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Could Calif. nightmare tenant case happen in NM?

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“Guests, like fish, begin to smell after three days.”

– Benjamin Franklin (1706-1790)

The 1990 movie “Pacific Heights” was billed as the first “eviction thriller.” Using the tag-line, “He seemed like the perfect tenant, until they asked him to leave,” the film tells the story of a young couple’s escalating and ultimately fatal struggle with a tenant in their San Francisco apartment house.

This week, a leading national news story explores another California landlord-tenant nightmare.

Could it happen here in New Mexico ?

In early March, 2014, Ralph and Marcella Bracamonte hired Diane Stretton as a live-in nanny at their home in the Los Angeles suburb of Upland. Reportedly, all went well at first, then Stretton began refusing to do any nanny work, shutting herself up in her room instead.

The Bracamontes took umbrage at Stretton’s refusal to help around the house as agreed, but Stretton was resolute in her refusal. Marcella Bracamonte fired her on June 6.

July 4th was still a month away, but that’s when the fireworks began at the Bracamonte residence.

Stretton not only refused to leave the home, but threatened the Bracamontes with legal action if they did not meet her demands, including vacating the house entirely for part of each day.

Stretton, you see, took the position that she was a legal tenant of the Bracamontes and entitled to all the benefits of their home and all the protections of California’s rather complicated landlord-tenant statutes.

When Ralph and Marcella called the police, they were informed that a court order evicting Stretton would be necessary since it was undisputed the original employment agreement provided her “room and board.”

The Bracamontes filed suit to evict her, but for the duration of the process Stretton gets to stay in the Bracamontes home for free and they could face serious legal consequences if they limit access or services such as air conditioning, electricity, etc.

It is notable that Stretton recently did a radio interview in which she claimed she was abused by the Bracamontes and had quit the job before they fired her. If she had quit the job which provided her “room and board,” how could Stretton’s claim of continuing tenancy still fly?

Stretton reportedly offered to vacate their home if the Bracamontes meet certain conditions. Stretton’s specific conditions are not disclosed, but I suspect they have a lot more to do with dollars than with donuts.

Stretton is, after all, an experienced litigant, having sued dozens of people in dozens of courtrooms over the years.

She is featured on California’s “Vexatious Litigants List,” a statewide registry of those who file frivolous lawsuits for harassment and other improper motives.

Could this happen in New Mexico?

New Mexico adopted the Uniform Owner-Resident Relations Act in 1975 to “simplify, clarify, modernize, and revise the law governing [residential rentals].” The act imposes principles of law and equity, as well as a duty to act in good faith, on every party in every residential rental agreement.

The rights and responsibilities of both landlord and tenant are specified, as are the legal procedures for dispute resolution and the penalties for violation of law by either party.

For the most part, eviction cases are brought before a New Mexico court in days, not weeks or months. Essential to today’s inquiry, residence under an employment agreement is not a residential tenancy subject to the act’s protections and procedures if occupancy is conditioned on continued employment.

Assuming the Bracamontes had a written agreement that made ongoing employment a specific condition of Stretton’s residency, it is doubtful under New Mexico law that Stretton would still be living in the home weeks or even months after she was fired.

Why didn’t the Bracamontes do a background check before hiring Stretton to care for their kids and live in their home? They did, but it failed to turn up her history of employment shenanigans and malicious litigation.

The investigator’s possible negligence in conducting the background check, however, does not have any direct effect on Ralph’s and Marcella’s battle with Stretton for control of their home. That will be determined under California law.

If I had conducted the check, I might be in nervous contact with my lawyer.

You can “judge for yourself” whether the termination of employment – regardless of whether she was fired or quit – makes Stretton simply a trespasser subject to summary removal, or a tenant entitled to all legal protections.

But if you want a live-in nanny in New Mexico, maybe you’d better consult a lawyer first.

Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the Court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, contact Judge Malott at PO Box 8305 Albuquerque, NM 87198 or email to: alan@malottlaw.com. Opinions expressed here are solely those of Judge Alan M. Malott individually and not those of the court.

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