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. The claim shall state the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed, or to whom he furnished the materials, and shall include a statement of the terms, time given and the conditions of the contract, and also a description of the property to be charged with the lien, sufficient for identification. The claim must be verified by the oath of himself or of some other person.
History: Laws 1880, ch. 16, § 6; C.L. 1884, § 1524; C.L. 1897, § 2221; Code 1915, § 3323; Laws 1921, ch. 108, § 1; C.S. 1929, § 82-206; 1941 Comp., § 63-206; 1953 Comp., § 61-2-6; Laws 1979, ch. 168, § 1.
ANNOTATIONSI. GENERAL CONSIDERATION.
Compiler's notes. — Sections 48-2-18 and 48-2-19 NMSA 1978, referred to in the first sentence, were repealed by Laws 1981, ch. 352, § 2.
Mechanics' lien law is remedial in nature, equitable in its enforcement and should be liberally construed. Garrett Bldg. Ctrs., Inc. v. Hale, 1981-NMSC-009, 95 N.M. 450, 623 P.2d 570.
Purpose of statutory requirements. — In determining whether there has been substantial compliance, the purpose of the requirements of this section must be kept in mind, the primary object being to give notice to subsequent purchasers and encumbrancers and inform the owner of the extent and nature of the lienor's claim. Marsh v. Coleman, 1979-NMSC-067, 93 N.M. 325, 600 P.2d 271; Garrett Bldg. Ctrs., Inc. v. Hale, 1981-NMSC-009, 95 N.M. 450, 623 P.2d 570.
This statute must be liberally construed. Hot Springs Plumbing & Heating Co. v. Wallace, 1933-NMSC-092, 38 N.M. 3, 27 P.2d 984.
Liberal construction. — The Mechanics' Lien Law, though in derogation of the common law, is remedial in its nature and is to have a liberal construction. Chavez v. Sedillo, 1955-NMSC-039, 59 N.M. 357, 284 P.2d 1026.
Supreme court will follow California decisions in construction of lien statute. Chavez v. Sedillo, 1955-NMSC-039, 59 N.M. 357, 284 P.2d 1026.
Only substantial compliance with terms of this section is required. Marsh v. Coleman, 1979-NMSC-067, 93 N.M. 325, 600 P.2d 271; Garrett Bldg. Ctrs., Inc. v. Hale, 1981-NMSC-009, 95 N.M. 450, 623 P.2d 570.
Claimant's name must appear on claim of lien. — There is no requirement under this section that a claim of lien contain a description of the type of entity that filed it; it is only necessary that the name of the claimant appear on the claim of lien, and courts have been liberal in upholding claims or statements in this respect. Marsh v. Coleman, 1979-NMSC-067, 93 N.M. 325, 600 P.2d 271.
Proof under pleadings inexcusable trouble, expense. — Where under pleadings upon which the plaintiff has elected to stand he would have to prove matters at variance with the claim of lien he is seeking to foreclose, to put the parties to proof would result in inexcusable trouble and expense. Chavez v. Sedillo, 1955-NMSC-039, 59 N.M. 357, 284 P.2d 1026.
Separate orders for material did not create separate liens where the understanding was that the materialman would furnish as much as the owner needed. Hot Springs Plumbing & Heating Co. v. Wallace, 1933-NMSC-092, 38 N.M. 3, 27 P.2d 984.
When overstatement of amount due no invalidation. — In the absence of fraud or bad faith, an overstatement of the amount due does not invalidate a claim of lien. Marsh v. Coleman, 1979-NMSC-067, 93 N.M. 325, 600 P.2d 271.
Effective recording without full payment. — Materialman's lien was filed for record within contemplation of statute even though it was accepted by the clerk without requiring payment of the full fee therefor, and the lien was superior to subsequent mortgage liens upon the premises therein described. Hedrick v. Jagger, 1942-NMSC-047, 46 N.M. 379, 129 P.2d 340.
Superintendent's claim void. — A superintendent's claim for a fixed sum for all his services, part of which was not within the scope of the statute, was void in toto. Boyle v. Mountain Key Mining Co., 1897-NMSC-024, 9 N.M. 237, 50 P. 347.
Notice requirement for a workers' compensation insurer's claim of a lien right against a performance bond, given in connection with a state construction project, was governed by this article, and not by the Little Miller Act, Sections 13-4-18 to 13-4-20 NMSA 1978. State ex rel. Mountain States Mut. Cas. Co. v. KNC, Inc., 1987-NMSC-063, 106 N.M. 140, 740 P.2d 690.
II. SUFFICIENCY OF CLAIM.
A. IN GENERAL.
No special statutory requirements for the allegations in complaints to enforce a mechanic's lien. Daughtrey v. Carpenter, 1970-NMSC-151, 82 N.M. 173, 477 P.2d 807.
Alteration of original lien claim did not void it where cross claim of appellee was not based upon the original lien claim, but upon supplemental lien claim attached to the pleading which appeared to be timely filed, to contain the necessary recitals, and to be properly verified. Daughtrey v. Carpenter, 1970-NMSC-151, 82 N.M. 173, 477 P.2d 807.
Notice attachment to complaint not required. — In action to foreclose, a copy of the notice of lien need not be attached to the complaint, the action not being founded on the notice. Weggs v. Kreugel, 1922-NMSC-021, 28 N.M. 24, 205 P. 730.
Recorded lien, lacking acknowledgment, valid and binding between parties. — A valid materialmen's lien which lacked an acknowledgment, but had been filed and recorded, was valid and binding as between the parties to an action on the lien. Garrett Bldg. Ctrs., Inc. v. Hale, 1981-NMSC-009, 95 N.M. 450, 623 P.2d 570.
Evidence. — Circumstantial evidence is sufficient to foreclose on a materialmen's lien. Consol. Elec. Distribs., Inc. v. Santa Fe Hotel Group, LLC, 2006-NMCA-005, 138 N.M. 781, 126 P.3d 1145.
Direct evidence is not required to establish the required elements for a valid lien. Consol. Elec. Distribs., Inc. v. Santa Fe Hotel Group, LLC, 2006-NMCA-005, 138 N.M. 781, 126 P.3d 1145.
B. IDENTIFICATION OF LAND.
Claim should contain a description of the property sufficient for identification. Ackerson v. Albuquerque Lumber Co., 1934-NMSC-010, 38 N.M. 191, 29 P.2d 714.
Requirement of land identification in claim complied with. — 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.
Insufficient identification of land. — Property described as "Lot one (1) of block numbered thirty-five (35) in the Terrace Addition" was not sufficiently identified where there was no block 35 in the Terrace Addition. Ackerson v. Albuquerque Lumber Co., 1934-NMSC-010, 38 N.M. 191, 29 P.2d 714.
Actual knowledge irrelevant as to land description. — Actual knowledge plays no part in the test of description "sufficient for identification," and the same rule applies in case of the owner or one in possession of the facts as against the subsequent purchaser or encumbrancer in good faith. Ackerson v. Albuquerque Lumber Co., 1934-NMSC-010, 38 N.M. 191, 29 P.2d 714.
C. IDENTIFICATION OF PARTIES.
Owner identification sufficient. — Notices of claims for mechanics' liens were not insufficient because they alleged that the defendant "was the owner or reputed owner" of the mine against which the liens were sought to be established, since the designation made no difference in the liability. Minor v. Marshall, 1891-NMSC-029, 6 N.M. 194, 27 P. 481.
Contrasting party required to be named. — This section did not require lien claimant to advise owner that lien was created by virtue of contract made with owner's agent, but it did require claimant to give owner name of party with whom contract was made. 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); E.J. Post & Co. v. Miles, 1893-NMSC-033, 7 N.M. 317, 34 P. 586.
D. STATEMENT OF TERMS.
Claim showing amount due sufficient. — Claim for mechanic's lien was sufficient, which showed amount due after deducting credits and offsets for excavation and embankments made under special contract, copy of which was attached to claim. Springer Land Ass'n v. Ford, 168 U.S. 513, 18 S. Ct. 170, 42 L. Ed. 562 (1897), aff'g, 1895-NMSC-011, 8 N.M. 37, 41 P. 541.
Statement of contract terms. — This section requires "a statement of the terms, time given and conditions of his contract" and where under this recital in the printed form is typed "30 days net cash," the lien claim would comply with the requirements of the statute. Daughtrey v. Carpenter, 1970-NMSC-151, 82 N.M. 173, 477 P.2d 807.
Requirements for lien claim. — The claim of lien must not only contain a statement of the terms, time given and conditions of the contract, but such statement must be true. Chavez v. Sedillo, 1955-NMSC-039, 59 N.M. 357, 284 P.2d 1026.
E. STATUTE OF LIMITATIONS.
Materialmen's liens must be filed within statutory period, after which the remedy becomes unavailable to the claimant. Garrett Bldg. Ctrs., Inc. v. Hale, 1981-NMSC-009, 95 N.M. 450, 623 P.2d 570.
Lien timely filed 90 days after job completion. — Where the lien was filed on July 25, 2001, as the job was completed on April 26, 2001, and 90 days from April 26 expired on July 25, the lien was timely filed. Consol. Elec. Distribs., Inc. v. Santa Fe Hotel Group, LLC, 2006-NMCA-005, 138 N.M. 781, 126 P.3d 1145.
No running of limitations where structure not substantially completed. — Where contractor failed to install elevating doors to a driveway through a wall of funeral home structure, or seven wheel guards on driveway, or iron pipe balcony rail, or ornamental iron grilles on three windows, structure was not substantially completed so as to start running of limitations against a mechanic's lien. Allison v. Schuler, 1934-NMSC-072, 38 N.M. 506, 36 P.2d 519.
"Substantial completion" of a building, improvement or structure is adequate to start the running of the limitation period within which a claim of lien of a material supplier must be filed. Tabet Lumber Co. v. Baughman, 1968-NMSC-061, 79 N.M. 57, 439 P.2d 706.
Explanation of "substantial completion". — Under former law, it was held that substantial completion was completion within meaning of provision of Mechanic's Lien Law (prior to 1921 amendment) requiring subcontractor to file lien within 60 days after completion of building. Baldridge v. Morgan, 1910-NMSC-003, 15 N.M. 249, 106 P. 342; Genest v. Las Vegas Masonic Bldg. Ass'n, 1902-NMSC-003, 11 N.M. 251, 67 P. 743.
Building is "substantially completed" notwithstanding trivial imperfections or omissions. Tabet Lumber Co. v. Baughman, 1968-NMSC-061, 79 N.M. 57, 439 P.2d 706.
A building is substantially completed for purpose of determining timeliness of mechanics' liens when all of the essentials necessary to the full accomplishment of the purpose for which the building has been constructed are performed. Tabet Lumber Co. v. Baughman, 1968-NMSC-061, 79 N.M. 57, 439 P.2d 706.
Period limited for filing a lien begins to run, as to each item of a running account, from the date when the last item was furnished. Skidmore v. Eby, 1953-NMSC-098, 57 N.M. 669, 262 P.2d 370.
Lien timely filed two months after furnishing materials. — Where none of the several suspensions of work on the house were caused by any act or default chargeable to the material furnisher, and all of them were occasioned by the contractor's recurring breaches of the construction contract, and where the owner never abandoned his attempts to persuade the contractor to resume work and complete his original contract, twice amended, and although it took 33 months to finish the job, and where the owner paid all material bills due the materialman except those incurred during the last 18 months before completion, under such circumstances the lien filed within two months after furnishing the last item of material was filed in time. Skidmore v. Eby, 1953-NMSC-098, 57 N.M. 669, 262 P.2d 370.
Suit filed timely 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.
Abandonment equivalent to completion. — Where dumbwaiter accessory was abandoned by agreement of contractor and homeowners more than 90 days before lumber supplier filed mechanic's lien, such abandonment was equivalent in law to completion for purpose of determining timeliness of filing of mechanic's lien. Tabet Lumber Co. v. Baughman, 1968-NMSC-061, 79 N.M. 57, 439 P.2d 706.
Temporary interruption not abandonment. — The temporary interruption in the furnishing of materials by a materialman, pending the making of more satisfactory credit arrangements, is not an abandonment of the undertaking to start the running of limitations. Hot Springs Plumbing & Heating Co. v. Wallace, 1933-NMSC-092, 38 N.M. 3, 27 P.2d 984.
Omitting work to seek additional finances did not constitute abandonment. Allison v. Schuler, 1934-NMSC-072, 38 N.M. 506, 36 P.2d 519.
Equitable tolling. — District court acted within its discretion in applying equitable principles to toll the running of the filing deadline; although the contractors were told they would be paid upon inspection of the property and closing of the loan, they did not receive notice of an inspection or closing date despite repeated attempts to secure such information from the loan officer, and as such, the running of the 120-day filing deadline started from the time that the contractors realized they would not be paid in full from the proceeds of the owners' loan. Chase Manhattan Mortg. Corp. v. Caraway, 2003-NMCA-020, 133 N.M. 291, 62 P.3d 748.
Right to foreclosure existed immediately upon filing lien, and the six-month period of limitations immediately began to run, and any disability which arrests the running of the statute must exist at the time the right of action accrues. The statute having once attached, the period will continue to run, and is not suspended by any subsequent disability. Mut. Bldg. & Loan Ass'n v. Fide, 1968-NMSC-015, 78 N.M. 673, 437 P.2d 134.
No foreclosure right upon filing invalid lien. — The mere filing of a materialman's lien did not give defendant the right to foreclose the lien, where the lien was invalid from its inception because it was filed after defendant knew that the swimming pool heater he had furnished was not actually used, and it was not a part of the swimming pool. Branch v. Mays, 1976-NMCA-086, 89 N.M. 536, 554 P.2d 1297.
No extension unless offered accepted. — The claim and statement which constituted a mechanic's lien had to be filed within 60 days (now 90 days) after completion of the contract, and a proposal to extend the contract unless accepted was of no effect as an extension. Wiley v. San Pedro & Canon Del Agua Co., 1889-NMSC-009, 5 N.M. 111, 20 P. 115.
Abbreviated filing period contingent on notice to subcontractor. — Where no notice was given by the contractor to the subcontractor as required in Paragraph B of 48-2-10.1 NMSA 1978 (repealed), the abbreviated 20-day notice requirement of that section is not applicable, and a subcontractor is entitled to rely on the 90-day notice provision of this section. Pyburn v. Kirkpatrick, 1987-NMSC-076, 106 N.M. 247, 741 P.2d 1368.
Time for filing. — Under former law, it was held that the provision of the mechanic's lien statute (prior to 1921 amendment) requiring subcontractor to file lien within 60 days after completion of building did not fix period of time during which a lien of a subcontractor had to be filed, but fixed a point of time after which such lien could not be filed. Baldridge v. Morgan, 1910-NMSC-003, 15 N.M. 249, 106 P. 342.
F. VERIFICATION.
Verification requirement of this section is to be liberally construed. Garrett Bldg. Ctrs., Inc. v. Hale, 1981-NMSC-009, 95 N.M. 450, 623 P.2d 570.
Verification of entire claim required. — The claim itself, and not any one or more averments of the claim less than all, must be verified. Minor v. Marshall, 1891-NMSC-029, 6 N.M. 194, 27 P. 481.
Verification is a mandatory precondition to the lien's validity. — The use of the word "must" in the statute requiring verification by oath conveys the legislature's setting a mandatory precondition to the lien's validity. In enacting this section, the legislature required some positive affirmation of good faith undertaken upon oath as to the contents of a notice of lien to render any claim thereof valid. Without verification, no lien is created. Sonida, LLC v. Spoverlook, LLC, 2016-NMCA-026.
In a dispute arising out of or relating to a lien action following a dispute over construction of a house, where plaintiff filed a claim of lien against the home to protect its interests, but where none of the lien documents included any language verifying upon oath the truth of its contents, plaintiff's claims of lien were void ab initio because no valid lien was created, and they could not therefore support a foreclosure action on the lien as a matter of law, or provide any basis for action under 48-2-14 NMSA 1978 or attorney fees to be awarded under that statute. Sonida, LLC v. Spoverlook, LLC, 2016-NMCA-026.
Failure of verification fatal. — Where, though claim for mechanic's lien purported to have been sworn to, neither the signature nor seal of the officer before whom it was purportedly verified appeared, such failure was fatal to admissibility of the paper as a claim of lien and to the right to enforce any lien based thereon. Finane v. Las Vegas Hotel & Improvement Co., 1885-NMSC-023, 3 N.M. (Gild.) 411, 5 P. 725, overruled on other grounds by Ford v. Springer Land Ass'n, 1895-NMSC-011, 8 N.M. 37, 41 P. 541.
Substantial compliance as to verification is all that is required. Lyons v. Howard, 1911-NMSC-039, 16 N.M. 327, 117 P. 842.
Insufficient compliance with verification requirements. — A total absence of any words confirming correctness, truth or authenticity by affidavit, oath, deposition or otherwise, is not sufficient compliance with the requirements of a verification. Home Plumbing & Contracting Co. v. Pruitt, 1962-NMSC-075, 70 N.M. 182, 372 P.2d 378.
Acknowledgment to mechanics' lien in form provided by Section 14-13-9 NMSA 1978 (repealed) is insufficient to comply with the verification requirement of this section. N.M. Properties, Inc. v. Lennox Indus., Inc., 1980-NMSC-087, 95 N.M. 64, 618 P.2d 1228.
Clerk of district court of sister state could administer oath to a lien claimant when, under the laws of the sister state, such clerk was empowered to administer oaths, especially where the laws of New Mexico recognized the right of clerks to administer oaths. Genest v. Las Vegas Masonic Bldg. Ass'n, 1902-NMSC-003, 11 N.M. 251, 67 P. 743.
Lien claim could be acknowledged by clerk of probate court, in absence of an authorizing statute, because clerks of courts of record at common law could administer oaths and the probate court met the requirements of a common-law court of record. Bucher v. Thompson, 1893-NMSC-010, 7 N.M. 115, 32 P. 498.
This act does not require an affidavit to claim of lien; claim is sufficient if signed by a party, and if notary or other proper officer says that it is sworn to by the person signing it. Lyons v. Howard, 1911-NMSC-039, 16 N.M. 327, 117 P. 842.
G. SUFFICIENCY OF NOTICE.
Exact statutory words not required. — Notice of mechanic's lien was not fatally defective for failure to use exact words of statute as to amount remaining due after allowing all just credits and offsets. Hobbs v. Spiegelberg, 1885-NMSC-014, 3 N.M. (Gild.) 357, 5 P. 529.
Signature sufficient. — A notice of lien is not void because the Christian name of the person signing was designated by initials. Pearce v. Albright, 1904-NMSC-015, 12 N.M. 202, 76 P. 286.
Notice where record filed as to balance. — Where claim was simply the account of the laborer or materialman, notice thereof could be filed for record simply in the form of ordinary bookkeeping, showing on one page the debits, on the opposite page the credits, striking a balance and alleging under oath that the amount there stated was due. Hobbs v. Spiegelberg, 1885-NMSC-014, 3 N.M. (Gild.) 357, 5 P. 529.
If actual notice, no claim of ignorance by owner. — The primary object of filing the claim is to give notice to subsequent purchasers and encumbrancers and inform the owner of the extent and nature of the lienor's claim and as defendant was the owner he cannot rightfully claim that he was ignorant of the extent and nature of the lienor's claim, having in fact actual notice of the terms and conditions of the contract. Crego Block Co. v. D.H. Overmyer Co., 1969-NMSC-117, 80 N.M. 541, 458 P.2d 793.
III. GENERAL DEFINITIONS.
"Original contractor" defined. — As bearing on time for filing claim of lien, every person who deals directly with the owner of property and who, in pursuance of a contract with him, performs labor or furnishes materials is an original contractor. Gray v. N.M. Pumice Stone Co., 1910-NMSC-036, 15 N.M. 478, 110 P. 603.
Materialman as "original contractor". — A materialman who sells material to a conditional vendee in possession is dealing with the "owner" and is an "original contractor." Freidenbloom v. Pecos Valley Lumber Co., 1930-NMSC-081, 35 N.M. 154, 290 P. 797.
Materialmen furnishing plumbing and heating supplies for a building are "original contractors" under this statute and required to file claim within 120 days (now 90 days) after completion of contract. Hot Springs Plumbing & Heating Co. v. Wallace, 1933-NMSC-092, 38 N.M. 3, 27 P.2d 984.
Legal title not necessary to be "owner". — One who pays part of the purchase price for real estate and takes possession in order to make improvements where it is expected that he will remain in possession, making subsequent payments, is an "owner" under this section, not withstanding that legal title was in name of another. Hill v. Long, 1956-NMSC-066, 61 N.M. 299, 299 P.2d 472.
Law reviews. — For annual survey of New Mexico law relating to property, see 12 N.M.L. Rev. 459 (1982).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 53 Am. Jur. 2d Mechanics' Liens § 175 et seq.
Requisites and sufficiency of notice of mechanic's lien in case of "cost plus" contract, 26 A.L.R. 1328.
Substitution or replacement of material as affecting time for filing mechanic's lien, 54 A.L.R. 984.
Agreement for, or acceptance of, other security as affecting right to lien of one who pays, or advances money or assumes obligation to pay laborer or materialman, 74 A.L.R. 531.
Right to amend notice of claim after expiration of time for filing claim, 81 A.L.R. 360.
Right of one other than contractor, laborer or materialman to file mechanic's lien, 83 A.L.R. 11.
Time when contractor commenced work or time when labor or material for which lien is claimed was furnished as date of mechanic's lien, 83 A.L.R. 925.
Continuing contract, transaction or account, what constitutes as regards time for filing mechanic's lien, 97 A.L.R. 780.
Removal by, or return to, claimant of part of material furnished as affecting time for filing claim, 122 A.L.R. 755.
Description and location of land required in notice of claim or statement, 52 A.L.R.2d 12.
Sale of real property as affecting time for filing notice of or perfecting mechanic's lien as against purchaser's interest, 76 A.L.R.2d 1163.
Time for filing notice or claim of mechanic's lien where claimant has contracted with general contractor and later contracts directly with owner, 78 A.L.R.2d 1165.
Sufficiency of notice under statute making notice by owner of nonresponsibility necessary to prevent mechanic's lien, 85 A.L.R.2d 949.
Sufficiency of designation of owner in notice, claim or statement of mechanic's lien, 48 A.L.R.3d 153.
Abandonment of construction or of contract as affecting time for filing mechanics' liens or time for giving notice to owner, 52 A.L.R.3d 797.
Liability of purchaser of real estate on mechanic's lien based on goods or labor supplied to vendor but filed after title passed, 33 A.L.R.4th 1017.
56 C.J.S. Mechanics' Liens §§ 132, 140, 141, 153, 155 to 195.