Key Takeaways
- New Mexico is a community property state - property acquired during marriage is presumed owned equally by both spouses
- Separate property includes property owned before marriage and gifts/inheritances received individually
- New Mexico recognizes various types of property ownership including tenancy in common, joint tenancy, and community property
- Water rights are particularly important in New Mexico due to the arid climate
- The State Engineer administers water rights in New Mexico
New Mexico Property Law Concepts
New Mexico has unique property law concepts that affect real estate transactions.
Community Property State
New Mexico is one of nine community property states in the United States.
Community Property Basics
| Property Type | Definition |
|---|---|
| Community Property | Property acquired during marriage by either spouse |
| Separate Property | Property owned before marriage, or received as gift/inheritance |
Community Property Presumption
In New Mexico, property acquired during marriage is presumed to be community property:
- Both spouses have equal ownership (50/50)
- Both spouses must sign to sell community property
- Applies regardless of whose name is on title
Separate Property
Property remains separate if:
| Situation | Status |
|---|---|
| Owned before marriage | Separate property |
| Received as gift during marriage | Separate property |
| Received as inheritance | Separate property |
| Purchased with separate funds | Separate property (if documented) |
Exam Tip: Even in a community property state, property can be held as separate property if properly documented.
Implications for Real Estate
| Situation | Requirement |
|---|---|
| Selling community property | Both spouses must sign |
| Listing community property | Both spouses should sign listing |
| Mortgage on community property | Both spouses typically required |
Types of Ownership in New Mexico
Sole Ownership
One person owns the entire property:
- Single person
- Married person holding separate property
Tenancy in Common
Two or more owners with:
- Undivided interest in property
- Unequal shares allowed
- No right of survivorship - interest passes to heirs
- Each owner can sell or transfer their interest
Joint Tenancy
Two or more owners with:
- Equal shares required
- Right of survivorship - surviving owner(s) inherit
- Requires four unities: time, title, interest, possession
- Severing joint tenancy converts to tenancy in common
Water Rights in New Mexico
Water rights are critically important in New Mexico due to the arid climate.
Prior Appropriation Doctrine
New Mexico follows the prior appropriation doctrine (not riparian rights):
| Principle | Meaning |
|---|---|
| "First in time, first in right" | Earlier appropriators have senior rights |
| Beneficial use | Water must be used for beneficial purpose |
| Use it or lose it | Water rights can be lost through non-use |
State Engineer
The New Mexico State Engineer administers water rights:
| Function | Description |
|---|---|
| Permits | Issues permits for new water uses |
| Transfers | Approves transfer of water rights |
| Adjudication | Determines priority of rights |
| Enforcement | Enforces water laws |
Types of Water Rights
| Type | Description |
|---|---|
| Surface water | Rivers, streams, lakes |
| Groundwater | Wells, underground aquifers |
| Domestic well | Limited use for household purposes |
Real Estate Implications
| Consideration | Details |
|---|---|
| Transfer with property | Water rights may or may not transfer with land |
| Due diligence | Verify water rights before purchase |
| Disclosure | Material fact affecting value |
| Well permits | Required for new wells |
Important: Water rights in New Mexico can be severed from land and sold separately. Always verify water rights status.
Other New Mexico Property Concepts
Homestead Protection
New Mexico provides limited homestead protection:
- Protects home equity from certain creditors
- Does NOT prevent voluntary sale
- Does NOT apply to mortgages or tax liens
Community Property with Right of Survivorship
A special form of community property where:
- Property passes automatically to surviving spouse
- Avoids probate
- Must be specifically created in the deed
Deeds in New Mexico
| Deed Type | Warranty Provided |
|---|---|
| General Warranty Deed | Full warranties |
| Special Warranty Deed | Limited warranties (grantor's ownership period) |
| Quitclaim Deed | No warranties |
New Mexico is a community property state. What does this mean for property acquired during marriage?
What doctrine governs water rights in New Mexico?
Which of the following is considered SEPARATE property in a New Mexico marriage?