Conditional Waiver and Release of Lien Upon Progress Payment
Note: This summary is not intended to be an all inclusive
discussion of New Mexico's construction or mechanic's lien laws, but does
include basic provisions.
What is a construction or mechanic's lien?
Every State permits
a person who supplies labor or materials for a construction project to
claim a lien against the improved property. While some states differ
in their definition of improvements and some states limit lien claims to
buildings or structures, most permit the filing of a document with the
local court that puts parties interested in the property on notice that
the party asserting the lien has a claim. States differ widely in
the method and time within which a party may act on their lien. Also
varying widely are the requirements of written notices between property
owners, contractors, subcontractors and laborers, and in some cases lending
institutions. As a general rule, these statutes serve to prevent
unpleasant surprises by compelling parties who wish to assert their legal
rights to put all parties who might be interested in the property on notice
of a claim or the possibility of a claim. This by no means constitutes
a complete discussion of construction lien law and should not be interpreted
as such. Parties seeking to know more about construction laws in
their State should always consult their State statutes directly.
Who can claim a lien in this State?
Every person performing
labor upon, providing or hauling equipment, tools or machinery for or furnishing
materials to be used in the construction, alteration or repair of any mine,
building, wharf, bridge, ditch, flume, tunnel, fence, machinery, railroad,
road or aqueduct to create hydraulic power or any other structure, who
performs labor in any mine or is a registered surveyor or who surveys real
property has a lien upon the same for the work or labor done, for the specific
contract or agreed upon charge for the surveying or equipment, tools or
machinery hauled or provided or materials furnished by each respectively,
whether done, provided, hauled or furnished at the instance of the owner
of the building or other improvement or his agent.
How long does a party have to claim a lien?
Every original contractor,
within one hundred and twenty days after the completion of his contract,
and every person, except the original contractor, desiring to claim a lien
pursuant to Sections 48-2-1 through 48-2-19 NMSA 1978, must, within ninety
days after the completion of any building, improvement or structure, or
after the completion of the alteration or repair thereof, or the performance
of any labor in a mining claim, file for record with the county clerk of
the county in which such property or some part thereof is situated, a claim
containing a statement of his demands, after deducting all just credits
and offsets.
What kind of notice is required prior to filing
a lien?
No lien of a mechanic
or a materialman claimed in an amount of more than five thousand dollars
($5,000) may be enforced by action or otherwise unless the lien claimant
has given notice in writing of his right to claim a lien in the event of
nonpayment and that notice was given not more than sixty days after initially
furnishing work or materials, or both, by either certified mail, return
receipt requested, Fax with acknowledgment or personal delivery.
How long is a lien good for?
No lien provided for
in Sections 48-2-1 through 48-2-17 NMSA 1978 remains valid for a longer
period than two years after the claim of lien has been filed unless proceedings
have been commenced in a court of competent jurisdiction within that time
to enforce the lien.
Are liens assignable?
New Mexico statutes
on construction liens do not specifically speak to whether liens may be
assigned to other parties.
Does this State require or provide for a notice
from subcontractors and laborers to property owners?
Yes. A lien claim
of more that $5,000 must be preceded by a Notice of Right to Claim a Lien.
In addition, a subcontractor or other party may make a written demand to
the contractor or property owner, requesting information vital to the filing
of a lien claim. The owner or contractor must respond within five
(5) days or risk losing important defenses in any legal action that follows.
Does this State require or provide for a notice
from the property owner to the contractor, subcontractor, or laborers?
New Mexico law does
not provide or require specific notices from the property owner to contractors,
subcontractors, or laborers, however, please see Notice of Non Responsibility,
below.
Does this State require a notice prior to starting
work, or after work has been completed?
No. New Mexico
statutes do not require a Notice of Commencement or a Notice of Completion
as required in some other States.
Does this State permit a person with an interest
in property to deny responsibility for improvements?
Yes. A party providing
labor or material for the improvement of property is entitled to a lien
against that property, unless the owner or person having or claiming an
interest in the property shall, within three days after he shall have obtained
knowledge of the construction, alteration or repair, or the intended construction,
alteration or repair, give notice that he will not be responsible for the
same, by posting a notice in writing to the effect, in some conspicuous
place upon said land, or upon the building or other improvement situated
thereon.
Is a notice attesting to the satisfaction of a
lien provided for or required?
No. New Mexico
statutes do not provide for or require that a lien holder who has been
paid produce or file a notice to that effect.
By what method does the law of this State permit
the release of a lien?
The owner of
any building, mining claim, improvement or structure subject to a lien
under Sections 48-2-1 through 48-2-17 NMSA 1978 may petition the district
court for the county in which the property or a part thereof is located
for an order cancelling the lien.
