SENATE BILL 343
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
Howie Morales and Zachary J. Cook
AN ACT
RELATING TO LIENS; ELIMINATING EXCEPTIONS FOR NOTICE AND RECORDING REQUIREMENTS FOR CLAIMS RELATED TO MECHANICS' AND MATERIALMEN'S LIENS; REQUIRING WRITTEN NOTICE FOR CLAIMS RELATED TO CERTAIN LIENS; REQUIRING THAT THE DATE AND METHOD OF DELIVERY OF NOTICE BE PROVIDED ON THE RECORDED LIEN FOR CLAIMS RELATED TO CERTAIN LIENS.
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.--
[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, to claims of liens made by an original contractor or to claims of liens made by 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.] A. No lien [of a mechanic or a materialman] claimed [in an amount of more than five thousand dollars ($5,000)] pursuant to the provisions of Chapter 48, Article 2 NMSA 1978 may be enforced by action or otherwise unless the lien claimant has given notice in writing of the claimant's right to claim a lien in the event of nonpayment and that notice was given not more than sixty days after initially furnishing work or materials, or both, by either certified mail, return receipt requested, facsimile with acknowledgment 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.
[C.] B. If the owner or the original contractor claims lack of notice as a defense to the enforcement of a lien described in Subsection [B] A of this section, the owner or contractor shall show that upon the request of the mechanic or materialman that the owner or contractor 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.] C. The notice required to be given by the claimant pursuant to the provisions of Subsection [B] A 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) the name and address of the person with whom the claimant contracted or to whom the claimant furnished labor or materials, or both.
[E.] D. A person required by the provisions of Subsection [B] A of this section to give notice to enforce the person's claim of lien may elect not to give the notice but may give the required notice at a later time. If the person 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] B and [D] C of this section apply to any notice given under this subsection.
E. No lien that is claimed pursuant to the provisions of Chapter 48, Article 2 NMSA 1978 and that is recorded in the office of the county clerk may be enforced by action or otherwise unless the date that the lien claimant gave written notice as provided in Subsection A of this section and the method of delivery of the notice are listed on the recorded lien.
F. For purposes of this section, "original contractor" means a contractor that contracts directly with the owner."
SECTION 2. Section 48-2-8 NMSA 1978 (being Laws 1880, Chapter 16, Section 8, as amended) is amended to read:
"48-2-8. RECORDING OF LIENS--INDEXING--FEES.--The county clerk [must] shall make a record [the] of a claim [in a book kept by him for that purpose], which record [must] shall be indexed as deeds and other conveyances are required by law to be indexed, and for which [he] the county clerk may receive the same fees as are allowed by law for recording deeds and other instruments. Any claim, the form of which complies with the requirements of [this article] Chapter 48, Article 2 NMSA 1978, shall be entitled to be filed of record [and need not comply with the requirements of Section 14-8-4 NMSA 1978]."
SECTION 3. Section 48-4-2 NMSA 1978 (being Laws 1949, Chapter 15, Section 2) is amended to read:
"48-4-2. TIME FOR FILING CLAIM--CONTENTS OF CLAIM--NOTICE.--[Every]
A. An abstracter claiming the benefit of [this Act must] Chapter 48, Article 4 NMSA 1978 shall, within ninety [(90)] days after the date of the certificate in the abstract for which lien is claimed, file for record with the county clerk of the county [or counties] in which the property, or any part [thereof] of it covered by [said] the abstract, is situated, a claim containing a statement of [his] the abstracter's demands, after deducting all just credits and offsets, the name of the owner, [and also] the name of the person by whom [he] the abstracter was employed and [also] a description of the property to be charged with the lien sufficient for identification, which claim [must] shall be verified by the oath of the claimant or of some other person.
B. No lien that is claimed pursuant to the provisions of Chapter 48, Article 4 NMSA 1978 and that is recorded in the office of the county clerk may be enforced by action or otherwise unless the abstracter gave written notice to the owner and the person by whom the abstracter was employed and the date and method of delivery of the notice are listed on the recorded lien."
SECTION 4. Section 48-5-2 NMSA 1978 (being Laws 1923, Chapter 102, Section 2) is amended to read:
"48-5-2. PROCEDURE TO OBTAIN LIEN--NOTICE.--
A. Any person entitled to a lien under [this chapter] Chapter 48, Article 5 NMSA 1978 shall, within ten days after the threshing is completed, file in the office of the county clerk of the county in which the grain was grown a statement in writing, verified by oath, showing the amount and quantity of grain threshed, the price agreed upon for threshing [the same] it, the name of the person for whom the threshing was done and a description of the land upon which the grain was grown. Unless the person entitled to the lien [shall file such] files that statement within [the] that time [aforesaid he] limit, the person shall be deemed to have waived [his] the right [thereto] to the lien.
B. No lien that is claimed pursuant to the provisions of Chapter 48, Article 5 NMSA 1978 and that is recorded in the office of the county clerk may be enforced by action or otherwise unless the person entitled to a lien gave written notice to the grain owner or the grain owner's representative and the date and method of delivery of the notice are listed on the recorded lien."
SECTION 5. Section 48-5A-2 NMSA 1978 (being Laws 1989, Chapter 89, Section 2) is amended to read:
"48-5A-2. PROCEDURE TO OBTAIN LIEN--NOTICE.--
A. Any person or company entitled to a lien under [this act] Chapter 48, Article 5A NMSA 1978 shall, within twenty-one days after the harvest is completed, file in the office of the county clerk of the county in which the crop was grown a statement in writing, verified by oath, showing the amount and quantity of the crop harvested, the price agreed upon for harvesting it, the name of the person for whom the harvest was done and a description of the land upon which the crop was grown. Unless the person or company entitled to the lien files that statement within the twenty-one-day time limit, [he] the person or company shall be deemed to have waived [his] the person's or company's right to the lien.
B. No lien that is claimed pursuant to the provisions of Chapter 48, Article 5A NMSA 1978 and that is recorded in the office of the county clerk may be enforced by action or otherwise unless the person or company entitled to a lien gave written notice to the owner of the crop or the owner's representative and the date and method of the notice are listed on the recorded lien."
SECTION 6. Section 48-8-2 NMSA 1978 (being Laws 1961, Chapter 227, Section 2) is amended to read:
"48-8-2. FILING AND NOTICE OF HOSPITAL LIENS.--[No]
A. A hospital lien is not effective upon damages recovered for personal injuries unless:
[A.] (1) a written notice is filed in the office of the county clerk of the county in which the hospital asserting the lien is located containing the following information:
[(1) an itemized statement of all claims] (a) the total liability claimed, certified as correct by an agent of [such] the hospital;
[(2)] (b) the date of the accident;
[(3)] (c) the name and location of the hospital; and
[(4)] (d) the name of the person, firm or corporation alleged to be liable to the injured party for the injuries received, along with instructions for obtaining an itemized statement; [and
B.] (2) the hospital sends by certified mail, with return receipt requested, prior to the payment of any money to the injured person, or [his] the person's attorneys or legal representative, as compensation for the patient's injuries, a copy of the written notice, together with a statement of the date of filing, to the person, firm or corporation alleged to be liable to the injured party for the injuries sustained. The person, firm or corporation alleged to be liable to the injured person shall, upon request of the hospital, disclose the name of the insurance carrier that has insured the person, firm or corporation against liability; and
[C.] (3) the hospital mails a copy of the written notice by certified mail with return receipt requested to the home office of any insurance carrier that has insured the person, firm or corporation against liability, if the name and address is known.
B. No lien that is claimed pursuant to the provisions of Chapter 48, Article 8 NMSA 1978 and that is recorded in the office of the county clerk may be enforced by action or otherwise unless the date that the hospital gave written notice as provided in Paragraphs (2) and (3) of Subsection A of this section and the method of delivery of the notice are listed on the recorded lien."
SECTION 7. Section 48-9-1 NMSA 1978 (being Laws 1973, Chapter 100, Section 1) is amended to read:
"48-9-1. SHORT TITLE.--[Sections 61-10-1 through 61-10-9 NMSA 1953] Chapter 48, Article 9 NMSA 1978 may be cited as the "Oil and Gas Products Lien Act"."
SECTION 8. Section 48-9-5 NMSA 1978 (being Laws 1973, Chapter 100, Section 5) is amended to read:
"48-9-5. PERFECTION OF SECURITY INTEREST AND LIEN--FILING NOTICE.--
A. If the purchase price for products, the state royalty and the taxes [which] that are required to be or are withheld and paid or to be paid are not paid to the person entitled to receive payment therefor after fifteen days and within forty-five days after payment is due by terms of agreement, the interest owner or operator may perfect the purchase money security interest and lien by filing for record in the office of the county clerk of the county in which the production unit is located a notice of lien in substantially the following form:
"NOTICE OF LIEN
Notice is hereby given that (name of interest owner for whom notice is filed) whose address is (address of named interest owner) owns an (fractional or decimal interest) interest in the products severed from the (name of well) by (name and address of operator), which well is designated as production unit No. (number) by the oil and gas [accounting Commission] bureau of the taxation and revenue department and is located on the following described land in (name of county) county, New Mexico:
(description of land)
Products severed from [said] that production unit have been and are now or may be taken, received and purchased by (name of first purchaser); and the above named interest owner has a purchase money security interest in and lien upon such products and the proceeds thereof to secure payment of the purchase price, state royalty and taxes for the months of (list months and year for which payment was not received) under the provisions of the Oil and Gas Products Lien Act.
Dated: (date)
___________________________
(signature of interest owner
or operator)".
B. If the notice of lien is not filed for record within the time limit specified in this section, the purchase money security interest and lien shall terminate at the expiration of that time limit.
[B.] C. All instruments [which] that are presented to a county clerk for filing in accordance with Subsection A of this section shall be deemed to be and filed as financing statements under the Uniform Commercial Code, even though the signature of the first purchaser may not appear thereon. All such instruments may be terminated in the same manner as financing statements under the provisions of the Uniform Commercial Code. Filing of a notice of lien or termination statement by an operator shall inure to the benefit of and be binding upon all named interest owners.
[C.] D. Upon perfection by filing, the purchase money security interest and lien of the interest owner shall relate back to and be effective as of the date on which the first purchaser took, received or purchased product unpaid for and shall take priority over the rights of all persons whose rights or claims arise or attach to the product unpaid for or the proceeds of product if such product has been sold by the first purchaser, including those [which] that arise or attach between the time the purchase money security interest and lien attaches and the time of filing.
E. No lien that is claimed pursuant to the provisions of the Oil and Gas Products Lien Act and that is recorded in the office of the county clerk may be enforced by action or otherwise unless the interest owner gave written notice to the operator and first purchaser and the date and method of delivery of the notice are listed on the recorded lien."
SECTION 9. APPLICABILITY.--The provisions of this act apply to liens filed on or after July 1, 2011.
SECTION 10. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.
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