Page 35 - State Law Summary of Mechanic's Lien Law

New Mexico NM

What is the statutory authority? Is there a procedure to bond over the mechanic’s lien(s)?
N.M. St. §§ 48-2-1 to 48-2-17 (1978). Under N.M. St. § 48-2-9, the owner of property subject to a lien, or an original
contractor having a contract with the owner, may petition the district court for
What is the Attachment Date of the Mechanic’s Lien? the county in which the property is located for an order cancelling the lien. A
The date on which work on, or the furnishing of material for, a building, improvement, bond, in an amount set by the judge, and of a type approved by the judge, shall
or structure. Weggs v. Kreugel, 1922-NMSC-021, 28 N.M. 24, 26; Pioneer Sav. & Trust be deposited by the owner of the property or original contractor with the district
v. Rue, 1989-NMSC-079 ¶ 3, 109 N.M. 228, 229; First Interstate Bank v. Hutchens, 1991 court, conditioned on the payment of any sum found to be validly due to the lien
NMSC-086, ¶ 2, 112 N.M. 497, 498, 26. claimant. An owner or original contractor may not provide a single security for the
cancellation of the lien of more than one claimant. When the bond is deposited, the
What constitutes visible commencement of construction? judge of the district court shall immediately issue an order canceling the lien and
The performance of labor upon, providing or hauling equipment, tools or machinery notify the county clerk with whom the lien is filed. Upon the recording of the order,
for, or furnishing materials to be used in the construction alteration or repair of, a the county clerk shall mark the filed lien as canceled. The claimant’s lien attaches
building, improvement, or structure, on the property upon which a lien is claimed. to the security and is enforceable as to the security in the district court to the same
N.M. St. § 48-2-2; Pioneer Sav. & Trust v. Rue, 1989-NMSC-079, ¶ 3, 109 N.M. 228, 229; extent as to any other mechanic’s and materialman’s lien. N.M. St. § 48-2-9.
First Interstate Bank v. Hutchens, 1991-NMSC-086, ¶ 2, 112 N.M. 497, 498. Work done
that is not a part of the ”building, improvement or structure”, for example work Are the ALTA 32/33 Series Endorsements available for the Loan Policy?
done by a surveyor, architect, or engineer, does not constitute commencement of Yes. The New Mexico equivalent forms are NM83 (ALTA 32), NM83.1 (ALTA 32.1),
construction. N.M. St. § 48-2-2; Pioneer Sav. & Trust v. Rue, 1989-NMSC-079, ¶ 3, 109 NM83.2 (ALTA 32.2), and NM84 (ALTA 33).
N.M. 228, 229. Liens for such work will have the same attachment date as other
mechanic’s and materialman’s liens on the property, such that liens for such work
have equal priority.
What is the priority of the insured construction mortgage/
deed of trust?
A mortgage recorded before work commences or materials are furnished
has priority over mechanic’s liens. N.M. St. § 48-2-5(A). All advances, whether
obligatory or discretionary, made under a secured construction loan recorded
before work commences or materials are furnished have priority over mechanic’s
liens; provided the lien of the mortgage does not exceed at any one time the
maximum amount stated in the mortgage. N.M. St. §§ 48-2-5(A) and 48-7-9.

If priority of the insured mortgage/deed of trust is lost, is there a
statutory procedure to regain priority?
No.

When does a mechanic’s lien have to be filed for claimant to maintain
lien rights?
Original contractor has 120 days after completion of a contract and everyone else
has 90 days after completion of any building, improvement or structure or after
the completion of the alteration or repair of the building, improvement or structure.
N.M. St. § 48-2-6.

What is the period of enforcement of a filed mechanic’s lien?
Action to foreclose and enforce the claim of lien must be commenced within a
court of competent jurisdiction within two years of the filing of the lien. N.M. St. §
48-2-10.

RETURN TO INDEX