New Mexico 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.