If you’re contemplating a mechanics lien to get you paid on your New Mexico project, this step-by-step guide (starting in the next section, below) will provide the information you need to get it done.
While filing a mechanics lien on your own can be quite challenging, if you’re ready and willing to make a go of it yourself, just follow the steps below to file your New Mexico mechanics lien correctly.
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It’s important to note that there are generally specific preliminary notice and timing requirements that must be met prior to filing a valid mechanics lien in any state, and this includes the state of New Mexico.
The reason why these requirements exist is that mechanics liens are such a powerful, legal tool. In fact, a valid mechanics lien gives the claimant an interest in the actual property s/he worked on during the construction project, even allowing the claimant to force the sale of the property to get paid.
Note that, while many states have licensing requirements (in other words, contractor’s license requirements) in order to qualify for mechanics lien protection, New Mexico has exceptionally strict licensing requirements.
If the claimant is required to have a license by the Construction Industries Licensing Act, the claimant must be licensed in order to claim a lien. Further, an unlicensed contractor may not be able to file suit to recover any money owed even without the protection of a lien. And finally, if a contractor is unlicensed, it may be possible for the property owner to request a return of the money already paid.
Mechanics liens are created by statutes, and these statutes set forth strict requirements that must be explicitly followed in order to claim a valid and enforceable mechanics lien. One of these essential requirements is that mechanics liens must be in the right format and contain certain required information.
There’s nothing particularly unique about mechanics lien forms, but you need to be sure that you are using a form that meets all the statutory requirements. The filing will not be accepted if the document isn’t formatted properly and filled out correctly. There are many resources that offer mechanics lien claim forms, but there’s no guarantee that they are valid or reliable.
Levelset’s forms are created and reviewed by construction attorneys and payment experts; thousands of New Mexico contractors and suppliers have successfully used these forms to get paid.
Leaving out some information, or even potentially just getting it wrong, is more than just a simple mistake, it can invalidate the entire lien. A New Mexico mechanics liens must have the following information:
This is the easiest section to fill out on your lien claim form. To properly file the lien, you must provide your full name and address on the document. If you are filing on behalf of a company, be sure to provide the full, legal, registered name along with the business designation. (LLC, Inc., etc.)
The New Mexico statute states that this section should include the name of the person by whom he was employed, or to whom he furnished the materials. That’s a lot of words, just to say, “who hired you?” You should already have the name and address in your contract documents.
There’s a little bit more to this section than one might think. If you were hired directly by the owner, then just repeat the “hiring party” information here. However, if you weren’t hired by the owner, this may involve a little research. Here’s a helpful article to get you started: How to Find the Property Owner on a Construction Project. Getting this section right is imperative to the validity of the lien claim. Make sure you fill this out as accurately and thoroughly as possible.
New Mexico doesn’t require a “full legal description” of the property. The statute states that the description is sufficient for identification of the property. However, there is no harm in adding as much information as you can. This article should get you started: Researching the Legal Property Description.
This section is pretty straightforward. All that’s required is a general statement of the labor or materials that you provided to improve the property. The tricky part here is figuring out how much detail is needed. Some counties may refuse to record the lien if there isn’t enough information provided in this section. However, as long as the description can give a sense of what you actually contributed, it should be sufficient.
If you have a written contract, you can just reference the contract and attach it to your lien claim. However, if not, then the statute states that this section should include the “terms, time given and conditions of the contract.” The language makes this seem more daunting then it is. A short statement such as “30 days, net cash” or “90% of the amount paid by the 15th of the month following receipt of an invoice; 10% retainage upon owner acceptance” is more than sufficient.
This amount should be just the contract amount minus any offsets and credits. However, NM does allow for a statement declaring that attorney’s fees and interest are claimed, but not set out in the lien total. If the dispute eventually comes to litigation, the prevailing party will be awarded attorney’s fees.
Noe that all the required information has been included, it’s time to sign and swear to contents of the document in front of a notary – and have the notary notarize the lien claim. NOTE that: The form must be signed, acknowledged, and verified by oath of the claimant or some other person.
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Now it’s time to get your New Mexico mechanics lien claim form lodged for record with the county recorder for the county where the property is located.
Mechanics liens are only last a certain period of time before they expire and become unenforceable. In New Mexico, the deadline to file your lien claim depends on your role on the construction project. If you contracted directly with the property owner, then the time to file is 120 days after completion of the project. All other parties that didn’t contract directly with the owner have 90 days after completion of the project.
New Mexico mechanics liens are perfected by filing the claim in the county clerk’s office where the property is physically located. If the property is situated in more than one county, the claim should be filed in the clerk’s office of all counties it is located in.
Each county has different form requirements or filing fees. It’s important to contact the county clerk’s office ahead of time to be sure that you know all the requirements beforehand. Here are a few Essential Questions to Ask the Recorder’s Office. In an effort to make this process a bit easier, we’ve put together a list of every county clerk’s office in New Mexico along with links to their websites:
Some counties in New Mexico may allow for mechanics liens to be electronically recorded. If available, and you choose this method, you will need to upload a copy of your lien to the electronic recorder system you will use, and follow the instructions. Be careful to pick the appropriate document type in the particular county. If e-recording is not available, or if you do not want to use that option, send the original copy to the office of the county recorder of the county where the property or some part thereof is located.
The lien may be filed via mail or FedEx, or personally “walked in” to be recorded (either by you or a courier). If you decide to mail your lien to the county for recording or send it via a courier, you must also include a self-addressed stamped envelope with return instructions to receive a copy of the recorded lien for your records and to serve the lien on the interested parties.
Make sure to include the proper recording fees with the lien. Liens are often rejected for improper fees (and this can be true even if you provide too much money). Any delay caused by needing to resubmit the lien for recording takes time – and since liens are time-sensitive documents, it can result in a missed deadline. The fees are often set at one amount for the first page with an additional, smaller, amount for each additional page.
Note that your lien document must also comply with any specific margin requirements that particular county may have, as well as a potentially requiring county-specific cover page. These requirements can also be determined by calling the recorder’s office.
In New Mexico, a lien claimant is not specifically required to serve a copy of the filed mechanics lien on the interested parties in order for the lien to be valid. The filing of the lien in the public records constitutes sufficient notice to any party with interest in the property.
However, it’s always a best practice to put the owner on specific notice that a lien has been filed, and in New Mexico, any party without a direct contract with the owner may send a copy of the lien to the owner, if so desired, in an attempt to eliminate a possible defense that the owner has paid the full contract amount to the general contractor.
NOTE: Effective June 16, 2023
A copy of the filed claim or lien must be served on the owner or reputed owner within 15 days of filing. Failure to provide a copy of the filed claim will not invalidate the claim, but it will preclude the claimant from recovering interest, attorney’s fees or costs.
Once the documents have been filed (and served if desired), your mechanics lien is ready to get you paid for the work you did. However, mechanics liens don’t last forever. A New Mexico lien lasts a long time compared to most other states. They are enforceable for 2 years from the date the lien claim was filed unless the claim is enforced.
Keep in mind that even a valid and enforceable lien may be challenged, and if you missed a step somewhere along the way, your lien could be thrown out. Even if valid, however, you may be forced to file a lawsuit to enforce your claim in order to get paid. While a foreclosure action on a valid lien nearly always results in payment, it can be a long and expensive process. Depending on the amount in controversy, you may want to ask yourself: Is Foreclosure Worth It?
Enforcement in NM includes both a foreclosure action or the commencement of binding arbitration. However, there are many other issues that can arise when dealing with arbitration and the foreclosure of liens in New Mexico.
If you aren’t ready to file a lawsuit yet, there is one more step you can take to try and loosen the grip on your money. You can always send a Notice of Intent to Foreclose. Consider this like a final warning that you are aware of your rights and willing to take legal action to enforce them. Most of the time, this is usually enough to get paid.
If the underlying debt is eventually paid, congratulations! New Mexico doesn’t specifically require the cancellation of the lien once the claimant gets paid, but it’s always good practice to do so. Typically, payment is ultimately made in exchange for the lien to be released. If you received partial payment, you could also reduce the lien amount.
