A. The provisions of Subsections B through D of this section do not apply to claims of liens made on residential property containing four or fewer dwelling units, to claims of liens made by an original contractor or to claims of liens made by mechanics or materialmen who contract directly with the original contractor. For purposes of this section, "original contractor" means a contractor that contracts directly with the owner.
B. 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 the claimant's 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, facsimile with acknowledgement or personal delivery to:
(1) the owner or reputed owner of the property upon which the improvements are being constructed; or
(2) the original contractor, if any.
C. If the owner or the original contractor claims lack of notice as a defense to the enforcement of a lien described in Subsection B of this section, the owner or contractor shall show that upon the request of the mechanic or materialman that the owner or contractor furnished to the lien claimant not more than five days after such request was made:
(1) the original contractor's name, address and license number, if there is an original contractor on the project;
(2) the owner's name and address;
(3) a description of the property or a description sufficiently specific for actual identification of the property; and
(4) the name and address of any bonding company or other surety that is providing either a payment or performance bond for the project.
D. The notice required to be given by the claimant pursuant to the provisions of Subsection B of this section shall contain:
(1) a description of the property or a description sufficiently specific for actual identification of the property;
(2) the name, address and phone number, if any, of the claimant; and
(3) the name and address of the person with whom the claimant contracted or to whom the claimant furnished labor or materials, or both.
E. A person required by the provisions of Subsection B of this section to give notice to enforce the person's claim of lien may elect not to give the notice, but may give the required notice at a later time. If the person elects to do so, the lien shall apply only to the work performed or materials furnished on or after the date thirty days prior to the date the notice was given. The provisions of Subsections C and D of this section apply to any notice given under this subsection.
History: Laws 1990, ch. 92, § 2; 1993, ch. 252, § 2; 2007, ch. 212, § 1.
ANNOTATIONSThe 2007 amendment, effective June 15, 2007, in Subsection A, excluded from Subsections B through D claims of liens made by an original contractor.
The 1993 amendment, effective June 18, 1993, substituted "fewer" for "less" in the first sentence of Subsection A; substituted "right" for "intention" in the introductory paragraph of Subsection B; and, in Subsection E, in the second sentence, deleted "the effective date of" preceding "the lien", substituted "shall apply only to the" for "for", inserted "performed", and substituted "on or after the date" for "will be".
Notice. — Sections 48-2-2, 48-2-2.1, 48-2-5 NMSA 1978 indicate that timing and actual or constructive notice not a general public policy favoring materialmen are the principal considerations in determining priority between suppliers and other creditors, at least in the context of private construction projects. Hasse Contracting Co., Inc. v. KBK Fin., Inc., 1999-NMSC-023, 127 N.M. 316, 980 P.2d 641.
Prelien notice not required. — This section does not require contractor to provide owner of land with a prelien notice. Wilgert Enters., Inc. v. Broadway Vista Partners, 2005-NMCA-088, 137 N.M. 806, 115 P.3d 822.
"Original contractor". — Where owner of land and supermarket company were joint venturers in the construction of a supermarket, contractor's contract with supermarket owner constituted a direct contact with owner of land under this section. Wilgert Enters., Inc. v. Broadway Vista Partners, 2005-NMCA-088, 137 N.M. 806, 115 P.3d 822.
Notice of lien. — Original contractor and its first level subcontractors are not required to give notice in writing of a right to claim a lien in the event of nonpayment. Wilgert Enters., Inc. v. Broadway Vista Partners, 2005-NMCA-088, 137 N.M. 806, 115 P.3d 822.
But all third level and higher subcontractors and those in privity with them must give notice to the owner or original contractor or they will not have an enforceable lien. Wilgert Enters., Inc. v. Broadway Vista Partners, 2005-NMCA-088, 137 N.M. 806, 115 P.3d 822.