty-four months immediately preceding the effective date of the Home Inspector Licensing Act; and

(2) performed at least one hundred home inspections for compensation in the twenty-four months immediately preceding the effective date of the Home Inspector Licensing Act.

C. After the board's review of all information obtained by the board and submitted by the applicant as required by this section, if all of the requirements for licensure are met, the board shall issue a license to the applicant.

History: Laws 2019, ch. 239, § 6; 2021, ch. 70, § 11; 2023, ch. 54, § 3.

ANNOTATIONS

The 2023 amendment, effective July 1, 2023, provided that an applicant for a home inspectors license shall pass an approved examination and any New Mexico-specific licensing examinations as prescribed by the New Mexico home inspectors board; and in Subsection A, Paragraph A(6), after "pass", deleted "a national home inspector licensing" and added "an approved", and after "any additional", added "New Mexico-specific".

The 2021 amendment, effective June 18, 2021, removed proof of legal residency of the United States as a requirement for application for licensure as a home inspector; and in Subsection A, Paragraph A(2), after "eighteen years of age", deleted "and a legal resident of the United States", and in Paragraph A(4), after "Section", deleted "12 of the Home Inspector Licensing Act" and added "61-24D-12 NMSA 1978".

N.M. Stat. Ann. § 61-24D-8

A license shall be valid for a period not to exceed three years. No later than the last day of the month immediately following the licensee's birth month in the third calendar year after the license becomes effective, a licensee may renew the license by submitting a renewal application, renewal fee, proof of completion of the required continuing education as established by rule of the board and other information necessary for a state and national criminal background check. A home inspection performed based on an expired license shall be deemed a violation of the Home Inspector Licensing Act.

History: Laws 2019, ch. 239, § 8.

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. § 61-29-11

61-29-11. Issuance, renewal and surrender of licenses.

A. The commission shall issue to each qualified applicant a license in the form and size prescribed by the commission.

B. The license shall show the name and address of the licensee. An associate broker's license shall show the name of the qualifying broker by whom the associate broker is engaged. The commission shall deliver or mail the license of the associate broker to the qualifying broker by whom the associate broker is engaged, and the qualifying broker shall display the license at the brokerage from which the associate broker will be conducting real estate business on behalf of the brokerage. The license of the associate broker shall remain in the custody and control of the qualifying broker as long as the associate broker is engaged by that qualifying broker.

C. Any qualifying broker's or associate broker's license suspended or revoked by an order, stipulated agreement or settlement agreement approved by the commission shall be surrendered to the commission by the broker upon the delivery of the order to the broker by the commission, or on the effective date of the order. All real-estate-related activity conducted under such license shall cease for the duration of the license suspension or revocation, and any associate broker licenses hanging with a qualifying broker whose license is suspended or revoked shall be automatically placed on inactive status until a new qualifying broker or a qualifying broker in charge is designated.

D. Every license shall be renewed every three years on or before the last day of the month following the licensee's month of birth. Upon written request for renewal by the licensee, the commission shall certify renewal of a license if there is no reason or condition that might warrant the refusal of the renewal of a license. The licensee shall provide proof of compliance with continuing education requirements and pay the renewal fee. If a licensee has not made application for renewal of license, furnished proof of compliance with continuing education requirements and paid the renewal fee by the license renewal date, the license shall expire. The commission may require a person whose license has expired to apply for a license as if the person had not been previously licensed under Chapter 61, Article 29 NMSA 1978 and further require that the person be reexamined. The commission shall require a person whose license has expired to pay when the person applies for a license, in addition to any other fee, a late fee. If during a period of one year from the date the license expires the person or the person's spouse is either absent from this state on active duty military service or the person is suffering from an illness or injury of such severity that the person is physically or mentally incapable of making application for a license, payment of the late fee and reexamination shall not be required by the commission if, within three months of the person's permanent return to this state or sufficient recovery from illness or injury to allow the person to make an application, the person makes application to the commission for a license. A copy of that person's or that person's spouse's military orders or a certificate from the applicant's physician shall accompany the application. A person excused by reason of active duty military service, illness or injury as provided for in this subsection may make application for a license without imposition of the late fee. All fees collected pursuant to this subsection shall be disposed of in accordance with the provisions of Section 61-29-8 NMSA 1978. The revocation of a qualifying broker's license automatically suspends every associate broker's license granted to any person by virtue of association with the qualifying broker whose license has been revoked, pending a change of qualifying broker. Upon the naming of a new qualifying broker, the suspended license shall be reactivated without charge if granted during the three-year renewal cycle.

E. A qualifying broker shall conduct brokerage business under the trade name and from the brokerage address registered with the commission. Every brokerage shall have a qualifying broker in charge. The license of the qualifying broker and each associate broker associated with that qualifying broker shall be prominently displayed in each brokerage office. The address of the office shall be designated in the qualifying broker's license, and a license issued shall not authorize the licensee to transact real estate business at any other address. In case of removal from the designated address, the licensee shall make application to the commission before the removal or within ten days thereafter, designating the new location of the licensee's office and paying the required fee, whereupon the commission shall issue a license for the new location if the new location complies with the terms of Chapter 61, Article 29 NMSA 1978. A qualifying broker shall maintain a sign at the brokerage office of such size and content as the commission prescribes.

F. When an associate broker is discharged or terminates association or employment with the qualifying broker with whom the associate broker is associated, the qualifying broker shall deliver or mail the associate broker's license to the commission within forty-eight hours. The commission shall hold the license on inactive status. It is unlawful for an associate broker to perform any of the acts authorized by Chapter 61, Article 29 NMSA 1978 either directly or indirectly under authority of an inactive license after the associate broker's association with a qualifying broker has been terminated and the associate broker's license has been returned to the commission until the appropriate fee has been paid and the license has been reissued and reactivated by the commission.

History: 1953 Comp., § 67-24-28, enacted by Laws 1959, ch. 226, § 10; 1965, ch. 304, § 6; 1977, ch. 295, § 3; 1979, ch. 94, § 3; 1980, ch. 82, § 11; 1981, ch. 22, § 2; 1983, ch. 261, § 4; 1985, ch. 89, § 2; 1987, ch. 90, § 4; 1993, ch. 253, § 2; 1995, ch. 143, § 2; 2001, ch. 163, § 7; 2003, ch. 22, § 5; 2005, ch. 35, § 13; 2013, ch. 167, § 6.

ANNOTATIONS

The 2013 amendment, effective June 14, 2013, provided for the surrender of suspended and revoked licenses; and added Subsection C.

The 2005 amendment, effective January 1, 2006, requires that an associate broker’s license show the name of the qualifying broker by whom the associate broker is engaged; requires the real estate commission to send the associate broker’s license to the qualifying broker by which the associate broker is engaged; requires the qualifying broker to display the associate broker’s license at the brokerage; provides that the associate broker’s license remains in the custody of the qualifying broker as long as the associate broker is engaged by the qualifying broker; provides that the revocation of a qualifying broker’s license suspends the license of every associate broker engaged by the qualifying broker; requires qualifying brokers to conduct brokerage business under the trade name and at the address registered with the real estate commission; requires that the qualifying broker’s license and the licenses of associate brokers be displayed at the brokerage office; and provides that if an associate broker ceases to be engaged by the qualifying broker, the qualifying broker must send the associate broker’s license to the real estate commission to be held in inactive status.

The 2003 amendment, effective June 20, 2003, in Subsection C, deleted "of one hundred dollars ($100)" at the end of the sixth sentence; in Subsection D, substituted "within this state a fixed office that conforms" for "a fixed office within this state which shall be so located as to conform" following "broker shall maintain" near the beginning of the first sentence, and inserted "real estate" preceding "salesperson" near the middle of the third sentence.

The 2001 amendment, effective July 1, 2001, deleted "permanent" preceding "license" in Subsection A; in Subsection B, deleted "real estate" preceding "broker" in two places; in Subsection C, substituted the reactivation provision and conditions thereto for suspended licenses for the provision that a new license will be issued in the event that the real estate salesperson's license is suspended, and will be free if re-issued in the same year it was granted; in Subsection D, deleted "under Chapter 61, Article 29 NMSA 1978" following "operated by a licensed broker", inserted "who is a natural person", deleted "or under contract to" following "associated with", deleted "except a licensed branch office" following "any other address", in Subsection E, deleted "immediately" preceding "deliver" and inserted "within forty-eight hours" in the first sentence, substituted "an inactive license" for "such license" in the second sentence; and deleted Subsection F, concerning the renewal of licenses within a certain time period in order to coordinate certain requirements.

The 1995 amendment, effective July 1, 1995, in Subsection C, rewrote the first sentence which read "Every license shall be subject to annual renewal on the last day of the licensee's month of birth", made a related change in the third sentence, and deleted "annual" and "annually" preceding "renewal" throughout the subsection; made a stylistic change in Subsection D; and added Subsection F.

The 1993 amendment, effective June 18, 1993, inserted "or his spouse" and "the person" preceding "is suffering" in the sixth sentence and substituted "that person or his spouse's" for "the person's" in the seventh sentence, in Subsection C; deleted "for cancellation" from the end of the first sentence, inserted the second sentence, and substituted "to the commission" for "for a cancellation" in the last sentence, in Subsection E; and made stylistic changes in Subsections C and D.

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.

Brokers must supervise their salespeople. — Section 61-29-2 NMSA 1978 and this section express a clear legislative mandate that brokers, 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.

Relicensing of out-of-state broker returning to state. — An individual who has been licensed as a resident real estate broker in the state of New Mexico, and who has established a residence in another state or country may subsequently return to New Mexico and be relicensed as a real estate broker upon payment of the necessary fee and filing of the required bond and meeting any other needed requirements without applying for and taking a broker's examination as required of applicants who have not previously been licensed as real estate brokers, provided that the real estate board in its discretion desires to waive the examination. 1958 Op. Att'y Gen. No. 58-186.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 12 Am. Jur. 2d Brokers §§ 21, 24, 26, 27, 29.

12 C.J.S. Brokers §§ 16, 20.

N.M. Stat. Ann. § 61-29-12

61-29-12. Refusal, suspension or revocation of license for causes enumerated.

A. In accordance with the Uniform Licensing Act [Chapter 61, Article 1 NMSA 1978], the commission may refuse to issue a license or may suspend, revoke, limit or condition a license if the applicant or licensee has, by false or fraudulent representations, obtained a license or, in performing or attempting to perform any of the actions specified in Chapter 61, Article 29 NMSA 1978, an applicant or licensee has:

(1) made a substantial misrepresentation;

(2) pursued a continued and flagrant course of misrepresentation; made false promises through agents, salespersons, advertising or otherwise; or used any trade name or insignia of membership in any real estate organization of which the licensee is not a member;

(3) paid or received a rebate, profit, compensation or commission to or from any unlicensed person, except the licensee's principal or other party to the transaction, and then only with that principal's written consent;

(4) represented or attempted to represent a qualifying broker other than a qualifying broker with whom the licensee is associated without the express knowledge and consent of that qualifying broker;

(5) failed, within a reasonable time, to account for or to remit any money coming into the licensee's possession that belongs to others, commingled funds of others with the licensee's own or failed to keep funds of others in an escrow or trustee account or failed to furnish legible copies of all listing and sales contracts to all parties executing them;

(6) been convicted in any court of competent jurisdiction of a felony or any offense involving moral turpitude;

(7) employed or compensated, directly or indirectly, a person for performing any of the acts regulated by Chapter 61, Article 29 NMSA 1978 who is not a licensed qualifying broker or an associate broker; provided, however, that a qualifying broker may pay a commission to a qualifying broker of another state as provided in Section 61-29-16.1 NMSA 1978;

(8) failed, if a qualifying broker, to place as soon after receipt as is practicably possible, after securing signatures of all parties to the transaction, any deposit money or other money received by the qualifying broker in a real estate transaction in a custodial, trust or escrow account, maintained by the qualifying broker in a bank or savings and loan institution or title company authorized to do business in this state, in which the funds shall be kept until the transaction is consummated or otherwise terminated, at which time a full accounting of the funds shall be made by the qualifying broker. Records relative to the deposit, maintenance and withdrawal of the funds shall contain information as may be prescribed by the rules of the commission. Nothing in this paragraph prohibits a qualifying broker from depositing nontrust funds in an amount not to exceed the required minimum balance in each trust account so as to meet the minimum balance requirements of the bank necessary to maintain the account and avoid charges. The minimum balance deposit shall not be considered commingling and shall not be subject to levy, attachment or garnishment. This paragraph does not prohibit a qualifying broker from depositing any deposit money or other money received by the qualifying broker in a real estate transaction with another cooperating broker who shall in turn comply with this paragraph;

(9) failed, if an associate broker, to place as soon after receipt as is practicably possible in the custody of the associate broker's qualifying broker, after securing signatures of all parties to the transaction, any deposit money or other money entrusted to the associate broker by any person dealing with the associate broker as the representative of the qualifying broker;

(10) violated a provision of Chapter 61, Article 29 NMSA 1978 or a rule promulgated by the commission;

(11) committed an act, whether of the same or different character from that specified in this subsection, that is related to dealings as a qualifying broker or an associate broker and that constitutes or demonstrates bad faith, incompetency, untrustworthiness, impropriety, fraud, dishonesty, negligence or any unlawful act; or

(12) been the subject of disciplinary action as a licensee while licensed to practice real estate in another jurisdiction, territory or possession of the United States or another country.

B. An unlawful act or violation of Chapter 61, Article 29 NMSA 1978 by an associate broker, employee, partner or associate of a qualifying broker shall not be cause for the revocation of a license of the qualifying broker unless it appears to the satisfaction of the commission that the qualifying broker had guilty knowledge of the unlawful act or violation.

History: 1953 Comp., § 67-24-29, enacted by Laws 1959, ch. 226, § 11; 1965, ch. 304, § 7; 1981, ch. 22, § 3; 1983, ch. 261, § 5; 1984, ch. 56, § 1; 1987, ch. 90, § 5; 1991, ch. 13, § 1; 2001, ch. 163, § 8; 2005, ch. 35, § 14; 2011, ch. 85, § 6; 2022, ch. 39, § 97.

ANNOTATIONS

The 2022 amendment, effective May 18, 2022, clarified that the New Mexico real estate commission is required to follow the provisions of the Uniform Licensing Act for disciplinary matters; and in Subsection A, added "In accordance with the Uniform Licensing Act".

The 2011 amendment, effective July 1 2011, permitted the payment of a commission to a qualified broker or another state if, pursuant to Section 61-29-16.1 NMSA 1978, the nonresident broker has entered in to a transaction-specific contract with a resident broker and has consented to being sued in New Mexico.

The 2005 amendment, effective January 1, 2006, permits the real estate commission to issue license with limitations or conditions if the applicant or licensee has obtained a license by false or fraudulent representations or performed or attempted to perform the prescribed acts specified in this section and provides that an unlawful act or violation of Chapter 61, Article 29 NMSA 1978 by an associate broker is not cause for revocation of a qualifying broker’s license unless the qualifying broker had guilty knowledge of the act.

The 2001 amendment, effective July 1, 2001, inserted the Subsection A and B designations and redesignated former Subsections A to K as Paragraphs A(1) to A(11); deleted "real estate" preceding "broker" throughout the section; in Subsection A, substituted "refuse to issue or may suspend" for "refuse a license for cause or suspend", and "an applicant or licensee has:" for "is deemed to be guilty of:" in the introductory language; substituted "with whom he is associated" for "with whom he is licensed" in Paragraph (4), inserted "after securing signatures of all parties to the transaction" in Paragraphs (8) and (9); deleted "in the interests of the public and in conformance with the provisions of Chapter 61, Article 29 NMSA 1978" from the end of Paragraph (10); substituted "committed an act" for "any other conduct" in Paragraph (11); and added Paragraph (12).

The 1991 amendment, effective June 14, 1991, substituted "in Chapter 61, Article 29 NMSA 1978" for "herein" in the introductory paragraph; substituted the language beginning with "unlicensed person" for "person other than his principal" at the end of Subsection C; and made minor stylistic changes in Subsections E and K.

Revocation for "substantial misrepresentations". — The commission may suspend a license on the grounds that the licensee misrepresented to prospective buyers both the size of the property in question and the age of the roof. Wolfley v. Real Estate Comm'n, 1983-NMSC-064, 100 N.M. 187, 668 P.2d 303.

If the subjects of misrepresentations on application forms are material, i.e., "substantial misrepresentations", the real estate commission can, absent intervening equities, revoke the license even though there is no actual or intentional fraud. Padilla v. Real Estate Comm'n, 1987-NMSC-056, 106 N.M. 96, 739 P.2d 965.

The test of whether a misrepresentation is substantial is if it operates as an inducement to the real estate commission to do that which it should not otherwise have done. Padilla v. Real Estate Comm'n, 1987-NMSC-056, 106 N.M. 96, 739 P.2d 965.

Where a license to sell real estate was revoked for false or fraudulent representations in applications with respect to unpaid liens or judgments, but the real estate commission's findings and conclusions did not resolve in any meaningful way whether licensee intended to deceive and to induce the commission to act in reliance upon a misrepresentation of fact known by him to be untrue, and there were no specific findings and conclusions by the commission to afford the supreme court a clear understanding that the decision was based upon false representations relevant and material to facts bearing upon the good repute and competence of the licensee in the public interest, the cause was remanded to the commission with express directions to enter proper findings of fact and conclusions of law, together with a final order. Padilla v. Real Estate Comm'n, 1987-NMSC-056, 106 N.M. 96, 739 P.2d 965.

Substantial evidence to support commission's suspension of broker's license based on Paragraph A(5). Elliott v. N.M. Real Estate Comm'n, 1985-NMSC-078, 103 N.M. 273, 705 P.2d 679.

Broker to have knowledge of building code and zoning ordinances. — It is incumbent upon the broker to have a general knowledge of the building code and the zoning ordinances which deal with the particular property being offered for sale or which is being purchased. Amato v. Rathbun Realty, Inc., 1982-NMCA-095, 98 N.M. 231, 647 P.2d 433.

Nonresident broker may share in commission. — This section modifies Sections 61-29-1 and 61-29-16 NMSA 1978 to the extent that a nonresident broker may, in a limited situation, share in a commission. He may only do so, however, through cooperation with a New Mexico licensed broker. Hayes v. Reeves, 1977-NMSC-092, 91 N.M. 174, 571 P.2d 1177.

Generally, as to establishing custodial, trust or escrow accounts. — No regulation of the 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.

Jurisdiction where landowner claims acting as broker. — Under Section 61-29-2 NMSA 1978 if a landowner represents to either the buyer or seller that he is acting as a broker, the real estate commission has jurisdiction over the transaction. 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.

Applicability of Paragraph A(3) prohibition. — The prohibition of Subsection C (now Paragraph A(3)) is applicable to a broker or salesman representing the seller of real estate giving the purchaser trading stamps, free down payments on the property, moving costs, etc., when it can be shown that the real estate broker or salesman gave one or more of the items listed to the purchaser of the property as an integral part of a transaction involving the purchase and sale of the property. 1963 Op. Att'y Gen. No. 63-28 (rendered prior to 1991 amendment).

Payment of commission to buyer who is not principal prohibited. — Subsection C (now Paragraph A(3)) precludes a licensed salesman or broker from paying any portion of his commission to a buyer who is not his principal, regardless of disclosure to the principal of the arrangement. 1981 Op. Att'y Gen. No. 81-25 (rendered prior to 1991 amendment).

In order to properly make sense of the reference in Subsection C (now Paragraph A(3)) to "paying," and to give effect to the legislative intent indicated by that reference, the words "to or" may be read into that subsection preceding "from any person." 1981 Op. Att'y Gen. No. 81-25 (rendered prior to 1991 amendment).

Criminal Offender Employment Act to be followed in suspension or revocation action. — The provisions of the Criminal Offender Employment Act must be followed by the real estate commission in any action by the commission to suspend or revoke a broker's or salesperson's license because of a conviction of a felony or misdemeanor involving moral turpitude. 1982 Op. Att'y Gen. No. 82-02.

Law reviews. — For article, " 'To Purify the Bar': A Constitutional Approach to Non-Professional Misconduct," see 5 Nat. Res. J. 299 (1965).

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 §§ 10, 21 to 29.

Bias of members of license revocation board, 97 A.L.R.2d 1210.

Suspension or revocation of real estate broker's license on ground of discrimination, 42 A.L.R.3d 1099.

Revocation or suspension of real estate broker's license for violation of statutes or regulations prohibiting use of unlicensed personnel in carrying out duties, 68 A.L.R.3d 530.

Real estate broker's liability for misrepresentations as to income from, or earnings of, property, 81 A.L.R.3d 717.

Validity and application of regulation prohibiting licensed real-estate broker from negotiating sale or lease with owner known to have exclusive listing agreement with another broker, 17 A.L.R.4th 763.

Real-estate broker's rights and liabilities as affected by failure to disclose agreement to loan purchase money to purchaser, 17 A.L.R.4th 788.

Revocation or suspension of real estate broker's license for conduct not connected with business as broker, 22 A.L.R.4th 136.

Real estate broker's or agent's misrepresentation to, or failure to inform, vendor regarding value of vendor's real property, 33 A.L.R.4th 944.

Grounds for revocation or suspension of license of real-estate broker or salesperson, 7 A.L.R.5th 474.

12 C.J.S. Brokers §§ 16, 19, 21 to 24.

N.M. Stat. Ann. § 61-29-16

61-29-16.1 NMSA 1978;