Sending a New Mexico preliminary notice is an effective way to speed up payment on a construction project. A preliminary notice is an informational document typically sent to the property owner near the beginning of a construction project. Here's what you need to know about the rules and requirements for sending preliminary notice in New Mexico.
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New Mexico preliminary notice requirements for:
General contractors are not required to send a preliminary notice on private projects.
General contractors are not required to send a preliminary notice on public projects.
Since GCs will not make a claim against their own bond for non-payment, they do not have bond claim rights, and have no preliminary notice requirement.
Subcontractors and suppliers are required to send a preliminary notice if:
They aren't contracted directly with the GC or the owner.
The claim is worth more than $5,000.
The project is NOT a residence with more than 4 dwellings.
If you need to send notice, keep the following in mind.
Notice must be sent within 60 days
Notice can be late
Notice must be sent to the owner or the GC
Subcontractors and suppliers are not required to send notice on public projects.
Sending preliminary notice even when not required, however, can be beneficial to promote visibility, open channels for communication, and speed payment.
If you're sending preliminary notices in New Mexico, it's important to understand the rules surrounding when they are required, and to get all the details right. If you're receiving prelims, it's important to know what you're looking at and know what to do in followup. Since prelims are subject to a lot of complex rules and requirements, this can all be difficult, and a headache. These are some frequently asked questions about the New Mexico preliminary notice process.
Do I Need to Send a New Mexico Preliminary Notice?
It depends. New Mexico only requires a preliminary notice to be sent under certain conditions. Preliminary notice must be given when all of the following apply: 1) The claimant does not contract directly with the property owner or the general contractor; AND 2) The claim is for more than $5000; AND 3) The project is NOT on a residential property with less than 4 dwellings. All other parties are not required to send preliminary notice. However, they may choose to send a notice of intent to lien in an attempt to facilitate payment.
What if I Send the New Mexico Preliminary Notice Late?
If the preliminary notice, when required, is delivered after 60 days from the date of first furnishing labor and materials to the project, it only relates back to work performed or materials furnished in the 30 days prior to the date on which notice is given.
How Should the New Mexico Preliminary Notice be Sent?
If required, the preliminary notice may be sent by certified mail, return receipt requested, by fax with acknowledgment, or by personal service. New Mexico is unique in that it allows service of the preliminary notice by fax with acknowledgment.
Do I Have to Send the New Mexico Preliminary Notice to Someone Other than the Owner?
Not necessarily. In New Mexico, the preliminary notice may be given to either the property owner or the general contractor. It is not required to be served on both, or either party specifically. Of course, a lien claimant may send the notice to both parties if desired.
Im filing a Mechanics Lien in the state of New Mexico. I was hired by the owners agent and not the GC. I did not file a Pre-lien notice and the 90 day period has passed. Would it be of any advantage to file it now?
Great question. If the claimant is required to send a notice under New Mexico lien statutes, the notice should be sent within 60 days of first furnishing of labor/materials. But, preliminary notice in NM is only required under very specific circumstances. A prelim notice is required if; (1) the claimant has not contracted directly with the owner/GC, (2) the claim is for more than $5,000 and (3) the project is not a residential property with less than 4 dwellings. If any of these requirements do not apply to you, then you are not required to send a preliminary notice. For more information on this: New Mexico Preliminary Notice: The Why, Who, What, When & How. As far as the requirements for filing of the Claim of Lien itself, it depends on the role of the contractor. For those who have directly contracted with the owner (or owner's agent) or the GC, the deadline to file a lien claim is 120 days after completion of the project. For all other claimants, it is 90 days from project completion. However, if there is still time before the deadline expires, it may be worth considering a Notice of Intent to Lien. This is a cheap, risk-free option to have your non-payment resolved before filing a lien. A notice of intent is not legally required but is a great way to provide a warning to the owner that a lien may be coming their way. Owners hate mechanics liens, and will try to avoid them at all costs. Sending a notice of intent to lien is usually enough to prompt payment, without resorting to the costly process of filing a lien. Additional information can be found at the New Mexico Lien & Notice Overview page.
How does the 'Date Labor or Materials First Delivered' apply to a Subcontractor whose scope of work includes detailing, fabrication and installation?
That's a great question! It's hard to provide an answer that will work for every state, but let's look at the general consensus and then New Mexico. Generally speaking, for mechanics lien purposes, a first furnishing date will constitute the first day that lienable work (or, "work that may be liened") is performed. So, if a claimant is in a state where design or engineering work is lienable work, that work may qualify as first furnishing. Further, the same is true with specially fabricated materials - individual states have their own rules regarding that type of work. We discuss that idea in depth in this post: Specially Fabricated Materials and Mechanics Lien Rights – An Overview.. Anyway, in most states, work must improve the property in order to be lienable. Thus, work done in preparation off-site might not be lienable in a given state, and might not be considered for a first furnishing date. Ultimately, though, a first furnishing date will likely only affect the timing for sending preliminary notice - mechanics lien deadlines typically run from last furnishing or the project's completion. Since there's typically no harm in sending preliminary notice early. So, when in doubt, using the earlier of two potential dates might be the safer move when a claimant is determining their first furnishing date for preliminary notices. Changing gears, let's look at first furnishing in New Mexico. In New Mexico, those who did not contract with the property owner or the original contractor must deliver Preliminary Notice to both the owner and the original contractor within 60 days of first furnishing labor and materials (if the project is not a residential property with fewer than 4 dwellings). When preliminary notice is required, it must be sent within 60 days of first furnishing. Late notice can be sent, but a notice sent late in New Mexico will only preserve the lien rights for the 30 days of work prior to sending the notice (and then the work provided afterwards). Further, there is no penalty for sending preliminary notice early. Thus, on New Mexico projects, it's a good idea for a claimant to send their notice based on the earliest possible date that might be considered first furnishing.
New Mexico only requires a preliminary notice to be sent under certain very specific conditions. Preliminary notice in New Mexico must be given when:
1) The claimant does not contract directly with the property owner or the general contractor, AND 2) The claim is more than $5000, AND 3) The project is NOT on a residential property with less than 4 dwellings.
All other parties on all other projects are not required to send preliminary notice in New Mexico. This is quite different than most limiting rules regarding preliminary notices, as residential projects with less than 4 dwelling units are specifically exempted from preliminary notice. Put another way, preliminary notice is required in New Mexico only for 2nd-tier or lower parties with a claim of over $5,000 on commercial and large-scale “residential” projects of more than 4 units.
When required, a preliminary notice must be sent within 60 days of the first date that labor or materials were provided on a project. In another unique twist to the general rules regarding preliminary notice, New Mexico has an interesting approach to late notices. Like some other states, notice in New Mexico may be provided after the regular deadline, but its effect will be limited. In New Mexico however, the “look-back” period is not equal to the deadline time, like it is in most other states with similar provisions. For example, a California preliminary notice is due in 20 days from first furnishing, and if the notice is provided late, it protects the labor or materials furnished beginning 20 days prior to the notice. In New Mexico, however, preliminary notice is due in 60 days from first furnishing, but if the notice is provided late, it only protects the labor or materials furnished beginning 30 days prior to the notice.
How to send preliminary notice in New Mexico (DIY)
The first step is the read the step-by-step guide for preliminary notices in New Mexico. The guide walks you through preparing the notice as well as the information required, the deadlines, and the rules for delivering the notice.
New Mexico has strict requirements for the language and information that you must include in your preliminary notice. Download the New Mexico preliminary notice form for free. Levelset’s forms are created by construction attorneys to meet New Mexico’s statutes. We make this part easy to get right.
Fill the notice out
Be careful! Accuracy is important.
This part can get tricky! That’s because making a mistake on your preliminary notice could mean you lose the right to file a New Mexico mechanics lien down the line. Make sure you include all necessary information, and that the information you include is 100% accurate.
Send the notice
New Mexico state law is strict about how you should serve your preliminary notice. You need to serve notice on the owner or the general contractor, and you should send your notice via registered mail or certified mail, return receipt requested, by fax with acknowledgement, or personal service.
How to send a Preliminary Notice with Levelset
Select Preliminary Notice document.
Provide basic job information.
Levelset sends the document for you. Postage included!