New Mexico Notice Requirements

Contractors — No Preliminary Notice Required

New Mexico does not require contractors to serve any preliminary notice as a prerequisite to filing a Mechanic Lien Claim. Contractors who contract directly with the property owner may proceed directly to recording the mechanic lien within the 120-day statutory deadline after completion of the contract.

Remote Claimants — Notice of Right to Claim a Mechanic Lien (60-Day Deadline)

Under §48-2-2.1(A), the notice requirement does not reach an original contractor, does not reach a mechanic or materialman who contracts directly with the original contractor, and does not reach claims of lien on residential property containing 4 or fewer dwelling units. What is left is the remote tier: a sub-subcontractor, or a supplier selling to a subcontractor, who contracts with neither the owner nor the original contractor.

A remote claimant whose lien claim exceeds $5,000 must give written notice within 60 days after first furnishing work or materials, under §48-2-2.1(B). Serve it on the owner or reputed owner, or on the original contractor, by certified mail with return receipt requested, by fax with acknowledgment, or by personal delivery. It is served, not recorded. Under §48-2-2.1(D) it must describe the property, identify the claimant with an address and telephone number, and name the party the claimant contracted with.

Measure the $5,000 threshold against the lien claim, not the base contract price. Change orders and extras can carry a small contract past the threshold.

Under §48-2-2.1(E), a late notice is not a dead notice. It still reaches work performed and materials furnished on or after the date 30 days before it is given, so everything earlier drops out of the lien. Where the notice is required and never given, the lien over $5,000 cannot be enforced.

Under §48-2-2.1(C), an owner or contractor raising lack of notice as a defense has to show it supplied the claimant, within 5 days of a request, with the original contractor's name, address, and license number, the owner's name and address, a description of the property, and any bonding company or surety information.

Residential Property of 4 or Fewer Units — Stop Notice Act (§48-2A-1 et seq.)

Residential property containing 4 or fewer dwelling units is outside the §48-2-2.1 notice. The Stop Notice Act covers that work instead. A stop notice is a claim against the construction funds held by the construction lender, or by the owner where there is no lender, rather than a claim against the property. It does not replace the mechanic lien and it is not a prerequisite to one.

To preserve stop notice rights, the subcontractor or materialman delivers a preliminary notice to the construction lender and to the owner within 20 days after first furnishing, under §48-2A-5(B). Service is governed by §48-2A-6: hand delivery or mail with return receipt requested to the lender at the address where the construction loan originated, and hand delivery or mail with return receipt requested to the owner. Under §48-2A-5(C), a late preliminary notice does not end stop notice rights, but it loses everything furnished more than 20 days before the notice is actually given.

The stop notice itself is delivered no earlier than 20 days and no later than 30 days from the date the claimant presented its request for payment to the original contractor, under §48-2A-5(D). Under §48-2A-7 it is not effective without a bond, or cash collateral, equal to 1.25 times the amount claimed, with the claimant as principal. Under §48-2A-8, the recipient must then withhold the amount claimed from the original contractor until the claim is satisfied or adjudicated, and a lender who releases those funds anyway is liable for the claim.

Under §48-2A-4, the original contractor must tell each subcontractor and materialman the owner's name and address, the construction lender's name and address and the loan officer who made the loan, and a description of the residential site. A subcontractor who hires below itself owes the same information on request. Ask in writing at the start of the job, because a stop notice cannot be addressed without it.

Public Works — Notice of Claim on Bond (90 Days, §13-4-19)

On New Mexico public works projects governed by the Little Miller Act (§13-4-19), subcontractors and materialmen not in privity with the contractor must serve a written Notice of Claim to the contractor by registered letter within 90 days after last performance.

Subcontractors in privity with the contractor are not required to serve any preliminary notice or Notice of Claim on the bond before filing suit.