New Mexico Deed Forms for Real Estate Transfers

What Types of Deeds Are Recognized in New Mexico?

New Mexico law recognizes several types of deeds for transferring real estate. The most common deeds give different guarantees of the status of a property’s title. A New Mexico deed with a guaranty (or warranty of title) includes one or more promises (or covenants of warranty) implied by law or written directly in the deed.¹

New Mexico Quitclaim Deed Form

A New Mexico quitclaim deed form transfers real estate with no warranty of title.² The current owner makes no covenants of warranty, and the new owner bears all the risk of unknown problems with the property’s title. If the property is subject to an outstanding lien or boundary dispute, for example, the new owner is responsible for the issue.

Transfers involving no consideration in exchange for the real estate often use quitclaim deeds. A property owner who wants to retitle New Mexico real estate as community property with right of survivorship can do so by recording a quitclaim deed in favor of the owner and the owner’s spouse.³

New Mexico Warranty Deed Form

A New Mexico warranty deed form—sometimes called a general warranty deed—gives the most comprehensive warranty of title.⁴ The current owner promises that the deed transfers a good title, free of any undisclosed liens or other title problems arising at any point in the property’s history.⁵ The current owner also agrees to defend the transferred title against adverse claims and to be responsible for any losses the new owner sustains from a breach of the warranty.⁶

A seller receiving fair market value in exchange for New Mexico real estate often uses a warranty deed.

New Mexico Special Warranty Deed Form

A New Mexico special warranty deed form provides warranty of title, but the warranty is limited.⁷ The current owner provides a “special warranty covenant” promising a good, clear title but only as to problems that arose while the current owner owned the property.⁸ That means the warranty does not cover a title problem that occurred before the current owner took title.

Special warranty deeds split the risk of unknown title problems between the current owner and new owner. They are commonly used for sales of commercial real estate and land not intended as the buyer’s residence. Trustees and other fiduciaries sometimes use New Mexico special warranty deeds, also.

The term bargain-and-sale deed describes a deed that—for most practical purposes—is the same as a special warranty deed.⁹ Deeds titled Bargain-and-Sale Deed are no longer common in New Mexico because special warranty deeds accomplish essentially the same purpose.

What Types of Estate Planning Deeds Are Used in New Mexico?

New Mexico estate planning deeds transfer ownership to a new owner effective upon the current owner’s death.

New Mexico Transfer-on-Death Deeds

A property owner can record a New Mexico transfer-on-death deed—or TOD deed—without affecting the owner’s possession, control, or title in the property during the owner’s life.¹⁰ The owner retains the right to sell or transfer the property—or to revoke or amend the TOD deed—until the owner’s death. When the owner dies, the beneficiary named in the TOD deed automatically receives the property with no need for probate.

New Mexico Life Estate Deeds

A life estate deed functions similarly to a TOD deed—allowing an owner to retain property for life and transfer title to a person named in the deed when the owner dies.¹¹ The primary difference is that when a life estate deed is recorded, the person designated to eventually take title receives an enforceable future interest in the real estate (a remainder interest). Because the remainder interest is a vested interest, the current owner (the life tenant) can no longer sell complete title to the property. The owner can sell only the life estate—the right to possess the property until the current owner dies.

What Are the Ways in Which Multiple Owners Can Jointly Own New Mexico Real Estate?

Two or more persons who jointly own real estate can choose the form of co-ownership best suited to their situation. New Mexico law authorizes tenancy in common, joint tenancy, and (for spouses) community property.

Tenancy in Common

Co-owners who own real estate as tenants in common hold separate interests that each co-owner—or tenant in common—can transfer independently. A co-owner’s interest—usually expressed as a fraction or percentage of the property—goes through probate when the owner dies. A deed transferring New Mexico real estate to more than one new owner creates a tenancy in common unless the deed names a different co-ownership form.¹²

Joint Tenancy

A New Mexico joint tenancy is characterized by the right of survivorship shared by the co-owners (or joint tenants). A deceased joint tenant’s interest vests in the surviving owner.¹³ Joint tenancy can be helpful in estate planning because a joint tenancy interest never becomes part of a joint tenant’s probate estate. The surviving owner simply records a survivorship affidavit in the land records to show that the survivor now holds undivided title.

A deed must clearly state the intent to create a joint tenancy. A New Mexico deed creates a joint tenancy if it transfers property to two or more owners as joint tenants, or to the survivors of them and the heirs and assigns of the survivor, or with right of survivorship.¹⁴

Tenancy by the Entirety

New Mexico does not recognize tenancy by the entirety. In states where it is authorized, tenancy by the entirety is similar to joint tenancy but only possible when the co-owners are married spouses.

Community Property

Married spouses can co-own New Mexico real estate as community property. Deeds to married spouses often transfer real estate to them as community property with right of survivorship—which creates survivorship rights like with a joint tenancy. Owning real estate as community property with right of survivorship lets a surviving spouse receive a deceased spouse’s interest without probate.¹⁵

New Mexico’s community property system is described more fully below.

Real Estate Ownership through Trusts

Two or more persons can simulate co-ownership of New Mexico real estate by transferring title to a revocable living trust. The trust’s trustee holds legal title to the property. The trust’s beneficiaries enjoy the property’s benefits—for example, by living in the property or receiving rental proceeds.¹⁶ New Mexico trust law lets two or more persons be a trust’s co-trustees and co-beneficiaries as long as one person is not the trust’s sole trustee and sole beneficiary.¹⁷

What Are the Rules for Spousal Ownership of New Mexico Real Estate?

Ownership of real estate by married persons is subject to special rules—the most significant of which in New Mexico is the state’s community property system. Spousal property rights—including inheritance rights—can affect how a married property owner chooses to own assets and design his or her estate plan.

Community Property

New Mexico uses a community property system for ownership of real estate and other assets by spouses.¹⁸ A married couple’s community property includes most property that either or both spouses acquire during the marriage. A spouse’s property from before the marriage and a few other limited exceptions—such as gifts and inheritances—are considered separate property.¹⁹

A married person in New Mexico owns his or her separate property and a 50 percent interest in the couple’s community property. A spouse has the right to transfer his or her community property share by will. Community property is split equally between the spouses in the event of divorce.

New Mexico Rules for Real Estate Owned as Community Property

New Mexico law provides that if a spouse dies without a will, the deceased spouse’s interest in real estate owned as community property automatically passes to the surviving spouse.²⁰ Community property real estate does not go through probate.

New Mexico’s community property laws do not restrict a married couple’s right to co-own real estate as joint tenants.²¹ Married spouses can therefore hold community property real estate as joint tenants with right of survivorship.

Deed Requirements for Community Property Real Estate

New Mexico law requires both spouses to sign a deed that transfers real estate owned as community property—even if only one spouse’s name is on the title.²² Both spouses must also join in a deed that transfers real estate the couple jointly owns—whether as tenants in common or joint tenants—even if the real estate is not community property.

A non-owner spouse’s signature is not needed on a deed that transfers a married owner’s real estate if it is neither community property nor jointly owned with the other spouse.²³ In other words, a married owner can transfer real estate that is individually owned, separate property without the other spouse’s consent.

New Mexico Homestead Rights

Some states require both spouses’ signatures on a deed that transfers real estate classified as their homestead. New Mexico does not specifically require a non-owner spouse’s signature on a deed that transfers a homestead. However, New Mexico’s community property rules require both spouses’ signatures in many situations.

Spousal Intestate Share

A spousal intestate share is the portion of a deceased spouse’s estate the surviving spouse receives if the deceased spouse leaves no will. In New Mexico, a surviving spouse’s intestate share of the deceased spouse’s separate property is either:

• 100 percent if the deceased spouse has no living children or grandchildren; or
• 25 percent if the deceased spouse has living children or grandchildren.²⁴

The surviving spouse’s intestate share also includes the deceased spouse’s entire interest in the couple’s community property.²⁵ The result is that the surviving spouse becomes the sole owner of the community property.

Spousal Elective Share

Spousal elective share laws give surviving spouses an optional right to claim a portion of the deceased spouse’s estate instead of a lesser share under the deceased spouse’s will. New Mexico has no spousal elective share statute. The state’s community property system protects against disinheritance by giving each spouse a one-half interest in the couple’s community property.

Where Are Deeds Filed in New Mexico?

Each of New Mexico’s counties has a county clerk whose duties include—among other things—maintaining the county’s land records.²⁶ New Mexico deeds are filed with the county clerk for the county where the real estate is located.²⁷ A recorded deed provides “notice to all the world” of the deed’s existence and contents.²⁸

Does New Mexico Allow Electronic Recording?

New Mexico has adopted the Uniform Real Property Electronic Recording Act—which allows counties to offer electronic recording.²⁹ Not all New Mexico counties offer electronic recording, and counties that do must still accept deeds in paper format.³⁰

A deed filed with a county clerk in a digital format and with an electronic signature in compliance with URPERA counts as an original, signed document eligible for recording—provided the deed satisfies New Mexico’s other deed requirements.³¹

What Is the Cost of Filing a New Mexico Deed?

New Mexico’s fee for recording deeds is $25.00—which must be paid to the county clerk at the time of recording.³² The number of pages does not affect the recording fee. Deeds with over 10 index entries incur an additional $25.00 fee for each additional block of 10 or fewer index entries.³³

Does New Mexico Charge a Transfer Tax for Real Estate Transfers?

New Mexico does not charge a transfer, deed, or similar tax on deeds that transfer New Mexico real estate.

Does New Mexico Require Any Additional Forms When Recording a Deed?

New Mexico requires a residential property transfer declaration affidavit (RPTDA) when recording a non-exempt deed that transfers residential real estate to a new owner.³⁴ The New Mexico Department of Revenue publishes a form for the affidavit, and some counties have their own preferred forms.

Form RPTDA provides the parties’ names and addresses, a property description, the value of the property, and the consideration paid for the transfer.³⁵ State and local governments use the information to develop methods for assessing real estate.

The current owner, new owner, or authorized agent who presents a deed for recording must submit the signed affidavit to the county assessor within 30 days after a deed is filed.³⁶

Which Deeds Are Exempt from the Residential Property Transfer Declaration Affidavit?

New Mexico’s law requiring the RPTDA lists 17 types of transfers that are exempt from the requirement.³⁷ Deeds that do not require a completed Form RPTDA include:

• Deeds transferring nonresidential real estate;
• Deeds to or from the United States, the State of New Mexico, or a political subdivision of either;
• Quitclaim deeds quieting title or clearing boundary disputes;
• Deeds made pursuant to a court order;
• Deeds confirming or correcting a previously recorded deed;
• Deeds between a parent and child or between spouses with nominal or no consideration;
• Deeds arising from mergers or incorporations;
• Deeds from a subsidiary to a parent corporation with nominal or no consideration or consideration limited to cancelation or surrender of the subsidiary’s stock;
• Deeds to a trustee or from a trustee to a trust beneficiary with nominal or no consideration;
• Deeds to or from an intermediary to create a joint tenancy or another ownership form; and
• Deeds transferring real estate as a gift or distributing real estate from a deceased owner’s estate or trust.

1. See N.M. Stat. § 47-1-14.
2. N.M. Stat. § 47-1-44(3).
3. See N.M. Stat. § 40-3-8(B).
4. N.M. Stat. § 47-1-44(1).
5. N.M. Stat. § 47-1-37.
6. See Garcia v. Herrera, 959 P.2d 533, (N.M. 1998).
7. N.M. Stat. § 47-1-44(5).
8. N.M. Stat. § 47-1-38.
9. See N.M. Stat. § 47-1-14.
10. N.M. Stat. § 45-6-405.
11. N.M. Stat. § 47-1-19.
12. N.M. Stat. § 47-1-15.
13. N.M. Stat. §§ 47-1-35; 47-1-36.
14. N.M. Stat. § 47-1-16.
15. See Swink v. Fingado, 850 P.2d 978 (N.M. 1993) (New Mexico real estate owned by married spouses “may be both community property and joint tenancy property, in which case it is not subject to the testamentary disposition of either spouse”).
16. N.M. Stat. § 46A-4-402.
17. N.M. Stat. § 46A-4-402(A)(5).
18. See New Mexico Community Property Act, N.M. Stat. §§ 40-3-6, et seq.
19. N.M. Stat. § 40-3-8(B).
20. N.M. Stat. § 45-3-1205.
21. N.M. Stat. § 40-3-8(F).
22. N.M. Stat. § 40-3-13(A).
23. N.M. Stat. § 40-3-13(B).
24. N.M. Stat. § 45-2-102(A).
25. N.M. Stat. §§ 45-2-102(B); 45-3-1205.
26. N.M. Stat. § 14-8-2.
27. N.M. Stat. § 14-9-1.
28. N.M. Stat. § 14-9-2.
29. N.M. Stat. §§ 14-9A-1, et seq.
30. N.M. Stat. § 14-9A-4(B)(4).
31. N.M. Stat. § 14-9A-3.
32. N.M. Stat. § 14-8-15(B).
33. N.M. Stat. § 14-8-15(C).
34. N.M. Stat. § 7-38-12.1(A).
35. N.M. Stat. §§ 7-38-12.1(B)(1)-(4).
36. N.M. Stat. § 7-38-12.1(A).
37. N.M. Stat. § 7-38-12.1(D)(1)-(17).