Every building or other improvement mentioned in the second section [48-2-2 NMSA 1978] of this article, constructed upon any lands with the knowledge of the owner or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this article, unless such owner or person having or claiming an interest therein 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.
History: Laws 1880, ch. 16, § 11; C.L. 1884, § 1529; C.L. 1897, § 2226; Code 1915, § 3327; C.S. 1929, § 82-210; 1941 Comp., § 63-210; 1953 Comp., § 61-2-10.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Any interest claimed. — The reference in Section 48-2-11 NMSA 1978 to "any interest claimed" suggests that, even if a leasehold constitutes personal property for the purposes of Chapter 48, the leasehold can still be subject to a mechanic's lien. In re Furr's Supermarkets, Inc., 315 B.R. 776 (Bankr. D.N.M. 2004)
Theory of act. — This act is based on considerations of benefits deemed adequate to overcome constitutional barriers, absence of which may not be proved to defeat lien claimed, and to raise against owner the conclusive presumption that he consented to improvements of which he knew if within three days after acquiring such knowledge he does not post, on premises in another's possession, statutory notice of nonliability. Petrakis v. Krasnow, 1949-NMSC-073, 54 N.M. 39, 213 P.2d 220.
Time for posting. — Although lessor has granted lessee rent free for a year in consideration of repairs to the building, and hence had knowledge that repairs had to be made, his posted notice three days after he had knowledge that work had actually begun was timely. Rio Grande Lumber & Fuel Co. v. Buergo, 1937-NMSC-078, 41 N.M. 624, 73 P.2d 312.
Time of notice of nonresponsibility as to third parties. — When the claimant gives the owner, in his claim, the name of the party with whom the contract was made, it becomes the owner's duty, within three days after he shall have obtained knowledge of the contract, to give notice that he will not be responsible for the same, and if he fails to do so he is bound by the lien. E.J. Post & Co. v. Miles, 1893-NMSC-033, 7 N.M. 317, 34 P. 586.
Personal liability of owner to subcontractors. — Property owner cannot be held personally liable to subcontractors for work and material where there was no contractual relationship between him and the subcontractors and the principal contractor had agreed to pay them. Allison v. Schuler, 1934-NMSC-072, 38 N.M. 506, 36 P.2d 519.
By posting notice of nonliability, owner does not become a guarantor that the notice thus given in statutory form will always be brought home to potential lien claimants. Petrakis v. Krasnow, 1949-NMSC-073, 54 N.M. 39, 213 P.2d 220.
Lien when owner with knowledge, failed to post notice. — Contractor doing earth work in constructing ditch and reservoir system was entitled to lien thereon and land appurtenant thereto where it appeared that his employer, by a contract with the owner, was to receive part of the proceeds of sale of such lands when sold at an increased value, after construction of the ditch, that owner had full notice of the construction contract, and that owner gave no notice that it would not be responsible for the work as required by this section. Ford v. Springer Land Ass'n, 1895-NMSC-011, 8 N.M. 37, 41 P. 541, aff'd, 168 U.S. 513, 18 S. Ct. 170, 42 L. Ed. 562 (1897).
Failure to post notice. — Where the owners of a mine have known of the employment of laborers by their agent and fail to post notice as above provided, the laborers are entitled to a lien. Pearce v. Albright, 1904-NMSC-015, 12 N.M. 202, 76 P. 286; Post v. Fleming, 1900-NMSC-033, 10 N.M. 476, 62 P. 1087.
Legal owner with duty to post notice. — Where one pays part of the purchase price for real estate and takes possession in order to make improvements, but legal title remains in another, it is the duty of the party holding legal title, if he knows the work is being done and he wishes to protect his interest in the real estate against the possibility of lien claims, to post notice on the property that he will not assume any responsibility for any work done or material furnished. Hill v. Long, 1956-NMSC-066, 61 N.M. 299, 299 P.2d 472.
Vendee under executory contract not vendor's agent. — Vendee, under executory contract reserving legal title in vendor, though "builder" of improvements thereon, was not agent of vendor. Albuquerque Lumber Co. v. Tomei, 1926-NMSC-033, 32 N.M. 5, 250 P. 21.
If no posting because of representation, owner protected by equity. — Where contractor's representative promised land owner that mechanic's lien would not be filed against the land if owner refrained from posting a nonresponsibility notice, equitable estoppel applied to prevent foreclosure of lien against land by contractor, despite lack of nonresponsibility notice. Franklin's Earthmoving, Inc. v. Loma Linda Park, 1964-NMSC-219, 74 N.M. 530, 395 P.2d 454.
Oral notice insufficient. — Where a lumber company sells materials to a purchaser of a lot on contract, title to which has not yet been acquired, oral notice by lot owner to the lumber company, that the purchaser has no title, is not sufficient to avoid liability of the lot owner on mechanic's lien absent the posting of the premises required by this section. Albuquerque Lumber Co. v. Montevista Co., 1934-NMSC-086, 39 N.M. 6, 38 P.2d 77 (1934).
Notice irrelevant when owner involved in contract. — An owner of land who, himself, orders or contracts for an improvement to be erected thereon cannot escape responsibility for materials purchased for use in the improvement, and the posting of a notice in such a case amounts to nothing. Skidmore v. Eby, 1953-NMSC-098, 57 N.M. 669, 262 P.2d 370.
This section is not applicable to a person who caused the building to be constructed or who contracted for the improvements directly or indirectly. Skidmore v. Eby, 1953-NMSC-098, 57 N.M. 669, 262 P.2d 370.
Good faith posting required. — A vendor under executory contract for sale of real estate does not automatically absolve his premises from liability by the mere physical act of posting notices when, contrary to the legislative intent, the posting was not in good faith and was done under circumstances which the vendor must have realized would preclude the notice contemplated by the act. Petrakis v. Krasnow, 1949-NMSC-073, 54 N.M. 39, 213 P.2d 220.
Owner with good faith duty to replace notice. — Where owner learns that notice he has previously posted has been destroyed or torn down before reasonable time has elapsed, good faith calls upon him to repost. Petrakis v. Krasnow, 1949-NMSC-073, 54 N.M. 39, 213 P.2d 220.
Presumption notices remained posted. — Where notices of nonresponsibility had been posted securely by the vendor on two buildings and on board fence behind which construction was proceeding and the improvements contracted for by the purchasers in possession did not require demolition of the posting places, supreme court presumed that the notices remained posted for adequate period of time to acquaint the persons whom they were designed to reach with the information to be imparted. Petrakis v. Krasnow, 1949-NMSC-073, 54 N.M. 39, 213 P.2d 220.
Burden shifted to lien claimant by such presumption. — Where presumption has arisen that notices remain posted for sufficient time to impart knowledge to persons sought to be reached, the burden shifts to the lien claimants to develop proof by way of confession and avoidance to nullify effect of the notice thus attempted. Petrakis v. Krasnow, 1949-NMSC-073, 54 N.M. 39, 213 P.2d 220.
In determining whether articles are fixtures, intent is the chief test and must affirmatively and plainly appear. Boone v. Smith, 1968-NMSC-172, 79 N.M. 614, 447 P.2d 23.
Wiring, heating intended as fixtures subject to lien. — Where building required installation of electric wiring and heating to be usable and lease provided that improvements made by lessee with consent of lessor would merge and become part of realty, improvements were intended to be fixtures and subject to mechanics' liens. Boone v. Smith, 1968-NMSC-172, 79 N.M. 614, 447 P.2d 23.
If improvements not fixtures, lien inapplicable. — Where by express terms of a lease it is provided that improvements shall not become fixtures, and where the nature of the article is such that it is not to be permanently attached to the land, it probably remains personalty and not subject to a mechanic's lien. Boone v. Smith, 1968-NMSC-172, 79 N.M. 614, 447 P.2d 23.
Articles part of building where securely attached. — Where articles are securely attached to building and are used for the purpose for which they were installed, these articles annexed to the building with the owner's knowledge became a part of the building itself. Boone v. Smith, 1968-NMSC-172, 79 N.M. 614, 447 P.2d 23.
Foreclosure on mining claims. — In action to foreclose liens on mining claims, owner could consistently take position that disclaimer provision of section did not apply to mining claims and, at same time, contend that if they did, she had complied with them. Mitchell v. McCutcheon, 1927-NMSC-061, 33 N.M. 78, 260 P. 1086 (1927).
Land identification sufficient. — Where lien form claim listed mechanics' claim as against lot upon which minor portion of building was located but statement of charges for work completed correctly described address of building and owners admitted in answer that building was located at the named address, statute requiring that land identified in lien claim be land upon which improvements were made was complied with. Boone v. Smith, 1968-NMSC-172, 79 N.M. 614, 447 P.2d 23.
Notice to general manager of corporation is sufficient notice to corporation. Stearns-Roger Mfg. Co. v. Aztec Gold Mining & Milling Co., 1908-NMSC-001, 14 N.M. 300, 93 P. 706.
If Oil Act applicable, no enforcement without express contract. — Under the Mechanics' Act, a lien may be imposed upon the fee owner's interest if he has knowledge of the construction and fails to disclaim responsibility therefor in the manner and within the time therein provided while under the Oil Act (Section 70-4-1 NMSA 1978 et seq.), the fee owner's interest is subject to a lien only if he expressly so contracts, which is an obvious conflict if both acts apply. It was held that a company which built roads, leveled land, hauled water and provided gravel and load pipe in connection with certain oil and gas exploration and drilling were only entitled to assert a lien under the Oil Act. Butt v. Vermejo Park Corp., 1976-NMSC-075, 89 N.M. 679, 556 P.2d 835.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Knowledge of owner of improvements or repairs, intended or in process under orders of lessee or vendee, as "consent," which will subject his interest to mechanics' liens, 4 A.L.R. 685.
Construction and application of statutory provisions making notice by owner of nonresponsibility for work or improvement on his property necessary to prevent attachment of mechanic's lien, 123 A.L.R. 7, 85 A.L.R.2d 949.
Sufficiency of notice of nonresponsibility, 85 A.L.R.2d 949.
56 C.J.S. Mechanics' Liens §§ 27, 28, 49 to 95.