New Mexico Notice of Right to Claim a Lien

Introduction

Key Things to Know

1. 1

   The New Mexico instrument is not called a preliminary notice. Section 48-2-2.1 describes it as notice in writing of the claimant's right to claim a lien in the event of nonpayment, and it is the step that keeps a mechanic's or materialman's claim of more than five thousand dollars alive.

2. 2

   Three classes are outside the requirement under Subsection A: claims on residential property containing four or fewer dwelling units, claims by an original contractor (a contractor that contracts directly with the owner), and claims by a mechanic or materialman who contracts directly with the original contractor. Work out which tier you are on before anything else.

3. 3

   The money floor is real. Subsection B reaches only a lien claimed in an amount of more than five thousand dollars, so a smaller New Mexico claim carries no notice duty at all.

4. 4

   The window is 60 days, and it runs from the day you initially furnished work or materials, or both. Not from your contract date, not from an unpaid invoice, and not from the day the job started.

5. 5

   Only three delivery methods count: certified mail with return receipt requested, facsimile with acknowledgment, or personal delivery. Ordinary first class mail and email are not on the list, and the method you pick is also the only proof the statute leaves you with.

6. 6

   Subsection D sets the whole content list: a description of the property or a description sufficiently specific for actual identification, the name, address and phone number of the claimant, and the name and address of the person you contracted with or furnished to. New Mexico prescribes no form and no warning paragraph addressed to the owner.

7. 7

   Serving late is survivable and costly. Under Subsection E you may elect to send the notice later, and the claim then reaches only the work performed or materials furnished on or after the date 30 days prior to the date you sent it.

New Mexico Requirements for Preliminary Notice

• Three Exemptions Under Section 48-2-2.1(A)

  Subsections B through D do not apply to claims of liens on residential property containing four or fewer dwelling units, to claims by an original contractor (a contractor that contracts directly with the owner), or to claims by a mechanic or materialman who contracts directly with the original contractor. The duty lands on the tier below that: a subcontractor or supplier engaged by a subcontractor.

• The Five Thousand Dollar Floor

  Subsection B reaches only a lien of a mechanic or materialman claimed in an amount of more than five thousand dollars. A smaller New Mexico claim carries no notice duty. Attorney review available on the scope questions, since the official NMSA compilation page was unreachable and the text was read from the Legislature's own recitation of the section plus one independent published copy.

• Sixty Days From Initially Furnishing

  The notice must be given not more than sixty days after initially furnishing work or materials, or both. The trigger is your own first delivery or first day of labor on the project, not the contract date and not an unpaid invoice. Fix that date from the delivery ticket before counting.

• Owner or Reputed Owner, or the Original Contractor

  Subsection B directs the notice to the owner or reputed owner of the property upon which the improvements are being constructed, or to the original contractor, if any. The two are listed in the alternative. New Mexico names no construction lender and no surety as a recipient of this notice.

• Certified Mail, Facsimile With Acknowledgment, or Personal Delivery

  Only three methods are permitted: certified mail with return receipt requested, facsimile with acknowledgment, or personal delivery. Ordinary first class mail and email are not among them. Section 48-2-2.1 prescribes no proof of notice declaration, so the receipt, the facsimile acknowledgment or a dated delivery record is the only proof you will have.

• The Three Content Items in Subsection D

  A description of the property or a description sufficiently specific for actual identification of the property; the name, address and phone number, if any, of the claimant; and the name and address of the person with whom the claimant contracted or to whom the claimant furnished labor or materials, or both. New Mexico prescribes no form, no notarization and no warning paragraph addressed to the owner.

• Late Service Reaches Back Only Thirty Days

  Subsection E lets a person who owes the notice elect not to give it and give it later, and then limits the claim to work performed or materials furnished on or after the date thirty days prior to the date the notice was given. Subsections C and D still apply to a notice given this way.

• The Five Day Information Duty on the Other Side

  Before an owner or original contractor may defend on lack of notice, Subsection C requires it to show that on your request it furnished you, not more than five days after the request, the original contractor's name, address and license number, the owner's name and address, a description of the property, and the name and address of any bonding company or other surety providing a payment or performance bond. Send that request in writing and keep the copy.