HOUSE BILL 964

46th legislature - STATE OF NEW MEXICO - first session, 2003

INTRODUCED BY

Joseph Cervantes







AN ACT

RELATING TO LIENS; CHANGING PROVISIONS OF THE MECHANICS' AND MATERIALMEN'S LIEN LAWS TO CORRECT PROBLEMS AND CLARIFY THE LAW; REPEALING A SECTION OF THE NMSA 1978.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 48-2-2.1 NMSA 1978 (being Laws 1990, Chapter 92, Section 2, as amended) is amended to read:

"48-2-2.1. PROCEDURE FOR PERFECTING CERTAIN MECHANICS' AND MATERIALMEN'S LIENS IN EXCESS OF TWO THOUSAND DOLLARS ($2,000).--

A. The provisions of [Subsections B through D of] this section [do not] apply to claims of liens [made on residential property containing four or fewer dwelling units or to claims of liens] made by all persons except mechanics or materialmen who contract directly with the [original contractor. For purposes of this section, "original contractor" means a contractor that contracts directly with the] owner.

B. No lien of a mechanic or a materialman claimed in an amount of more than [five thousand dollars ($5,000)] two thousand dollars ($2,000) may be enforced by action or otherwise unless the lien claimant has given preliminary notice in writing of his right to claim a lien in the event of nonpayment [and that]. The claimant shall give written notice [was given not more than sixty days after initially furnishing work or materials, or both] no later than the first day of the second calendar month following the month in which all or part of the claimant's labor was performed or materials delivered, or both. The notice shall be given by either certified mail, return receipt requested, [Fax] facsimile with acknowledgement or personal delivery to:

(1) the owner or reputed owner of the property upon which the improvements are being constructed; [or]

(2) the original contractor, if any;

(3) a bonding company or corporate surety that is providing either a payment bond or performance bond for the project; and

(4) any subcontractor or any other party to whom the claimant furnished labor or materials, or both, for the project.

C. If the owner or the original contractor claims lack of notice as a defense to the enforcement of a lien described in Subsection B of this section, he [must] shall show that upon the request of the mechanic or materialman he furnished to the lien claimant not more than five days after such request was made:

(1) the original contractor's name, address and license number, if there is an original contractor on the project;

(2) the owner's name and address;

(3) a description of the property or a description sufficiently specific for actual identification of the property; and

(4) the name and address of any bonding company or other surety that is providing either a payment or performance bond for the project.

D. The notice required to be given by the claimant [under] pursuant to provisions of Subsection B of this section shall contain:

(1) a description of the property or a description sufficiently specific for actual identification of the property;

(2) the name, address and phone number, if any, of the claimant; [and]

(3) a brief description of the labor or materials, or both, furnished by the claimant; and

[(3)] (4) the name and address of the person with whom the claimant contracted or to whom the claimant furnished labor or materials, or both.

[E. A person required under Subsection B of this section to give notice to enforce his claim of lien may elect not to give the notice, but may give the required notice at a later time. If he elects to do so, the lien shall apply only to the work performed or materials furnished on or after the date thirty days prior to the date the notice was given. The provisions of Subsections C and D of this section apply to any notice given under this subsection.]

E. If the first day of the calendar month for which a notice is to be given pursuant to Subsection B of this section is a Saturday, Sunday or a legal holiday, the due date for the notice to be mailed is the next business day thereafter that has regular mail service and delivery.

F. As used in this section:

(1) "labor" means the performance of work or the furnishing of skills or other services for the improvement, survey or repair of real property;

(2) "materialman" means a person who furnishes materials or supplies to an owner, an original contractor or subcontractor that is incorporated, or to be incorporated, into site improvements or repairs or survey of real property;

(3) "original contractor" means a contractor who has an expressed contractual relationship with the owner; and

(4) "owner" means any person who owns or holds legal or equitable interest in real property and who has the legal capacity to contract for the construction of improvements upon such property."

Section 2. Section 48-2-6 NMSA 1978 (being Laws 1880, Chapter 16, Section 6, as amended) is amended to read:

"48-2-6. TIME FOR FILING LIEN CLAIM--CONTENTS.--

A. 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] 48-2-17 NMSA 1978, [must] shall, within ninety days after the completion of any building, improvement or structure or after the completion of the alteration or repair [thereof] of them or the performance of any labor in a mining claim, file for record with the county clerk of the county in which [such] the property or some part [thereof] of it 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] shall be verified by the oath of himself or of some other person.

B. Except for an original contractor or person who has contracted directly with the owner, the claim of lien of any person filed pursuant to Chapter 48, Article 2 NMSA 1978 shall be limited in amount to no more than two thousand dollars ($2,000), unless the lien claimant gave preliminary written notice pursuant to Section 48-2-2.1 NMSA 1978 of the right to claim a lien for having provided materials, work or services for the improvements to real property that could give rise to a right to claim a lien under Section 48-2-2 NMSA 1978."

Section 3. REPEAL.--Section 48-2A-12 NMSA 1978 (being Laws 1989, Chapter 301, Section 12) is repealed.

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