We provided material to a job in Hobbs New Mexico and missed sending the preliminary notice within the 60 days of material being billed. We were paid on all invoices with the exception of one that were billed prior to us sending our late preliminary notice. That lone invoice along with other invoices have been paid since we sent our notice. I am expecting some payment issues coming up and the possibility of having to file a lien. Will the preliminary notice do its job and make our lien valid?
There are essentially two questions that need to be answered to determine whether your payments are protected under NM's lien laws.
1. Were you actually required to send a preliminary notice?
Under New Mexico's mechanics lien laws, a preliminary notice is only required under very specific circumstances.
If all of these conditions are present, then sending a preliminary notice is required to be able to file a mechanics lien in NM .
2. What if the preliminary notice was sent late?
Generally, as you mentioned, a preliminary notice in New Mexico should be sent within 60 days of the claimant's first date of furnishing labor and materials to the project.
However, late notice is still effective to secure lien rights, but this protection is limited. A late preliminary notice will only cover the value of labor and/or materials furnished 30 days prior to the notice, and everything thereafter.
Long story short: If the materials under the last invoice were provided to the project within 30 days after the notice was served (read: sent), the ability to file a lien claim for that amount should be protected.