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Does the Little Miller Acts apply if the project is on state land but not a state project?

New MexicoBond Claims
Anonymous Contractor

We are a subcontractor not the GC. We have not been able to get paid. We built a metal building for an oil company on state land.

1 reply

Levelset Admin at Levelset
| 1,000 reviews
Nov 6, 2019
The New Mexico Little Miller Act will generally only come into play when a public project is awarded, exceeding $25,000. But, it's certainly possible that the public property owner may have required payment and performance bonds for a privately-owned improvement upon public land. Let's look at some related ideas I think might be helpful here...

How to determine whether a New Mexico project on public land is bonded

To better assess whether there's a bond on the project, it might be helpful to request a copy of the project's payment bond from the GC. If there is a payment bond present, the GC is required to provide a copy of that bond to the party requesting it (as long as the request is made in writing and in conjunction with an affidavit stating the requester has performed/is performing work on the project).

Limited mechanics lien rights may be available on tenant improvements

Note also that in a situation where an improvement is being undertaken for a tenant, rather than a fee owner of the property, the party performing work may be entitled to utilize lien rights against the leasehold interest rather than the fee ownership interest. More on that here: What Happens to Mechanics Lien Rights If My Project is a Tenant Improvement? § 48-2-4 of the New Mexico mechanics lien statute states that, when the "owner" who initiates the project is less than a fee owner of the property, a mechanics lien will be available against whatever extent the "owner" is entitled to. Put more simply - if a project is initiated by a tenant, the tenant's interest can be liened. And, if the tenant separately owns a building on public property, that building - itself (and not the land under it) - might be subject to lien, too.

An Oil and Gas Lien may be available, too

Finally, note that New Mexico also provides a different subset of lien rights - oil and gas lien rights - for those who provide labor, material, or equipment for use on oil and gas projects. You can learn a little bit more about New Mexico oil and gas liens here: Buyer (and its Creditors) Beware: SemCrude District Court Finds That Purchasers Took Oil and Gas Free and Clear of Producers' Liens.
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