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 or in binding arbitration within that time to enforce the lien. A contingent payment clause in a contract shall not be construed as a waiver of the right to file and enforce a mechanic's or materialman's lien pursuant to Sections 48-2-1 through 48-2-17 NMSA 1978.
History: Laws 1880, ch. 16, § 9; C.L. 1884, § 1527; C.L. 1897, § 2224; Code 1915, § 3326; C.S. 1929, § 82-209; 1941 Comp., § 63-209; 1953 Comp., § 61-2-9; Laws 1979, ch. 168, § 2; 1990, ch. 92, § 1; 2007, ch. 212, § 3.
ANNOTATIONSThe 2007 amendment, effective June 15, 2007, tolled the limitation if the lien was submitted to arbitration within the two-year period and provided that a contingent payment clause shall not be construed as a waiver of the right to file and enforce a lien.
The 1990 amendment, effective May 16, 1990, rewrote the section to the extent that a detailed comparison is impracticable.
Definition of "credit". — "Credit" as that term is used in the statute, refers to terms for payment agreed upon when the sale is made, or possibly at a later time, but before filing of the claim of lien. Mut. Bldg. & Loan Ass'n v. Fidel, 1968-NMSC-015, 78 N.M. 673, 437 P.2d 134 (decided under prior law).
Commencement of proceeding by filing, service of motion. — The filing and service of a motion to intervene, accompanied by a pleading setting forth the claim, constitutes the commencement of a proceeding for the mechanic's lien. Brito v. Carpenter, 1970-NMSC-104, 81 N.M. 716, 472 P.2d 979; Callaway v. Ryan, 1960-NMSC-088, 67 N.M. 283, 354 P.2d 999.
Suit timely if within six months after debt due. — If the agreement contemplated time in which to pay (credit), then the requirement that suit to foreclose the lien must be brought within one year after filing was extended so as to make timely a suit filed within six months after the debt was due, but not later than two years after completion of the work. Mut. Bldg. & Loan Ass'n v. Fidel, 1968-NMSC-015, 78 N.M. 673, 437 P.2d 134 (decided prior to 1990 amendment).
Judgment reversed where late filing to enforce lien. — Under former mechanics' lien statutes the pleading seeking the enforcement of a lien against the property had to be filed in the proper court within one year (now two years) from the date of filing the lien, and where no such pleading was filed to enforce appellee's lien within that time the judgment for plaintiff had to be reversed. Brito v. Carpenter, 1970-NMSC-104, 81 N.M. 716, 472 P.2d 979 (decided prior to 1990 amendment).
Once attached, statute of limitations not suspended by subsequent disability. — The right to foreclosure existed immediately upon the filing of the lien, and the period of limitations immediately began to run, and any disability which arrested the running of the statute had to exist at the time the right of action accrued. The statute having once attached, the period continued to run, and was not suspended by any subsequent disability. Mut. Bldg. & Loan Ass'n v. Fidel, 1968-NMSC-015, 78 N.M. 673, 437 P.2d 134 (decided prior to 1990 amendment).
Automatic stay in bankruptcy proceeding. — Statutory enforcement period was tolled pursuant to the federal bankruptcy law, where an automatic stay arising from the filing of a bankruptcy petition had prevented the lienholder from foreclosing on property leased by the owner to the bankruptcy debtor. Valley Transit Mix of Ruidoso, Inc. v. Miller, 928 F.2d 354 (10th Cir. 1991).
Issue treated as raised by pleadings where tried with consent. — Where appellants made no objection to evidence of contractor's license and raised neither the jurisdiction nor the limitation question at trial, and requested no findings on either question, the requirement of the allegation of a contractor's license was a matter of public policy and did not, otherwise, bear any relation to the cause of action; and appellant cannot object to appellate court treating an issue tried with consent of the parties as though it had been raised by the pleadings. Daughtrey v. Carpenter, 1970-NMSC-151, 82 N.M. 173, 477 P.2d 807.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 53 Am. Jur. 2d Mechanics' Liens §§ 348 et seq., 408, 409, 410.
56 C.J.S. Mechanics' Liens §§ 258, 323 to 330.