Filing a Mechanic’s Lien in New Mexico? Under the New Statute Changes, Make Sure You Serve the Project Owner with a Recorded Copy
New Mexico House Bill 179, related to mechanic’s liens, was signed by the Governor March 30, 2023, and goes into effect June 16, 2023. What changed? In order to recover costs and attorney fees, you will need to serve a copy of the recorded mechanic’s lien upon the owner. Let’s take a look.
Under HB 179, Section 48-2-6 Time for Filing Lien Claim–Contents–Notice of Lien, has been amended to include the following (emphasis added):
B. A person filing a claim for a lien with a county clerk pursuant to Subsection A of this section shall mail, email, send by certified mail with return receipt requested or hand deliver a copy of the filed claim for a lien to the owner or reputed owner, if known, stated in the claim within fifteen days of filing the claim with the county clerk. The copy of the filed claim for a lien shall be sent or delivered to the owner or reputed owner at the owner or reputed owner’s last known address. If the owner or reputed owner’s address is not known, the copy of the filed claim for a lien shall be sent to the address of the owner of the property as listed in the county assessor’s files. The failure of the claimant to serve the notice may preclude the recovery of interest, attorney’s fees or costs.
Essentially, if you are filing a mechanic’s lien, you should serve a copy of the recorded lien upon the owner within 15 days of filing the lien. Serving a recorded copy of the lien upon the owner will allow you to recover costs and fees (e.g., court costs, attorney’s fees, interest, etc.).
Now, what happens if you don’t serve a copy of the recorded lien upon the owner? Based on the last sentence within the amendment, if you don’t serve the owner, your mechanic’s lien won’t be invalidated, but you won’t be entitled to recover costs.
Serving the owner is a small task to help you recover fees, especially fees that are often hefty.
New Mexico Mechanic’s Lien Rights
If you are furnishing to a private project in New Mexico, you should serve the preliminary notice upon the owner or prime contractor (aka GC) within 60 days from your first furnishing. Although the statute says it’s OK if either party is served, we recommend serving both parties.
Miss your notice deadline? It’s OK, all hope is not lost. A late notice may be served, but your mechanic’s lien will only be effective for materials or services provided 30 days prior to serving the notice and going forward.
There are instances where a preliminary notice may not be required (e.g., if you are contracted directly with the owner or prime contractor, if the lien amount is for $5000 or less, or the property is residential with 4 units or less), however, we recommend you always serve a preliminary notice. Frequently, serving the notice, even when it’s not required, is enough to prompt payment.
Need to file a lien? If you contracted with the prime contractor or subcontractor, you should file your mechanic’s lien within 90 days from project completion. If you contracted with the owner, you should file the lien within 120 days from project completion. Note: completion means completion of the entire project, not just the completion of your portion of the project.
OH! And don’t forget to serve the owner with a copy of the recorded mechanic’s lien within 15 days from filing the lien – then you can recover costs and fees.