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CHAPTER 48 LIENS AND MORTGAGES
ARTICLE 2 MECHANICS’ AND MATERIALMEN’S LIENS
48-2-1 [“Lien” defined]
48-2-2 Mechanics and Materialmen; Lien; Labor, Equipment and
Materials Furnished; Definition of Agent of Owner
48-2-2.1 Procedure for Perfecting Certain Mechanics’
and Materialmen’s Liens
48-2-3 [Improvement of City or Town Lot or Street; Lien on
Lot]
48-2-4 [Lien Covers Improvements and Land]
48-2-5 Preference Over Other Encumbrances
48-2-6 Time for Filing Lien Claim; Contents
48-2-7 [Claims Against Two or More Buildings or Improvements;
Statement of Amount Due; Loss of Preference]
48-2-8 Recording of Liens; Indexing; Fees
48-2-9 Petition to Cancel Lien; Security
48-2-10 Limitation of Action to Enforce
48-2-10.1 Repealed
48-2-11 [Construction With Knowledge of Owner Subjects Land
to Lien; Notice by Owner of Nonresponsibility]
48-2-12 [Contractor Limited to Amount in Contract; Liability
for Liens of Subcontractors]
48-2-13 [Rank of Liens; Order of Payment]
48-2-14 [Joinder of Parties; Consolidation of Actions; Costs]
48-2-15 [Materials Exempt From Attachment or Execution for
Purchaser’s Debts]
48-2-16 [Personal Action for Recovery of Debt not Affected]
48-2-17 Contractors; Workmen’s Compensation Insurance
Premiums; Rights Against Performance Bond
48-2-18 Repealed
48-2-19 Repealed
ARTICLE 2A STOP NOTICE ACT
48-2A-1 Short Title
48-2A-2 Purpose
48-2A-3 Definitions
48-2A-4 Requirements for Disclosure; Owners and Construction
Lenders
48-2A-5 Stop Notices; Contents
48-2A-6 Notices
48-2A-7 Stop Notices; Bonds
48-2A-8 Distribution of Construction Funds; Liability
48-2A-9 Limitations for Filing Suit by Claimant
48-2A-10 Claim Satisfied Notice; Procedure; Contents; Penalty
48-2A-11 Discharge; Penalty
48-2A-12 Purchase Closing; Penalty
NEW MEXICO TERRITORIAL LAWS
CHAPTER 48 LIENS AND MORTGAGES
ARTICLE 2 MECHANICS’ AND MATERIALMEN’S LIENS
48-2-1 [“Lien” defined]
A lien is a charge imposed upon specific property, by which
it is made security for the performance of an act.
48-2-2 Mechanics and Materialmen; Lien; Labor, Equipment and
Materials Furnished; Definition of Agent of Owner
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 any mine, building,
wharf, bridge, ditch, flume, tunnel, fence, machinery, railroad,
road or aqueduct to create hydraulic power or any other structure,
who performs labor in any mine or is a registered surveyor
or who surveys real property has a lien upon the same for
the work or labor done, for the specific contract or agreed
upon charge for the surveying or equipment, tools or machinery
hauled or provided or materials furnished by each respectively,
whether done, provided, hauled or furnished at the instance
of the owner of the building or other improvement or his agent.
Every contractor, subcontractor, architect, builder or other
person having charge of any mining or of the construction,
alteration or repair, either in whole or in part, of any building
or other improvement shall be held to be the agent of the
owner for the purposes of this section.
48-2-2.1 Procedure for Perfecting Certain
Mechanics’ and Materialmen’s Liens
A. The provisions of Subsections B through D of this section
do not apply to claims of liens made on residential property
containing four or fewer dwelling units or to claims of liens
made by mechanics or materialmen who contract directly with
the original contractor. For purposes of this section, “original
contractor” means a contractor that contracts directly
with the owner.
B. No lien of a mechanic or a materialman claimed in an amount
of more than five thousand dollars ($5,000) may be enforced
by action or otherwise unless the lien claimant has given
notice in writing of his right to claim a lien in the event
of nonpayment and that notice was given not more than sixty
days after initially furnishing work or materials, or both,
by either certified mail, return receipt requested, Fax with
acknowledgement or personal delivery to:
(1) the owner or reputed owner of the property upon which
the improvements are being constructed; or
(2) the original contractor, if any.
C. If the owner or the original contractor claims lack of
notice as a defense to the enforcement of a lien described
in Subsection B of this section, he must show that upon the
request of the mechanic or materialman he furnished to the
lien claimant not more than five days after such request was
made:
(1) the original contractor’s name, address and license
number, if there is an original contractor on the project;
(2) the owner’s name and address;
(3) a description of the property or a description sufficiently
specific for actual identification of the property; and
(4) the name and address of any bonding company or other surety
that is providing either a payment or performance bond for
the project.
D. The notice required to be given by the claimant under Subsection
B of this section shall contain:
(1) a description of the property or a description sufficiently
specific for actual identification of the property;
(2) the name, address and phone number, if any, of the claimant;
and
(3) the name and address of the person with whom the claimant
contracted or to whom the claimant furnished labor or materials,
or both.
E. A person required under Subsection B of this section to
give notice to enforce his claim of lien may elect not to
give the notice, but may give the required notice at a later
time. If he elects to do so, the lien shall apply only to
the work performed or materials furnished on or after the
date thirty days prior to the date the notice was given. The
provisions of Subsections C and D of this section apply to
any notice given under this subsection.
48-2-3 [Improvement of City or Town
Lot or Street; Lien on Lot]
Any person who, at the request of the owner of any lot in
any incorporated city or town, grades, fills in or otherwise
improves the same, or the street in front of, or adjoining
the same, has a lien upon such lot for his work done and materials
furnished.
48-2-4 [Lien Covers Improvements and
Land]
The land upon which any building, improvement or structure
is constructed, together with a convenient space about the
same, or so much as may be required for the convenient use
and occupation thereof, to be determined by the court on rendering
judgment, is also subject to the lien, if at the commencement
of the work, or of the furnishing the materials for the same,
the land belonged to the person who caused said building,
improvement or structure to be constructed, altered or repaired,
but if such person owned less than a fee simple estate in
such land, then only his interest therein is subject to such
lien.
48-2-5 Preference Over Other Encumbrances
A. The liens provided for in Sections 48-2-1 through 48-2-17
NMSA 1978 are preferred to any lien, mortgage or other encumbrance
which may have attached subsequent to the time when the building,
improvement or structure was commenced, work done or materials
were commenced to be furnished; also to any lien, mortgage
or other encumbrance of which the lienholder had no notice
and which was unrecorded at the time the building, improvement
or structure was commenced, work done or the materials were
commenced to be furnished.
B. Liens filed by registered surveyors shall have priority
equal with other mechanics’ and materialmen’s
liens, but work performed by registered surveyors shall not
constitute the commencement of construction.
48-2-6 Time for Filing Lien Claim;
Contents
Every original contractor, within one hundred and twenty days
after the completion of his contract, and every person, except
the original contractor, desiring to claim a lien pursuant
to Sections 48-2-1 through 48-2-19 NMSA 1978, must, within
ninety days after the completion of any building, improvement
or structure, or after the completion of the alteration or
repair thereof, or the performance of any labor in a mining
claim, file for record with the county clerk of the county
in which such property or some part thereof is situated, a
claim containing a statement of his demands, after deducting
all just credits and offsets. The claim shall state the name
of the owner or reputed owner, if known, and also the name
of the person by whom he was employed, or to whom he furnished
the materials, and shall include a statement of the terms,
time given and the conditions of the contract, and also a
description of the property to be charged with the lien, sufficient
for identification. The claim must be verified by the oath
of himself or of some other person.
48-2-7 [Claims Against Two or More
Buildings or Improvements; Statement of Amount Due; Loss of
Preference]
In every case in which one claim is filed against two or more
buildings, mining claims or other improvements owned by the
same person, the person filing such claim must at the same
time designate the amount due to him on each of such buildings,
mining claims or other improvements, otherwise the lien of
such claim is postponed to other liens. The lien of such claimant
does not extend beyond the amount designated as against other
creditors having liens, by judgment, mortgage or otherwise,
upon either of such buildings or other improvements, or upon
the land upon which the same are situated.
48-2-8
Recording of Liens; Indexing; Fees
The county clerk must record the claim in a book kept by him
for that purpose, which record must be indexed as deeds and
other conveyances are required by law to be indexed, and for
which he may receive the same fees as are allowed by law for
recording deeds and other instruments. Any claim, the form
of which complies with the requirements of this article, shall
be entitled to be filed of record and need not comply with
the requirements of Section 14-8-4 NMSA 1978.
48-2-9
Petition to Cancel Lien; Security
A. The owner of any building, mining claim, improvement or
structure subject to a lien under Sections 48-2-1 through
48-2-17 NMSA 1978 may petition the district court for the
county in which the property or a part thereof is located
for an order canceling the lien.
B. Upon the filing of the petition, the district court judge
shall examine the lien claimant’s recorded demands and
determine an amount sufficient to satisfy the recorded demands
and any other damages, court costs or attorney’s fees
which may be recovered by the lien claimant. Security, in
the amount set by the judge and of a type approved by him
shall be deposited by the owner of the property with the district
court conditioned on the payment of any sum found to be validly
due to the lien claimant.
C. When the security is deposited under this section, the
judge of the district court shall immediately issue an order
canceling the lien and shall notify the county clerk with
whom the lien was filed. Upon the recording of such order,
the county clerk shall mark the filed lien as canceled. When
an order is issued under this subsection, the claimant’s
lien attaches to the security and is enforceable as to the
security in the district court in which it is deposited to
the same extent as any other lien provided for in Sections
48-2-1 through 48-2-17 NMSA 1978.
48-2-10 Limitation of Action to Enforce
No lien provided for in Sections 48-2-1 through 48-2-17 NMSA
1978 remains valid for a longer period than two years after
the claim of lien has been filed unless proceedings have been
commenced in a court of competent jurisdiction within that
time to enforce the lien.
48-2-10.1 Repealed
48-2-11 [Construction With Knowledge of Owner Subjects Land
to Lien; Notice by Owner of Nonresponsibility]
Every building or other improvement mentioned in the second
section [48-2-2 NMSA 1978] of this article, constructed upon
any lands with the knowledge of the owner or the person having
or claiming any interest therein, shall be held to have been
constructed at the instance of such owner or person having
or claiming any interest therein, and the interest owned or
claimed shall be subject to any lien filed in accordance with
the provisions of this article, unless such owner or person
having or claiming an interest therein shall, within three
days after he shall have obtained knowledge of the construction,
alteration or repair, or the intended construction, alteration
or repair, give notice that he will not be responsible for
the same, by posting a notice in writing to the effect, in
some conspicuous place upon said land, or upon the building
or other improvement situated thereon.
48-2-12 [Contractor Limited to Amount
in Contract; Liability for Liens of Subcontractors]
The contractor shall be entitled to recover
upon a lien filed by him, only such amount as may be due to
him according to the terms of his contract, after deducting
all claims of subcontractors under him who have filed liens
for work done and materials furnished, as aforesaid, and in
all cases where a lien shall be filed, under this article
for work done or materials furnished to any contractor, he
shall defend any action brought thereupon at his own expense;
and during the pendency of such action the owner may withhold
from the contractor the amount of money for which lien is
filed, and in case of judgment against the owner, or his property,
upon the lien, the said owner shall be entitled to deduct
from any amount due, or to become due by him to the contractor
the amount of such judgment and costs; and if the amount of
such judgment and costs shall exceed the amount due by him
to the contractor, or if the owner shall have settled with
the contractor in full, he shall be entitled to recover back
from the contractor any amount so paid by him, the said owner,
in excess of the contract price, and for which the contractor
was originally the party liable.
48-2-13 [Rank of Liens; Order of Payment]
In every case in which different liens are asserted against
any property, the court in the judgment must declare the rank
of each lien, or class of liens, which shall be in the following
order, viz:
A. all persons other than the original contractors and subcontractor;
B. the subcontractors;
C. the original contractors.
And the proceeds of the sale of the property must be applied
to each lien, or class of liens, in the order of its rank,
and whenever, on the sale of the property subject to the lien,
there is a deficiency of proceeds, judgment may be docketed
for the deficiency in like manner, and with like effect as
in actions for the foreclosure of mortgages.
48-2-14 [Joinder of Parties; Consolidation
of Actions; Costs]
Any number of persons claiming liens may join in the same
action, and when separate actions are commenced the court
may consolidate them. The court may also allow, as part of
the costs, the moneys paid for filing and recording the lien,
and reasonable attorney’s fee in the district and supreme
courts.
48-2-15 [Materials Exempt From Attachment or Execution for
Purchaser’s Debts]
Whenever materials shall have been furnished for use in the
construction, alteration or repair of any building or other
improvement, such materials shall not be subject to attachment,
execution or other legal process, to enforce any debt due
by the purchaser of such materials, except a debt due for
the purchase-money thereof, so long as in good faith the same
are about to be applied to the construction, alteration or
repair of such building, mining claim or other improvement.
48-2-16
[Personal Action for Recovery of Debt not Affected]
Nothing contained in this article shall be construed to impair
or affect the right of any person to whom any debt may be
due for work done or materials furnished to maintain a personal
action to recover such debt against the person liable therefore.
48-2-17 Contractors; Workmen’s Compensation Insurance
Premiums; Rights Against Performance Bond
Unpaid premiums or charges for the furnishing of workmen’s
compensation insurance furnished to any contractor or subcontractor,
who is required by the terms of his contract or by law to
obtain and carry such insurance, shall be and is hereby defined
to be material furnished to the contractor or subcontractor
for use in the performance of the contract, and the person,
firm or corporation so furnishing the same shall have the
same rights and remedies against any performance bond given
in connection with such contract as if the workmen’s
compensation insurance so furnished were physical property,
and as though a lien had been filed against the improved premises,
but shall have no lien against the improved premises.
48-2-18, 48-2-19 Repealed
ARTICLE 2A STOP NOTICE ACT
48-2A-1 Short Title
This act [48-2A-1 to 48-2A-12 NMSA 1978] may be cited as the
“Stop Notice Act”.
48-2A-2 Purpose
The legislature finds there are practices within the industry
of constructing residential properties containing not more
than four dwelling units resulting in certain financial inequities
and, therefore, declares that the purpose of the Stop Notice
Act [48-2A-1 to 48-2A-12 NMSA 1978] is to: provide for timely
payment by an original contractor to persons contracted with
to furnish labor or materials incorporated or to be incorporated
in residential construction; define stop notices and their
legal usage; encourage construction lenders to assert reasonable
supervision, monitoring and control of funds disbursed to
the original contractor for the timely payment of labor or
materials; restrain and bar diversion of funds for purposes
not directly involved with construction of the residential
site improvement; and provide for criminal penalties.
48-2A-3 Definitions
As used in the Stop Notice Act [48-2A-1 to 48-2A-12 NMSA 1978]:
A. “bond” means good and sufficient sureties executed
by a corporate surety entity or cash collateral;
B. “claimant” means any person entitled under
the Stop Notice Act to give a stop notice for labor or materials
furnished in connection with site improvement;
C. “claim satisfied notice” means a notice from
the subcontractor or the materialman to the construction lender,
if any, and the owner that the claim stated in the stop notice
has been satisfied;
D. “completion of construction” means the earlier
of the dates when any of the following occur:
(1) issuance of a certificate of occupancy;
(2) acceptance by construction lender of the final appraisal
of value of the improvement on the residential site; or
(3) approval of final inspection by the insuring abstract
or title entity;
E. “construction lender” means any financial institution
lending funds for the purposes of contracting for construction
or for materials to be incorporated for site improvements
or any other person lending or holding funds to pay for construction
costs or materials that were incorporated in site improvements;
F. “labor” means the performance of work or furnishing
of skills or other necessary services to a site improvement;
G. “materialman” means any person who furnishes
materials or supplies to a subcontractor or an original contractor,
incorporated or to be incorporated into a site improvement;
H. “original contractor” means any contractor
who has an express contractual relationship with the owner
or in the case when the owner is the contractor, the owner;
I. “person” means any individual, estate, trust,
receiver, cooperative association, club, corporation, company,
firm, partnership, joint venture, syndicate or other association;
“person” also means, to the extent permitted by
law, any federal, state or other governmental unit or political
subdivision;
J. “preliminary notice” means a notice which notifies
the owner or the construction lender that the labor furnished
or material incorporated or to be incorporated may be subject
to a stop notice if the subcontractor or materialman is not
paid timely;
K. “residential site” means the real property
upon which the construction labor is furnished or the materials
were incorporated or are to be incorporated for the site improvement;
L. “site improvement” means the construction on
a residential site of no more than four dwelling units;
M. “stop notice” means a written instrument, signed
and verified by the claimant or his agent that provides the
claimant with a procedure to make and enforce a claim against
the construction lender, or owner if there is no construction
lender; and
N. “subcontractor” means any person performing
labor upon or providing or hauling equipment, tools or machinery
to the site.
48-2A-4 Requirements for Disclosure;
Owners and Construction Lenders
A. In every instance where an original contractor proposes
to contract with a subcontractor or materialman or both for
any site improvement, the original contractor shall inform
the subcontractor and materialman of:
(1) the name and address of the owner of the residential site;
(2) the name and address of the construction lender lending
the funds, if any, and the loan officer who actually made
the construction loan, if any, for the site improvement; and
(3) the accurate legal description of the residential site,
if available, however in all cases a description of the residential
site sufficient for identification.
B. Where a subcontractor contracts with another subcontractor
for labor or a materialman to provide materials for any site
improvement, he shall, upon request, inform the contractor
or materialman of:
(1) the name and address of the owner of the residential site;
(2) the name and address of the construction lender lending
the funds, if any, and the loan officer who actually made
the construction loan, if any, for the site improvement; and
(3) the accurate legal description of the residential site.
48-2A-5
Stop Notices; Contents
A stop notice shall not be effective unless:
A. it is signed and verified by the claimant or his agent,
accompanied with a bond as provided for in Section 7 [48-2A-7
NMSA 1978] of the Stop Notice Act, is served pursuant to Section
6 [48-2A-6 NMSA 1978] of the Stop Notice Act and states in
general terms all of the following:
(1) the name of the claimant;
(2) the date the claimant files the preliminary notice;
(3) the date the claimant presented his request for payment
to the original contractors;
(4) the name of the owner and original contractor of the residential
site;
(5) a description of the kind of labor or materials furnished,
or agreed to be furnished, for the residential site;
(6) the name of the person who ordered the labor or who accepted
the materials;
(7) the total cost of all the labor or materials to be furnished
to the residential site;
(8) the cost of the labor furnished or materials already furnished;
(9) the balance of the money due; and
(10) a demand that the construction lender, if any, or the
owner, if there is no construction lender, withhold a sufficient
amount of money from the construction loan funds to satisfy
the demand of the claimant;
B. a preliminary notice was given by the claimant, in accordance
with Section 6 of the Stop Notice Act, within twenty days
after the claimant first began to furnish work or materials
to the residential site;
C. if the claimant does not deliver the preliminary notice
within twenty days after the claimant first began to furnish
work or material to the site improvement, he may still deliver
a preliminary notice but he shall lose his stop notice rights
for all work performed or materials furnished more than twenty
days before the preliminary notice actually is given; and
D. it is delivered, pursuant to Section 6 of the Stop Notice
Act, no earlier than twenty days or later than thirty days
from the date the subcontractor or materialman presented his
request for payment to the original contractor.
48-2A-6 Notices
A. Any preliminary notice given under the Stop Notice Act
[48-2A-1 to 48-2A-12 NMSA 1978] shall be effective notice
if the preliminary notice is:\
(1) hand-delivered or mailed, return receipt requested, to
the construction lender, if applicable for the purposes of
the Stop Notice Act, or the manager or other responsible person
at the address of the construction loan’s origination
or, if the address of origination has changed, then to the
last known address of the construction lender; and
(2) hand-delivered to the owner or mailed, return receipt
requested, to the owner’s last known residential or
business address.
B. The stop notice shall be effective notice if the stop notice
was hand-delivered by a small package express carrier addressed
to the manager of the real estate lending department of the
construction lender if the construction lender is a financial
institution. If the construction lender is not a financial
institution, the stop notice shall be delivered to the manager
or other responsible person at the address where the construction
loan originated.
48-2A-7
Stop Notices; Bonds
A. A stop notice shall not be effective unless it is accompanied
by a bond equal to one and one-quarter of the amount of the
claim stated in the stop notice. The claimant shall be the
principal on the bond, and the bond shall have good and sufficient
sureties executed by a corporate surety entity.
B. Requirements of posting bond set forth in this section
shall be satisfied when the claimant posts cash collateral
with the recipient of the stop notice, one and one-quarter
times the amount of the payment or payments claimed.
C. The bond shall protect the owner, the original contractor
and the construction lender against any damages that may be
incurred by them because of the delivery of the stop notice.
48-2A-8 Distribution of Construction Funds; Liability
A. Upon receipt of a claim stated in a stop notice, the construction
lender, if any, or the owner, if applicable, shall withhold
an amount of construction funds equal to the amount claimed
in the stop notice from the original contractor until the
claim has been satisfied or adjudicated by a court of competent
jurisdiction, unless the remaining construction funds are
insufficient to completely satisfy the claim due to the prior
disbursement or prior amounts being withheld due to previously
received stop notices. In these instances, only the remaining
unclaimed portion of the construction loan shall be withheld.
B. All funds not disbursed or unclaimed by a stop notice may
be disbursed by the construction lender to the original contractor
without liability to the construction lender; provided, that
if the construction lender disburses construction funds to
the original contractor which are subject to an unsatisfied
stop notice that is later adjudicated by a court of competent
jurisdiction in favor of the claimant, the construction lender
shall be liable for the amount of the claim stated in the
stop notice. In any action adjudicating a claim stated in
the stop notice or adjudicating a claim made pursuant to this
section, the prevailing party may be awarded reasonable attorneys’
fees.
48-2A-9 Limitations for Filing Suit by Claimant
A. Suit for satisfaction of the stop notice shall be filed
not earlier than thirty days after delivery of the stop notice
and within sixty days after delivery of the stop notice, and
written notice of such suit shall be mailed to the recipient
of the stop notice within five days after the date the suit
was filed.
B. While the stop notice suit for satisfaction is being litigated,
the claimant shall not file a lien for payment of money claimed
by the stop notice.
48-2A-10 Claim Satisfied Notice; Procedure; Contents; Penalty
A. A stop notice shall be discharged when:
(1) the claim has been satisfied and the claimant has notified
the construction lender, if any, and the owner, if applicable,
that the claim has been satisfied pursuant to Subsection C
of this section; or
(2) time for filing pursuant to Subsection A of Section 9
[48-2A-9 NMSA 1978] of the Stop Notice Act has expired without
suit being filed; or
(3) the original contractor gives the construction lender,
if any, or the owner, if applicable, a bond one and one-quarter
times the amount of the claim stated in the stop notice. The
original contractor shall be the principal on the bond, and
the bond shall have good and sufficient sureties executed
by a corporate surety company. The bond shall protect the
subcontractor or the materialman against damages that may
be incurred by them by reason of nonpayment of a claim as
adjudicated by a court of competent jurisdiction.
B. If a claim has been satisfied pursuant to this section
then the claimant shall give notice of the satisfaction to
the construction lender, if any, and the owner, if applicable.
C. A claim satisfied notice shall not be effective unless
it contains at least the same information as required in the
stop notice including a statement signed by the claimant stating
that the claim has been satisfied and the claimant agrees
to discharge the stop notice.
D. A claimant is guilty of a misdemeanor and shall be sentenced
in accordance with Section 31-19-1 NMSA 1978 if he fails to
deliver a claim satisfied notice to all persons who received
a bonded stop notice, in accordance with this section, within
ten days from the date the claim was satisfied.
48-2A-11 Discharge; Penalty
A. Payment by the owner or his successor in interest to any
person entitled to payment of all and any amounts due and
owing for any labor or materials furnished or other actions
the performance of which could give rise to a lien pursuant
to Section 48-2-2 NMSA 1978 to be performed upon a residential
site shall discharge all such liens unless prior to payment
any person who is entitled to such lien has filed for record
his lien pursuant to Section 48-2-6 NMSA 1978. For the purposes
of this section, the original contractor shall not be the
agent of the owner.
B. Any contractor or subcontractor justly indebted to a supplier
of material or labor who accepts payment for construction
described in Subsection A of this section and knowingly and
intentionally applies the proceeds to a use other than paying
those persons with whom he contracted is guilty of a fourth
degree felony and shall be sentenced pursuant to the provisions
of Section 31-18-15 NMSA 1978.
48-2A-12
Purchase Closing; Penalty
A.
The original contractor, upon accomplishing completion of
construction and upon acceptance of final payment from the
owner, his successor in interest or his agent, shall sign
an affidavit that all invoices of charges and costs received
by the original contractor and related to the residential
site have been paid. In lieu of such an affidavit, at the
time of accomplishing completion of construction and upon
acceptance of final payment from the owner, his successor
in interest or his agent, the original contractor shall sign
an affidavit stating:
(1)
the names and addresses of persons to whom he has paid in
full those invoices of charges and costs arising from furnishing
labor or materials incorporated in the residential site;
(2)
the names and addresses of those subcontractors and materialmen
who have presented to the contractor invoices of charges and
costs of labor or materials incorporated or to be incorporated
in the residential site which have not been paid, accompanied
by a waiver of lien for the invoices properly signed by each
subcontractor or materialman; and
(3)
the names and addresses of those subcontractors and materialmen
who have presented the contractor invoices of charges and
costs of labor or materials incorporated or to be incorporated
in the site improvement and which have not been paid and which
have not been accompanied by a waiver of lien.
B.
The approximate amount of money represented by the total unpaid
invoices of charges and costs, and not accompanied by a signed
waiver of lien, as provided in this section, may be withheld
at the discretion of the owner, his successor in interest
or his agent. This money shall be placed in an escrow account
pending disbursement of the money upon the signed approval
of the contractor.
C.
Any contractor who knowingly and intentionally signs an affidavit
stating that all charges and costs arising from the furnishing
of labor or materials for incorporation in the residential
site have been paid when in fact all charges and costs have
not been paid, or knowingly and intentionally fails to provide
the names of persons who have presented invoices for costs
and charges for labor or materials but who have not been paid
for their labor or materials furnished as provided in this
section, is guilty of a fourth degree felony and shall be
sentenced pursuant to the provisions of Section 31-18-15 NMSA
1978. |
