A. Any resident of this state who does not own a homestead shall in addition to other exemptions hold exempt real or personal property in the amount of five thousand dollars ($5,000) in lieu of the homestead exemption.

B. If the resident does not own a homestead, the sheriff or any other person or officer seeking to attach, execute or foreclose by judgment on property shall provide the resident with written notification of the resident's right to exemption in lieu of homestead as described in Subsection A of this section, together with a simple form by which the resident may designate that the resident is aware of the exemption and does or does not desire to claim the exemption. If the resident refuses to make the election provided for in this section, the sheriff, other person or officer shall proceed to attach, execute or foreclose on the resident's property. If the resident claims the exemption in lieu of homestead, the sheriff, other person or officer making attachment, execution or foreclosure by judgment shall file as part of the return a description, including the resident's stated value, of the property claimed as exempt, bearing the resident's signature witnessed by the sheriff, other person or officer seeking to attach, execute or foreclose.

History: 1953 Comp., § 24-6-2, enacted by Laws 1971, ch. 215, § 7; 1979, ch. 9, § 2; 1979, ch. 182, § 4; 2007, ch. 95, § 2.

Repeals and reenactments. — Laws 1971, ch. 215, § 7, repealed 24-6-2, 1953 Comp., relating to the homestead exemption for persons owning the superstructure of a dwelling house, but not the land, and lessees, and enacted a new section.

Cross references. — For rules governing garnishment and writs of execution in the district, magistrate, and metropolitan courts, see Rules 1-065.1, 2-801, and 3-801 NMRA, respectively.

For form for claim of exemptions on executions, see Rule 4-803 NMRA.

For form for order on claim of exemption and order to pay in execution proceedings, see Rule 4-804 NMRA.

For form for application for writ of garnishment and affidavit, see Rule 4-805 NMRA.

For form for notice of right to claim exemptions from execution, see Rule 4-808A NMRA.

For form for claim of exemption from garnishment, see Rule 4-809 NMRA.

The 2007 amendment, effective June 15, 2007, increased the exemption in lieu of homestead from $2,000 to $5,000.

The 1979 amendment, designated the previously undesignated paragraph as Subsection A; substituted "shall" for "may" preceding "in addition to" near the middle of Subsection A; added Subsection B; and substituted "two thousand dollars ($2,000)" for "one thousand dollars ($1,000)" near the end of Subsection A.

Constitutionality. — The postjudgment execution statutes are unconstitutional as not providing adequate notice of allowable exemptions and the right to a hearing. Aacen v. San Juan Cnty. Sheriff's Dep't, 944 F.2d 691 (10th Cir. 1991).

Effect of creation of exemptions. — By creating exemptions from execution, New Mexico has granted judgment debtors a property interest in retaining their exempt property. While the state need not grant such exemptions, once given, the property rights they create are entitled to due process protection. Aacen v. San Juan Cnty. Sheriff's Dep't, 944 F.2d 691 (10th Cir. 1991).

Law reviews. — For comment, "A Comparison of State and Federal Exemptions: 11 U.S.C. § 101-1330 (Supp. II 1978)," see 10 N.M.L. Rev. 431 (1980).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 35 C.J.S. Exemptions §§ 7, 39, 56, 88, 138.