How to Create a Lien on a Property in New Mexico

New Mexico state recognizes a variety of liens that a party can place on the property of another to collect a debt. Depending on the circumstances, a property owner can face a tax lien, a judgment lien, a mechanic's lien, or even a child support lien to enforce support payments.

A debtor who owns real estate in New Mexico, can face any number of liens; liens against property that are recorded with a county clerk’s office are public record and can easily be searched online or by visiting the office.

A mechanic's lien is a legal document that gives a party the right to seek compensation if they did not receive payment from an individual or company that commissioned them to do work.

According to New Mexico Statutes Chapter 48, "every person performing labor upon, providing or hauling equipment, tools or machinery for or furnishing materials to be used in the construction, alteration or repair of" a property can file a mechanic's lien.

The Construction Industries Licensing Act states that contractors must be licensed in order to file a lien. In fact, unlicensed contractors may not even be able to recover through lawsuits money owed them, and property owners can ask for the return of money that they already paid to an unlicensed contractor.

Other parties who can file a mechanic's lien are architects, design professionals, engineers (if the property owner uses their plans) and surveyors. Material suppliers do have lien rights, but suppliers to suppliers do not.

A preliminary notice is a document sent to the property owner or general contractor at the start of a construction project to protect the claimant's right to file a mechanic's lien in the future. New Mexico has specific preliminary notice requirements that a party filing a mechanic's lien must meet. They must:

• Not directly contract with the general contractor or property owner.
• Have a potential legal claim greater than $5,000.
• Be engaged in a work project that was not on a residential property with fewer than four dwellings.

If a party does not meet these requirements, they do not have to send preliminary notice in New Mexico. If they do meet them, they must send the preliminary notice within 60 days of the first date that materials or labor were provided on the project. Notice must be sent by personal service, certified mail with return receipt requested, or by fax with acknowledgment of receipt.

According to New Mexico Statutes Section 48-2-6, a mechanic's lien form is not valid unless it contains:

• Lien claimant's name.
• Property owner's name.
• Name of claimant's employer.
• Amount of money that is unpaid, minus offsets and credits.
• Conditions of the contract, statement of the terms and time given.
• Identifying legal description of the property.

Mechanic's lien form templates can be found online through various websites. The claimant must sign and verify the claim under oath before a notary public.

A New Mexico mechanic's lien lasts only for a specific time before becoming unenforceable. The deadline for filing a lien depends on the claimant's role on a work project.

If they directly contracted with the homeowner, a claimant must file a lien within 120 days after project completion. If they did not, they have only 90 days to file after project completion.

The claimant must file the lien with the county recorder in the county of the property's location. If the property is in more than one county, the claimant must file in all the clerk's offices of its location.

Some New Mexico counties allow for the electronic recording of mechanic's liens. If they do not, the claimant can file via mail or in person. When filing the claim by mail, the claimant should include a self-addressed stamped envelope to get a copy of the recorded lien for their records and to serve the affected parties.

Claimants should include with the lien document the exact amount of the recording, as it can be rejected by the county recording office otherwise. Delays causing the resubmission of a lien can result in a missed filing deadline.

Counties often set fees to record a lien by page, with one amount for the first page and a smaller amount for each additional page. Counties may also have margin and cover page requirements, all of which can be determined by calling the appropriate local county recorder's office or checking its website.

New Mexico does not require lien claimants to serve interested parties with the mechanic's lien in order for it to be valid. Recording it with the county is sufficient.

The claimant can notify the property owner if they so choose. In fact, they can send a copy to the owner even if they don't have direct contact. This can eliminate the defense that the property owner has paid the general contractor the full amount owed.

A mechanic's lien is enforceable for two years from the date it was filed unless the claim is enforced. If enforcement has not been initiated within that time frame, the lien is extinguished. The state considers either foreclosure or beginning binding arbitration as attempts to enforce a lien.

New Mexico doesn't require the cancellation of a mechanic's lien if payment occurs, but payment is typically made in exchange for the lien's release. If a claimant receives partial payment, they may also reduce the lien amount.

A judgment lien is a court order enforcing payment to a creditor by a debtor. The court may award damages as part of its decision in a case, and the defendant must pay the amount specified. In New Mexico, judgment liens apply only to real property.

A creditor can file a lien against a debtor in the county where they own property or where they'll likely own it in the future. The creditor must enforce the lien within 14 years of filing it; after that time, it will no longer be enforceable.

When someone performs a title search on a property before a sale, they'll be able to see if a judgment lien has been recorded. In that case, a lender will not close on the sale until the lien is extinguished, which can happen by the debtor negotiating a settlement with the creditor before the closing date. Often, upon closing a sale, the debtor agrees to a portion of the sale proceeds going to paying off the lien.

A judgment lien remains valid for 14 years on a debtor's property. Even if property ownership transfers during that time, the lien will remain valid. After it expires, the creditor can reapply.

Lien holders will remove a judgment lien from the record only after the debtor has paid the loan or there is proof that the lien holder illegally placed the lien. After meeting the lien's requirements, the debtor should ensure that the lien holder releases the lien. If they do not, it will remain on the property.

If a property owner owes money in taxes, state and federal governments can place a tax lien on a property. This type of lien ensures that the tax authority receives the first claim over other creditors.

The process begins when a taxpayer gets a notice and demand for payment detailing how much they owe. If they fail to pay or attempt to resolve the debt with the Internal Revenue Service (IRS), the agency will place a lien on the individual's assets, which can include existing property and vehicles and any property acquired while the lien is in place.

A tax lien also attaches to business properties and a company's accounts receivable.

A lien can also be placed against a property and other assets for unpaid child support. A parent who has custody of a minor can request the lien. The court orders the parent or presumed parent (a father whose paternity has yet to be established) to pay the support. A paternity proceeding can become part of a child support case. The court considers certain factors when calculating the child support amount:

• Each parent’s income.
• Time the parent spends with the child.
• Responsibilities each parent has toward the child, per the custody arrangement.
• Medical insurance premiums and employment-related child care costs.

A support order can include additional expenses not covered by a basic order. This can include uninsured medical, dental and counseling expenses over a $100 a year, extraordinary expenses for education, and communication and travel expenses for visitation or time-sharing, particularly when traveling long distance.

Child support payments usually end when a minor turns 18 years old and is no longer attending school. If the minor still goes to school, child support can last until they turn 19. After that time, the court can order or enforce child support payments only if there is a written agreement between the parents stating that they agree to continue support.

One of the ways the New Mexico Child Support Enforcement Division assists a parent in enforcing a child support order is by placing a lien on the parent's property. State law requires a child support lien to be recorded in the office of the county clerk in the counties of the property locations. The payer received a notice of the lien.

Liens recorded with a county clerk are public records in New Mexico. Some counties make these documents available online. A person searching for a property can register with a county's website and conduct searches by inputting information like the recording date or property owner's name.

Some New Mexico counties do not have online records. In that case, a person must call or visit the local county clerk's office, which may provide free lien searches. Individuals will need to provide their name and contact information to the clerk. The Secretary of State in New Mexico also offers a list of companies that provide property searches for a fee.