Private projects
General contractors are not required to send a preliminary notice on private projects.
New Mexico Preliminary Notice Guide and FAQs
Last updated November 3, 2020
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:
Public 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.
Private projects
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
Public projects
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.
Preliminary Notice Frequently Asked Questions
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.
Prelim FAQs on Private Projects
https://www.levelset.com/preliminary-notice/new-mexico-preliminary-notice-faqs/#faq-item-do-i-need-to-send-a-new-mexico-preliminary-notice
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.
https://www.levelset.com/preliminary-notice/new-mexico-preliminary-notice-faqs/#faq-item-when-do-i-need-to-send-a-new-mexico-preliminary-notice
When do I Need to Send a New Mexico Preliminary Notice?
If required to send preliminary notice, the notice must be delivered within 60 days of first furnishing labor or materials to the project.
https://www.levelset.com/preliminary-notice/new-mexico-preliminary-notice-faqs/#faq-item-what-if-i-send-the-new-mexico-preliminary-notice-late
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.
https://www.levelset.com/preliminary-notice/new-mexico-preliminary-notice-faqs/#faq-item-how-should-the-new-mexico-preliminary-notice-be-sent
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.
https://www.levelset.com/preliminary-notice/new-mexico-preliminary-notice-faqs/#faq-item-do-i-have-to-send-the-new-mexico-preliminary-notice-to-someone-other-than-the-owner
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.
https://www.levelset.com/preliminary-notice/new-mexico-preliminary-notice-faqs/#faq-item-is-the-new-mexico-preliminary-notice-requirement-met-when-sent-or-delivered
Is the New Mexico Preliminary Notice Requirement met when sent or delivered?
In New Mexico, notices are considered delivered when sent by certified mail, return receipt requested, or when the fax is acknowledged, if sending by fax.
Prelim FAQs on Public Projects
https://www.levelset.com/preliminary-notice/new-mexico-preliminary-notice-faqs/#faq-item-do-i-need-to-send-a-new-mexico-preliminary-notice
Do I Need to Send a New Mexico Preliminary Notice?
Preliminary notice is not required to secure bond claim rights in New Mexico, but any party may send notice if desired.
https://www.levelset.com/preliminary-notice/new-mexico-preliminary-notice-faqs/#faq-item-when-do-i-need-to-send-a-new-mexico-preliminary-notice
When do I Need to Send a New Mexico Preliminary Notice?
N/A
https://www.levelset.com/preliminary-notice/new-mexico-preliminary-notice-faqs/#faq-item-what-if-i-send-the-new-mexico-preliminary-notice-late
What if I Send the New Mexico Preliminary Notice Late?
N/A
https://www.levelset.com/preliminary-notice/new-mexico-preliminary-notice-faqs/#faq-item-how-should-the-new-mexico-preliminary-notice-be-sent
How Should the New Mexico Preliminary Notice be Sent?
N/A
https://www.levelset.com/preliminary-notice/new-mexico-preliminary-notice-faqs/#faq-item-to-whom-must-the-new-mexico-preliminary-notice-be-given
To Whom Must the New Mexico Preliminary Notice be Given?
N/A
People are asking New Mexico construction attorneys:
https://www.levelset.com/payment-help/question/payment-for-services-rendered/
Payment for services rendered
In New Mexico, a party who furnishes labor or material to a construction work of improvement is generally allowed to file a lien for the amount due - provided certain rules and requirements are met. For parties who contract directly with the owner of the property, no "preliminary" notice is required in order to retain lien rights. And, no written contract is specifically required - a verbal agreement to do the work is sufficient. If work is done, and the payment owed has not been made, a lien may generally be filed within the 120 days following the completion of the project. New Mexico also has rules mandating construction participants get paid within a certain amount of time. These prompt pay laws help to ensure timely payment, and parties can file lawsuits when the requirements are not met. For prime contractors, progress payment must be made within 21 days of invoice, and final payment is due within 10 days of certification of project completion. Note, however, that New Mexico has extremely strict licensing requirements. If the claimant is required to have a license by the Construction Industries Licensing Act, the claimant must be licensed in order to claim a lien. Not only that, an unlicensed contractor may not even be able to file suit to recover any money owed, and it may be possible for the property owner to request a return of the money already paid.
https://www.levelset.com/payment-help/question/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-advanta/
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.
https://www.levelset.com/payment-help/question/in-new-mexico-it-indicates-that-a-preliminary-notice-must-be-sent-60-days-from-beginning-work-if-1-claimant-doesnt-contract-with-owner-or-gc-2-the-amount-due-is-greater-than-5000-00-and-3/
In New Mexico, it indicates that a preliminary notice must be sent 60 days from beginning work if (1) claimant doesn't contract with owner or GC, (2) the amount due is greater than $5,000.00, AND (3) the project is not on a residential property in less than 4 dwellings. Is this all or nothing in regards to sending the preliminary notice?
That's a good question, and the preliminary notice rules can be a bit tough to navigate in New Mexico. But first, it's worth noting that it's a good idea to send preliminary notice on every project - regardless of whether notice is required. These notices help to create a clearer payment chain and help to stop payment issues before they even arise. More on that idea here: Why You Should Send Preliminary Notice Even If It’s Not Required.
Anyway, in New Mexico, preliminary notice must be sent when all of the following apply: (1) The claimant does not contract directly with the owner or GC; and (2) the cost of the work will exceed $5,000; and (3) the project is NOT a residential with fewer than 4 dwellings. If all of the above apply, notice must be sent in New Mexico within 60 days of first furnishing. But if the claimant contracts directly with the owner or GC, if the cost of work will not exceed $5,000, or if the project is a residential unit with fewer than 4 dwellings, no notice is required. If required, the notice may be sent late, but note that if it is sent late, the notice will only protect the work performed after the notice was sent, plus the 30 days immediately preceding the notice. Work performed more than 30 days prior to sending notice, if notice is sent late, would not be protected by lien rights.
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About New Mexico Preliminary Notices
New Mexico is very stringent and reserved with respect to preliminary notice requirements. While most states that have restrictive requirements related to the projects on which preliminary notice must be given make sure that owner-occupied or single family residential properties are specifically included to get notice, New Mexico goes the completely opposite direction.
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)
1
Read the guide
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.
2
Download the free notice form
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.
3
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.
4
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
1
Select Preliminary Notice document.
2
Provide basic job information.
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